Scottish Court of Session Decisions

The petitioner is a citizen of Russia. She was born in the former Soviet Republic of Uzbekistan on 18 June 1976. She is an ethnic Uzbek but resided in what is now Russia from 1984 until her arrival in the United Kingdom on 23 May 1997. The respondent is the Secretary of State for the Home Department. The petitioner came to the UK under a scheme for seasonal workers who are permitted to enter the country for a limited period in order to work on certain farms. She had a visa which gave her leave to enter the UK in order to work at Cutliffe Farm, Norwich until 30 November 1997. It was a condition of her visa that, inter alia, she did not enter employment whether paid or not other than with Cutliffe Farm. That condition, however, was broken. In about the middle of July the petitioner moved to Telford in the West Midlands and then at the end of August or beginning of September she moved to the Peterhead area. On 6 October her husband, Oleg Demitchev, also entered the UK, on a visitor's six month visa. He joined the petitioner in Peterhead. Later in October immigration officers in Aberdeen received information that there were a number of workers at the Abacus fish processing factory in Mintlaw, Aberdeenshire who might be working there illegally. A team of about twenty immigration staff and a number of police officers was therefore put together and on 31 October they went to Peterhead as part of a joint operation. One of the addresses they went to was 27 Merchant Street, Peterhead. That was where the petitioner and her husband and a number of other people were living. A Mr MacGregor, who was an immigration officer, together with a police officer who was also able to act as interpreter were allocated the room at that address which turned out to be occupied by the petitioner and her husband. At about 6am they knocked on the door and entered the room. After some initial exchanges Mr MacGregor had sufficient information to give reason to believe that the petitioner was working at the Abacus factory contrary to the conditions in her visa. This was an offence in terms of section 24(1)(b)(ii) of the Immigration Act 1971. Mr MacGregor informed the police officer that he had reason to believe an offence had been committed. In accordance with his duty the police officer then arrested the petitioner. After being given time to collect her belongings she was taken together with others suspected of the same offence to Aberdeen Police Station. Buses had been laid on for this. The buses left Peterhead between 7am and 8am and arrived at Aberdeen about an hour later.

At the police station the petitioner was interviewed more formally by Mr MacGregor. Shortly before these events, by letter from her solicitors dated 29 October 1997, the petitioner had applied for asylum in the UK as a refugee in terms of the 1951 UN Convention Relating to the Status of Refugees. Mr MacGregor knew this. The interview began at 11.42am and lasted until 12.35pm. It was conducted with the assistance of an interpreter in Russian. At the start of the interview Mr MacGregor cautioned the petitioner in the following terms:

The petitioner was asked if she understood that and she confirmed that she did. Mr MacGregor's stated purpose for this interview was therefore to clarify her immigration status. But this was in the context of his suspecting that she had been working illegally at the Abacus factory in Mintlaw in breach of the condition in her visa. As he put it himself, he wanted to see if this offence had indeed been committed. He recognised that it was not an asylum interview, which indeed it was not. And yet the interview began with the statement, no doubt in the form of a question:

To that the petitioner answered in the affirmative. Mr MacGregor then proceeded to question the petitioner about her asylum application and, in particular, the circumstances in which she decided to apply for asylum. There were no questions directed to the issue of her working in Mintlaw contrary to the conditions in her visa. At no stage did Mr MacGregor inform her that his questions might be directed towards discovering whether she had committed another offence, namely, that of obtaining leave to enter the UK by deception in contravention of section 24(1)(aa) of the 1971 Act. In particular, he did not tell her that his questions in relation to her application for asylum were or might be concerned with the possibility that she had committed such an offence or that they were leading in that direction. In order to get the flavour of the interview I quote it in full - the numbering was added in the course of the proof for ease of reference.

