| ||
|
QUEENS BENCH DIVISION
(CROWN OFFICE LIST)
Strand London, WC2 | ||
|
B e f o r e :
____________________
Regina | Appellant | |
-v- | ||
The Secretary of State for the Home Department ex parte MAYETTE EFFION JAMES, MAYEN EFFION JAMES | Respondents |
____________________
Chancery House, Chancery Lane, London WC2.
Telephone No. 071 404 7464.
Official Shorthand Writers to the Court.)
____________________
I Ashford-Thom for the Respondent (Treasury Solicitor)
____________________
Crown Copyright ©
In December 1985 the aunt returned to Nigeria, where, on the 14th January 1986, she died, leaving the applicants alone in the United Kingdom. In May 1992 in the course of a sweep conducted in search of illegal immigrants they were arrested at their workplace and after interview were served with notice of the immigration officer's conclusion that each was an illegal entrant. For humanitarian reasons the applicants were not kept in custody but granted temporary admission pending removal.
Ms Webber now moves, with leave granted by Schiemann J on the 14th October 1992, for certiorari to quash the decision that each applicant is an illegal entrant.
The principal foundation of the Secretary of State's position is this. Assuming (what he does not necessarily accept) that the applicants did arrive in the United Kingdom in July 1985, the absence of any official record of their entry is consistent only with the grant either of indefinite leave to enter or of limited leave to enter for six months as a visitor. The first of these, the respondent contends, would have required prior entry clearance which the applicants did not have. They must therefore have entered with limited leave (almost certainly for 6 months and certainly for no longer than 12 months) as visitors. But both at interview have openly said that at the time of entry they planned to stay in the United Kingdom for a period which, though not definite, was measured in years rather than in weeks or months. Accordingly they had entered by means of deception and so were and are illegal entrants within the definition in section 33(1) of the Immigration Act 1971. The respondent also, however, reserves the possibility that the applicants did not arrive at Gatwick in July 1985 at all but in some other way which, by necessary inference, must have been clandestine and therefore also by deception.
Neither applicant's passport can be found. They both say, and have consistently said, that their aunt took care of all their arrangements and papers and that following her death they did not appreciate the importance of their passports, which are now lost. They themselves remember only that at the time when arrangements were made for them to leave Nigeria they applied for and were granted green passports - green being, on the evidence, the colour of official Nigerian passports. For the rest, they say that the passports and all other documents were held and representations conducted by their aunt.
The legal basis of and approach to the present challenge is determined by the decision of the House of Lords in R v Home Secretary ex parte Khawaja [1984] AC.74. Although each of their Lordships expressed slightly differently the approach to be taken by the supervisory court in illegal entry cases, it seems to me and - I think - to both counsel that the right approach can be simply stated for present purposes. Whether the case is brought by way of habeas corpus or of judicial review (and my present view on this point, albeit it was not argued, is that it could be either), it is for the applicant to persuade the court on balance of probability that he or she entered the United Kingdom with leave; the burden thereupon shifts to the Secretary of State to demonstrate to a high standard of probability that the leave was obtained by deception. In this class of case review is far more nearly adjudicative than supervisory, requiring the court to form its own view of the evidence and the weight to be attached to it, if appropriate after oral evidence has been given: see ex parte Miah [1989] Imm.A.R. 559,567 per Woolf LJ. Both counsel accept, however, that the evidence may legitimately include not only what transpired in front of the immigration officer (the decision maker) but what the immigration officer made of it and why. To this extent the role of the decision maker, while not even prima facie determinative, is not overlooked. Nor is other material evidence which may subsequently come to hand.
I can take the first stage shortly, because counsel agree that on the totality of the evidence the clear probability is that the applicants entered without prior entry clearance and as visitors with limited leave to remain. I also find that it was in or close to July 1985 that they entered. Under HC.169, the Immigration Rules in force in 1985, such leave would usually have been for 6 months but could have been for up to 12 months. A stand-by submission made by Miss Webber, more in hope than in expectation, that the entry stamp may have been illegible with the consequence (in 1985) that the applicants would have been treated as having indefinite leave to remain, has no evidential or factual foundation. Accordingly I turn to the critical question: is the Secretary of State able to demonstrate to this court's satisfaction that the limited leave to enter was obtained by deception?
From the evidence available to Ian Martin, the immigration officer who conducted the interviews and took the relevant decisions, his conclusions (which I derive from his report exhibited on behalf of the respondent to the affidavit of Patricia Davies) were to the following effect:
(a) Interviewed separately, both sisters gave an identical account of their background, arrival and activities, including the information that they had last resided at 90 Iju Road, Lagos before coming to the UK.
