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Cite as: [1989] EWCA Civ 12

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JISCBAILII_CASE_IMMIGRATION

BAILII Citation Number: [1989] EWCA Civ 12

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
9th March 1989

B e f o r e :

LORD Donaldson
(Master Of The Rolls)

LORD JUSTICE Bingham
and
LORD JUSTICE Mann

____________________

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and


SITTAMPALAM THIRUKUMAR
JORDAN BENJAMIN
RAJA CUMARASURIYA
NAVARATNAM PATHMAKUMAR



Respondents

____________________

J Laws and R Jay (instructed by Treasury Solicitor) appeared on behalf of the Appellant.
K S Nathan QC and V Kothari for the respondent Thirukumar. K S Nathan QC and V Cooray for the respondent Benjamin. A Collins QC and V Kothari for the respondent Cumarasuriya. A Collins QC and A Riza for the respondent Pathmakumar (instructed by Chatwani & Co) appeared on behalf of the Respondents.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. The Master Of The Rolls: The four applicants are young male Tamils. They arrived separately at Heathrow on various dates in 1987 and 1988 and sought leave to enter the United Kingdom as political refugees. Benjamin also sought to enter as a visitor. Each was examined by an immigration officer. As each was claiming asylum, rule 73 of the Immigration Rules (HC 169) applied and his case was referred to the Home Office. Eventually - three weeks later in the case of Thirukumar, thirteen months later in that of Cumarasuriya, fourteen months later in that of Benjamin and two months later in that of Pathmakumar - immigration officers served them with notices refusing leave to enter.
  2. The applicants each sought judicial review of these refusals upon two grounds. The first ground was that the interval between the conclusion of their examinations by immigration officers and the service of the notice of refusal exceeded twelve (or twenty-four) hours, as a result of which they were deemed to have leave to enter either indefinitely or for a period of six months. The second was that there had been a failure to comply with the audi alteram partem principles of natural justice.
  3. A Divisional Court consisting of Parker LJ and Henry J found in their favour on both grounds. It ruled that Thirukumar was deemed to have been given indefinite leave to enter the United Kingdom and the other three applicants six months' leave subject to a condition prohibiting their taking employment.
  4. The Secretary of State now appeals.
  5. The Facts

    Thirukumar

  6. Thirukumar arrived at Heathrow on 28 February 1988 and was interviewed by an immigration officer (Allan) under paragraph 2(1) of the second schedule to the Immigration Act 1971. At the conclusion of the interview he was given written notice requiring him to submit to further examination pursuant to paragraph 2(3). His claim was referred to the Home Office and a further interview took place on the following day. The immigration officer concerned (Young) completed a very long standard Political Asylum Questionnaire ("PAQ") and forwarded it to the Home Office. No further notice requiring Thirukumar to submit to further examination was served, but it is now accepted that one such notice suffices to cover one or more subsequent interviews. Thirukumar was then detained under paragraph 16(1) of the schedule until 6 March 1988 when he was granted bail by an adjudicator pursuant to paragraph 22(1).
  7. The Home Office having considered the material available to it from Thirukumar and from the immigration officers who had interviewed him together with other material from, for example, the Foreign and Commonwealth Office, concluded that he did not qualify as a refugee to whom the provisions of the Convention and Protocol relating to the Status of Refugees applies and so informed the Immigration Office. It also sent the Office "a suggested formula" of its reasons for rejecting Thirukumar's claim to that status to be used if the immigration officer decided to refuse leave to enter upon that ground.
  8. Upon receipt of this information from the Home Office, HM immigration office wrote to Thirukumar requiring him to attend at Heathrow which he did on 24 March 1988. Thereupon he was interviewed by another immigration officer (Donaghy). According to that officer, "The purpose of this further interview was to give the applicant the opportunity of making any further representations and, subject to any new matters being raised, to serve the applicant with notice of refusal of leave to enter the United Kingdom". Accordingly, he asked Thirukumar if he had anything to add to the information which he had previously given. Thirukumar replied only that the situation in Sri Lanka had worsened. This, if correct, was clearly a matter of which the Home Office would have been aware and, accordingly, the immigration officer issued a notice of refusal of leave to enter. In accordance with what was then, and I think still is, the standard procedure, the immigration officer did not disclose the Home Office's statement of reasons before serving Thirukumar with the notice of refusal to enter, but incorporated them in that notice.
  9. Cumarasuriya

