England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(CROWN OFFICE LIST)

MR S VOKES (instructed by Leicester Rights Centre, Leicester, LE1) appeared on behalf of the Applicant.

MR JUSTICE LATHAM: This is an application for leave to move for judicial review of a decision by an immigration officer at Gatwick to refuse leave to enter to Glenroy Vassell, who is the applicant's son, on 27th March 1995 in the following terms:

"You have asked for leave to enter the United Kingdom as a visitor for six months but I am not satisfied that you are genuinely seeking entry as a visitor for the limited period as stated by you."

I should note in passing that that is a statement of reasons which explains in terms of the Rules, the basis upon which the immigration officer has refused leave to enter and is in accordance with the way in which the Court of Appeal in the case of R-v-Secretary of State for the Home Department ex parte Swati accepted that reasons should be given when an immigration officer refuses leave to enter.

The factual position was that Glenroy Vassell, who was born in 1951 was left in Jamaica when this applicant came to the United Kingdom in 1963 and the applicant and Glenroy had not seen each other between 1963 and March 1995 when Glenroy arrived at London Gatwick Airport. The reason that he came to this country, he says, was because of the applicant's medical condition, suffering end stage renal failure, as to which there is medical evidence and it was his wish and his son's wish that they should see each other before he died. The applicant had hoped that his son would, in fact, come in 1994 and Glenroy made application then for an entry clearance to enter the United Kingdom. For that purpose he was interviewed on 18th April 1994 and was refused leave to enter. That refusal is of some significance in the history of this case.

The position as far as holders of Jamaican passports is concerned then changed so that they were no longer required to obtain entry clearance prior to entering the United Kingdom, although the entry clearance procedure was always available and, therefore, remained available to Glenroy for the purposes of ensuring that he would have at least a primary entitlement to enter this country But he did not seek to use that route. He decided to come straight to this country and seek to persuade the immigration officer on his arrival that despite the fact he did not have entry clearance to the relevant effect he, nonetheless, was entitled to enter as a visitor.

Again, it must be remembered that it was for him to prove that that was, in fact, his purpose and that he would leave at the expiry of the limited leave to which he would be entitled as a visitor. When he arrived Glenroy was interviewed by an immigration officer on 27th March and he accepts that he lied to the immigration officer by telling him that he had not previously sought entry clearance. The circumstances were such, however, that he was not immediately returned to Jamaica and there was time, therefore, for representations to be made on his behalf.

Solicitors were instructed and the Greville Janner MP was informed of the situation. There is no doubt that there was conversation between the solicitors acting on behalf of this applicant and Greville Janner and immigration officers in which they sought to persuade the immigration officers that the matter should be reviewed and that despite the refusal to enter, which I have already indicated had been made, Glenroy should be permitted because of the compassionate circumstances to enter the country. There is no doubt even on the applicant's own evidence, that the material put before the immigration authorities was considered and that the question of his being permitted to enter was reviewed.

It is, however, said on behalf of the applicant today that that is an unsatisfactory process because the applicant and those advising him and supporting him, were never given access to the interview records or the report made by the immigration officer in relation to the decision that was reached so that they could make full and proper representations. It goes beyond being unsatisfactory, says Mr Vokes, it was a breach of natural justice.

The reason he says that is that although in the past there was no doubt that it had been adequate to give as reasons for a refusal to permit somebody to enter this country merely the statement as was made in this case and as I have said was approved in the case of Swati, that was in the context of there being a right of appeal, albeit a right which can only be exercised once the would-be immigrant had returned to his own country. That right having gone, so that there is now no process of appeal which could produce for the would-be immigrant a more detailed statement of the facts upon which the decision was based, it behoves the immigration authorities to make available far more information to applicants so that informed representations can be made and that an absence, it is said, of the opportunity to make such representations amounts to a breach of natural justice.

I have been referred to substantial authority and in particular I have been referred to a decision of the House of Lords in the case of R-v-Secretary of State for the Home Department ex parte Doody, which was reported in 1993 3 WLR page 154 and to R-v-Secretary of State for the Home Department ex parte Hickey and others (No 2) recorded in 1995 l All ER page 490. There is no doubt, from those decisions that the courts will be astute to ensure that procedural fairness is, in fact, accorded to those in respect of which decisions are taken which affect such things as their liberty; it is said that the same should apply when the issue is a person's entitlement to come to this country. The fact is that I can see absolutely nothing on the papers here which suggests that this applicant was denied the opportunity of putting forward everything that could possibly be put forward in favour of ensuring that his son would enter this country.

The problem identified by Mr Vokes in his full submissions is undoubtedly one which will recur; and in the absence of an appellate structure there will be occasions upon which would-be immigrants will seek to use solicitors or other persons of influence to urge their case. That does not mean, it seems to me, that those who seek to come to this country should be, in effect, entitled as of right, which is essentially what Mr Vokes is seeking to say -- to the sort of information which he asserts was his client's entitlement in this case.

The obligation is one which remains as it has been since 1967 when this Court in the case of re K (An Infant) QB 1967 made it plain that a would-be immigrant had to have a fair opportunity to present his case; and situations will always vary. I have to look at the situation here. I have no doubt whatsoever that this applicant was given full opportunity to make the submissions that he wanted to make, as I have indicated, in favour of his son's entering. Essentially a balance had to be struck, as was clearly understood by those who were acting on the applicant's behalf, between the fact that Glenroy had lied, which really was a fundamental problem for the applicant bearing in mind it was a lie in relation to the fact that he had been refused entry clearance on the past occasion and the compassionate circumstances which were clearly present in the situation on the other.

It is accepted on behalf of the applicant that on 28th June 1995 the Home Office set out a fully reasoned document which could not possibly be faulted the reasons justifying the conclusion that was reached. I understand Mr Vokes to say, "Why could that not have been produced before?" and maybe, in the best of all possible worlds, that would be the situation which you could expect; but the mere fact that a particular practice would be the best sort of practice that one can possibly achieve or could sensibly achieve does not mean that a failure to follow that practice amounts to procedural unfairness justifying this Court's intervention.

In those circumstances I have no hesitation in saying that this is not a case in which leave to move for judicial review should be granted. Therefore I refuse leave.

MR VOKES: I am Legally Aided, my Lord?

MR JUSTICE LATHAM: Yes.