At the conclusion of the interview Mr MacGregor was satisfied that the petitioner was not merely in breach of the employment conditions in her visa but was an illegal entrant. This was because she had concealed from the visa officer when she obtained her visa and from the immigration officer on her arrival in the UK that her true intention in coming to the UK was to claim asylum. She had therefore obtained leave of entry to the UK by deception. After the interview Mr MacGregor discussed his findings with the Chief Immigration Officer. The petitioner was then notified that it had been decided that she was an illegal entrant and she was declared to be such. She was then arrested and detained in Craiginches Prison, Aberdeen but was later released on bail.

On 14 November 1997 the petitioner was interviewed by another immigration officer in connection with her application for asylum. At that interview she made it quite clear that, although she had suffered from various forms of harassment in Russia before she came to the UK, mainly due to the fact that she was an Uzbek, she did not decide to apply for asylum until after her husband had come to the UK in early October 1997. He had told her of further harassment which he had suffered after she had left Russia culminating in threats to kill them both on their return. He had told her they should not return to Russia and it was then that she decided to apply for asylum.

The petitioner's application for asylum was refused. This was in essence because the respondent concluded that the petitioner did not qualify for asylum in terms of the 1951 Convention. The refusal letter was dated 23 December 1997. (On 16 December 1997 the petitioner's husband's application for asylum had been refused, also on the basis that he did not qualify for asylum in terms of the Convention). On 23 December 1997 the respondent also served removal directions on the petitioner. These directions proceeded on the basis that the petitioner was an illegal entrant. Nowhere in the letter of 23 December 1997 refusing asylum, however, was it suggested that the petitioner was an illegal entrant by reason of having formed the intention of applying for asylum before she left Russia and therefore being guilty of deception in obtaining entry to the UK as she did. On the contrary, the letter proceeds on the basis (although it is not stated that that basis is accepted) that the petitioner decided to apply for asylum in the UK on being informed by her husband of the threats against her (para.6 of the letter). In other words, the petitioner's claim for asylum was being treated as a sur place claim.

The petitioner appealed against the removal directions. The appeal was heard by a Special Adjudicator on 26 February 1998. It was, however, refused. The Special Adjudicator's determination was dated 30 March 1998 and was promulgated the following day. In his determination it is clear that the Special Adjudicator proceeded on the same basis with regard to the circumstances in which the petitioner's application for asylum had been made as the Secretary of State had done in his letter of 23 December 1997.

The petitioner applied for leave to appeal from the Special Adjudicator's determination to the Immigration Appeal Tribunal. Leave was granted on 14 April 1998. In course of preparation for the appeal counsel queried the validity of the removal directions which were the foundation of the appellate process in light, inter alia, of what was thought to be the apparent acceptance in the refusal letter of 23 December 1997 that the petitioner's claim for asylum was a sur place claim. Further enquiries were made and on recovering the transcript of her interview with Mr MacGregor it was decided to challenge the declaration that the petitioner was an illegal entrant. The Immigration Appeal Tribunal sat to consider the preliminary issue of its jurisdiction to entertain such a challenge. By determination promulgated on 23 September 1998 the Tribunal declined such jurisdiction. In these circumstances the petitioner has exhausted her statutory remedies to reduce the illegal entry declaration and thereby invalidate the removal directions and return her case to the respondent to be considered as a deportation case rather than as one for summary removal. The advantage of the former is that in terms of Rule 364 of the Immigration Rules applicable to her case, in considering whether deportation is the right course to take, the public interest will be balanced against any compassionate circumstances of the case. Moreover, before a decision is reached the respondent will take into account all relevant factors known to him, including age, length of residence in the UK, strength of connections with the UK, personal history, domestic circumstances and compassionate circumstances. No such considerations apply to an illegal entrant, who is subject to summary removal. The consequences of mis-categorisation can therefore be of considerable importance.