  10. The facts in this case can be taken more briefly because the pattern was the same. Cumarasuriya arrived at Heathrow on 28 July 1987 and was interviewed both upon arrival and on the following day when a full PAQ was completed. He was served with a notice requiring his attendance for further examination, was detained and was released on bail on 14 August 1987. The Home Office considered his case and, having concluded that Cumarasuriya did not qualify for refugee status, informed HM immigration office of this decision and sent it a copy of its reasons with the comment: "Wording for refusal of asylum only; you will wish to complete your examination and, if appropriate, refuse leave to enter".
  11. Cumarasuriya was required to attend at Heathrow on 30 August 1988 and did so. He was interviewed by an immigration officer (Shepherd) who asked him if he had anything to add to the full political asylum interview on 29 July 1987. This immigration officer has sworn that, if Cumarasuriya had added anything of substance, he would have been obliged to refer the matter back to the Home Office. In the event, Cumarasuriya said only that his family home had been destroyed in 1983, a matter which was already known to the Home Office. The immigration officer thereupon issued a notice of refusal of leave to enter which, as in the previous case, revealed for the first time the Home Office's reasons for not regarding Cumarasuriya as being a Convention refugee.
  12. Benjamin

  13. Benjamin arrived at Heathrow on 11 June 1987 and sought leave to enter both as a visitor and as a Convention refugee. On arrival he was interviewed by an immigration officer (West) and served with the usual further examination form.
  14. He was interviewed again on the following day by another officer (Pickup) who completed a full PAQ which was forwarded to the Home Office. He was released on bail on 30 August 1987. On 11 August 1988 the Home Office wrote to the chief immigration officer at Heathrow informing him of the rejection of the claim to right of asylum. Benjamin was then asked to come to Heathrow for further interview. This he did and was interviewed by an immigration officer (MacDonald) who has stated that his purpose in interviewing him was to see whether he had anything of substance to add to what had been given when the PAQ was completed and that, if he had, the question of asylum would have had to be referred back to the Home Office. In the event Benjamin said only that "I receive letters occasionally from Sri Lanka saying that there is trouble in Columbo and Jaffna" which clearly added nothing to the information already available to the Home Office. The immigration officer thereupon issued a notice of refusal of leave to enter upon the grounds that insofar as Benjamin sought leave to enter as a visitor he needed, but had not obtained, a visa and insofar as he sought to enter as a seeker of asylum the Home Office had concluded that he did not qualify for the reasons attached to the notice.
  15. Pathmakumar

  16. Pathmakumar arrived at Heathrow on 23 June 1988 in transit for Canada where, it appeared, he intended to claim asylum. When interviewed it emerged that he was travelling on a forged passport and he then sought asylum in this country. He was interviewed again on the following day when a full PAQ was completed. On 11 August 1988 the Home Office wrote to the chief immigration officer at Heathrow rejecting Pathmakumar's claim to be a Convention refugee and giving its reasons. On 26 August 1988 Pathmakumar was seen by an immigration officer (MacDonald) who asked him if he wanted to add anything to his political asylum application. Pathmakumar said that he did not. The immigration officer said that, if Pathmakumar had added anything of substance to his application, he would have felt bound to refer it back to the Home Office. A notice of refusal of leave to enter was then served on Pathmakumar which, as in the other cases, for the first time revealed to him the basis of the refusal of the Home Office to accept him as a political refugee.
  17. Immigration Law and Practice

  18. At the heart of this appeal lies the fact that section 4(1) of the 1971 Act places the responsibility for granting or refusing leave to enter the United Kingdom firmly on immigration officers, whilst rule 73 of the Immigration Rules (HC 169) headed "Asylum" provides that:
  19. "Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees."

