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[COURT OF APPEAL] |
REGINA v. SECRETARY OF STATE FOR THE HOME |
DEPARTMENT, Ex parte BAGGA |
REGINA v. SAME, Ex parte BIST AND ANOTHER |
REGINA v. SAME, Ex parte RASIAH AND ANOTHER |
REGINA v. SAME, Ex parte KAKKAR |
REGINA v. IMMIGRATION APPEAL TRIBUNAL, Ex parte ALI |
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Immigration - Diplomatic immunity - Member of mission - Applicants' passports date-stamped on entering U.K. to take up appointment with mission - Exclusion of diplomats and their families from immigration control - Whether notification of diplomatic status necessary before exclusion from immigration control - Whether applicants entitled to remain indefinitely in U.K. after appointments ceasing - Immigration Act 1971 (c. 77), ss. 4(1), 8(3), Sch. 2, para. 6(1) (as amended by British Nationality Act 1981 (c. 61), s. 39(6), Sch. 4, para. 2)1 |
Immigration - Limited leave to enter - Overstayer - Employment by foreign embassy - Employment terminated - Overstayer seeking permission to remain to take up employment as personal servant of member of mission - Whether entitled to remain for permit-free employment - Statement of Changes in Immigration Rules (1983) (H.C. 169), paras. 33(a), 117 - Immigration Act 1971 (c. 77), ss. 3(1)(b), 19(2) |
Prior to amendment by section 4 of the Immigration Act 1988, section 8(3) of the Immigration Act 1971 (as amended) provided: |
"The provisions of this Act relating to those who are not [British citizens] shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent." |
The first six applicants had either been employed as members of diplomatic missions within the meaning of the Diplomatic Privileges Act 1964 or were members of the family of a person so appointed. Four of the six applicants had entered the United Kingdom on the taking up of the appointment and the other two, a married couple, had re-entered the United Kingdom during the period of the wife's appointment as a member of a mission. They had all been granted leave to enter the United Kingdom prior to notification of the respective appointments to the Foreign and Commonwealth Office and their passports had been date stamped on entry. The first applicant ceased to be a member of a mission and returned to India but, on a subsequent short visit to the United Kingdom, his passport was date-stamped and endorsed "visa exempt" by an immigration officer in the mistaken belief that he was still a member of a mission. All six applicants claimed that, on the appointments ceasing, they were entitled to remain in the United Kingdom |
1 Immigration Act 1971, s. 4(1): see post, p. 507c. Sch. 2, para. 6(1): see post, p. 502E-F. |
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as, inter alia, they had not been subject to section 8(3) of the Immigration Act 1971 on entry, the necessary notification not having been given to the Foreign and Commonwealth Office, and that they must be deemed to have been granted indefinite leave. The Secretary of State rejected their claims but, on applications for judicial review, the Divisional Court held that all the applicants had indefinite leave to remain in the United Kingdom. |
The applicant A. had overstayed his leave to enter the United Kingdom and while in breach of immigration control he was appointed as a driver to a mission and his appointment was notified to the Foreign and Commonwealth Office. The embassy gave notice that A.'s employment was being terminated and he was being offered employment by one of their staff. The Secretary of State refused leave for the applicant to remain and take up the offered employment. Farquharson J. dismissed A.'s application for judicial review of that refusal. |
On appeals by the Secretary of State against the decisions of the Divisional Court and by A. against the decision of Farquharson J.: - |
Held, allowing the appeals of the Secretary of State, (1) that the exemption in section 8(3) of the Immigration Act 1971 from the provisions of the Act applied to anyone who arrived in the United Kingdom to take up employment as a member of a mission or who was in the United Kingdom and took up such employment, whether or not the Foreign and Commonwealth Office had been notified of the appointment; that, therefore, since all the six applicants had been appointed as members of a mission or were members of such an appointee's family, they had been excluded from the provisions of the Act and they could not be the subject of a grant of indefinite leave to enter the United Kingdom under the provisions of the Act and the date stamp applied to their passports merely recorded the date they entered the United Kingdom (post, pp. 496D-E, 499B-C, 506D,508E, 509A). |
Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274, D.C. doubted. |
(2) That the requirement of section 4 of the Immigration Act 1971 that notice in writing must be given of leave to remain indefinitely within the United Kingdom was mandatory and that a date stamp on a passport was not such a notice; that the deemed grant of indefinite leave to enter the United Kingdom in paragraph 6 of Schedule 2 to the Act did not apply to a person who was exempt from immigration control; and that since there was evidence that the first applicant had been permitted to enter the United Kingdom in the mistaken belief that he was still a member of a mission and that he had deceived the immigration officer, he was not entitled to remain in the United Kingdom (post, pp. 502B-D, 503A-G, 507D-E, H-508C,509H, 513C-D). |
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Reg. v. Secretary of State for the Home Department, Ex parte Sattar [1988] Imm.A.R. 190, C.A. applied. |
(3) Dismissing A.'s appeal, that A. had been exempt from immigration control during the period of his employment with a foreign embassy but he had reverted to being an overstayer when his employment ceased; that the decision to refuse him leave to remain in the United Kingdom had been validly made in accordance with paragraph 117 of the Statement of Changes in Immigration Rules (1983) (H.C.169) as he was a person who had been permitted to remain on being appointed to a mission but on ceasing that employment the rule excluded his remaining to take up the permit-free employment offered by the member of the embassy staff (post, pp. 504C-D,505F-G, 508D, E). |
Decisions of the Divisional Court reversed and decision of Farquharson J. affirmed on other grounds. |
The following cases are referred to in the judgments: |
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A. |
Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751; [1982] 2 W.L.R. 918; [1982] 2 All E.R. 402, E.C.J. and H.L.(E.) |
Rahi v. Secretary of State for the Home Department [1987] Imm.A.R. 293 |
Reg. v. Governor of Pentonville Prison, Ex parte Teja [1971] 2 Q.B. 274; [1971] 2 W.L.R. 816; [1971] 2 All E.R. 11, D.C. |
Reg. v. Lambeth Justices, Ex parte Yusufu [1985] Crim. L.R. 510, D.C. |
Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] A.C. 74; [1983] 2 W.L.R. 321; [1983] 1 All E.R. 765, H.L.(E.) |
Reg. v. Secretary of State for the Home Department, Ex parte Rehal (unreported), 22 June 1989; Court of Appeal (Civil Division) Transcript No. 612 of 1989, C.A. |
Reg. v. Secretary of State for the Home Department, Ex parte Sattar [1988] Imm.A.R. 190, C.A. |
Reg. v. Secretary of State for the Home Department, Ex parte Badaike, The Times, 4 May 1977, D.C. |
The following additional cases were cited in argument: |
Florentine v. Secretary of State for the Home Department [1987] Imm.A.R. 1 |
Rayner (J. H.) Mincing Lane Ltd. v. Department of Trade and Industry [1990] 2 A.C. 418; [1989] 3 W.L.R. 969; [1989] 3 All E.R. 523, H.L.(E.) |
REGINA V. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte BAGGA |
REGINA V. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte BIST AND ANOTHER |
REGINA V. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte RASIAH AND ANOTHER |
REGINA V. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte KAKKAR |
APPEALS from the Divisional Court of the Queen's Bench Division. |
The applicant, Kewal Krishnan Bagga, applied for judicial review of the decision of immigration authorities on 25 April 1988 refusing him leave |