The findings I have set out above in relation to events leading up to the petitioner's being declared an illegal entrant are based on the evidence at the second hearing. The procedural history thereafter is taken from the petitioner's averments in her petition but was not in dispute. The petitioner's petition for judicial review was presented on 9 December 1998. In it she seeks:

The matter came before Lord Penrose on 12 February 1999 for a first hearing. On that date he pronounced an interlocutor ordering of consent a second hearing on the issue whether the petitioner had entered the UK as an illegal entrant. The respondent was appointed to lead at the hearing. This was no doubt because the onus is on the respondent to prove that the petitioner is an illegal entrant (Reg. v Home Secretary, ex parte Khawaja 1984 1 A.C.74). The second hearing took place before me.

For the respondent, Mrs Stacey led the evidence of Mr MacGregor. He had been an immigration officer since 1977. He had worked in various places and was now based at Aberdeen Airport. He had been there since June 1993. He gave evidence as to his involvement in the joint operation which took place on 31 October 1997. He had been allocated the room in the house in Merchant Street, Peterhead which was occupied by the petitioner and her husband. He was accompanied by a police officer, who also acted as interpreter. Mr MacGregor said that it was likely that he told the petitioner and her husband who he was, why he was there and that he wanted to ask them some questions about their immigration status. He said that the petitioner had initially said she was in Peterhead on holiday but soon agreed that she was working at the Abacus factory. That was all he said he needed to ask her at that stage. He knew she was a seasonal agricultural worker and was not entitled to work at the Abacus factory. She had her passport in her room with its working conditions in it and he saw it there. He then described how the petitioner and others were taken by bus to Aberdeen Police Station and how he interviewed her again there. He was taken through the written record of the interview, which is set out in form ISCP4. He said that the questions and answers were noted at the time in his own handwriting. Although it is not specifically stated as such, he said that he did caution her in the words set out on page 1 of the form. He said he asked her the questions in English. They were then translated into Russian by another immigration officer, Mr Baptie, who is mentioned on the form. The petitioner answered in Russian and the answer was translated into English. The petitioner signed each manuscript page of the interview as correct. It had been read back to her by Mr Baptie before she signed. No point was taken as to the accuracy of the translation. Mr MacGregor said that shortly after the interview was completed he typed out the record of the interview. It is that typed version that I have quoted above. As a result of what was said in the interview Mr MacGregor came to the view that the petitioner was an illegal entrant. This was because she had said that the true reason for her coming to the UK was to apply for asylum. She had therefore entered the UK by deception. He reported this to the Chief Immigration Officer. The petitioner was then served with the notice, form IS 151A, which declares her to be an illegal entrant and she was detained in Craiginches Prison, Aberdeen. In cross examination by Mr Bovey, counsel for the petitioner, Mr MacGregor said that his purpose in the interview was to establish the petitioner's immigration status arising out of her working illegally at the Abacus factory. He accepted, however, that there was nothing in the interview which was directed to that matter. He was quite clear, however, that despite any contrary impression from the questions he asked it was not an asylum interview. He would not have given a caution if it had been. He also denied he had asked leading questions of the petitioner or that he had led her towards saying she had decided she wanted asylum while she was still in Russia (Answer 11 in the interview).

Mr Bovey then led the petitioner in evidence. Her evidence was given with the aid of an interpreter in Russian. The petitioner also described the events of 31 October 1997. She denied she had been cautioned at the start of the interview at Aberdeen Police Station but said that she had been cautioned in similar terms at the house in Peterhead and that that had been translated for her. She was then taken through the record of the interview, question by question, and answer by answer. Some she remembered, some she did not, some she agreed were said. She was then directed to her asylum interview. She said the answers she gave at pages 12 and 13 of that document were an accurate record of the situation. When she came to the UK she had hoped to return to Russia to finish her studies but when her husband told her of the threats to their lives, she decided to apply for asylum. In cross examination she said that she was honest in her answers in the interview on 31 October, but she did not remember giving answer 11. It was not true that she wanted asylum while still in Russia. When she arrived in the UK in May 1997 she intended to go home at the end of November when her visa expired. Her intention only changed when her husband joined her in the UK. She was truthful with Mr MacGregor but she did not remember giving answers 15, 16 or 17. With regard to answer 20 she said she did not say anything about claiming asylum. She remembered saying that her husband had gone to Telford and was told she was in Peterhead but said she did not say the words "Yes and to claim asylum". She said that she had always denied saying these words. She also denied saying the words in answer 21, asking rhetorically how could she have decided in Russia when she did not know anything about it (asylum) until after she got to this country.