(b) Mayette had thought that she was coming to stay here and attend music school and would remain here for about four years. Mayen, to whom the aunt had also mentioned attending music school, intended to start a new life and to remain here for a couple of years.
(c) From 1987 or 1988 Mayen had worked and supported her sister until both found work. In employment one had been given and one had purchased a false national insurance number.
(d) The British High Commission in Lagos on inquiry could not find Iju Road on the map of Lagos.
On this basis the chief immigration officer authorised Mr Martin to serve notice of his decision that each applicant was an illegal entrant.
Subsequently, according to a letter written by the applicants' solicitors to the immigration service, Mr Martin told the solicitors that the basis upon which the decision was made and the notices were served was 'not on the issue of deception, either by our clients or by a third party, but that they were unable to show when they came to the United Kingdom.' In this court, however, while Mr Martin's written evidence does not contest the accuracy of what is set out in the letter, the Secretary of State has on consideration defended the decision on the ground of deception, accepting - as I have indicated - that the probability is that entry was with leave. Ms Davies in her affidavit on behalf of the Secretary of State puts the case this way:
'It is plain from their interviews in May 1992 that they had both intended to stay in the United Kingdom for much longer than a visit of six months. Accordingly the immigration officer must have been deceived as to their intentions. The applicants say that their aunt did all the talking and that they were themselves unaware of what was being said. The Secretary of State does not believe that they would have been unaware of what was going on. The applicants were 22 years old at the time. Their aunt could not have assumed that the immigration officer would choose not to address any questions to the applicants directly and it follows therefore that she must have told them what her answers should be. Accordingly, if the applicants did enter as they said in July 1985, it is the Secretary of State's view that the overwhelming probability must be that they posed as visitors and obtained leave to enter as such when their true intention was to remain for an indeterminate period, certainly longer than a six months visit. Accordingly that leave was obtained by deception.'
This is the conclusion which Mr Ashford-Thom has, skilfully and fairly as always, submitted is the correct one on the evidence.
The evidence, however, has altered significantly since the original decisions were taken. First, fuller enquiry both by the applicants' solicitors and by the High Commission in Lagos has established that Iju Road does indeed exist on the periphery of the city. This is not merely a negative factor: it means that instead of a possible inference that the applicants were not only fabricating a story but had put their heads together to do so, their account of themselves now emerges as consistent and unfalsified in every material respect, even though given in separate interviews.
This has a bearing on the second and more important element of further evidence. The applicants' solicitors have had them examined by a consultant psychologist at the Royal Free Hospital, Hampstead, Olive Tunstall, who subjected them to formal intelligence testing and concluded that both sisters are mentally handicapped. Mr Ashford-Thom rightly urges me to be cautious about such test results. They may, he points out, be culturally biased in the sense that they can be more easily answered by persons whose language and culture are English; and some of the other evidence (which I will mention below) contra-indicates subnormality. As to the first objection, Ms Tunstall in her report accepts that an allowance has to be made on the verbal IQ test for cultural bias, but she says that the Raven's Standard Progressive Matrices test on which both applicants fell below the 'floor', is 'a virtually culture-free test used throughout the world'.
In an unsworn affidavit which Ms Webber has helpfully accepted as part of the respondents' evidence the immigration officer, Ian Martin, says of the psychologist's assessment of the applicants' mental capacity:
'That was not my impression when I interviewed them. Although they appeared to me to be poorly educated, I was able to conduct an interview with each of them over a period of approximately half an hour for each applicant in a reasonably coherent way. If I had thought that they were not capable of answering my questions I would have stopped the interview. A representative of their solicitor was present throughout and did not raise the point at the time or, I understand, until very recently.'
I have no reason to doubt the veracity of Mr Martin's evidence, the more so because I observe from the transcript how fairly the interviews were conducted. Turning in this context to Mr Ashford-Thom's second objection, I accept that the fact that the applicants have done a succession of jobs in order to support themselves since they were left on their own and the fact that they were able to acquit themselves intelligibly at interview all point to a higher level of competence than Ms Tunstall has found on formal testing and assessment of the applicants. Similarly Mayen's use at interview of the phrase 'we were strongly dependent on her' suggests a more than minimal command of language. I do not, however, feel able to set much store by the evidence that each applicant had worked as a teacher in Nigeria. Their parents and other relatives were all teachers, and it would have been natural that they should at least attempt to embark on such a career. It appears from the evidence that having worked for a year as primary school teachers after leaving school at 18, neither was able to qualify. I have no evidence as to what initial standard was required or what the tasks of a trainee or probationary primary school teacher were in Nigeria in the mid-1980s They may not have been high, and there is no evidence that either applicant had ever gained a formal educational qualification at school. The work may well have been of a largely pastoral kind without any or much educational content.