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to enter the United Kingdom and for a declaration that he had indefinite leave to remain. The applicants, Rakesh and Anil Bist, Chandrakalah and Vasudeuan Rasiah and Sushila Kakkar, applied for judicial review of decisions of the Secretary of State that they were not entitled to remain indefinitely in the United Kingdom. On 22 May 1989 the Divisional Court granted the applications but ordered that the declarations be stayed pending appeal or further order. The Secretary of State appealed on the grounds that the Divisional Court had erred in law in holding that the applicants became members of a mission, or members of the family of a member of a mission respectively, for the purposes of section 8(3) of the Immigration Act 1971 from the moment that the appropriate appointment was notified to the Foreign and Commonwealth Office by the sending state, rather than from the moment of their entry to the United Kingdom; and that, even if the Divisional Court had been correct in holding that the appointments had taken effect from the moment of notification rather than from the moment of entry, the Divisional Court had erred in law in holding that the immigration authority, by erroneously treating the applicants as members of a mission, or members of the family of such a member, at the moment of entry and stamping their passports accordingly, had thereby given the applicants unconditional leave to enter. |
The facts are stated in the judgments of Parker and Leggatt L.JJ. |
REGINA V. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte ALI |
APPEAL from Farquharson J. |
The applicant, Mahmoud Mohammed Ali, applied for judicial review of a decision of the Immigration Appeal Tribunal on 27 April 1987 refusing him leave to appeal from the decision of an adjudicator on 25 February 1987 dismissing his appeal against a decision of the Secretary of State on 24 April 1985 giving him limited leave to remain until 18 June 1985 but informing him that any application by him for leave to remain in the service of the commercial attaché of the embassy of the United Arab Emirates would be unlikely to be successful and, following such an application on 17 June 1985, a decision to refuse that application on 13 August 1985. On 17 October 1988 the motion was heard and refused by Farquharson J., who found that the applicant had never been accredited by the necessary notice having been given to the Foreign and Commonwealth Office. The applicant appealed on the ground that the judge had erred in law in holding that "a member of a mission" within the meaning of that term in Schedule 1 to the Diplomatic Privileges Act 1964 did not become "a member of a mission" under section 8(3) of the Immigration Act 1971 until he became accredited under article 39 of Schedule 1. |
The facts are stated in the judgments of Parker L.J. |
Michael Beloff Q.C., Paul Stinchcombe and Richard Humphreys for the Secretary of State. The issue is whether for the purposes of the unamended section 8(3) of the Immigration Act 1971, a person became "a member of a mission" from the moment of entry into the United Kingdom or from the |
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If the applicants were not "members of a mission" until notification of their appointment, they must have been subject to immigration control under section 3 of the Act of 1971. They must, therefore, have required leave to enter and such leave, under section 4(1) of the Act, had to be given in writing. The Secretary of State's immigration control stamped the passports with an open stamp in the mistaken belief that the applicants were exempt from immigration control as "members of a mission" at the time of entry. An open stamp on a passport on the entry of a diplomat has effect only as evidence of the diplomat's date of entry. It does not purport to operate as an express grant in writing of indefinite leave to enter: see Grant and Martin, Immigration Law and Practice (1982), pp. 50, 367. By parity of reasoning an open stamp made under the mistaken belief that the entrant is a diplomat and, therefore, exempt from immigration |
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control has effect only as evidence of the date of entry and cannot operate as an express grant in writing of indefinite leave to enter. |
To turn to the appeal of the applicant Ali, (i) the applicant entered as a visitor and, therefore, paragraph 117 of the Statement of Charges in Immigration Rules (1983) (H.C. 169) applied to him; (ii) by virtue of paragraph 117 the applicant had "no claim to remain for permit free employment;" consequently (iii) the applicant could only have succeeded in his original appeal if the Secretary of State had agreed to depart from the above rule; (iv) the Secretary of State's refusal to depart from the above rule is not within the jurisdiction of the appellate authorities by virtue of section 19(2) of the Act of 1971; consequently (v) whether or not the applicant was ever exempt from immigration control, there was no right of appeal against the refusal to depart from the rule in paragraph 117; (vi) the effect of any exemption from immigration control that may have occurred during the applicant's stay could only be to suspend any leave and would have had no effect in the applicant's case as he was an overstayer at the time of his employment by the embassy. |
The applicant's appeal is correctly identified as a "post-entry" case. Farquharson J. was correct in law in deciding that in a post-entry case the applicant did not become a "member of a mission" within section 8(3) of the Act until his appointment had been notified to the Foreign and Commonwealth Office. To the extent that it was the intention of Parliament in enacting section 8(3) that there should be a coincidence of the period during which a person enjoyed "diplomatic exemption" from the Act of 1971 and privileges or immunities under the Diplomatic Protection Act, it is clear that such enjoyment subsists in "pre-entry" cases from the moment of entry into the United Kingdom, and in "post-entry" cases from the moment of notification. |
Alper Riza for the applicant Ali. The issue is whether the applicant became a "member of a mission," within the meaning of the Act of 1964, from the moment when he became employed as a member of the service staff of a mission in August 1984. This is entirely a matter of construction of the definition in article 1 of the Vienna Convention. It is clear that the applicant was a "member of a mission" during his employment. |
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Following the termination of that appointment the applicant sought limited leave to remain and by a notice dated 24 April 1985 the Home Secretary granted the applicant limited leave to remain until 18 June 1985 pursuant to section 14(2) of the Act of 1971. The Secretary of State exercises a discretion, when he decides to grant a limited leave under section 14(2), which is subject to appeal. |
The circumstances in which an adjudicator is precluded from considering the exercise of the discretion are set out in section 19(2). Section 19(2) presupposes (i) that there are immigration rules; (ii) that the Secretary of State has been asked to depart from them; (iii) that he has in the exercise of his discretion refused to do so; and (iv) that his decision is in accordance with the rules. It is the refusal to depart from the rules which is the exercise of power that is not justiciable. |
The Secretary of State has made no rules as to how he will exercise his powers to impose a time limit and attach conditions to a person ceasing to be a "member of a mission" under section 8(3) of the Act of 1971. Where the Secretary of State has made no rules it cannot be said (i) that there is an immigration rule that is applicable; (ii) that he has been asked to depart from a rule; (iii) that he has in the exercise of his discretion refused to do so; (iv) that his decision is in accordance with the rules. If the Secretary of State had said that the only persons who would be permitted to stay in the United Kingdom were those for whom he had made rules, then section 19(2) would apply, subject only to the proviso that such a rule would be intra vires section 14(2). The Secretary of State has not made such a rule and if he had it would be ultra vires section 14(2). |
If, however, exemption under section 8(3) depends on whether at the time of entry the applicant was a member of a mission within the meaning of article 1 of the Vienna Convention, then since he was coming to take up his appointment the applicant was not a member of a mission until he had taken up the appointment. This distinction has been clearly recognised by Parliament in section 4 of the Immigration Act 1988. |
Even if the applicant was not exempt under section 8(3) of the Act of 1971, he was not an illegal immigrant since the date stamp amounted to the grant of leave to enter. A date stamp is a notice in writing as required by section 4 of the Act of 1971. It is the normal stamp for granting leave to returning residents. If the leave is not limited it is indefinite. The intention of the immigration officer is irrelevant. It is the consequence |
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Owen Davies for the applicants Rakesh and Anil Bist, Chandrakalah and Vasudeuan Rasiah and Sushila Kakkar. On the scope of section 8(3) of the Act of 1971, the argument advanced on behalf of the applicant Bagga is adopted. The applicants Bist, Rasiah and Kakkar stand or fall with Bagga on that point. However, if there is a distinction between exemption under section 8(3) and immunity, the applicants Rasiah and Kakkar fall into a different category from that of Bagga and Bist because they, or the relevant members of their families, were already "in post" when entry took place. If the applicants were not members of a mission on entry then the argument advanced on behalf of Bagga is adopted. |
