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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Thirukumar, R (on the application of) v Secretary of State for the Home Department [1988] EWHC 1 (QB) (21 December 1988) URL: http://www.bailii.org/ew/cases/EWHC/QB/1988/1.html Cite as: [1988] EWHC 1 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Divisional Court)

		Royal Courts of Justice Strand London WC2
		21 December 1988

See: Secretary of State for the Home Department v Thirukumar & Ors [1989] EWCA Civ 12 (09 March 1989)
1. Parker LJ: We have before us four applications for judicial review which challenge the validity of refusals of leave to enter the United Kingdom by an immigration officer and, effectively, the rejection by the Secretary of State of their applications for asylum.
2. The four applicants, Thirukumar, Cumarasuriya, Benjamin and Pathmakumar, are male Tamils aged respectively 23, 31, 25 and 22. Although the facts relating to each of them vary in detail, those which relate to the two principal points argued by Mr Nathan QC on their behalf are, in essence, the same in each case.
3. The first of such points, conveniently called "the twelve hour point", is that by the time each of them was refused leave to enter, the applicant was already deemed to have been given leave to enter and the refusal was therefore invalid.
4. The second of such points is that the refusal ought to be quashed for failure to comply with the duty to act fairly, as stated by Lord Parker CJ in Re HK (an infant) [ 1967] 2 QB 617 at p. 680.1 shall consider each of these points in turn.

The twelve hour point.

5. Section 4(1) of the Immigration Act 1971 (the Act) empowers immigration officers to give or refuse leave to enter the United Kingdom, and provides that such powers shall be exercised by notice in writing to the person affected. By section 4(2) the provisions of schedule 2 are to have effect with regard to certain matters, which I need not set out.
6. The material provisions of schedule 2, as originally enacted, are in the following terms:

"2—

(1) 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.

(2) Any such person, if he is seeking to enter the United Kingdom, may be examined also by a medical inspector or by a qualified person carrying out a test or examination required by a medical inspector.

(3) A person, on being examined under this paragraph by an immigration officer or medical inspector, may be required in writing by him to submit to further examination . . .

6—

(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 (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.

16—

(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter."

7. Paragraph 6 of schedule 2 has since been amended by section 10 of, and paragraphs 7 and 8 of the schedule to, the Immigration Act 1988. The amendments, so far as immediately material, are that for the 12 hours in paragraph 6(1) there is substituted a period of 24 hours, and that in the same subparagraph for the words "indefinite leave to enter the United Kingdom" there are substituted the words "leave to enter the United Kingdom for a period of six months subject to a condition prohibiting his taking employment". It will be necessary later to consider the effect of these amendments.
8. Before turning to the facts, I must also set out rule 73 of the Statement of Changes in Immigration Rules (HC 169) which comes under the heading "Asylum". It provides:

"Part VII: Asylum.

73. Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. 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."

9. It is now necessary to state briefly the material facts in each of the four cases.
10. Thirukumar arrived at Heathrow Airport on 28 February 1988. He was examined on arrival by an immigration officer under paragraph 2(1) of schedule 2 of the Act, and given notice in writing requiring him to submit to further examination pursuant to paragraph 2(3). This notice gave neither date nor time at which he was required so to submit.
11. He claimed asylum. As a result the matter was then referred to the Home Office pursuant to rule 73. He was detained overnight and further examined on the following day. At the conclusion of the interview, the immigration officer completed an asylum questionnaire and forwarded it to the Home Office for consideration. No notice requiring the applicant to submit to further examination was then given. He was further detained until 6 March, when he was granted bail by an adjudicator. On 17 March the immigration service wrote to him in the following terms:

"You are required to report to an immigration officer at Terminal 2 Heathrow on Thursday the 24th March 1988 at 15.30 hours. You should contact this office on 23rd March 1988 to check that these arrangements remain unchanged."

12. He duly attended and was interviewed by an immigration officer, one Donaghy, with the assistance of an interpreter. With regard to that interview, Mr Donaghy states in his affidavit:

"I asked the Applicant whether he had anything to add to the information he had given at the previous interview. He said that the basis for his claim to political asylum was as set out at his earlier interview with Mr Young and that he had nothing to add to what he had told Mr Young.