The other factors, however, do indicate a reasonable level of life-skills. But no evidence controverts Ms Tunstall's IQ test results, and I accept her view that the remarkable similarity in performance between the two applicants negatives deliberate under-achievement. Mayen obtained a full-scale IQ score of 69 and Mayette 66, both falling within the mentally retarded range. Mayen's verbal IQ was 75 and Mayette's 71, falling within the borderline range. Mayen's performance IQ was 65 and Mayette's 63, falling within the mentally retarded range. Mayen's score on Raven's Matrices was 26; Mayette's 31, both - as I have said - falling below the 'floor'. There is no contrary psychological evidence. Approaching Ms Tunstall's findings with the circumspection that is necessary, I conclude that both applicants, while capable of acquiring and exercising sufficient life-skills to get by in urban life, are of extremely low intelligence and are highly likely to have been completely dependent on their aunt in relation to their travel to and entry into the United Kingdom in 1985.
From their respective interviews a clear picture emerges, with much that is now known to the court to support it and nothing directly to controvert it. Both described at interview, as they do in their written evidence, how their aunt, who was settled in England, came to Nigeria, arranged for them to obtain Nigerian passports, brought them by air with her to Gatwick and did all the talking at immigration control. Mayette's interview included the following:
Q. Did you hear what your aunt said to the immigration officer?
A. she talked on behalf of us.
Q. before you came to England did you, your sister and your aunt discuss the visit?
A. Yes, she told us she is taking us to England.
Q. And how long did she say for?
A. To stay here. That when we were coming here, she would work our papers and everything for us.
Q. When you say 'to stay here' what do you mean 'to stay here'?
A. She said that she would get us a school here you know and then work out. Because I wanted to do music and she said how she would work it all out.
................................
Q. Now when you came to England, did your Auntie tell you anything that you should say to the immigration officer if you were questioned?
A. No.
..................................
Q. But did you hear what she told the immigration officer?
A. At the airport? No, please.
The following passages occur in Mayen's interview:
Q. What's the reason for you coming here?
A. We couldn't stay any more in Nigeria.
..............................
Q. What family crisis?
A. Our father was ill. My mother couldn't pay this. So the building they had was mortgaged. And then when Co- operative took it there was nothing we could do any more.
Q. You had nowhere to live?
[Crying, no answer]
Q. So when you came to England, Mayen, how long did you think you were going to stay here for?
A. Mrs Henshaw promised that she is going to help. She will make us be she will do everything for us so we were strongly dependent on her.
Q. But how long did you think you were gong to be here for?
A. She said we have to be here. Mrs Henshaw told us we'd be here for some time, then we would go and come back. Then she left us and travelled.
....................
Q. Well, you know the reason why she brought you as well?
A. We were going to stay for some time before we leave.
.....................
Q. Are you talking about months .... weeks, months or years?
A. Excuse me, when Mrs Henshaw brought us, she told us we are going to stay for months. We came in July and she left us in January and she didn't come back.
...........................
Q.......when you were in Nigeria, did your aunt tell you to say anything to immigration when you came in?
A. Immigration in Nigeria?
Q. In England.
A.......The immigration officer asked: are they twins, and she said: oh, yes. That's all. She handled everything.
Q. Did you hear what she said to the immigration officer?
A. She speaks like the whites, so when we came in we can't understand what they say.
Q. Do you know what the immigration officer......what stamp he put in your passport?
A. No, please.
Q. Did your auntie tell you?
A. No, she held and it was with her. We were really under her control.
The clear picture I have, and accept, from this evidence is that these were two backward and dependent young women, unfamiliar with the English spoken in England, who were being brought to England by their aunt, who was settled here, for what the aunt envisaged as a period to be measured in months: see in particular the passage reproduced above in bold type. The aunt's return visit to Nigeria at the end of 1985, in the course of which she tragically died, might - as Ms Webber suggests - have been for the purpose of arranging for them to go back and be looked after by other members of the family. Certainly there is no evidence that the aunt herself intended that the applicants should stay here for any extended or unauthorised length of time.
But Mr Ashford-Thom relies upon the evidence of the admitted intentions of the two applicants themselves as at the time of entry. In Mayette's case the dialogue at interview was as follows:
Q. So when you left Nigeria, how long did you think you were coming here for?
A. Well, I thought when we arrive here if everything's OK [unintelligible passage] at least four years or so. And while we were staying here we lost my aunt.
In Mayen's case the transcript runs:
Q. When you came to this country, did you come here thinking that you were coming to live?
A. No.
............... Q.......Now what I am trying to establish.......is whether when you came here you thought you were coming here to live, or to start a new life, or whether you were thinking you were coming here for just a short holiday andthen going back to Nigeria.