My impression of both these witnesses was that they were credible and doing their best to assist the Court. In so far as the interview at Aberdeen Police Station was concerned, I was prepared to accept that Mr MacGregor probably did give the caution set out on page 1 of the form. The petitioner thought he did not but the point became immaterial because she accepted that he had given her a caution in those terms at Peterhead. As I have said, no point was taken with regard to the accuracy of the translation. The interview, however, took place over two years ago and a great deal of water has flowed under the bridge since then. It would therefore be surprising if anyone could now recollect with entire accuracy precisely what had or had not been said at the interview. For his part Mr MacGregor relied on the accuracy of the written record but, as I have indicated, the petitioner disputed a number of the entries. I am unable to accept her evidence on that. I accept the accuracy of the contemporaneous written record. With regard to the general thrust of the interview, however, while I accept that it was not an asylum interview as such and accept Mr MacGregor's evidence that, at least initially, his purpose was to establish the petitioner's immigration status arising out of her working illegally at the Abacus factory, in other words to confirm the view that he had formed when he had spoken to her at Peterhead, I am clearly of the view that it soon broadened into a much wider inquiry leading to his conclusion that she was guilty of deception when she obtained leave to enter the UK and was therefore an illegal entrant. I am unable to read the record of the interview as a whole in any other way. I am therefore unable to accept Mr MacGregor's evidence in so far as it suggested otherwise.

This leads me to one of the major issues between the parties, namely, whether the evidence contained in the interview by Mr MacGregor had been obtained unfairly and was therefore inadmissible. Mrs Stacey accepted that the highest standards of fairness were required in such a situation but submitted that they were in this case. She referred me to Oghonoghor v Secretary of State for the Home Department 1995 S.L.T.733 but sought to distinguish this case on its facts. Mr Bovey, on the other hand, submitted that the evidence contained in the interview in so far as it indicated that the petitioner had decided to apply for asylum before she left Russia was inadmissible by reason of its having been unfairly obtained. He relied on Oghonoghor.

In Oghonoghor the basic facts were as follows. A Nigerian lady, Rofina Oghonoghor, entered the UK on a visitor's visa. She then started a course of study and stayed beyond the expiry date of her visa. She had sought permission to remain and study but that had been refused. An immigration officer who had been instructed to inquire into the circumstances interviewed her under caution in relation to her overstaying. During the interview the officer formed the view that the woman might not be merely an overstayer, but might be an illegal entrant, having obtained her visitor's visa at a time when she had already formed the intention of studying in the UK. He continued, however, to question her without issuing a further caution. Following the interview the officer (a Mr Pearson) passed the information he had obtained to his superior (a Mr Gillespie), who decided that the petitioner was an illegal entrant. Ms Oghonoghor petitioned for judicial review of that decision. After a proof Lord Cameron of Lochbroom reduced the decision. In doing so his Lordship noted that the major part of the evidence was taken up with the events within the police station where the petitioner was interviewed by the immigration officer. After considering that evidence he held that it had not been proved from what was said in the interview that the petitioner's visitor's visa had been obtained as a result of misrepresentation by the petitioner. But, he also held that, in any event, the information which had been obtained from the petitioner at the interview had been unfairly obtained. In explaining that finding his Lordship said this (at page 735A-F):

