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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Ofordu, Re Judicial Review [2012] NICA 9 (30 April 2012)
URL: http://www.bailii.org/nie/cases/NICA/2012/9.html
Cite as: [2012] NICA 9
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| Neutral Citation No. [2012] NICA 9 | Ref: | GIR8472 |
| Judgment: approved by the Court for handing down | Delivered: | 30/04/12 |
| (subject to editorial corrections)* |
BETWEEN:
Appellant/Applicant;
Respondent.
GIRVAN LJ (giving the judgment of the court)
[1] This is an appeal brought by the appellant, a Nigerian national, against the decision of Gillen J given on 27 February 2008 refusing the appellant's judicial review challenge to decisions made on 2 October 2007 that she was an illegal entrant by reason of using deception to enter the United Kingdom, that she was a person in respect of whom removal directions might be given as an illegal entrant, that she was a person liable to be detained and that she should be given temporary admission to the United Kingdom subject to condition that she reside at a specified address in Belfast and report to the immigration authorities. In his judgment Gillen J concluded that the appellant had entered the United Kingdom by deception having failed to disclose her true intention to give birth to her second child in Belfast when seeking leave to enter the country.
[2] Mr Ronan Lavery QC appeared with Mr McQuitty on behalf of the appellant. Mr McGleenan QC appeared on behalf of the respondent. We are indebted to counsel for their full and carefully presented submissions.
Factual background
[3] The appellant is a 36 year old Nigerian national whose occupation is that of a manager and owner of a business in Nigeria. She is a married woman who resides with her husband and two children and other family members in Nigeria. The appellant's elder daughter C was born in the Mater Hospital, Belfast in May 2006. There is no evidence relating to the circumstances of the birth of the first child in Belfast. The appellant left the United Kingdom with the baby in June 2006. Unfortunately C was born with a septal defect and requires medical treatment for that condition. The appellant obtained a six month medical visitor visa for C to come to the United Kingdom for private medical treatment and she visited the United Kingdom for this treatment in November 2006.
[4] Following the expiry of that visa the appellant obtained another two year multi-entry visa on 23 January 2007 the stated purpose of which was to access private medical care for C in the United Kingdom. The appellant accompanied her daughter from Nigeria to the United Kingdom on 29 July 2007. According to her affidavit the appellant claimed that when she entered the United Kingdom on 29 July 2007 she believed that she was 19 weeks pregnant and she intended to return to Nigeria on 15 September at which time she believed she would be 26 weeks pregnant. On entering the UK she attended the Maternity Unit at Whipps Cross University Hospital on 26 August 2007. A medical record shows that she was described as a "Late booker 32-40. Unsure re dates". She attended for an ultrasound scan on 28 August 2007 and was assessed as being at 32 weeks gestation. The appellant claims that when she attended hospital in August 2007 she believed that she was only 22 weeks pregnant and that the discovery that she was more advanced in her pregnancy led to her having to change her plans.
[5] The appellant's daughter C returned to Nigeria after her treatment. The appellant whose return ticket was booked for mid-September 2007 remained in the United Kingdom. She made arrangements to stay in Northern Ireland and arrived at Belfast International Airport on 2 October 2007. According to the affidavit of Mr Dower an immigration officer involved in the questioning of the appellant at that airport the United Kingdom Border Agency was carrying out an enforcement operation Operation Gull on 2 October 2007. The purpose of that operation was to monitor the movement of illegal immigrants within the United Kingdom with particular focus on those travelling between the UK and the Republic of Ireland. Mr Dower, deposed that during the operation all passengers arriving at the airport, were invited to answer questions about their immigration status in the United Kingdom. He averred that the appellant on request produced a number of relevant documents and voluntarily submitted to examination by questioning and to a search of her suitcase. Following the gathering of information Mr Dower consulted the Chief Immigration Officer Mr Bradshaw who advised that the appellant should be interviewed under caution. Following the interview under caution during which the appellant answered questions Mr Dower concluded that she was an illegal entrant to the United Kingdom as defined by Section 33 of the Immigration Act 1971. He considered that the appellant had committed deception towards the immigration officer on arrival in the United Kingdom by her failure to inform her of her pregnancy and to provide any information about her plans to access maternity treatment in the United Kingdom.