He told me that he had had no contact with Sri Lanka since coming to the United Kingdom, but he said that the situation there had worsened in the past month. He had however no independent means of backing up that statement, but said that it was merely his impression from reading the papers in the United Kingdom.

In the absence of any new material put forward by the Applicant and in accordance with instructions received from the Home Office, I then referred the matter to a Chief Immigration Officer who authorised me to serve the Applicant with Notice of Refusal of Leave to Enter the United Kingdom. I duly served the Applicant with the said Notice ..."

13. The notice of refusal was, so far as material, in the following terms:

"To ... . Thirukumar

(see attached reasons for refusal of leave to enter).

I therefore refuse you leave to enter the United Kingdom.

A. I have given/propose to give directions for your removal at 1100 hours on 30.3.88 by ... . aircraft SU 242 to .... Sri Lanka via Moscow ....

The contents of this notice have been explained to you in Tamil by a qualified interpreter."

14. The attached reasons consisted of a typed document prepared by the Home Office. So far as material for consideration of the 12 hour point, it is only necessary to set out the concluding paragraph. It reads as follows:

"Having taken account of all the matters you have put forward in support of your application and of the other matters set out in this letter the Secretary of State is not satisfied that you have a well-founded fear of persecution in Sri Lanka within the terms of the 1951 UN Convention Relating to the Status of Refugees.

As you do not otherwise qualify for entry under the Immigration Rules I therefore refuse you leave to enter."

15. There is in the case of this applicant no covering letter forwarding the Home Office documents, but it appears from the evidence that it was "faxed" to the Heathrow Immigration Service on 17 March.
16. We were, in the course of argument, supplied, by Mr Jay for the respondent, with a copy of the Home Office instructions applicable in cases of "applications on arrival for asylum". I quote the material parts:

"In cases in which it is decided that an asylum interview is necessary, the interview should be conducted and the Political Asylum Questionnaire (PAQ) completed as soon as possible. If Bl have indicated that the case is one of particular urgency, the results of the interview should be conveyed by telephone to ISHQ. However, in all cases in which a PAQ is completed it should be sent by facsimile by ports with this facility or by the quickest possible means to ISHQ marked for the immediate attention of CIO Room 1208. ISHQ will forward the PAQ to Bl Division. The aim should be that the PAQ is on the desk of the relevant officer in Bl within two days of the interview taking place.

The decision on an application for asylum will be taken by Bl Division and notified to the port, usually via ISHQ, although out of hours or where immediacy is called for, senior officers of Bl may communicate directly with the port. Even if an applicant does not qualify for asylum he might still be given 'exceptional leave to enter'. The decision will be given, usually via ISHQ, to the port with instructions on the time limit if leave is to be given. If the application is refused the passenger will be refused leave to enter, (if still subject to IS 81) and the terms of the refusal notice in respect of the asylum application will be agreed between Bl and ISHQ. It will be on the following lines:

'You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in "X" for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Secretary of State has considered your application—'"

17. Then there is a blank for the passage giving reasons for refusal, followed by the following:

"'The Secretary of State has accordingly refused your application for asylum. As you do not otherwise qualify for entry under the Immigration Rules I therefore refuse you leave to enter.'"

18. It is to be noted that IS 81 is the form of notice requiring a passenger to submit to further examination. It is also necessary to observe the following points:

(1) the applicant was not shown or asked to sign the questionnaire and had no idea of its contents until long after the refusal notice, indeed not until it was put in evidence in the course of these proceedings.

(2) the terms of the reasons attached to the refusal of leave to enter and the Home Office instructions clearly indicated that the Home Office decision on asylum had been firmly taken by 17 March.

(3) that there is no evidence that the Home Office were, between 29 February and 17 March, seeking any further information.

(4) that on 24 March the applicant was not made aware of the reasons for refusal until the Notice of Refusal to enter had been given.

(5) that on 24 March the immigration officer was not seeking any further information.

19. Cumarasunya arrived at Heathrow on 28 July 1987. He was examined under paragraph 2(1) of the second schedule to the Act and given notice in writing requiring him to submit to further examination.
20. He claimed asylum. Thereafter he was detained and further examined on 29 July. He was thereafter detained until 14 August 1987, when he was released on bail. After the examination on 29 July, an asylum questionnaire was completed by the immigration officer and forwarded to the Home Office for consideration. No further notice to submit for further examination was given.
21. On 11 August 1988 the Home Office wrote to the Chief Immigration Officer at Heathrow in the following terms:

"Herewith wording for refusal of asylum only; you will wish to complete your examination and, if appropriate, refuse leave to enter. Removal should be directed to Sri Lanka.