Beloff Q.C. and Riza replied. |
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11 April. The following judgments were handed down. |
PARKER L.J. There are before the court for determination five appeals. In the first four of them, the Secretary of State appeals against the decision of a Divisional Court of the Queen's Bench Division (Woolf L.J. and Ian Kennedy J.) dated 22 May 1989 by which, following earlier decisions of that court, it was held that the applicants had indefinite leave to remain in the United Kingdom. In the fifth the applicant, Ali, appeals against the decision of Farquharson J., dated 17 October 1988, whereby his application for judicial review of a decision of the Immigration Appeal Tribunal, dated 27 April 1987, refusing him leave to appeal against the decision of an adjudicator dated 25 February 1987, was dismissed. |
I shall consider first the four appeals by the Secretary of State. These four appeals all involve two common issues and, in the case of Bagga, one further separate issue. The appeal of Ali raises a quite separate point. |
The appeals by the Secretary of State |
I state only those facts necessary for an understanding of the common issues. I do so separately in relation to each of the applicants. |
Bagga |
He is an Indian citizen and first arrived in the United Kingdom on 13 November 1981 to take up employment with the Indian High Commission. He was in possession of a white diplomatic passport. His passport was date-stamped. His appointment was notified to the Foreign and Commonwealth Office on 25 November 1981. He remained in employment with the Indian High Commission until 8 July 1985. He notified the Home Office that his employment had |
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ceased. On 14 September 1985 he left the United Kingdom and returned to India. Whilst there his white diplomatic passport was cancelled and he was issued with a new ordinary blue passport. On 13 April 1986 he returned to the United Kingdom for a visit. His passport was date-stamped. Later, on 14 November, it was endorsed with a "visa exempt" stamp. Ten days later, on 24 November, he returned to India. He again arrived in the United Kingdom on 21 January 1987. He was then refused leave to enter. That refusal was subsequently quashed on judicial review by MacPherson J. His position was then reconsidered and he was refused leave to enter on the basis that he was exempt from the Immigration Act 1971 on his original entry in November 1981, but that his "leave to enter" in April 1986 had been obtained by deception. |
Bist |
On 27 April 1984 the applicants arrived in the United Kingdom in company with their father, who had been appointed to the Indian High Commission. They are Indian citizens. Their passports were date-stamped. No notification of their father's appointment was ever given by the High Commission to the Foreign and Commonwealth Office. On 11 May 1987, by which time their father's appointment with the High Commission had terminated, they applied for confirmation that they had indefinite leave to remain in the United Kingdom. On 30 June 1988 they were refused such leave. |
Rasiah |
In October 1984 the applicant and her husband were lawfully in the United Kingdom under limited leave due to expire on 31 October. She is a citizen of Singapore, and he a citizen of Sri Lanka. On 23 October 1984 they wrote to the Home Office seeking "an extension of their visa," and enclosing their passports and a letter from the Singapore High Commission in London, dated 18 October 1984, notifying the Home Office that she was engaged by the High Commission as a clerk/typist as from 3 September 1984. On 10 January 1985 the applicant's passport was endorsed: |
"While the holder is employed as a clerk/typist at the Singapore High Commission she is not subject to any condition or limitation on the period of permitted stay in the United Kingdom." |
A corresponding entry was made in her husband's passport. |
In May 1985, when still working for the High Commission she was out of the United Kingdom for a short time, and on re-entry her passport was date-stamped. On 24 November 1987 solicitors on her behalf confirmed that she was still working for the High Commission, but sought confirmation that when she left both her own and her husband's passport would be endorsed that neither was subject to any time limit on their stay. This was refused by letter dated 18 March 1988. The applicant's appointment to the High Commission, although notified to the Home Office, was never notified to the Foreign Office. |
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Kakkar |
The applicant, who is a citizen of India, arrived in the United Kingdom on 26 August 1978, in company with her husband who had been appointed assistant section officer in the Indian High Commission. Their passports were date-stamped. Her husband's appointment was notified to the Foreign and Commonwealth Office on 28 August 1978. His appointment terminated on 14 September 1982. On 30 September 1987 the applicant's solicitors sought confirmation that she was permitted to stay without conditions. On 6 May 1988 the request was refused. |
So much for the facts. |
Statutory provisions |
Prior to its further amendment by section 4 of the Immigration Act 1988, section 8(3) of the Immigration Act 1971, as amended, provided: |
"The provisions of this Act relating to those who are not [British citizens] shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent." |
The subsequent amendment was not in force at any time material to these appeals. |
The Diplomatic Privileges Act 1964 incorporates into the law of the United Kingdom those articles of the Vienna Convention on Diplomatic Relations signed in 1961 which are set out in Schedule 1 to the Act. Article 1, which is so set out, provides, so far as immediately material: |
"For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: (a) the 'head of the mission' is the person charged by the sending state with the duty of acting in that capacity; (b) the 'members of the mission' are the head of the mission and the members of the staff of the mission; (c) the 'members of the staff of the mission' are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission; (d) the 'members of the diplomatic staff' are the members of the staff of the mission having diplomatic rank; (e) a 'diplomatic agent' is the head of the mission or a member of the diplomatic staff of the mission; (f) the 'members of the administrative and technical staff' are the members of the staff of the mission employed in the administrative and technical service of the mission; (g) the 'members of the service staff' are the members of the staff of the mission in the domestic service of the mission." |
Article 39, paragraphs 1 and 2, also so set out, provide: |
"1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceeding to take up his post or, if already in its territory, from the moment when |
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his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. 2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist." |
Although no question here arises on its application, reference may also be made to article 36 (also in Schedule 1). It provides: |
"1. The receiving state shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes and related charges other than charges for storage, cartage and similar services on: (a) articles for the official use of the mission; (b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment. 2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving state. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorised representative." |
The first issue |
What is the scope of section 8(3) of the Immigration Act 1971? Does the exemption from immigration control only apply upon notification by the mission or embassy to the Foreign and Commonwealth Office of appointment or employment and, possibly, acceptance by that office of the appointment, or can it apply prior to notification (and acceptance)? |
So far as diplomatic immunities are concerned apart from authority there could in my view only be one answer. It is abundantly clear from article 39 of the Convention that the immunities will be enjoyed on entry to take up a post, and it is only when a person already in the country is appointed that the immunities depend on notification. Indeed this must, as it seems to me, necessarily be so because the article 36 immunities, if to be enjoyed at all, can only be enjoyed at time of original entry to take up post. |