A. [Unintelligible passage] We wanted to start a new life. Maybe stay for a couple of years.
This, I accept, is reliable evidence that in the minds of both applicants when they entered the U.K. was a hope or expectation that they would be staying for more than the period of what turned out to be their permitted stay. But there is no evidence at all that they knew what that period was, and I consider it likely that they will not have known. Everything points to the applicants having by then been attached to and dependent on their aunt until her death cut them adrift.
It is common ground between counsel that if, as I find to have been the case, all representations that were made to the immigration officer in 1985 were made by the aunt without the participation of the applicants, and were honestly and truthfully made, then the fact (if it be a fact) that the applicants harboured different intentions going beyond what was permitted cannot produce the situation that either the applicants or the aunt have made or caused to be made to the immigration officer a representation which they knew to be false or did not believe to be true, contrary to section 26(1)(c) of the Immigration Act 1971, so as to make the applicants illegal entrants within the meaning of section 33(1). Put shortly, either I must find that the applicants were making false representations through the aunt or that the aunt was dissembling what she knew to be the applicants' intentions. As to the former, for the reasons I have given I do not find any evidential basis for thinking that the applicants had made any agreement or arrangement at all with their aunt, much less colluded with the aunt in representing that they intended only a short stay when she and they knew that they intended a stay of years. These were in my view backward and dependent young women being rescued from destitution by an aunt and brought back temporarily to her home in England. As to the latter, such evidence as there is about the aunt's own intentions is that she told the applicants that they were going to come here 'for months only', corresponding with the period of leave to enter which on the balance of probabilities was granted to them. Mr Ashford-Thom has submitted that from the fact that neither applicant at interview asserted that her intention to stay for some years differed from their aunt's intentions for them, I should infer that there was a common intent to stay for years. In addition to the fact that Mayen gave a clear differential account of their respective intentions, I am unable to find in the evidence any basis for inferring the kind of common design described by Ms Davies in paragraph 5 of her affidavit, which I have quoted. 'The Secretary of State' she says 'does not believe that they would have been unaware of what was going on.' In my Judgment, all that was probably going on was that their aunt was openly bringing them into the country with the intention that they should stay for a permitted period of time as visitors. The suggestion that in anticipation of direct questions to the applicants from the immigration officer the aunt must have 'told them what their answers should be 'assumes something which the evidence does not establish, namely that there was some shared and deceitful purpose. The suggestion, finally, that the applicants 'posed as visitors' and concealed their true intention of remaining for an indeterminate period again assumes what the evidence, in my judgment, fails to establish: that the applicants themselves did more than stand by while their aunt applied for entry on their behalf. The ambitions which they evidently harboured to study music here and stay for a few years in order to begin a new life were their own: the evidence does not satisfy me that the aunt knew of them or, therefore, was improperly withholding information about them when she sought and obtained leave for them to enter as visitors. Ms Webber has drawn my attention to the decision of Paul Kennedy J in ex parte Dordas [1992] Imm.AR.99, in which it was held in relation to the applicant that:
'when what is relied upon is not something that she said but her failure, it is said, to correct something said by someone else, which it is far from certain that she actually heard or knew very much about, that cannot possibly amount to a misrepresentation for the purposes of section 26(1)(c) of the Act.'
At the other pole, however, Ms Webber accepts that silence can amount to a false representation, for example where the individual concerned knows of and is colluding with a deception that another is practising. But she submits that what happened in the present case was very much closer to the Dordas situation: whatever was in the applicants' minds, it is impossible to say on the evidence that it was withheld by them in circumstances where it ought to have been volunteered. This point, too, seems to me to be well taken.
I am therefore unable to accept either of Mr Ashford-Thom's key submissions. His first and principal one was that the evidence proves a deception by the aunt at the point of entry, to which the applicants were parties. I find no evidence of deceitful conduct by the aunt, and no participation by either applicant in what the aunt transacted. In the alternative Mr Ashford-Thom submits that even if the aunt alone practised the deception, it was sufficient to make the applicants illegal entrants. There is binding authority that a person may be an illegal entrant even though the false representation by which their entry was secured was made without their knowledge by another person: Khan v Home Secretary [1977] 3.AllER.538. But for the reasons I have given I do not accept that the aunt made a false representation, whether about her own or about the applicants' intentions, bearing in mind that in order to render entry illegal by breach of the immigration laws (section 33(1)) the representation must be one which the maker knows to be false or does not believe to be true (section 26(1)(c)).
I hold accordingly that the applicants are shown on balance of probability to have entered the United Kingdom with limited leave to remain for not more than a year, and that the Secretary of State has not discharged the burden of showing that such leave was obtained by deception. It follows that the Secretary of State's decision of 27th May 1992 given under the hand of the immigration officer, that each applicant is an illegal entrant, will be quashed.