The usual procedures contained in IOC 10/87 apply. Please advise us of developments in this case, in particular those concerning legal representations and any change in detention status."

22. The document IOC 10/87 is the Home Office Instruction already referred to. The enclosed document, unsigned and undated, was subsequently attached to written notice of refusal to enter dated 30 August 1988. It is, so far as presently material, in the same terms as that in the Thirukumar case.
23. On 30 August the applicant attended at Heathrow pursuant to request. He was on that occasion, according to the evidence of the immigration officer who saw him, asked if he had anything to add to his full political asylum interview, and he replied that he had nothing to add other than that the family home had been destroyed in 1983. The officer's note recalls that this fact was already known. The notice of refusal, with attached sheet, was then read out, explained and served.
24. The only material differences between this case and the case of Thirukumar are as follows:

(1) the prolonged and unexplained delay between the reference to the Home Office on 29 July 1987 and the decision communicated by the letter of 11 August 1988.

(2) the fact that the letter states "you will wish to complete your examination and, if appropriate, refuse leave to enter."

25. Benjamin arrived at Heathrow on 11 June 1987. He was examined on that day and given notice requiring him to submit to further examination. He was further examined on 12 June. A political asylum questionnaire was completed on this occasion and was then forwarded to the Home Office. This applicant did not formally claim asylum, but sought entry for six to twelve months as a visitor. However, his initial answers were perceived as embodying also a claim to asylum.
26. After 12 June the applicant heard no more until he was required to report to Heathrow on 30 August 1988. By that time the Home Office had, by letter dated 11 August, written to the Heathrow Immigration Service in the same terms as in the case of Cumarasuriya. On his attendance on 30 August he was seen by Immigration Officer MacDonald whose notes of interview are in evidence. They read:

"Q. You were interviewed on 12/6/87 regarding your application for entry to the U.K. Was the information you gave correct?

A. I spoke the truth, nothing to add or change.

Q. Do you have anything to add in support of your application?

A. I receive letters occasionally from Sri Lanka saying there is trouble in Colombo and Jaffna."

27. The notice of refusal was then served and explained. In this case the notice of refusal is in slightly different form from the two cases already considered. Instead of merely referring to the attached sheet, it says:

"Please see attached sheet. You have also asked to enter the United Kingdom as a visitor for 12 months but under the Immigration Rules you are required to have a visa to enter the United Kingdom, and you have no visa."

28. Pathmakumar arrived at Heathrow on 23 June 1988 en route for Canada. He was found to be travelling on a forged passport.
29. He claimed asylum. He was examined on that day and given written notice requiring him to submit to further examination, and he was then detained. He was further examined on the following day, when a political asylum questionnaire was completed. No further notice to submit to further examination was given. The questionnaire was forwarded to the Home Office for decision.
30. On 11 August the Home Office wrote to the Immigration Service at Heathrow in identical terms to those which had been used for Cumarasuriya and Benjamin, but the attached sheet differed from those used in the other three cases in that:

(1) the last sentence was omitted, and the previous sentence had added at the end the words "and therefore refuses your application";

(2) when it was finally served on the applicant, it was signed by the immigration officer "on behalf of the Secretary of State."

31. The applicant was thereafter requested to and did report to Heathrow on 26 August. He was then seen by an immigration officer who deposes:

"I asked the passenger if he wished to add anything to his political asylum application. He said he did not wish to add anything. I then explained the grounds for his refusal of entry and served him forms" (Notice of Refusal of Leave to enter).