[6] During the interview with Mr Dower it became apparent that the appellant had arrived in Belfast without a return ticket to London or an extension of her return ticket to Nigeria. She had in her suitcase baby clothes and nappies. She claimed that these items were from a friend whom she was going to meet in Belfast and that they had been given to her by a friend. She asserted that she was travelling in Northern Ireland to do some shopping and to stay with a friend for about a week. According to the answers recorded she said that she would hopefully have the baby in Nigeria but would have it in the United Kingdom if needs be. When asked whether she planned to give birth in Belfast she is recorded as saying that she wanted to give birth in Nigeria but if she was in Northern Ireland she would give birth here and pay the cost. She had not returned to Nigeria because she had not finished shopping. She claimed that she thought it was still safe to fly. According to Mr Dower's affidavit, at 3.10 pm when she was leaving the arrivals area having been given temporary permission to be in the country she did say that she had planned to give birth to the baby in the Belfast Mater Hospital and that that was in the interests of her child.
[7] In her replying affidavit in response to Mr Dower's affidavit the appellant denied that everyone arriving on the flight at the Belfast International Airport was invited to answer questions. The appellant was asked to stand to one side as were two other persons one of African and one of Asian origin. She said she was frightened into co-operating. In connection with the search of her suitcase she submitted to the search because she felt she had done nothing wrong and had nothing to hide. The appellant in her affidavit took issue with Mr Dower's version of events and claimed that the interview notes, each page of which she had initialled as being correct, did not reflect truly the questions and answers given. She denied she made any statement as she left the arrivals hall to the effect that she had planned to give birth in Belfast in the Mater Hospital. She claimed that Mr Dower made offensive remarks to her and that she had said that the Mater Hospital would definitely be paid for any treatment she received and that she had no choice in the circumstances. She had to look after the interests of her child and to have the baby here though that had not been what she had originally intended.
[8] In the proceedings before Gillen J the appellant did not seek leave to cross-examine Mr Dower on his affidavit nor for that matter did the UKBA seek leave to cross-examine the appellant who was in any event in Nigeria at that stage. Gillen J in his judgment at paragraph [11] noted that judicial review is rarely a suitable forum for resolving disputed matters of fact. It is clear however that the court does retain the power to permit oral examination and cross-examination of deponents. This does happen in immigration cases as exemplified by the decision of Stephens J in Re Fyneface Emerson who permitted cross-examination and oral testimony. Gillen J did record that Mr Lavery who appeared on behalf of the applicant before him recognised that where there is a dispute of fact in the absence of cross-examination or oral evidence it is difficult to resolve that dispute in favour of the applicant save insofar as it is self-evidently correct. The hearing of Gillen J proceeded on the basis that the court was accordingly asked to reach a determination in the light of the affidavit evidence and exhibited documents only.
[9] Gillen J having heard submissions and having subjected the affidavits and exhibited documents to careful scrutiny reached the following conclusions:
(a) The appellant was pregnant when she entered the United Kingdom.
(b) She had in her possession a letter from a doctor dated 25 July 2007 recording that she was 18+ weeks pregnant at that stage. This letter was obtained to facilitate air travel. On British Airways a pregnant woman can travel up to 36 weeks (32 weeks with twins) and Easyjet provides that a doctor's note is necessary after 28 weeks confirming the estimated date of delivery and that there are no complications.
(c) The appellant applied for and obtained a two year multi-entry visa on 23 January 2007.
(d) The appellant entered the United Kingdom with C on 29 July 2007. She gave as the reasons for her visit –
(i) that she was going to obtain medical treatment for her child; and
(ii) she intended to do some shopping.