We are, however, not concerned with enjoyment of diplomatic immunities, but with exemption from immigration control. This is dependent, and dependent only, on whether the person concerned "is a member of a mission (within the meaning of the Act of 1964) or is a member of the family and forms part of the household of such a member, or is a person otherwise entitled to the like immunity from jurisdiction as is conferred by that act on a diplomatic agent." |
Under article 1(a) and (b) of the Convention, "the head of the mission" is a "member of the mission" and is "the person charged by the |
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sending state with the duty of acting in that capacity." Whatever may be said about other persons, it therefore seems clear that if a person who has in fact been so charged arrives in this country, he is a "member of the mission" notwithstanding that he has arrived to take up but has not yet taken up his appointment, and that there is at the time no notification to the Foreign and Commonwealth Office. |
I can see no valid reason why any other person arriving to take up a post within the definition should be in any different position so far as immigration control, which operates on entry, is concerned. If this were not so, there would be a serious conflict between the Act of 1964 and the Act of 1971. Under the former Act, such a person would be entitled, amongst other things, to the privilege conferred by article 36, and also the freedom from arrest and detention conferred by article 29, and yet be subject to detention under the latter Act. |
Again, suppose that a person already in this country is employed in the administrative or technical service of the mission for five years, but there has been no notification to the Foreign and Commonwealth Office. It is clear from article 39 that his right to enjoy the privileges and immunities to which he is thereby entitled under the Act of 1964 will not have arisen, but is it to be said that throughout the period he is subject to immigration control? Such a view appears to me to be contrary to common sense and to be wholly unwarranted by the terms of section 8(3) of the Act of 1971, or article 1 of the Convention. |
Approaching the matter de novo, I would have no hesitation in concluding that, as a matter of construction, someone arriving to take up a post or, if already in this country, on becoming employed as a member of the mission, is exempt from immigration control from the moment of entry or commencement of employment until his employment ceases, whether or not there has been any notification to the Foreign and Commonwealth Office. If the contrary had been intended, it seems to me that section 8(3) of the Act of 1971 would have provided that the exemption would only arise on notification to the Home Office. |
The truth is that, so far as immigration is concerned, the Home Office are not in any way involved in what may be the diplomatic niceties as to when a head of mission or other diplomat begins to enjoy the benefits conferred by the Act of 1964, but only with the question whether a person is a member of a mission, be it the head of a mission, a member of the diplomatic staff of the mission, or of the technical, administrative or service staff of the mission. |
That question appears to me to involve only the determination of the question whether the person has in fact been appointed to some post in the mission, be it a diplomatic, administrative, technical or service appointment, or is in fact employed by the mission in one or other of such categories. |
What then of the authorities? |
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committed certain offences. One of the many points taken on his behalf was that he was entitled to immunity from arrest under the Act of 1964. Mr. Teja relied on the fact that he had been issued with a diplomatic passport by the Government of Costa Rica, to which country he had fled to avoid extradition proceedings which had begun in the United States. That government had also provided him with a letter of credence, describing him as an economic adviser to the Costa Rican government, visiting a number of countries in Europe, including England and Switzerland, to undertake a study of the possible development of an integral steel industry for the Central American area, and to obtain therefor the necessary information and possible financing co-operation. The letter provided that he should establish himself in Switzerland "where he shall soon be accredited as economic counseller for the Costa Rican Embassy in said country." |
Teja contended that he was the head of a special mission. He could not do otherwise because he was clearly neither the head of nor a member of the staff of the existing Costa Rican Embassy in this country. |
Lord Parker C.J., with whose judgment the other two members of the Divisional Court agreed, said, at p. 282: |
"As I see it, it is fundamental to the claiming of immunity by reason of being a diplomatic agent that that diplomatic agent should have been in some form accepted or received by this country." |
It is to be noted that Lord Parker C.J. was considering the position of someone who was claiming to be, and only claiming to be, the head of a special mission. That claim inevitably failed on the facts. It is true that Lord Parker C.J.'s decision depended as well on his conclusion that notification and acceptance was required before such a person could be entitled to diplomatic immunity under the Act of 1964, but I cannot regard it as going further. |
In the face of articles 1 and 39 of the Convention it could not, I think, be contended that if an embassy chooses to employ a secretary who is already in this country, anything more is required than notification before that person is entitled to enjoy immunities. Nor could it be contended, in my view, that such a person was not a member of the staff of the mission employed in the administrative and technical service of the mission. He or she would, on the ordinary meaning of words, clearly fulfil such a description. |
The court regarded itself as bound by the decision in Teja's case, but, as in Teja's case, the facts doomed the application to failure. |
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I must respectfully disagree. On the wording of the article, I am unable to see how it can be regarded as procedural or as affording merely temporary immunity between entry and notification to someone who is without doubt a diplomat. |
When Mr. Rahi arrived, he bore documents showing that he had been appointed to the Indian High Commission. On the following day he took up the post and was, if words mean what they say, beyond doubt a member of that mission for the 14 days which elapsed before notification to the Foreign and Commonwealth Office. To say that he was not is to deny the facts. It might be that on receipt of notification the Foreign Office might have required the commission to terminate his employment (as in fact happened in the case of the fifth appeal, with which I deal hereafter), but unless and until |
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they did and his employment was in fact terminated, he was in my view exempt, and the tribunal's decision was wrong. |
Moreover it is, on the face of it, clear that under article 39 he was entitled, at the point of entry, to the benefits of article 36 and freedom from arrest. |
The same applies to other decisions of the appeal tribunal to the like effect. To the tribunal's decision that because he was not in their view exempt from immigration control on arrival he must be deemed to have indefinite leave, I shall return later. |
Before turning to the next matter, it is necessary to examine the effect of my foregoing conclusion on the various applicants. |
Bagga |
When he arrived on 13 November 1981 he was exempt and accordingly the date stamp without more was correctly applied. He remained so exempt until, on 8 July 1985, his employment ceased. Thereafter until he left the United Kingdom in September 1985 he was here without leave. The issue as to later events I shall consider hereafter. |
Bist |
When they arrived on 27 April 1984, they were exempt as members of their father's family, and remained so exempt until their father's employment with the high commission terminated. Since that time they have remained in the United Kingdom without leave. |
Rasiah |
At the time when she was first employed by the Singapore High Commission, she was lawfully in this country with limited leave due to expire on 31 October. From the time of her employment she was accordingly exempt from immigration control. The fact that during that employment she left and re-entered the country and that her passport was date-stamped does not |
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assist her, for she was at that time exempt from control. |
Kakkar |
She was exempt from control on arrival in the United Kingdom on 26 August 1978, and remained so exempt until 14 September 1982. She has remained in this country since without leave. |
