High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Background

(i) The applicant had on three previous visits to the United Kingdom claimed on his Visa Application Form (VAF) that he would stay in the United Kingdom for a period of four weeks but in fact has remained on each occasion for between four and five months. This did not render him an over stayer as it was within the period covered by the visa.

(ii) The applicant had completed a VAF on 7 October 2007 in which he stated that he intended to stay in the United Kingdom for a period of four weeks. He stated that he intended to arrive on 7 December 2007 and that the purpose of his trip was to visit Wales. In fact he arrived in Belfast on 12 November 2007 from London with a total sum of £50 in his possession having stated on his VAF that he would have £1,000 available. He arrived in Belfast without a return ticket to London. He did have a return ticket dated 30 April 2007 to Bangladesh.

(iii) The applicant was interviewed by Immigration Officers upon his arrival in Belfast and stated during interview under caution that he had told the Entry Clearance Officer in Dhaka that he would visit the United Kingdom for four weeks and did so expressly in order to obtain a visa. He also stated during interview that he would be staying with relatives in Belfast for three weeks which seems to be contradicted in the affidavit which he has filed in this matter. He added that he intended to stay in the United Kingdom for five months to travel around and apply for an employment permit.

(iv) The applicant had completed a landing card on arrival at London Heathrow stating that he would be staying at 83 Boleyn Road, London. Within 24 hours he had arrived in Belfast to commence a protracted stay in Comber with his brother in law. He had completed section 5 of the VAF form making no reference to relatives in Northern Ireland.

(v) The applicant avers at paragraph 41 of his affidavit in this matter that he intended to teach Bengali to his niece on an unpaid basis.

Proceedings to date

The Respondent's case

"I considered that the Applicant should be served with papers as an illegal entrant having practised deception contrary to Section 26(1) of the Immigration Act 1971 and an offence under Section 24(1)A of the same Act. I considered that he was therefore an illegal entrant to the United Kingdom as defined by Section 33(1) of the Act. Specifically, I considered that the Applicant had practised verbal deception to the Entry Clearance Officer on his last visa application in Bangladesh and the Immigration Officer on his last entry to the United Kingdom on 10 November 2007. The Applicant had failed to disclose material facts, most importantly having worked illegally in the United Kingdom on previous visits (my emphasis). He had told the Entry Clearance Officer on 10 October 2007 that he intended to stay for a period of four weeks but had always intended to stay for a period of between 4-6 months. If the Immigration Officer had been made aware of all the information regarding illegal working on previous visits he would have been duty bound to refuse leave to enter the United Kingdom.

10. As the applicant was an illegal entrant to the United Kingdom he could be removed under powers contained in paragraph 8 of Schedule 2 of that Act. The Act further provides powers to detain any person to be removed and these are contained in paragraph 16(2) of Schedule 2."

Legal principles governing this case

(i) makes or causes to be made a false representation contrary to Section 26(1)(c) of the Immigration Act 1971 and such deception is the effective means of entry;

(ii) enters the UK by means, including deception, contrary to Section 24A of the 1971 Act; or

(iii) enters or seeks to enter by means which include deception by another person.

[14] In Udu's case, Campbell LJ succinctly analysed the effect of Khawaja's case at paragraph 13 et seq as follows:-

"(i) There is an onus on the immigration officers to prove by a preponderance of probability to the satisfaction of the court that leave to enter was obtained by deception.

(ii) In judicial review it is the function of the courts, including an appellate court, to go beyond inquiring only if the immigration officer had reasonable grounds for his belief and to decide if the applicant is an illegal immigrant.

(iii) A duty approximating to uberrima fides is not imposed on a person seeking entry.

(iv) Deception may arise from silence as to a material fact in some circumstances."

"(20) Lord Fraser in his speech in Khawaja considered the function of the courts when dealing with removal cases and he agreed with Lord Bridge and Lord Scarman "that an immigration officer is only entitled to order detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant." This is a "precedent fact" that has to be established and on review the court has to decide if the entry was obtained by deception. This is the task not only of the High Court but also of an appellate court as was stated in Khawaja.

(21) In R v Secretary of State for the Home Department ex parte Al-Zahrany [1995] Imm AR 510, a decision of the Court of Appeal in England and Wales, Stuart-Smith LJ (with whom Waite and Millett LJJ agreed) said:

'In my judgment in proffering a passport which contains a visa valid for the purpose of a visit to this country and to enable her to become a visitor to this country (and that being the leave to enter which she obtained) she [the applicant] is plainly making, albeit silently, a representation that that is the purpose of her visit'."

