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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Thirukumar & Ors  EWCA Civ 12 (09 March 1989)
Cite as:  EWCA Civ 12
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
B e f o r e :
(Master Of The Rolls)
LORD JUSTICE Bingham
LORD JUSTICE Mann
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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.
Crown Copyright ©
Immigration Law and Practice
"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."
"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.
The 12/24 Hour Point
"(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."
"leave to enter the United Kingdom for a period of six months subject to a condition prohibiting his taking employment".
"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."
The Respondent's Notice
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).
The Time Point
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.
"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'."
"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."
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.
Leave to appeal to the House of Lords refused