The result of the conclusion on the first issue is therefore that, without more, the appeals of the Secretary of State in the cases of Bist, Rasiah and Kakkar should be allowed. |
I now turn to the remaining issues in the case of Bagga which, save as to the last, would also arise in the other appeals by the Secretary of State if my above conclusion is wrong. On the basis of the conclusion on the first issue, when he returned to the country on 13 April 1986, he required leave to enter. The fact that his passport was then date-stamped only is, it is said, either that such stamp constitutes a grant of indefinite leave, or that he must be deemed to have been granted indefinite leave under paragraph 6(1) of Schedule 2 to the Act of 1971. |
On behalf of the Secretary of State it is submitted that both contentions are unsustainable in themselves, and that in any event any leave that Bagga did obtain on that occasion was obtained by deception, and cannot avail him. Accordingly, when he sought to return on 21 January 1987 he was rightly refused leave. |
It is common ground that on 13 April 1986 the immigration officer who date-stamped his passport did so in the mistaken belief that he was exempt from control. |
The first remaining issue is therefore: |
What is the effect of a date stamp placed on a passport in such mistaken belief? |
Section 4(1) of the Act provides that the power to give leave must be exercised by notice in writing. As in the case of the first issue, I shall consider the position first without regard to authority. |
On the face of it a mere date stamp does nothing more than record date of entry, and it is accepted that, in the case of someone who is exempt from control or who requires no leave under the Act or rules, that is all it does. It is therefore difficult to understand how it can possibly amount to a written grant of indefinite leave, at least when it is placed on a passport in the belief, albeit mistaken, that the holder is exempt from control. The stamp itself does not purport to grant leave and as a matter of construction, unaided or influenced by any factual matrix, could not in my view be regarded as doing so. If one goes outside the document itself to the factual matrix and finds that the officer who placed the stamp in fact believed the passport holder to be exempt, it cannot in my view possibly lead to the result that the date stamp is to be construed as a written grant of indefinite leave. |
It is however possible that the factual matrix might be such that the date stamp would amount to a written grant of indefinite leave; if, for example, the date stamp was, as a matter of practice, always used to indicate the grant of indefinite leave. But this is not the case. |
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"Nothing in the Act dealt with the procedure by which leave to enter had to be given. If the Home Secretary wished to show that the applicant in fact was not given leave to enter within the meaning of the Act but was let in by virtue of some mistake, the burden lay on the Minister to establish it. Having considered the evidence carefully his Lordship was of the view that the Home Secretary had not discharged the burden. A possible view of the case was that the immigration officer might have misunderstood the position and mistakenly thought that the applicant was a member of the Nigerian Air Force and therefore exempt. However, the immigration officer did not say so, not surprisingly. There was no evidence that the mistake made was necessarily of that character. In his Lordship's view the applicant was given leave to enter and was here in accordance with the Act. |
"A further objection raised was that the stamp which the immigration officer put on the passport was not a 'notice in writing' within section 4(1), which provided for such a notice to be given to the person affected. Certainly the stamp used did not contain any of the written forms set out in an exhibit. There being no provisions for what form a notice in writing had to take, the stamp was a sufficient notice in writing to satisfy section 4. In any event, Parliament could not have intended section 4 to be mandatory so that, so far as giving leave to enter was concerned, a notice would be null and void if for some reason it was not given in writing. The provision in section 4 was directory so far as giving leave was concerned. The absence of anything fuller than the stamp on the passport did not invalidate the permission to enter. The applicant was lawfully here, having been given unrestricted leave to enter. Nothing more would be said about an interesting argument on estoppel." |
Both Lord Widgery C.J. and Park J. agreed. Lord Widgery C.J. added: |
"the absence of any suggestion that the immigration officer was misled by the applicant sufficed to discharge the burden on the applicant. The court was able to interfere because the primary facts were undisputed. Both certiorari and habeas corpus would issue. The application was granted with costs." |
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The court there clearly treated the date stamp as being a notice in writing giving indefinite leave to enter, but it appears also to have taken the view that if the stamp had been impressed by mistake, or indeed if the immigration officer asserted that he had been misled, the position would have been different. The court also clearly held that the section 4(1) requirement for notice in writing was merely directory. As I read the report, it proceeded on the basis that as a fact the applicant had been given leave to enter and that it did not matter that the notice had not been given in writing. |
I respectfully disagree with the view that the requirement for notice in writing is merely directory. The words of section 4(1) are, in my view, clearly mandatory. The use of the word "shall" coupled with the preceding words "unless otherwise allowed by this Act," in my view admit of no other conclusion. For the rest, the report in The Times newspaper is of assistance only in so far as it shows that the court recognised that mistake would have been sufficient to prevent the date stamp operating as a grant of indefinite leave. In so far as it does so I agree with it. Even, therefore, if a date stamp can be regarded as a notice in writing that the holder of the passport has been granted indefinite leave to enter the United Kingdom in some circumstances, it cannot in my judgment be so regarded in the present case. |
Does paragraph 6(1) of Schedule 2 to the Act result in the present case in the applicant being deemed to have indefinite leave? |
Paragraph 6(1) provides: |
"Subject to sub-paragraph (3) below, where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than 12 hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those 12 hours, he shall (if not [a British citizen]) be deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave." |
The paragraph has since been amended, but the amendment does not operate in the present case. Sub-paragraph (3) has no relevance. The relevant part of paragraph 2 is sub-paragraph (1). It provides: |
"An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom) for the purpose of determining: (a) whether any of them is or is not [a British citizen]; and (b) whether, if he is not, he may or may not enter the United Kingdom without leave; and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any) or should be refused leave." |
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There are the following possibilities arising from an examination under paragraph 2(1), once it has been determined that the immigrant is not a British citizen: (i) that he does not require leave in order to enter; (ii) that he should be refused leave to enter; (iii) that he should be granted limited leave to enter; (iv) that he should be granted indefinite leave to enter. "Limited leave" and "indefinite leave" are defined by section 33 of the Act as follows: |
"'limited leave' and 'indefinite leave' mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration." |
Paragraph 6(1) specifically applies only to possibilities (ii) and (iii). It clearly cannot apply when the conclusion of the immigration officer is that the immigrant does not need leave. In such a case the officer will simply date stamp his passport and he will proceed on his way. Whether the officer's conclusion was mistaken or not, and whether, if mistaken, the mistake resulted from deception or misunderstanding or plain negligence, it is in my view impossible for paragraph 6(1) to apply. There can be no question of saying that, on the conclusion of the examination, such a person "is to be given limited leave to enter the United Kingdom or to be refused leave." The die has already been cast. The immigrant will have entered without leave. |
