R v Immigration Appeal Tribunal, Ex parte Patel (Anilkumar Rabindrabhai) (Patel (Anilkumar Rabindrabhai), Ex parte)

Dishonest deception used to evade immigration law may, by itself, justify the Secretary of State in deeming deportation conducive to the public good under section 3(5)(b) of the Immigration Act 1971. The rule applies equally to fraud used to obtain leave to enter and fraud committed after lawful entry to obtain indefinite leave to remain.

Summary removal as an illegal entrant and deportation under section 3(5)(b) are not mutually exclusive remedies. A person cannot secure an effectively irremovable status merely because the deception is discovered too late for prosecution.

The respondent obtained entry clearance and indefinite leave to enter by falsely representing that he was unmarried. After the fraud was discovered, the authorities initially proposed his summary removal as an illegal entrant but abandoned that course. Following a visit abroad, an immigration officer refused him re-entry because his exclusion was considered conducive to the public good.

An adjudicator and the Immigration Appeal Tribunal dismissed his appeals. Taylor J quashed the tribunal's decision: [1987] Imm AR 164. A majority of the Court of Appeal affirmed that result, Dillon LJ dissenting, and permitted the tribunal to appeal.

The central issue was whether deception used to obtain the original leave to enter could, by itself, support deportation as conducive to the public good under section 3(5)(b) of the Immigration Act 1971 and therefore justify refusal of entry under the applicable Immigration Rules.

1. Appeal allowed unanimously. Lord Bridge of Harwich delivered the leading speech. Lord Elwyn-Jones, Lord Ackner, Lord Goff of Chieveley and Lord Jauncey agreed with it and would allow the appeal.

2. Per Lord Bridge, the Secretary of State may deem deportation conducive to the public good under section 3(5)(b) of the Immigration Act 1971 where an immigrant has avoided immigration law through dishonest deception. That construction falls within both the literal meaning of section 3(5)(b) and the spirit of the Act. The House approved the reasoning of Lord Lane CJ in R v Immigration Appeal Tribunal, ex parte Cheema [1982] Imm AR 124.

3. No logical distinction can be drawn between fraud used to obtain leave to enter and fraud used after lawful entry to obtain indefinite leave to remain. The deception may be discovered after prosecution under section 26(1)(c) has become unavailable. Section 3(5)(b) prevents an immigrant from profiting from fraud by acquiring an effectively irremovable status.

4. The summary-removal procedure for illegal entrants under Schedule 2 and deportation under section 3(5)(b) are not mutually exclusive. Lord Bridge departed from his contrary opinion in R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74, recognising that it had been mistaken. Even if departure technically required use of the 1966 Practice Statement, the earlier opinion was peripheral and unnecessary to the principal issue in that case.

5. The distinct reasoning in ex parte Khawaja that leave obtained through operative fraud constitutes entry in breach of the Act remained unaffected. Where fraud contravenes section 26(1)(c) and is the effective means of obtaining leave, the fraud and the grant of leave are inseparable elements of the process of entry. Such a person may therefore be treated as an illegal entrant.

6. Rule 13 protected the holder of the relevant entry clearance from refusal except on a specified ground. Rule 85 supplied that ground where exclusion was conducive to the public good. Because the respondent's original deception could alone have supported deportation under section 3(5)(b), the immigration officer's refusal of leave to enter was lawful. The tribunal's appeal was accordingly allowed.

1. House of Lords: Allowed the Immigration Appeal Tribunal's appeal unanimously and displaced the decision of the Court of Appeal.

2. Court of Appeal: By a majority comprising Stephen Brown and Neill LJJ, with Dillon LJ dissenting, affirmed Taylor J's order and granted leave to appeal to the House of Lords. No separate citation is stated.

3. High Court: Taylor J granted certiorari quashing the Immigration Appeal Tribunal's decision: [1987] Imm AR 164.

4. Immigration appellate authorities: An adjudicator and then the Immigration Appeal Tribunal dismissed the respondent's appeals against refusal of leave to enter.