(e) She attended Whipps Cross Hospital Maternity Unit on 26 August 2007. Before any scan was carried out it was recorded that she was 32 weeks pregnant. Though the judge declined to conclude on this evidence alone that she was an illegal entrant we consider, for the reasons set out later, that the medical records are of considerable significance.
(f) The appellant in her affidavit said that she was surprised that she was 32 weeks pregnant. Given that she would be 36 weeks pregnant when she planned to return to Nigeria she decided to remain in United Kingdom until after the birth. C returned to Nigeria on 1 October 2007. When she flew into Northern Ireland she did not have a return ticket to London or to Nigeria.
(g) The judge concluded that she informed Mr Dower that she gave shopping as her purpose to be in Belfast and that she said she would be returning to Nigeria to have the baby. As already noted, she said in the interview under caution that she planned to have the baby hopefully in Nigeria. The judge rejected the appellant's contention that she informed Mr Dower that she was intending to have the baby in Belfast and was not intending to return to Nigeria. In response to question whether she intended to give birth in Belfast her answer was that she wanted to give birth in Nigeria but if she was here she would give birth and pay. The judge was satisfied the appellant did not reveal to Mr Dower that her true intention was to have the baby in Belfast.
(h) A search of her baggage revealed the presence of a number of items suitable for a newly born baby including clothing and nappies.
(i) The judge concluded that the applicant engaged in deception (a) in securing her visa; and (b) in her subsequent interactions with the Immigration Authority. Her failure to reveal that at least part of the reason for her coming to the UK was to give birth to her child amounted to a deception arising from silence as to a material fact.
(j) The judge rejected the appellant case that the birth of the child in Belfast was an event which happened outside her original intention when she had applied for her visa to travel to the United Kingdom and when she entered the country.
The appellant's challenge to the judge's decision
[10] Mr Lavery QC contended that the judge erred in his assessment of the evidence and failed to give adequate weight to the appellant's evidence. Under Section 33(1) of the Immigration Act 1971 there are only two points at which a material deception can be committed in order to justify a finding that she is an illegal entrant. That is to say (a) when she applies for a visa; or (b) when she actually enters the country. Any deception or attempted deception of the Immigration Officer in Belfast after the appellant had already entered the country was only relevant if it demonstrated deception at the time of the visa application or at the date of entry into the United Kingdom on 29 July. At the visa application stage the applicant may not even have known that she was pregnant and if she was her pregnancy must have been very close to the point of conception. There can have been no material deception proved at that stage. At the point of entry into the United Kingdom the respondent had to establish that the appellant intended to have the baby in the UK. The appellant accepted that she did not mention her pregnancy when she entered the country but that was irrelevant because she intended to return to Nigeria to have her baby at that stage. There was, counsel argued, evidence that the appellant's purpose was to accompany her daughter to undergo private treatment. She had a return ticket to go back to Nigeria on 15 September. The appellant produced prima facie evidence in the form of the Nigerian medical report to support her claim that she was only 19 weeks pregnant. If she so believed, the return date of 15 September (when she would only be 26 weeks) was a viable return date. By 26 August she would have reckoned herself to be 22-23 weeks pregnant. It was in keeping with the appellant's belief to go for a scan on 26 August 2007. The medical notes from Whipps Cross Maternity Unit dated 26 August 2007 that she was unsure of her dates and that the baby was small for dates showed that her belief was justified. She discovered on 26 August that she was in fact 32 weeks pregnant and this amounted to a novus actus that explained and justified her decision at that stage to change her mind and remain in the country. It was only then that she formed the intention to have the baby in the UK and the judge on the evidence should have so found. The history of the appellant's visits to the United Kingdom showed that she acted properly in the past and paid for her healthcare. She had no motive to deceive the immigration authorities when entering the United Kingdom and there was every strong incentive not to deceive.