I do not propose to rehearse the evidence. Having studied it at length, I am not satisfied that Mr. Burns's conclusion was irrational or resulted from any misdirection or other impropriety. He had before him ample material upon which to reach the conclusion which he did. I accept that he, or another immigration officer, might properly have reached the opposite conclusion, although I regard it as very doubtful, but that is not sufficient. |
In the result, I would allow all four appeals by the Secretary of State. |
I turn now to the appeal of Mahmoud Mohammed Ali. |
The facts |
The applicant's immigration history is far from satisfactory, but it is unnecessary for me to refer to events prior to August 1984. At that time he was an overstayer. On 29 August the Embassy of the United Arab Emirates notified the Home Office that he was employed by the embassy as a driver. On 20 February 1985, as a result of a request from the Foreign and Commonwealth |
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Office dated 13 February 1985, the embassy gave notice to that office that the applicant's employment was being terminated on 21 March 1985. Prior to such termination the applicant's solicitors notified the Home Office that on such termination the commercial attaché of the embassy wished to employ him in his personal capacity as his chauffeur and general handyman. They indicated that he desired limited leave for such purpose. Their letter continued: |
"There is a basis for this under paragraph 117 of H.C. 169 read together with paragraph 33(a). We would submit that paragraph 117 makes him eligible to remain here as a personal servant of a member of a diplomatic mission because Mr. Ali was a person who was exempt and therefore no question of change of status under paragraph 117 arises. Alternatively, we would suggest that as a person who is exempt, no provision is made for such persons under the rules so that we would request that consideration be given for the exercise of the Secretary of State's residual discretion albeit on the basis that Mr. Ali wishes to remain here as the personal chauffeur of [the commercial attaché]." |
The applicant's employment by the embassy duly terminated on 21 March. On the basis of my earlier conclusion, he had been exempt from control during his actual employment by the embassy, but on that exemption ceasing, he reverted to his status as an overstayer. On 24 April the applicant was granted limited leave to remain until 18 June 1985, but was informed that any application for leave to remain in the employment of the commercial attache was unlikely to be successful. On 7 May the applicant gave notice of appeal to an adjudicator against the decision of 24 April 1985. On 17 June 1985 the applicant's solicitors applied for leave to remain in the employment of the commercial attache "on the bases set out in our letter of 15 March 1985." On 13 August 1985 he was refused such leave. He appealed against this decision also. Both the applicant's appeals were dismissed by an adjudicator on 25 February 1987. He applied to the Immigration Appeal Tribunal for leave to appeal, and was refused leave on 27 April 1987. He applied for, and obtained, leave to move for judicial review of the tribunal's decision to refuse leave. The motion was heard and refused by Farquharson J. on 17 October 1988. |
It is first necessary to consider the provisions of the Statement of Changes in Immigration Rules (1983) (H.C. 169) upon which the applicant's applications to remain were both based. Paragraph 33(a) provides: |
"Passengers in the following categories, although coming for employment, do not need work permits and may, subject to paragraph 13, be admitted for an appropriate period not exceeding 12 months if they hold a current entry clearance granted for the purpose or other satisfactory documentary evidence that they do not require permits: (a) private servants (aged 16 and over) of members of the staffs of diplomatic or consular missions or of members of the family forming part of the household of such persons. . . ." |
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Paragraph 117 provides for certain categories of persons to be granted extension of stay for permit-free employment. The last sentence is: |
"A person given leave to enter or remain in some other capacity has no claim to remain for permit-free employment and applications to do so should be refused. . . ." |
Section 19 of the Immigration Act 1971 provides for the determination of appeals by adjudicators. Where the appeal is from a decision or action involving the exercise of a discretion by the Secretary of State, or an officer, the appeal is to be allowed if the adjudicator considers that the discretion should have been exercised differently; but by section 19(2) it is provided: |
"no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so." |
It is common ground that if paragraph 117 applies, the applicant's original appeal was bound to fail, as also was any appeal to the tribunal. On this basis leave was rightly refused. |
In essence the applicant's case is a simple one. It is submitted that the Secretary of State has made no rules covering the present case. Accordingly, as a matter of law, his decisions cannot have been in accordance with the rules, nor can he have been asked to depart from any rule or refused to do so. |
Section 3(1)(b) of the Act provides that where a person is not a British citizen: |
"he may be given leave to enter the United Kingdom (or when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period" |
and section 3(2) confers the power to make rules. |
I accept that if there are no applicable rules, the applicant must succeed, but I cannot accept the premise. The wording of rule 117 is perfectly general. It is common ground that the applicant did not and does not fall within the specific categories mentioned. He was originally given leave to enter as a visitor. He therefore had no claim to remain for permit-free employment which alone he was seeking, and under the rules any refusal to allow him to do so was strictly in accordance with the rule. The point is a short one and does not permit of elaboration. I would dismiss the appeal. |
GLIDEWELL L.J. I have had the advantage of reading in draft the judgment delivered by Parker L.J. I adopt and need not repeat his summary of the relevant facts. |
The argument on behalf of the applicants Bagga, R. and A. Bist, C. and V. Rasiah and Kakkar is, in summary, that the open date stamps in their respective passports either were notices in writing that each of the applicants |
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had been granted indefinite leave to enter and remain in the United Kingdom, or had the result that such leave should be deemed to have been given. The steps by which the argument proceeds are: (i) although at the time when an open date stamp was placed in each applicant's passport, he or she was either a member of a mission, or a member of the family of a member of a mission, or about to take up a post at a mission, within the meaning of the Diplomatic Privileges Act 1964, nevertheless in no case at the relevant time had that fact been notified to the Foreign Office. Thus section 8(3) of the Immigration Act 1971, as then in force, did not exempt any of these applicants from immigration control. (ii) The placing in the passport of a person subject to immigration control of an open date stamp is a notice in writing that he or she has been granted indefinite leave to enter and remain in the United Kingdom. (iii) Alternatively, if an open date stamp does not have this effect, no notice giving or refusing leave to enter was given to any of the applicant's within 12 hours of the conclusion of his or her examination by an immigration officer, and thus by virtue of paragraph 6(1) of Schedule 2 of the Act of 1971, he or she is deemed to have been given indefinite leave. |
In Mr. Bagga's case, there is also the additional issue arising out of the allegation that the open date stamp was only placed in his passport on 13 April 1986 because he then deceived the immigration officer into believing that he was still a member of the Indian High Commission. |
I agree with the judgment of Parker L.J. on each of these issues, and I therefore agree with him that the appeals by the Home Secretary against the decision of the Divisional Court should succeed. |
I make some comments of my own as we are differing, not merely from the decision in these cases of the Divisional Court, but from the earlier decisions to which Parker L.J. has referred. |