  20. Rule 73 does not contradict section 4(1) because paragraph 1(3) of the second schedule to the Act provides that:
  21. "In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State ..."

    However, Henry J described the situation as being a "mismatch" and certainly it creates complications which, in the context of this appeal, need analysis.

  22. In deciding whether to refuse or grant leave to enter, immigration officers have to seek to establish the facts relevant to the application and, having established them, have to apply the immigration rules. Sometimes the facts are primary facts - is the applicant a genuine intending visitor who does not need an entry clearance certificate or visa and who intends to leave at the conclusion of his visit? Sometimes they are secondary facts in the sense that the fact with which he is concerned, such as whether the applicant to enter has a visa, will have depended upon whether someone else had established the primary facts to his own satisfaction before granting that visa. In the context of an asylum application, the fact which the immigration officer has to determine is, in this sense, a secondary fact, namely, whether the Home Office has decided that the applicant is or is not a Convention refugee. That he or other officers may have been involved in seeking information which will have assisted the Home Office to reach that decision is immaterial.
  23. In theory an immigration officer could put on one side any question of a claim to asylum until he had decided whether there were any other grounds for granting leave to enter. If there were, the claim to asylum would become irrelevant at that stage and could be raised again in the context of a later application to vary the leave to enter, whether as regards duration or conditions, such an application being one for the decision of the Secretary of State rather than an immigration officer (see section 4(1)) and one which, incidentally, carries with it a right of appeal in the event of refusal. However, in practice those claiming to enter upon the basis of their need for political asylum are likely to have no other realistic basis to put forward. Certainly that was the case with the four applicants with whom we are concerned. Unless they could persuade the Home Office to decide this issue in their favour, the immigration officer would be bound to refuse them leave to enter.
  24. This led the Divisional Court to conclude that the die was cast as soon as the Home Office reached a decision or, at the latest, as soon as the immigration officer became aware of it. On this view the true purpose of summoning the applicants for further interviews was simply to inform them of a decision to refuse leave to enter, which had already been reached, at least in the sense that it had become inevitable. This, however, involves the rejection of the immigration officers' evidence that their purpose in re-interviewing the applicants was to give them an opportunity of putting forward further materials which, if they had been known to the Home Office earlier, might well have influenced its decision. Counsel for the applicants submits that this is a finding of fact by the Divisional Court. Maybe it is, but, since the evidence was all on affidavit and since I can see no basis for rejecting that evidence, I feel free to disagree and do so. In the context of asylum applications events can occur very quickly indeed. I should be appalled if it were the fact that an immigration officer felt inhibited from referring back to the Home Office if, at what was likely to be a final interview, the applicant told him that news had just arrived that his whole family had been killed for political reasons. Accordingly, I do not accept that in any of the four cases the immigration officer could or did decide to refuse leave to enter before (a) he knew of the Home Office decision and (b) he had satisfied himself by further interview that the applicant could not put forward additional material worthy of consideration by the Home Office.
  25. The 12/24 Hour Point

  26. Under paragraph 2(1) of the second schedule to the Act an immigration officer is empowered to "examine" any persons who have arrived in the United Kingdom by ship or aircraft (including transit passengers) for the purpose of determining inter alia whether, if they are not entitled to enter without leave, they should be given or refused such leave. Under paragraph 2(3) such a person, on being examined by an immigration officer, may be required in writing to submit to further examination.
  27. This brings me to the all important paragraph 6(1) which in its original form read:
  28. "(1) 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 twelve 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 twelve hours, he shall ... 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."