I recognise that that passage may be said to be obiter dicta but in my view it is very much in point in this case. Of course there are differences between that case and this. It would be very surprising if there were not. In particular, it was not suggested in this case that the petitioner's answers to the questions in the interview which are recorded on her form ISCP4 was a synthesis of an earlier conversation between the petitioner and Mr MacGregor. Furthermore, the caution given by Mr MacGregor was in its terms on the basis that he was inquiring into the petitioner's immigration status and not that she was committing a particular offence by taking employment contrary to the terms of her visa. As Mrs Stacey put it, the petitioner here, unlike the petitioner in Oghonoghor, knew that she was in breach of the rules and knew that she was going to be asked about her immigration status. It was accepted that this was broad but the petitioner here must have known that her whole immigration status was going to be discussed. In my opinion these differences are of no materiality. It is perfectly clear that the reason for Mr MacGregor coming to the petitioner's room in Peterhead was because he had information that she was working contrary to the terms of her visa. It was that offence he was investigating and when he went to her door he explained that to her. He said that in his evidence. He told her who he was and why he had come. Indeed, when her initial response was that she was merely there on holiday, he would not accept that and the petitioner soon admitted that she was working at the Abacus factory. He was not at that stage investigating any other offence and, although he knew that she had applied for asylum, he was not preparing to nor did he conduct an interview in connection with that application. That was not his function. In truth, apart from any procedural requirement for an interview at the police station and completion of form ISCP4 it is not easy to see what more Mr MacGregor hoped to gain from the interview in relation to the offence he was investigating. He already had a clear admission by the petitioner of her guilt and he had other information that pointed in the same direction. As he himself acknowledged, he had sufficient information that she was working contrary to the terms of her visa. This may explain why his questions at the interview did not focus on her working contrary to the terms of her visa but from the very start widened into an inquiry as to the circumstances and, in particular, the timing of her decision to seek asylum. This led to the answers which the petitioner gave which convinced Mr MacGregor that she was guilty of the separate offence of obtaining leave to enter the UK by deception and was therefore an illegal entrant. Mr Bovey submitted that this result was reached as a result of leading questions by Mr MacGregor. On reading the interview as a whole I think there is some force in that, although what both counsel considered to be the most damaging answer (Answer 11) was not given in answer to a leading question. Be that as it may, I am of the opinion that Mr MacGregor's questions led in a more general sense to the damaging answers and that without any indication as what the thrust of his questions was - for it was from the start plainly nothing to do with her working contrary to the terms of her visa - and in particular, without any prior warning or caution in relation to the offence of obtaining leave to enter the UK by deception. As I said earlier, I am prepared to accept that Mr MacGregor intended that the purpose of his interview was to be the petitioner's immigration status in the context of her working contrary to the terms of her visa. But in the event it was not that at all. Not one question was directed to that matter. On the contrary, from the very beginning the questioning was concerned

So Mr. MacGregor's first question opened up the petitioner's claim for asylum. His second question was more pointed: "Did you tell IO on arrival intended to claim." Again the purpose of this question was not explained but to an experienced immigration officer such as Mr. MacGregor it and the following question could only open up the prospect of an answer which disclosed that the petitioner had decided to claim asylum before she came to the UK. Indeed, it would appear from the words he used that that thought was already running through his mind. And so it went on. In answer 5, answering a leading question, the petitioner came very close to admitting that she had decided to claim asylum before she came to the UK. And by the time Mr. MacGregor asked question 11 it was clear that he regarded the true purpose of the petitioner's coming to the UK was something other than what she had told the immigration officer on her arrival. In that situation I think that the highest standards of fairness required that a warning or caution be given to the petitioner by Mr MacGregor making it absolutely clear that his questioning was being directed to a different matter and, in particular, to her having obtained leave to enter the UK by deception. A caution merely directed to "immigration status" was not in my view adequate. In this regard, therefore, this case is no different from Oghonoghor and I see no reason for distinguishing it. As I have said, there was the further point in that case that the questions and answers contained in form ISCP4 were but a synthesis of an earlier conversation but, as I read Lord Cameron's opinion, he would have held that the information in question had been unfairly obtained on the basis of the lack of warning or caution alone. In these circumstances, I have come to the conclusion that the answers given by the petitioner in the interview with Mr MacGregor cannot be relied on by the respondent. It was accepted by Mrs Stacey that if I came to this conclusion, the declaration that the petitioner was an illegal entrant could not stand; there was no other material in the case which would justify it.