32. Mr Nathan's submission is that in each case the examination of the applicant under paragraph 2 of the schedule was concluded on the day following his arrival when the matter was referred to the Home Office under rule 73 of the rules, and that thereafter all that happened was that the Home Office were considering what decision they would come to. In the alternative he contends that at the very latest it must have been concluded when the Home Office reached its decision, that is to say on 17 March 1988 in the case of Thirukumar and 11 August 1988 in the case of the other three applicants.
33. The result is, he submits, that each of the applicants must, by virtue of paragraph 6(1) of the schedule, be deemed to have been given either indefinite leave to enter the United Kingdom or leave to enter for six months, depending on whether paragraph 6 applies in its original form or as amended by the Immigration Act 1988.
34. On the face of it this is a powerful contention, but Mr Jay for the respondent relies principally on R v Chief Immigration Officer of Manchester Airport ex parte Insah Begum [1972] All ER 6 (DC) and [1973] 1 All ER 594 (CA) and on the decision of this court in R v Secretary of State for the Home Department export "V" unreported^[1] but of which we were provided with a transcript. He submits that on the basis of those cases, the argument of Mr Nathan is unsustainable. The basis of this submission is in essence that the examination of each applicant was not concluded until the day on which he reported to Heathrow, was asked if he wanted to add anything, and was then immediately refused leave.
35. Ex parte "V" was also a case of an application for asylum by a Tamil from Sri Lanka. He arrived at Heathrow on 30 January 1988, was briefly examined and served with notice requiring him to submit to further examination. He was further examined on the same day after which he was detained. No further notice to submit to further examination was given. The matter was referred to the Home Office who required a full political asylum interview to be carried out. As a result, he was interviewed in detention on 6 and 7 February. A political asylum questionnaire was completed and passed to the Home Office for consideration of the applicant's claim.
36. It appears from the judgment of Bingham LJ that in due course:

"... the Home Office decided that, subject to any representations the applicant might make on further interview, he should be refused asylum."

37. As a result the immigration officer saw the applicant in detention again on 21 March and gave him an opportunity to make additional representations, but he had nothing to add. He was then served with notice of refusal of leave to enter.
38. It was then contended for the applicant that the notice to submit to further examination covered, and covered only, the second of the two interviews on the day of arrival, and that having been given no notice at the end of the second interview on the day of arrival, or within 12 hours thereafter, he was deemed to have been given indefinite leave to enter.
39. Bingham LJ rejected the contention for three reasons:

(1) because even if the service of a notice to submit to further examination was a pre-condition to any further examination, there was no need to serve a notice at the conclusion of each session of further examination.

(2) because, and I quote:

"Secondly, paragraph 6(1) applies where an immigrant who has been examined under paragraph 2 'is to be given a limited leave to enter or is to be refused leave.' The object of the paragraph plainly is to ensure that an immigrant shall be given notice of the decision promptly as soon as a conclusion has been reached. But the paragraph does not apply to a case where it cannot be said whether an immigrant is to be given a limited leave to enter or is to be refused leave (or is to be given indefinite leave to enter) because his case is still under consideration and no conclusion has been reached. The immigration officer can scarcely be obliged to give notice of a decision which has not been made."

(3) because he regarded ex parte Insah Begum as authority for the proposition that an examination was not concluded until all information was to hand, and this did not occur until, after a provisional decision by the Home Office, he confirmed that he had nothing to add.

40. Hutchison J delivered a short judgment fully agreeing with the second and third reasons given by Bingham LJ and also, albeit with less confidence, with the first of those reasons. As to the first reason, Bingham LJ said:

"The reference to '(including any further examination)' in paragraph 6(1) in my view means '(including further examination, if any)' not '(including each further examination)'".

41. He thus recognizes that there may be no further examination. This must clearly be the case. He specifically said that, when giving notice requiring the applicant to submit to further examination, the officer "cannot know . . . when or where the further examination will take place nor what form it will take nor how protracted it will be". I would add that which is implicit in the first quotation "nor whether it will take place at all".
42. This must particularly be so when an officer has completed all enquiries he needs to make for the purposes of matters within his sphere and the only matter which is holding up an immediate decision is the need to refer an asylum application to the Home Office who may or may not be able to make, and in fact make, a decision without further examination or information. If there is in fact no further examination and no need for it before the decision is made, it appears to me inescapable that the examination was in fact concluded when the matter was referred to the Home Office for decision, or at least within a comparatively short time thereafter.
43. Subparagraph (3) of paragraph 8 of the schedule to the 1988 Act provides:

"The amendment in sub-paragraph (1) above does not apply in relation to any person in whose case the time limit in paragraph 6(1) of Schedule 2 has expired before the coming into force of this paragraph ..."