  29. As amended by the Immigration Act 1988 which, so far as this is concerned, took effect from 10 July 1988, paragraph 6(1) refers to a period of 24 hours instead of 12 hours and provides that, in default of the immigration officer meeting this deadline, the person concerned should be deemed to have been given
  30. "leave to enter the United Kingdom for a period of six months subject to a condition prohibiting his taking employment".

  31. We know in each case when the notice of refusal was given and we also know that within the previous 24 and 12 hours an immigration officer interviewed the applicant concerned. The sole question is thus whether the "examination" of each of the applicants had been concluded before or after this interview. If before, the immigration officer failed to meet the deadline provided by paragraph 6(1) with the consequence that in the case of Thirukumar he must be deemed to have been given indefinite leave to enter and in the case of the others must be deemed to have been given leave limited to six months.
  32. Fortunately, this is not a wholly novel point. Under the Commonwealth Immigrants Act 1962, a Commonwealth citizen could be refused leave to enter, but only if notice of refusal was given not later than "12 hours after the conclusion of his examination". The similarity to, and indeed the parentage of, paragraph 6(1) of the 1971 Act is obvious. In R v Chief Immigration Officer, Manchester Airport, ex parte Insah Begum [1973] 1 WLR 141 a passenger was interviewed and produced an entry clearance certificate. Upon the conclusion of the interview at about 9 pm on 14 September the immigration officer took steps to verify the authenticity of the certificate by sending a telex message to Lahore. The reply confirmed his suspicion that the certificate was a forgery, but only arrived in time for the immigration officer to give notice refusing leave to enter about 16 hours later. Lord Denning MR, with the agreement of Megaw LJ, held that:
  33. "Very often an examination may have to be adjourned pending further inquiries, and then resumed after the replies are received. It is not 'concluded' until all information is to hand. In this case it was not concluded until the telex reply was received at 1.30 pm on September 15th."

  34. I think that the confusion in this case arises from (a) failing to differentiate between the concept of "interview" and that of "examination" and (b) failing to appreciate that, although the Home Office is concerned to decide the status of one seeking political asylum, it remains the immigration officer and the immigration officer alone who conducts the examination of the passenger.
  35. The examination will always, or almost always, involve one or more interviews, but it can also involve investigations with which the passenger is not personally involved. The examination is concluded only when all relevant information is to hand and the time for decision has accordingly arrived. The 12/24 hour time limit is designed to provide a penalty for indecision and not for slothful examination. The remedy for the latter is complaint to the immigration office and, in the last resort, judicial review.
  36. The earliest moment when the examinations of the applicants could have been concluded was when the Home Office decision was received by the immigration officer. As officers in that office decided, quite rightly, that they should re-interview the applicants to make sure that all relevant and up to date information was to hand, the examination was only concluded and the moment of decision reached at the conclusion of those interviews. It follows that paragraph 6(1) never came into operation.
  37. Unfairness

  38. I have had the advantage of reading in draft the judgment of Bingham LJ on this aspect and am in complete agreement with the views which he expresses. If the Home Office decision had been irreversible, there would be no more unfairness in withholding the reasons for it until after the notice of refusal had been given than there is in handing down a judgment without letting the parties have a sight of it in advance. But, if the immigration officers thought, as they clearly did, that the Home Office decision would be reconsidered in the, perhaps unlikely, event of further relevant and material information coming to light, not only were they bound to have a further interview with the applicant, but they ought also, in fairness to him, to have given him every asssistance by letting him see a copy of his previous answers and the reasons for the Home Office's decision.
  39. The Respondent's Notice

  40. A respondent's notice was given on behalf of Thirukumar and Benjamin submitting that the judgment under appeal should be upheld on a different ground, namely, that there existed a "sub-social group" to which both, and indeed all, the applicants belonged, namely, "young male Tamils between the ages of 21 and 35" and that this group and all its members were subject to well-founded fears of persecution within the meaning of the Convention, but that the Home Office had never considered this aspect of the claim to asylum. Whilst this is not directly material if the refusals of leave to enter are being set aside on other grounds, it is relevant to any reconsideration of the respondent's applications. Suffice it to say that, whilst the possibility that such a group could exist must clearly be taken into account by the Home Office on any reconsideration of these applications, I am far from satisfied that it was not in fact considered and rejected in the context of the original applications, even though it was not expressly dealt with in the reasons.
  41. Conclusion