The first and main question is, in order for a person to be a member of a mission so as to be exempt from immigration control under section 8(3) of the Act of 1971, is it necessary that his membership of the mission should have been notified to the Foreign and Commonwealth Office? I wholly agree with Parker L.J. that the answer to this question is "no." If a person is appointed to a post at a diplomatic mission in the United Kingdom, and travels to this country in order to take up the post, he is clearly a member of the mission at the moment he arrives at the airport through which he enters the United Kingdom. Of course, he will have to satisfy the immigration officer in some way that he is indeed arriving as a member of the mission - that he has indeed been appointed to the post - but such satisfaction is not dependent on notification to the Foreign Office. If he is already in the United Kingdom in some other capacity when he is appointed to his post at the mission, like Mrs. Rasiah, the Home Office will similarly need to be satisfied that he has joined the mission, as it was in her case by the letter from the Singapore High Commission. |
Under article 39 of the Vienna Convention, incorporated into Schedule 1 to the Diplomatic Privileges Act 1964, such a person will not be entitled to diplomatic privileges or immunities until his appointment is notified to the Foreign and Commonwealth Office. That is a sensible requirement, |
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since it is that government department which is concerned with questions of diplomatic immunity. But questions relating to immigration control are matters for the Home Office, and it is thus that department, through its officers, which needs to be satisfied that the person is indeed a member of a mission. |
That is enough to decide these appeals in favour of the Home Secretary. However, I think it right to express shortly my views about the second and third issues, which concern the effect of the open date stamps in the passports of the applicants. |
This issue would arise only if, contrary to the view I have already expressed, each of the applicants was subject to immigration control when the open date stamp was placed in his or her passport. |
Section 4(1) of the Immigration Act 1971 provides, so far as is material: |
"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers . . . and . . . those powers shall be exercised by notice in writing given to the person affected . . . " |
It is clear that such a notice must inform the person affected whether he has been given or refused leave to enter, and if he has been given leave, whether it is leave for an indefinite period or for a limited period, which must then be specified. An open date stamp gives the person affected none of this information. It is simply a record that the person concerned has been interviewed by an immigration officer, and passed through immigration control, on the stated date. It follows, therefore, that an open date stamp is not a notice that indefinite leave to enter has been granted. |
Can it then be said that if a person who is subject to immigration control has an open date stamp placed in his passport, he is deemed to have been granted indefinite leave to enter? |
At the time relevant to all these appeals, paragraph 6(1) of Schedule 2 to the Act of 1971 (which has subsequently been amended) provided: |
"Subject to sub-paragraph (3) below, where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than 12 hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those 12 hours, he shall (if not [a British citizen]) be deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be given him written notice of that leave." |
I agree with Parker L.J. that paragraph 6(1) only applied when, or if, the immigration officer concerned was considering whether to refuse leave to enter or to give a limited leave. In a case where the immigration officer believed that the person he was examining was exempt from immigration control because he was a member of a mission whereas in fact he had not |
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yet become a member of a mission and thus was subject to immigration control, paragraph 6(1) would have no application. Thus even if I had decided the first issue in favour of the applicants, I would allow the Home Secretary's appeals on this ground. |
I would therefore allow all these appeals. |
I agree with Parker L.J. that this appeal should be dismissed for the reasons set out in his judgment. |
LEGGATT L.J. I agree that all four appeals by the Secretary of State should be allowed, and Mr. Ali's appeal dismissed. Since in relation to the first question arising under the first four appeals we are departing from authorities by which Divisional Court regarded itself as bound, I shall briefly state my own reasons for doing so. |
The first question is whether a person who comes to this country as a diplomat becomes entitled to the exemption afforded by section 8(3) of the Immigration Act 1971 upon entry or upon notification. It is to be noted that the second alternative does not require acceptance by the receiving state of the person whose arrival is notified. Different considerations no doubt arise according to whether the court is being invited to extradite a person claiming diplomatic immunity, or to avoid the result that an arrival whose passport is said to have been stamped on the mistaken assumption that he was a diplomat does not profit by the error. |
Schedule 1 to the Diplomatic Privileges Act 1964 contains the "Articles of the Vienna Convention having the force of law in the United Kingdom." By article 1 "members of the mission" are the head of the mission and the members of the staff of the mission. It is obvious that as a matter of language the word "mission" connotes the sending of persons, but that does not preclude an obligation to inform the receiving country of that fact. The fact that "the head of the mission" is "the person charged by the sending state with the duty of acting in that capacity" does not necessarily mean that the members of the staff have merely to be sent without any |
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need for notification, although it is to be noted that separate provision is made by article 4, which is not included in Schedule 1 to the Act, for acceptance of the head of a mission as such by the receiving state. There is nothing in the Act which imports any requirement of notification, nor any stipulation that a person is not to become a member of the staff of a mission until the Foreign Office has been informed of the fact that that has happened. |
Consistent with that position is article 39, which expressly provides that a person entitled to immunities shall enjoy them from the moment he enters the territory of the receiving state on proceeding to take up his post. So far from requiring notification for purposes of the Convention, it is clear from article 10 that (as Mr. Beloff submits) notification is not constitutive of the status of a member of a mission, but a consequence of it. A priori there is therefore no ground for introducing a requirement for notification as a condition precedent to the acquisition of the status. So it is not surprising to find commentators generally in accord with that conclusion. |
"it is fundamental to the claiming of immunity by reason of being a diplomatic agent that that diplomatic agent should have been in some form accepted or received by this country." |
I agree with Parker and Glidewell L.JJ. about the effect of a date stamp and about the construction of paragraph 6(1) of Schedule 2 to the Act of 1971. |
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There remains the final question, peculiar to Mr. Bagga's appeal, namely, whether Mr. Burns' decision should stand that when with no right of entry Mr. Bagga returned here on 13 April 1986, such leave to enter as was denoted by the date stamping of his passport was obtained by deception. In deference to Mr. Blake's argument, I shall deal with this issue in more detail. |
The decision was expressed in these words: |
" . . . I am satisfied, having taken account of all the circumstances, that this leave to enter (granted on 13 April 1986) was obtained by deception." |
The evidence available to Mr. Burns about that grant of leave was derived from an affidavit from the officer who granted leave, Mr. Taylor, from the affidavit of an officer to whom Mr. Bagga had subsequently spoken about it, Mr. Leonard, and from Mr. Bagga himself, both by affidavit and in interview. Mr. Taylor said, at paragraphs 3 to 6 of his affidavit: |
"3. I recall Mr. Bagga, the applicant, and I recall stamping the said passport with an open stamp. The passport was a new one, and on one of the pages there was an official stamp indicating that the holder had previously travelled on a white diplomatic passport which had been cancelled and returned to the holder. As the applicant handed me his new passport, he said to me that he was with the Indian High Commission. In view of this, and in view of the official stamp in the new passport, I asked the applicant to confirm that he was still with the High Commission. He said he was. He said he was with the naval attache's office. He then produced his cancelled white diplomatic passport. This is the principal reason why I recall the applicant, who was a middle-aged man, so clearly. White diplomatic passports are in my experience very rare in Terminal 2. I also remember the applicant telling me that his wife was in hospital here and he was going to visit her. |