In R (Zahide Awan) v Secretary of State for the Home Department [1996] Imm AR 354, Buxton J, sitting at first instance, said:

"In my judgment it was clearly incumbent on her to make the change of circumstances clear when she arrived in this country. The presentation of a passport or the presentation of an entry clearance visa that has been formulated on the basis that no longer persists or no longer represents the totality of a person's intentions or possibilities is and it is clearly held by the authorities to be an act of deception under the guidance given in Khawaja."

We agree that a representation may be implied from the silent presentation of a passport that the holder is seeking entry for the purpose for which the visa which has been obtained and no other."

(a) on an application challenging the decision of an Immigration Officer the respondent should depose to the grounds on which the decision to detain and remove was made setting out the essential evidence taking into account and exhibiting documents necessary to enable the court to carry out their functions of review.

(b) the court should appraise the quality of the evidence and decide whether that justifies the conclusion reached.

(c) if the court is not satisfied with any part of the evidence it may remit the matter for reconsideration or by itself or receive further evidence. It should quash the detention order where the evidence was not such that the authority should have relied on it or where the evidence received does not justify the decisions reached by serious procedural irregularity(see Girvan J in Re Paul Udu and others (2005)NIQB 81 at paragraph 11).

"10.6.4 – Working in Breach

A person is liable to administrative removal under section 10 if found to be working in breach of a restriction or prohibition on employment. The breach must be of sufficient gravity to warrant such action.

There must be firm and recent evidence (within 6 months) of working in breach including one of the following:

an admission under caution by the offender of working in breach;

a breach by the employer implicating the suspect;

documentary evidence such as pay slips, the offender's details on the payroll, NI records, tax records, P45s;

sight by the IO or by a police officer who gives a statement to that effect, of the offender working preferably on two or more separate occasions, or on one occasion over an extended period, or of wearing the employer's uniform.

In practice, this should generally be backed up by other evidence. Statutory codes of practice (under the regulation of Investigatory Powers Act 2000) regulate the use of covert surveillance and covert human sources (informants), see 48.6".

I have to ask myself whether in principle any thing approaching this high evidential hurdle exists in this case.

"If the fraud was a contravention of section 26(1)(c) of the Act, the provisions of which I have already quoted, and if the fraud was the effective means of obtaining leave to enter – in other words if, but for the fraud, leave to enter would not have been granted – then the contravention of Act and the obtaining of leave to enter were two inseparable elements of the single process of entry and it must inevitably follow that the entry itself was "in breach of the Act"".

"The fact is that the question which the Home Office asked Mr Durojaiye was, what his hours of attendance had been; and that was the question which he answered. Plainly his answer was material in the sense that it was likely to influence their decision whether to find that he was qualified . . . If his answer had been "I have attended for less than 15 hours per week, but I have studied at home as my course required", it is likely . . . that more questions would have been asked and further enquiries made."

The test therefore was one of materiality in the sense that it was likely to influence the decision.

"However, Khawaja is still binding authority, and, by bedding Jayakody, the court in Kaur cannot have intended to substitute "mere materiality" for 'effective means' as the proper test for establishing the causal connection between the deception practised and the leave to enter granted by the Immigration Officer. That would be too much of a watering down. What is clear, however, is that the wording of the section 24A offence, inserted into the 1A 1971 in 1999, endorses the view put forward in Khawaja that the deception employed need only have been one of the factors leading to the grant of leave to enter, an effective but not necessarily decisive one."

(a) Mr Bradshaw, the Chief Immigration Officer at Liverpool Immigration Officer at Liverpool Immigration Service, in his affidavit of 6 February 2007 at paragraph 4 declares:-

"While I was in the arrivals area of Belfast International Airport a man approached the applicant. I asked him to step to one side and asked his permission to ask some questions. The man identified himself as Abdul Shohid. He stated that he was a brother in law of the applicant. He stated that he owned a restaurant in Comber. He stated that this was a take away restaurant called the Akash at 24 Mill Street, Comber. He stated that the applicant was going to stay with him for a few months. I asked Mr Shohid if the applicant would be working in his restaurant at any time during his visit. He stated that the applicant had previously worked as dish washer in the Ganges restaurant in Newtownards on previous visits but he was unsure of his intentions on this occasion. It should be noted that Mr Shohid later reaffirmed this information in a conversation with IO Garratt."