I should record that a considerable amount of time at the hearing was devoted to the criminal law applicable to the circumstances in which a caution should be given to a suspect. Reference was made to a number of authorities: HMA v McSwiggan 1937 J.C.50, Miln v Cullen 1967 J.C.21, Tonge v HMA 1982 S.C.C.R.313, Pennycuick v Lees 1992 S.C.C.R.160 and Williams v Friel 1998 S.C.C.R.649. While of course there are similarities between the criminal law and immigration law in the matters with which I am concerned, I think it is dangerous to try to elide the two fields of law. I did not therefore find these cases of assistance in the particular circumstances. I would note in passing, however, that in HMA v McSwiggan the trial judge held that a statement made by the accused under a misapprehension as to the true nature of the crime with which he was charged was not admissible in evidence. He should have received an adequate warning in relation to making a statement which might incriminate him in the crime actually charged. I prefer, however, the authority of Oghonoghor and while I am not bound by it I respectfully agree with Lord Cameron's reasoning and on the facts of this case reach the same conclusion. I did not understand Mrs Stacey to contend that the principle of the decision in Oghonoghor was in any way flawed. It was only because it was distinguishable on its facts that she said I should not follow it.

That is sufficient for the disposal of the case. But I should add that even if I had held that the petitioner's answers to Mr MacGregor were not inadmissible and therefore formed part of the whole material in the case, I would still have come to the conclusion that the respondent had not proved that the petitioner was an illegal entrant. I can give my reasons briefly. In her interview with Mr MacGregor the petitioner in my opinion undoubtedly did give answers which entitled him to conclude that she was an illegal entrant. But it was common ground that I have to have regard to the whole evidence available and decide in the light of that whether there was sufficient evidence to justify the conclusion that she was an illegal entrant (Reg v Home Secretary, ex parte Khawaja 1984 1 A.C.74). I have much more evidence available to me than Mr MacGregor did. In particular, I have the record of the petitioner's asylum interview. In that interview she made it quite clear that she had no intention of seeking asylum in the UK before she arrived here in May 1997. On the contrary, her intention then was to return to Russia when her visa expired. It was only after her husband came here and told her of the threats to their lives that she changed her mind and decided to apply for asylum. The evidence of her husband's asylum interview is supportive of that. Of course, it is possible that the petitioner and her husband only decided on this and the supporting "story" after she had been found to be in breach of the conditions of her visa and declared an illegal entrant. But I think that is unlikely. I say that because of the view I formed of the petitioner as she gave her evidence. I appreciate it is more difficult when she was speaking in a foreign language but I felt from her whole demeanour in the witness box that she was being truthful when she said that the course of events was as she had it in her asylum interview. What she said in evidence is, of course, also available to me in deciding this point. In any event, weighing what she said to Mr MacGregor against what she said in her evidence and in her asylum interview I am not persuaded on the balance of probabilities - and since this is a case which involves allegations of criminal conduct and issues of personal liberty the degree of probability must be correspondingly high - that what she said to Mr MacGregor was the true situation. That is the test which the respondent has to pass (Reg. v Home Secretary, ex parte Khawaja; see also In re Saidur Rahman [1997] Imm.A.R.197 and Doldur v Secretary of State for the Home Department [1998] Imm.A.R.352).

For these reasons, therefore, I shall sustain the first plea in law for the petitioner and pronounce decree of declarator and reduction as sought in para.3(a) and (b) of the petition. I shall repel the respondent's pleas in law. Mr Bovey said that if I reached the conclusion I have reached on para.3(a) and (b) there was no need for any order in terms of para.3(c) and (d).