United Kingdom House of Lords Decisions

IMMIGRATION APPEAL TRIBUNAL (Appellant) v ANILKUMAR RAVINDRABHAI PATEL (Respondent)
5 May 1988
House of Lords:

Lord Bridge of Harwich
Lord Elwyn-Jones
Lord Ackner
Lord Goff of Chieveley
Lord Jauncey of Tullichettle

JV Pleming (instructed by Treasury) Solicitor for the appellant D Pannick as amicus curiae The respondent was not represented.
1. Lord Bridge of Harwich: My Lords, The facts out of which this appeal arises are not in dispute and may be shortly summarised. The respondent was born in Uganda in 1955. He moved with his parents to India in 1960. In 1980 the respondent's father and mother were admited for settlement to the United Kingdom under the quota voucher system. In 1981 the respondent was granted an entry clearance certificate for "settlement accompanying parents." In order to obtain that certificate he had falsely represented to the immigration authorities that he was a single man. In fact he married in 1978 and has one child born in 1979. But for the false representation no entry clearance certificate would have been granted to him. He arrived in the United Kingdom in May 1981 and on presenting his entry clearance certificate was granted indefinite leave to enter. There is no doubt that he is an "illegal entrant" as defined in section 33(1) of the Immigration Act 1971 ("the Act").
2. Being a stateless person the respondent holds an identity certificate instead of a passport. He visited India in December 1981 and returned in January 1982. He was re-admitted without question as a returning resident. In December 1981 his wife applied for entry clearance to enable her to join her husband here. Not surprisingly this led to inquiries which exposed the fraud by which the respondent had originally obtained leave to enter. He was in due course arrested and detained as an illegal entrant with a view to his removal pursuant to paragraphs 8 and 9 of schedule 2 to the Act. In September 1983, however, he was released from detention and the intention to remove him under the provisions of schedule 2 was abandoned, probably, it would seem, because of a mistaken apprehension on the part of Home Office officials as to the effect in relation to the circumstances of the respondent's case, of the decision of this House in 7? v Secretary of State for the Home Department, ex part Khawaja [ 1984] AC 74. A Member of Parliament, who had taken up the respondent's case, was informed by the Home Office that "his position here is now being considered further with a view to his possible deportation."
3. In October 1983, intending to visit India again, the respondent obtained from the Passport Office a visa stamped on his identity certificate for re-entry to the United Kingdom valid until 3 August 1984, which would operate as an entry clearance on his return. He left for India in November 1983 and returned on 3 March 1984. On arrival he was refused leave to enter by an immigration officer who issued a notice to him in the following terms:

"You have sought leave to enter on the ground that you had an indefinite leave to remain in the United Kingdom when you left, and that you have not been away for longer than two years but this is not conclusive in your favour. You hold a current visa endorsed for journeys to the United Kingdom but I am satisfied that the leave to enter given on 25 May 1981 and the settlement visa on 6 April 1981 were obtained by deception and in the light of this I consider that your exclusion from the United Kingdom is conducive to the public good."

4. Appeals by the respondent against this refusal of leave to enter first to an adjudicator then to the Immigration Appeal Tribunal were dismissed. The respondent thereupon applied for judicial review of the decision of the Immigration Appeal Tribunal and was granted an order of certiorari to quash that decision by Taylor J [1987] Imm AR 164. The judgment of Taylor J was affirmed by a majority by the Court of Appeal (Stephen Brown and Neill LJJ, Dillon LJ dissenting) who granted leave to the Immigration Appeal Tribunal to appeal to your Lordships' House. The respondent was not represented at the hearing before your Lordships, but I would wish to acknowledge gratefully the assistance of Mr David Pannick, who appeared as amicus curiae and skilfully deployed every argument which could properly be advanced in support of the decision of the majority in the Court of Appeal.
5. A point was canvassed on behalf of the respondent in the Court of Appeal to the effect, put shortly, that the visa obtained by him from the Passport Office after his release from detention as an illegal entrant by the Home Office created some kind of estoppel against the Crown. The Court of Appeal unanimously rejected this contention for the reasons given in the judgment of Dillon LJ. The contention was not renewed in argument before your Lordships. I have no hesitation in expressing my agreement on this point with the conclusion of the Court of Appeal and with the reasons they gave.
6. The rules made under section 3(2) of the Act in force at the material time are contained in the Statement of Changes in Immigration Rules of February 1983 (HC169). In refusing the respondent leave to enter, the immigration officer relied on rule 85, which provides so far as material:

"Any passenger except the wife and child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conducive to the public good, where . . . (b) from information available to the immigration officer it seems right to refuse leave to enter on that ground ..."

7. Effectively this was the only ground available to justify the refusal in the respondent's case. Under rule 13 the respondent, as the holder of an entry clearance in the form of the visa granted in October 1983, could not be refused entry save on certain specified grounds, of which the only ground capable of applying to him was that his exclusion was "conducive to the public good." In these circumstances it has throughout been accepted on behalf of the
8. Immigration Appeal Tribunal that the refusal can only be sustained in law if the deception by which the respondent obtained his original leave to enter would, if he had never left the country, have afforded by itself, a ground on which the Secretary of State could have deemed "his deportation to be conducive to the public good" under section 3(5)(b) of the Act.
9. Persons not having the right of abode in the United Kingdom but who have originally entered with leave may be removed either by the summary procedure applicable to illegal entrants under schedule 2 to the Act or by deportation. Section 3(5) of the Act provides:

"A person who is not a British citizen shall be liable to deportation from the United Kingdom - (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported."

10. In addition, such a person is liable to deportation under section 3(6):

". . .if, after he has attained the age of 17, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by the Act to do so."

11. In ex parte Khawaja [1984] AC 74 one of the points in issue was whether the expression "illegal entrant" in section 33(1) of the Act included any person who had obtained leave to enter by fraud or deception or, as was contended for the appellants in that case, was limited to persons who had entered the country clandestinely by evading immigration control altogether. The point is dealt with at greater length in my speech than in the other speeches in the case and both Lord Scarman and Lord Templeman expressed their agreement with my reasoning and my conclusion. There is a passage in which I examine the argument which had been advanced by Mr Blom-Cooper QC, which, I fear, I must quote at some length. I said, at p 117:

"If it is desired to expel one who has obtained leave to enter by fraud, this, says Mr Blom-Cooper, can be achieved in one of two ways, viz.: (i) by securing a conviction coupled with a recommendation for deportation under section 26(l)(c) by which a person is guilty of an offence punishable with a fine or imprisonment if 'he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true'; or (ii) by deportation under section 3(5)(b) on the ground that the Secretary of State deems his deportation to be conducive to the public good. . . .

". . .if the only procedures available to secure the expulsion of a non-patrial who has obtained leave to enter by fraud are those suggested by Mr Blom-Cooper, it seems to me that there is a startling lacuna in this Act. A conviction under section 26(1 )(c) would not necessarily lead to a recommendation for deportation; moreover, being a summary offence, it must normally be prosecuted within six months of commission, though, exceptionally, this time limit may be extended to a maximum of three years: section 28. Those who have obtained leave to enter by fraud are frequently not exposed until after three years from their arrival. On the other hand, the power given to the Secretary of State to deem deportation to be conducive to the public good seems to me to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground. The examples given in section 15(3) - 'that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature' - although clearly not exhaustive, nevertheless illustrate the kind of objection contemplated. I cannot suppose that this power was ever intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry."