  42. In the result, I would affirm the decision of the Divisional Court insofar as it set aside the refusals of leave to enter, leaving it to the immigration officers and the Home Office to reconsider these applications to the extent of their respective powers and duties in the light of the situation as it now exists. I am in no position to form or express any view on whether any of the applicants should now be regarded as being qualified for asylum or on whether they have any other grounds for admission.
  43. Bingham LJ: The first three respondents (Messrs Thirukumar, Cumarasuriya and Benjamin) moved the Divisional Court to quash the immigration officer's refusal of leave to enter in each of their cases and the removal directions given pursuant thereto. The fourth respondent (Mr Pathmakumar) moved to quash the Secretary of State's decision refusing his application for asylum and directing his removal to Sri Lanka.
  44. The Divisional Court quashed the refusal of entry in all four cases (transcript page 17C) and also quashed the decisions refusing asylum (page 18A). These decisions were made on two grounds. The first was that notice refusing leave to enter was not given until the time limit prescribed by paragraph 6(1) of schedule 2 of the 1971 Act had already expired (pages 18A, 20A and 22B). The second was that the decision to refuse entry was unfair
  45. a because the opportunity to make representations at the last interview was "unreal" since (in two cases) there had been a long delay since the previous interview and (in all four cases) the respondents were unaware of the reasons why the Secretary of State had decided to refuse their applications for asylum (page 17G);
    b because the respondents were not supplied with the completed questionnaire including the immigration officer's comments or recommendations (pages 18E and 22D);

    c because the respondents were not made aware of the reasons why their applications were being at least provisionally refused and given a reasonable time to consider the matter and correct factual errors (pages 18H and 22F).

  46. Parker LJ also thought it desirable (page 18D) that an applicant for asylum should have each page of the questionnaire read over to him so that he could sign it as correct, but he did not, as I understand, make that a ground of decision.
  47. The Time Point

  48. Henry J was, I think, right to find a mismatch between paragraphs 2 and 6 of Schedule 2, which envisage an examination or process of examination carried out by an immigration officer culminating in an early decision by him, and paragraph 73 of HC 169, which provides for asylum cases to be referred to the Home Office for decision, a procedure which in other than the simplest case is bound to take some time even if a shorter period than expired in two of these cases. It is nonetheless incumbent on the courts to give the statutory provisions a reasonable interpretation, and apply them as best they can, in the awkward context of an asylum case.
  49. The initial examination carried out by the immigration officer under paragraph 2(1) of the schedule creates no problem. If any ground other than asylum is advanced in seeking leave to enter (as happened in one of these cases) the immigration officer may well be able to make a decision on it right away in the usual way.
  50. It seems likely that any asylum question will emerge at this initial examination. If it does, further examination of the immigrant will be needed, so that a political asylum questionnaire can be answered, perhaps with the aid of an interpreter. To require the immigrant to submit to further examination notice must be served under paragraph 2(3) of the schedule. We have seen an example. It is Form IS 81. It was not argued before us, as it was before a Divisional Court in R v Secretary of State for the Home Department ex parte V. [1988] Imm AR 561, that a fresh notice under paragraph 2(3) was needed to validate each session of further examination. Counsel for the respondents accepted that one notice could validate a continuing process of further examination. Mr Collins criticised Form IS 81 for specifying no date, time or place for further examination, but did not, as I understand him, elevate this criticism into a submission. As a practical matter, I doubt if it would usually be possible for the immigration officer to give these details at the time of serving the notice.
  51. Service of the paragraph 2(3) notice requires the immigrant to submit to further examination and prevents time running under paragraph 6(1) for the time being. The further examination will first consist of a detailed investigation of matters relevant to asylum. The immigration officer will ask questions, the immigrant will answer them and the answers will be recorded. The immigration officer will, or may, record his impressions and recommendations. This material will then, in accordance with paragraph 73, be referred to the Home Office for decision of the asylum question.
  52. If the immigrant in question belongs to a class from which previous applications have come, the Home Office may be familiar with conditions in the country in question and, unless those conditions call for a decision in favour of the applicant, may properly concentrate attention on such of the grounds advanced as are peculiar to the applicant. One can, however, imagine that, where applications are made relating to countries which have been the subject of no recent applications, the Home Office would not have enough knowledge in-house to consider the application fairly. It might then, one supposes, be necessary to consult the Foreign and Commonwealth Office which in its turn might find it necessary to consult embassies or High Commissions here or abroad. Whatever the process of investigation or consideration necessary in any particular case (and there is no suggestion that any consideration outside the Home Office was needed here) the upshot must be a communication of the Home Office decision on asylum to the immigration officer, whose duty it is under section 4(1) of the Act to give or refuse leave to enter.
  53. The first question in each of these cases is: When, for purposes of paragraph 6(1) of the schedule, was the conclusion of the respondent's examination (including any further examination)? It has not been suggested that the answer in the different cases will differ in principle. Four answers have been put forward:
  54. 1 on the day following the applicant's arrival when the matter was referred to the Home Office under paragraph 73, or shortly thereafter;
    2 when the Home Office reached its decision;
    3 when the Home Office notified the immigration officer at Heathrow of its decision on the asylum application;
    4 at the conclusion of the immigration officer's further interview with the applicant following receipt of the Home Office decision letter.