[11] Counsel further contended that the judge misinterpreted the record of the appellant's interview in Belfast to read it as showing that she was attempting to deceive Mr Dower. Further, the appellant contradicted in her affidavit key points purportedly recorded in the interview notes. Further the judge wrongly linked the attempted deception he found to have occurred at Belfast International Airport to the earlier application for a visa back in January 2007. Even if the court concluded that the appellant had lied to the immigration officer the court should effectively have given itself a Lucas direction reminding itself that she may have lied out of fear or panic or to bolster what was a good case. A finding of an attempt to deceive Mr Dower did not lead to the conclusion that she had entered the country by deception.
The legal principles
[12] The relevant principles promulgated by the House of Lords in Khawaja v Secretary of State [1984] 1 AC 74 apply. The court must itself determine the question whether the respondent has established on the civil standard of proof that the appellant is an illegal entrant. This requires a determination not of the reasonableness of the immigration officer's decision but of the question whether the court itself was satisfied. This being an appeal from a trial judge it is for this court to be satisfied that the lower court's finding that she was an illegal entrant was justified. Since a finding of deception is not lightly to be made the case speaks of a need for the respondent to satisfy the court to a high degree that deception has occurred. This, however, does not mean that the standard of proof is other than on a balance of probabilities. The deception must be effective in securing entry. The test is "one of materiality in the sense that it was likely to influence the decision" (Durojaiye v Secretary of State [1991] Imm AR 307). In essence the test is that the deception must have been one of the effective means of obtaining leave to enter (see also Weatherup J's analysis in Razak's Application [2009] NIQB 41). It is not in issue that if the appellant did intend to have her baby in the United Kingdom (a) when she applied for the visa; and (b) and/or when she gained entry to the United Kingdom at Heathrow Airport her statement to the immigration officer that she had come to the United Kingdom to obtain medical treatment and do shopping would have been an incomplete and misleading statement of the full purpose of her visit. Her silence in relation to the matter does render her statement of intent to attend for the medical treatment of her daughter and to shop incomplete and thus misleading. Although much of the debate focused on the question of whether she intended to have her child in the United Kingdom at the time when she entered the United Kingdom, if she intended to use medical facilities in the United Kingdom to monitor her pregnancy and to carry out scanning (for example to exclude the possibility that the child had a similar heart defect to that suffered by child C) deliberate omission of reference to that intended purpose would likewise have made what she said to the immigration officer at Heathrow incomplete and thus misleading.
[13] While the judge was satisfied that the appellant misled the immigration authorities at the time when the visa was sought and at the point of entry we are not satisfied that the evidence is sufficient to justify a finding of deception at that earlier stage. The real focus must be at the point of entry when the appellant gave the reasons for her visit. If the reasons were not fully and correctly stated at that time and she truly intended either to have the child in the United Kingdom or to receive medical advice and monitoring in connection with her pregnancy the omission of that information rendered misleading what she described as the purpose of her visit. Had such an intention at that stage been revealed to the immigration officer there is little doubt that it would have led to further questions being posed to the appellant before she was granted leave to enter. Deliberate omission of the information would thus amount to deception.
[14] The medical notes relating to events at Whipps Cross University Hospital reveal that the appellant underwent a scan on 28 August 2007 at 12.42. This revealed that she was 32 weeks and 4 days pregnant. An earlier note records a visit to the hospital on 26 August 2007 and a later visit on 17 September 2007. Four matters were noted under the heading "High Risk Factors" in the document relating to those visits. It referred to the first child's septum defect. It recorded that the appellant was a "late booker". It stated that she was unsure of her dates and had the note "?SFD" (small for dates). The record shows no entry for a scan on 26 August and stated that maturity was assessed by 32 weeks amenorrhoea. This latter information could only have come from the appellant. The reasonable inference to be drawn is that she informed the hospital as to the length of her amenorrhoea and that undermines her case that she genuinely thought she was only 19 weeks pregnant when she entered the United Kingdom.