It is noteworthy that at paragraph 6 Mr Bradshaw echoed the view of Mr Garratt that great importance was placed on the admissions made by Mr Shohid in leading the Immigration Officers to the conclusion that the applicant was misusing his Visit Visa. At paragraph 6 Mr Bradshaw declared:-

"In light of the interview notes, the pattern of travel evident within the applicant's passport, and most importantly(my emphasis)the admissions made by Mr Shohid to both IO Garratt relating to previous unlawful employment within the United Kingdom it was clear to me that the applicant was misusing his UK Visit Visa. He had failed to disclose material facts to both the Entry Clearance Officer in Sylhet on 10 October 2007 and the Immigration Officer at London Heathrow on 10 November 2007, i.e. that he taken unlawful employment on personal visits. Had he done so he would have been refused a Visa/Leave to enter the United Kingdom. I was satisfied therefore that the applicant had committed an offence under section 26(1)(c) of the Immigration Act 1971 and that as a result of this offence, the applicant was rendered an illegal entrant by virtue of section 33(1) of the Immigration Act 1971."

Hence the importance of the conversation with Mr Shohid again surfaced. It was clearly a central plank in the respondent's case.

"Your brother in law attended the airport today and has stated that you have worked in the UK in various restaurants. Is this correct?

Answer: This is not correct."

"The Border and Immigration Agency are satisfied that the subject is an illegal entrant on the grounds of verbal deception. It is believed that the subject does not work in Bangladesh as a teacher but is using his Visit Visa to work in the UK. The subject's brother in law confirmed that the subject had been working in Ganges restaurant as a dish washer on his previous visit to the UK. Please see above.

This argument is further supported by the substantial periods of stay in the UK up to 4 and 6 months at a time, by the lack of money that the subject has had in his possession and the discrepancies found within the subject's visa application forms."

"The Border and Immigration Agency are satisfied that the subject is an illegal entrant on the grounds of verbal deception. It is believed that the subject does not work in Bangladesh as a teacher but is using his Visit Visa to work in the UK. The subject's brother in law confirmed that the subject had been working in his restaurant on his previous visit to the UK. Please see above."

"This subject arrived in the UK on 10/11/2007 and flew to Belfast on a one way ticket. His return ticket to Bangladesh was dated 30/04/2008. When asked what funds he possessed in order to sustain himself the subject was only able to present £50.

The subject's brother in law was also at the airport to collect the subject. This individual when questioned by a Chief Immigration Officer said that he owned the Akash Indian take away at 24 Mill Street, Comber. He confirmed that the subject worked at this establishment as a dish washer on his previous visit 17/02/2007/07/07/2007.

In light of the above facts it is strongly believed that the subject was travelling to Northern Ireland when encountered on 12/11/2007 to take up illegal employment and not to visit the UK as was the purpose of his Visa."

"18. I saw the applicant and shook his hand but I was told by a man to stay away from him. I was then told that a Chief Immigration Officer wanted to have a word with me.

19. I was taken a few yards away and I was asked if I would mind answering a few questions. I said, "OK". I was asked about my relationship to the applicant. I was asked if I owned a take away. I said, "Yes". I was asked about the length of the applicant's visit and I said, "A few months".

20. The Immigration Officer then said to me that the applicant had told him that he worked in my take away and that he sent money home to Bangladesh. I was taken aback by these statements. The applicant has never worked in my take away. As indicated above, we would sometimes give him money, but I was not aware of him sending money home. I said quite clearly to the Immigration Office that the applicant had never worked in my take away and that he had not sent money home to my knowledge."

"21. I believed at this time that the Immigration Officer was giving me a truthful account of what the applicant had said to him. I volunteered the comment that if he had said that he worked I didn't know when. I indicated that I had relatives who owned the Ganges restaurant and that he sometimes used to visit them. I know that he went to visit sometimes to the restaurants or sometimes to the houses of these relatives.

22. It was then put to me by the Immigration Officer that if the applicant had worked, what was he doing? As stated above, I had no knowledge of the applicant working anywhere in the United Kingdom and I was completely surprised by the statement that the applicant had told the Immigration Officer that he had worked. I know the applicant and I know the catering industry. As far as I am aware, the applicant has never worked in the catering business. The applicant is what I call a soft worker, and is someone not experienced in hard work. I did not see the applicant as someone qualified to work in a kitchen. I ventured the view that if the applicant had said that he had worked, then may be he worked washing dishes, but that I don't know."

"In my judgment it was clearly incumbent on her to make that change of circumstances clear when she arrived in this country. The presentation of a passport or the presentation of an Entry Clearance Visa, that has been formulated on a basis that no longer subsists, or no longer represents the totality of a person's intentions or possibilities is, and is clearly held by the authorities to be, an act of deception under the guidance given in Khawaja."