  55. In the Divisional Court Mr Nathan advanced answer 1 (page 10H) and, but for the decision in ex parte V., Parker LJ would have accepted that in each case the time limit ran from the time when the completed questionnaires were forwarded to the Home Office or shortly thereafter (page 16F). If the political asylum interview before reference to the Home Office is regarded as the last examination of the applicant by the immigration officer, it would seem to me hard to resist the conclusion that time under paragraph 6(1) would run from the end of that interview. The result would be that in all asylum cases the deeming provision in paragraph 6(1) would always take effect, since neither 12 nor 24 hours could ever be enough for reference to the Home Office, consideration of the case by the Home Office, decision by the Home Office, communication of that decision to the immigration officer and notice by the immigration officer to the applicant. This cannot be a result which Parliament, or the draftsman of HC 169, intended. That may be partly why, if I understand correctly, answer (1) was not relied on in argument before us.
  56. In the alternative Mr Nathan argued in favour of answer 2 in the Divisional Court (page 11B). This answer appealed to Parker LJ (page 17A) and also, if the moment of decision is treated as the moment of signing the decision letter, to Henry J (pages 20A and 22B). For my part, I find it difficult to think that the conclusion of the applicant's examination or further examination occurs on an occasion which does not in any way involve either him, whose examination it is, or the immigration officer who alone, under the Act, has the power to examine. Furthermore, I cannot think this very brief period of time was intended to start running on the happening of anything so indefinite as the making of a decision and, even if the signing of the letter were treated as the trigger, there would be few cases in which the deeming provision would not take effect.
  57. Answer 3 was in the alternative adopted by Parker LJ (page 15D) and by Henry J (pages 20A and 22B). Mr Collins felt compelled to adopt this answer in this court by R v Chief Immigration Officer Manchester Airport, ex parte Insah Begum [1973] 1 WLR 141, since, until the immigration officer received the Home Office decision, not all information needed for his decision was to hand (see Lord Denning MR, page 143H). But he reserved his right to challenge the correctness of that decision hereafter. I have some doubt whether ex parte Insah Begum lays down a general principle applicable to cases under the 1971 Act and, if so, whether it does so correctly. The communication of its decision by the Home Office to the immigration officer does, unlike answer 2, involve the immigration officer but this is not an event which can at all aptly be described as the conclusion of the applicant's examination or further examination and it would not, before the recent amendment, have been practicable to prevent the deeming provision taking effect in any case where the applicant had not been detained.
  58. The Home Office contended before the Divisional Court and before us that answer 4 was the right answer. The Divisional Court rejected that contention. Parker LJ said (page 16C):
  59. "In three of the cases the Home Office letter specifically stated that it had reached a decision on asylum, and in all cases the attached sheet specifically stated that the asylum application was refused. In the letters, the attached sheets and the Home Office instructions, there is no word of the decisions being provisional or subject to further representations or further examination and, for my part, I am quite unable to regard the giving of an opportunity to make further representations as coming within any reasonable meaning of the words 'further examination'."