12. It is this passage which has caused difficulty to judges at first instance and in the Court of Appeal in subsequent decisions, culminating in the instant case. Between the hearing of the argument in ex parte Khawaja in October and November 1982 and judgment on 10 February 1983 the Court of Appeal on 13 January 1983 had given judgment in R v Immigration Appeal Tribunal, ex parte Cheema [1982] Imm AR 124. The question at issue was whether the several appellants, who had each obtained leave to enter the United Kingdom for a limited period and then entered into "marriages of convenience" whereby they had obtained indefinite leave to remain could properly be deported under section 3(5)(b) on the ground that their deportation was conducive to the public good. It had been argued for the appellants (p 129) that the power to deport under section 3(5)(b) was a "special power, to be used rarely and then only in cases where it could be shown that the applicant was a highly undesirable person, a racketeer, for example, or an importer of drugs or the like: someone who could be described as coming within the useful and compendious phrase used by [counsel] as a 'menace to society'." The subsection, it was submitted, could not and should not be used to catch a mere deceiver. The court rejected this argument. In delivering a judgment with which Ackner and Oliver LJJ agreed, Lord Lane CJ said, at p 131:

"If a person chooses to use a ceremony of marriage or the status simply as a dishonest and deceitful way of avoiding the law - the immigration law or any other law - then I consider it properly open for the Secretary of State to come to the conclusion that that person's continued presence in this country is not conducive to the public good, and that conclusion is well within not only the literal meaning of the Act, but also within the spirit of the Act..."

13. The conflict between this decision and what I said in the passage quoted is at once apparent. In relation to the power to deport under section 3(5)(b) it is impossible to find any logical ground to distinguish between fraud in obtaining leave to enter the United Kingdom on the one hand and fraud in obtaining leave to remain on the other. Such fraud should be available as a ground for deportation as conducive to the public good in both cases or in neither. I regret that much judicial ingenuity has had to be devoted to the search for an escape from this logical dilemma.
14. The problem first emerged in R v Immigration Appeal Tribunal ex parte Ghazi Zubalir Ali Khan [ 1983] Imm AR 32, where Stephen Brown J felt constrained by my words to hold that deception to obtain leave to enter could not afford grounds for deportation under section 3(5)(b) although accepting that fraud after entry could do so. The next case is in re Owusu-Sekyere [ 1987] Imm AR 425. This was a case of an immigrant present in this country with temporary leave who obtained indefinite leave to remain by making false representations to the Home Office about the state of his marriage to a British citizen after the marriage had in fact broken up. The Secretary of State decided to deport him under section 3(5)(b). A challenge to this decision eventually came before the Court of Appeal (Fox, Lloyd and Stocker LJJ) in judicial review proceedings on appeal from Mann J who had followed Cheema's case [ 1982] Imm AR 124. It was argued that Cheema could not stand with what I had said in ex parte Khawaja [1984] AC 74. As I read the judgments, after extensive analysis of the relevant passage from my speech in ex parte Khawaja, marginally divergent opinions were expressed as to whether or not I should be taken to have intended to give what Stocker LJ (p439) called "a comprehensive ruling on the construction of section 3(5)(b)," but the court were unanimous in concluding that what I had said was obiter, leaving them free to follow Cheema [1982] Imm AR 124.
15. Finally, I come to the judgments below in the instant case. The decision of Taylor J [1987] Imm AR 164 was given before the decision of the Court of Appeal in in re Owusu-Sekyere [1987] Imm AR 425. He cited from and considered he should follow the judgment of Stephen Brown J in Ghazi Zubalir Ali Khan in applying what I had said in ex parte Khawaja. In the Court of Appeal, Stephen Brown and Neill LJJ found it unnecessary to resolve the problem of whether what I had said was part of the ratio decidendi or merely obiter. They felt that they should follow it, though acutely aware that it could not logically be reconciled with the decision in Cheema. Clearly and, if I may say so, very sensibly they had in contemplation that the difficulty would need to be resolved in your Lordships' House. In saying that, however, I mean no disrespect to the dissenting judgment of Dillon LJ who, more robustly, concluded that my words were part of the ratio decidendi of ex parte Khawaja [1984] AC 74 but, perhaps more charitably, felt able to interpret them as stopping short of the conclusion that, as a matter of construction, the power of deportation under section 3(5)(b) could not be invoked against a person on the sole ground that he had obtained leave to enter by deception.
16. My Lords, I am happily free of any obligation to decide whether what I said in ex parte Khawaja was part of the ratio decidendi or merely obiter. Still less need I attempt to plumb the mystery of precisely what I meant by what I said. I am at liberty, with the concurrence I believe of all your Lordships, to resort to the more direct and satisfactory expedient, not available in the courts below, of recognising that the opinion I expressed was simply mistaken. At first blush there is some attraction in the view that the remedy of summary removal of an illegal entrant pursuant to schedule 2 and the more ponderous remedy of deportation deemed to be conducive to the public good under section 3(5)(b) are mutually exclusive. But once attention is directed, as it was in Cheema [ 1982] Imm AR 124, but unfortunately not in ex parte Khawaja, to the use of section 3(5)(b) to deport a person who entered the country legally but subsequently obtained indefinite leave to remain by deception, that view is seen to be untenable. As in the case of illegal entry by fraud, so also in the case of indefinite leave to remain obtained by fraud after entry, the fraud may only be discovered when it is too late to prosecute for an offence under section 26(1 )(c) of the Act. There would, therefore, indeed be a lacuna in the Act if, in the latter case, the immigrant could profit from his fraud by securing a status of irremovability in the United Kingdom. But that apart, now that I have had the advantage of reading the judgment of Lord Lane CJ in Cheema I find myself in complete agreement with his opinion that the exercise by the Secretary of State of the power to deem deportation conducive to the public good on the ground that the immigration law has been avoided by dishonest deception is within both the literal meaning of section 3(5)(b) and the spirit of the Act. If this is correct as a matter of construction, there can be no possible ground to distinguish between a fraud practised in order to obtain leave to enter and a fraud practised after entry to obtain indefinite leave to remain.
17. Whether or not the words I used in ex parte Khawaja which have given rise to the problem here examined (and now, I hope, resolved) were strictly obiter or not, they were certainly peripheral to the point at issue in ex parte Khawaja raised by Mr Blom-Cooper's argument that a person who had obtained leave to enter by fraud was not an "illegal entrant." Thus, even if a decision to allow the present appeal technically involves resort to the Practice Statement of 1966 as a departure from a previous decision of the House, I am satisfied that your Lordships need not be inhibited from taking that course. The view I expressed about section 3(5)(b), from which I would now depart, was not even necessary to the refutation of Mr Blom-Cooper's argument. The primary reason for declining to construe the expression "illegal entrant" as referring only to a clandestine entrant was expressed in a later paragraph in my speech in the following terms:

"My Lords, in my opinion, the question whether a person who has obtained leave to enter by fraud 'has entered in breach of the Act' is purely one of construction. If the fraud was a contravention of section 26(l)(c) of the Act, the provisions of which I have already quoted, and if that 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 the Act and the obtaining of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry itself was 'in breach of the Act.' It is on this simple ground and subject to the limitations that it implies that I would rest my conclusion that those who obtain leave to enter fraudulently have rightly been treated as illegal entrants. I would add, however, that if I had reached an opposite conclusion, ... I should not have thought it appropriate, on this point, to depart from R v Secretary of State for the Home Department, ex parte Zamir [1980] AC 930."

18. The reasoning in this paragraph is unaffected by the point which arises in the instant appeal. I prefer to think that it was the reasoning in this paragraph only with which Lord Scarman and Lord Templeman intended to express their agreement.
19. I would allow the appeal.
20. Lord Elwyn-Jones: My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bridge of Harwich. I agree with it and for the reasons he gives I would allow the appeal.
21. Lord Ackner: My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bridge of Harwich. I agree with it and for the reasons he gives I would allow the appeal.
22. Lord Goff of Chieveley: My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bridge of Harwich. I agree with it and for the reasons he gives I would allow the appeal.
23. Lord Jauncey: My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bridge of Harwich. I agree with it and for the reasons he gives I would allow the appeal.

Appeal allowed