[15] What the appellant's visits to the hospital and her obtaining of a scan show is that she was seeking some form of antenatal care and monitoring by the United Kingdom health authorities. This was then followed in due course by her journey to Northern Ireland for the purpose of her having her child in the Mater Hospital. She already had one child in Belfast and had travelled to Northern Ireland on occasions for treatment in connection with that child. The clear picture which emerges from this sequence of events is that the appellant saw a clear advantage from using the United Kingdom and in particular Belfast facilities for the birth of her child. It is more credible and likely that the appellant had planned to have the child in the United Kingdom before coming here than to conclude that she formed such a plan at a later stage.
[16] Furthermore, the appellant's case that the unexpected advanced nature of her pregnancy meant she could not fly back to Nigeria and thus unexpectedly had to stay in the United Kingdom for the birth must be rejected on the ground that on the hospital's findings as to the stage of her gestation she could still have travelled back to Nigeria on the original planned date in mid-September whereas in fact she flew to Belfast on 2 October 2007.
[17] The judge correctly in our view found the way in which the appellant dealt with the questions and answers during the interview with Mr Dower as strongly supporting the respondent's case that she had entered the United Kingdom at a time when she actually had planned to have the baby in the United Kingdom. Each page of the record of the interview was initialled by the appellant. According to Mr Dower's second and uncontradicted affidavit the interview notes were read back to the applicant in their entirety and she was left to read the notes while Mr Dower spoke to Mr Bradshaw. He asked the applicant to sign each page of the notes if she agreed that the contents were true and accurate. She did so. The judge was clearly right to reject the appellant's attempt to rewrite some of the questions and answers in the course of the interview in the manner in which she has done in her affidavit.
[18] The interview notes establish that the appellant did say in reply to "Where do you plan on having your baby" "Hopefully in Nigeria". She said she was not certain when she was going back to Nigeria to have the baby. She asserted that she had not finished her shopping yet. In reply to the question "Do you plan to give birth here in Belfast" she said "I told you I want to give birth in Nigeria but if I am here I will give birth and pay". In reply to the question "Why are you not near the hospital in Leytonstone (clearly a reference to Whipps Cross Maternity) you are now due to give birth" her answer was "I want to see a market in Lisburn. Asked about the baby things in her case she said "It was given to me by a friend and I am going to give it to a friend".
[19] The clear impression given to the answers given by the appellant to the questions posed was that she was denying having come to Belfast with the preconceived plan to have the baby here. She was trying to give the impression that she would return if possible to Nigeria and had not made advance plans for having the baby in Belfast. At 3.10 pm after the interview was over we are satisfied on the evidence that she told Mr Dower that she did intend to have the child in the Mater Hospital and was doing that in the interests of the child. The court below justifiably drew adverse inferences against the appellant arising out of her initial attempt to mislead Mr Dower and then correcting the position after the event. While attempting to deceive Mr Dower does not itself establish that she deceived the immigration officer who admitted her to the United Kingdom it is a significant piece of evidence which taken with all the surrounding circumstances clearly supports the conclusion that the birth of the baby in Belfast was not the outcome of an unforeseen set of circumstances but was the result of a plan that she had formed before she entered the United Kingdom.
[20] Accordingly we conclude that the appeal must be dismissed.
[21] The finding that the appellant was an illegal entrant may well have adverse consequences for the appellant in attempting to re-enter the country with her child C who appears to require on-going medical treatment. Mr Lavery QC at the opening of this appeal sought leave to introduce a new ground of challenge that had not been raised in the Order 53 statement namely that the immigration officer had failed to properly consider the question of whether, notwithstanding the finding that the appellant was an illegal entrant, discretion should be exercised in her favour to allow her to remain within the country. In view of the fact that that issue had not been raised before the judge and had not been the subject of any evidence we concluded that it would be inappropriate to grant leave to amend the proceedings at such a late stage to introduce this additional ground of challenge having regard in particular to the very lengthy delay by the appellant in bringing the appeal on for hearing. Nevertheless in considering any fresh application by the appellant for a visa to accompany C to this country for treatment the immigration authorities will doubtless consider whether in all the circumstances it should exercise its discretion to permit entry to the appellant having regard to the interests of the child and having regard to the appellant's overall conduct during previous visits and not only during her visit in 2007.