  60. Henry J held (page 22B) that the Home Office
  61. "decision letter is the decision. With the signing or sending to the port of that, the examination of the entrant is concluded. It seems to me that it is quite unreal to regard the immigration officer as playing any part in that examination thereafter."

  62. If it were correct on all the evidence to infer that the Home Office decisions communicated to the respective immigration officers were final, that the opportunities offered to make representations at a further interview were an empty formality and that notices of refusal to enter would have been served, with the Home Office grounds, whatever the respondents said and whatever evidence the respondents adduced at that further interview, then I would share the view of the Divisional Court that such further interview could not reasonably be regarded as part of any examination or further examination of any respondent. But such an inference could fairly be drawn only if a considerable body of evidence, to which my Lord the Master of the Rolls has referred, were to be rejected as either incredible or dishonest. Since that evidence reflects the approach which I would hope to see adopted, I am not unable to believe that it was adopted. It would be a strong thing to stigmatise as dishonest evidence neither contradicted nor cross-examined. I see no reason to regard this evidence as suspect. On the facts of these cases, and I remind myself that the question when an examination is concluded is and must always be one of fact, I conclude, differing with respect from the Divisional Court, that answer 4 is the right answer.
  63. I would only add, on this aspect of the case, that, having further considered the second reason which I gave in ex parte V. (at page 564), in the light of Parker LJ's criticism of it, I would no longer regard that reason as sustainable. I still, however, find the language of paragraph 6(1) ("is to be given a limited leave" and "is to be refused leave") something of a puzzle.
  64. On this point I would allow the appeals.
  65. Fairness

  66. I have not found this an easy or straightforward issue. There was in these cases no oppression or over-reaching of the applicant and the procedure adopted had, as I infer, been regularly used without attracting criticism. It is, however, plain that asylum decisions are of such moment that only the highest standards of fairness will suffice. I am in the end persuaded.
  67. 1 that if an opportunity to make representations is to be meaningful the mind of the applicant must be directed to the considerations which will, as matters stand, defeat his application; and
    2 that if an opportunity to supplement previous answers is to be meaningful the applicant must be reminded of or (preferably) shown the answers which he gave before: this is most obviously so where (as in two of these cases) a year had elapsed since the previous interview, but given the difficulties which can occur when questions are asked through an interpreter and the strain to which the applicant may well be subject at the time of the first interview I think it necessary even where the interval has been much shorter.

  68. I am not intending to make any general statement about natural justice or procedural propriety but simply to indicate what, in the peculiar circumstances of cases such as these, fairness seems to me to require.
  69. On this point I would dismiss the appeals. I agree with the orders which my Lord the Master of the Rolls proposes and I share his opinion on the point raised in the notice served by two respondents.
  70. Mann LJ: I have had the advantage of reading in draft the judgments of the Master of the Rolls and Bingham LJ. I agree with my Lord the Master of the Rolls that examination is concluded only when all the relevant information to enable a decision to be made by the immigration officer is in his possession.
  71. So far as unfairness is concerned I have nothing to add to what Bingham LJ has said. Fairness is a concept variable according to circumstances and here I detect unfairness.
  72. Appeal dismissed

    Leave to appeal to the House of Lords refused


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