"4. The only reason I endorsed the applicant's new passport with an open stamp was because he told me he was with the Indian High Commission and I believed him. I would not have given such a stamp if I had not believed the applicant to be a genuine member of the diplomatic service. Diplomats always receive open stamps. |
"5. If, on arrival in the United Kingdom on 13 April 1986, the applicant had told me that he was no longer with the Indian High Commission, as he alleges he did (see paragraph 13 of his affidavit, sworn on 29 January 1987), I would not have endorsed his new passport with an open stamp. I would have treated him as a visitor and I would have asked him the purpose |
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of his visit and how long he intended to stay in the United Kingdom. |
"6. With hindsight, given the fact that the applicant's white diplomatic passport had been cancelled, I feel I should have realised that the applicant was no longer with the Indian High Commission. However the applicant told me that he was with the naval attache's office and I believed him. Due to the applicant's purported diplomatic status I did not wish to press the question of the cancellation of his white diplomatic passport and so endorsed his new passport with an open stamp." |
According to Mr. Leonard, Mr. Bagga told him in 1987 that when he entered on 13 April 1986 he had been asked no questions about his status. Mr. Bagga maintained to Mr. Burns that he had told Mr. Taylor about the circumstances of his visit. Mr. Bagga's first account of his interview with Mr. Taylor was at paragraph 13 of his affidavit of 4 May 1988 in which he said: |
"I was interviewed by an immigration officer at Heathrow Airport Terminal 2. He referred to the endorsement on page 5 of my passport and inquired if I had any earlier passport. I showed him my cancelled official passport O-127146. He commented that it was an official passport and white and the new passport was blue. I told the immigration officer that white passport was issued to me because I was then coming to join the High Commission of India and that I held blue passport because I was no longer on diplomatic assignment and that I had come to visit my family members. I also handed to the immigration officer my completed landing card and my return air ticket. I noticed the officer writing on my landing card that I had come to see my ailing wife and that I was to stay at 5 Alfred Gardens, Southall, Middlesex UB1 2BD." |
At paragraph 11 of his affidavit of 19 February 1988 Mr. Bagga gave this account: |
"I certainly told the immigration officer that I was coming to visit my wife in hospital which appears to be reflected in the last line of paragraph 3. This I would have thought was inconsistent with a claim to be coming to resume duties at the Indian High Commission. My recollection is that I handed in my ordinary Indian blue passport together with my landing card. The immigration officer then noticed the official endorsement referring to my white official passport. He asked me if I had this passport and I produced it. As noted previously the white passport is not strictly a diplomatic passport but a passport for government employees. I was still a government employee with the Ministry of Defence but no longer working abroad. I never said that I was still at the High Commission in London and this must have been a misunderstanding. All the indications are against this; the letter informing the Home Office of the conclusion of my term of duties; the cancellation of my white official passport; the fact that I was telling the immigration officer that the purpose of my visit was to see my wife in hospital and that I was presenting an ordinary Indian passport for this purpose." |
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The letter to which Mr. Bagga referred had been written to the Home Office on 8 July 1985 for the benefit of one of his sons, because he had been told that his son would be given permanent leave to remain here when he himself (and therefore his son) was no longer entitled to exemption. The letter said that Mr. Bagga had been relieved of his duties at the High Commission in London and would shortly be leaving for India to take up his new assignment. |
By paragraph 5 of his affidavit, Mr. Burns gave a summary of his interview with Mr. Bagga, which lasted two hours: |
"I asked Mr. Bagga about his entry into the United Kingdom on 13 April 1986. I asked him what his intentions were at that time, and he said to visit his family. I asked him how long he had intended to stay, and he said he had accumulated four months paid leave. I asked him what questions he had been asked on arrival by the immigration officer, Mr. D. J. Taylor. He said he had told the immigration officer that he was no longer employed by the Indian High Commission and that he was simply coming to visit his family. The immigration officer had asked to see his previous 'official' passport, which he produced, and had then asked who had he been working for at the High Commission. He replied 'the Naval Adviser.' I asked Mr. Bagga whether or not the officer had asked him any other questions, and Mr. Bagga said 'No' . . . I also pointed out to Mr. Bagga that the immigration officer who had interviewed him on 13 April 1986, Mr. Taylor, had deposed to the fact that Mr. Bagga had told him he was returning to the United Kingdom to resume his duties at the Indian High Commission. Mr. Bagga replied that the officer did not ask about his intentions on arrival, he simply examined the two passports and endorsed the ordinary blue one." |
Mr. Burns explained his decision at paragraph 6 of his affidavit: |
"Mr. Bagga's account of his entry to the United Kingdom on 13 April 1986 was that he had made no attempt to deceive the immigration officer who interviewed him. He said he told the officer that he was no longer employed by the Indian High Commission and that he was simply coming to visit his family here, and it was on the basis of this information that the officer had stamped his ordinary blue passport with an open stamp. I do not accept this. If events were as Mr. Bagga described them he would have been asked questions about the proposed length and purpose of his visit to the United Kingdom and, provided he had been able to satisfy the officer that he was a genuine visitor, his passport would have been endorsed with a conditional stamp. I find it highly improbable that an immigration officer, on being shown an expired official passport and on being told that a visit was intended, would open stamp a newly issued ordinary blue passport. The view I had formed was supported by the affidavit evidence of the officer, Mr. Taylor, who interviewed Mr. Bagga on 13 April 1986. Accordingly, I was satisfied that Mr. Bagga had gained entry to the United Kingdom on |
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the 13 April 1986 by deception, that is by falsely representing to the officer who interviewed him on that day that he was still employed at the Indian High Commission in London, and that he was returning to the United Kingdom to continue his posting there." |
Mr. Blake argues that Mr. Burns could not properly have been satisfied that deception had been used in view of the possibility that Mr. Taylor made a mistake. To negative deception, Mr. Blake relies on the letter written to the Home Office by Mr. Bagga, albeit in a different context; on the fact that the cancelled white passport was produced; on the fact that Mr. Bagga told Mr. Taylor that he was coming to visit his wife in hospital; and on what was recorded on the landing card, which is no longer available. His argument is that what should have happened does not establish what did happen; and that because the possibility of misapprehension on Mr. Taylor's part was not refuted, a finding of deception was manifestly unreasonable. |
The question for us, therefore, is whether there was any evidence of any illegality, irrationality or impropriety of procedure on the part of Mr. Burns in deciding to refuse Mr. Bagga's leave of entry, though the argument has in effect been confined to irrationality. Even if we disagreed with Mr. Burns' conclusion or considered that it was founded on an error of judgment, neither would entitle us to intervene to quash the decision. In my judgment there was ample material upon which Mr. Burns could have formed the view that he did, and his decision therefore cannot be impugned. Accordingly, Mr. Blake's argument on this issue cannot avail Mr. Bagga. |
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Solicitors: Treasury Solicitor; Iqbal & Co.; W. P. Duckney, Southall; Seifert Sedley Williams. |
[Reported by JAMES KELLY ESQ., Barrister] |