44. By virtue of the provisions of s 12(3) and (4) of the 1988 Act, the paragraph came into force two months from the day on which the Act was passed. This was 10 May 1988.
45. The result is that the amendment cannot affect the case of Thirukumar.
46. As to the other three, it will affect them if their examination was concluded after 10 July 1988 but not otherwise. This means that if their examination was not concluded until 11 August, when the Home Office notified the Heathrow Immigration Service of its decision on the asylum applications, any resulting deemed leave to enter in their cases will be for six months only. If however their examination was concluded at the end of the interview following the date of arrival or shortly thereafter, the amendment will have no effect.
47. In my judgment the earlier date ought to be preferred, for it appears to me that otherwise an applicant, having once been served, can be kept waiting for a decision for a limitless period, which is contrary to what I would have supposed was the plain purpose of paragraph 6(1), namely that a decision should follow swiftly when the immigration officer or, in the case of asylum, the Home Office sees no need for further examination.
48. Turning to the second reason given by Bingham LJ, he states that the object of paragraph 6(1) is plainly to ensure that an immigrant is to be given notice promptly once a decision is reached and that until it is, no notice need be given.
49. With respect, I find some difficulty in following this. The paragraph does not say that the notice shall be given within twelve hours of a decision being made, but within twelve hours of the conclusion of the examination. The fact that it refers to cases where a person is to be given limited leave to enter the United Kingdom or is to be refused leave appears to me to be readily explicable on the basis that if indefinite leave is in fact ultimately given, there is no need whatever for a deeming provision. Nor does it appear to me to cause any serious difficulty that the officer cannot know what the decision is to be until it is reached.
50. However that may be, the present applications are in a different case from ex parte "V". 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".
51. But for the decision in ex parte "V", I would have concluded that in each case the time limit ran from the time when the completed questionnaires were forwarded or shortly thereafter. Although in judicial review cases we are not strictly bound by the decision of another Divisional Court (see R v Greater Manchester Coroner ex parte Tal [1985] QB 57 at p 81), I do not regard this as being a case where it is necessary to depart from the earlier decision in ex parte "V" for, on the facts, I reach the clear conclusion that time ran at the latest from the Home Office decision which was not subject to any qualification. That decision was not notified until after the expiry of the time limit in the case of Thirukumar. He must therefore be deemed to have been given indefinite leave to enter the United Kingdom. In the cases of the other three applicants, they must be deemed to have been given six months leave subject to a condition prohibiting their taking employment. The refusal of entry in all four cases must, in these circumstances, in each case be quashed.
52. With regard to Bingham LPs third reason, it is clear that all information was to hand when, or shortly after, the questionnaires were forwarded to the Home Office.

Decisions Unfair

53. The House of Lords have made it clear that in asylum cases, a wrong decision on which could have the direst consequences, the court should, on judicial review, scrutinize the decision-making process with great care. In these cases, copies of the political asylum questionnaire were not supplied to the applicants so that they might consider, if necessary with advisers, whether they ought to add to or alter anything appearing in them.
54. The questionnaires contain the immigration officer's comments and recommendations to the Home Office of which they were not made aware. The opportunity which they were said to be given to make further representations appears to me to be quite unreal coming, as it did, a very considerable time—in two cases over a year—after their initial interviews and when they were quite unaware of the reasons why the Secretary of State had, as of that time at any rate, decided to refuse their applications. I would therefore also quash the decisions refusing asylum. This would leave the four applicants free to renew their applications and the Secretary of State free to consider and decide them afresh. They would however then be made by applicants, one of whom would already have indefinite leave and the other three of whom would have six months leave. In the light of the foregoing, it is unnecessary to deal with other matters raised by Mr Nathan.
55. I conclude by saying that we are informed that it is now the practice for an applicant seeking asylum to have each page of the questionnaire read over to him and then signed by him as correct. This is, in my view, very desirable, for it will thereafter avoid disputes as to what was and what was not said by an applicant.
56. It also appears to me that fairness demands that he should be supplied with the completed questionnaire, or a copy of it, including the immigration officer's comments or recommendations. His life may well depend upon the outcome of his application. He will in many cases have given his answers immediately after a long flight or when he has not fully recovered, and he should have the opportunity to consider calmly whether there is anything which he should add or alter.
57. Furthermore, if there is to be reality in the opportunity to make further representations, the applicant must, in my view, be made aware of the reasons why his application is being at least provisionally refused and given a reasonable time to consider the matter. It may be, for example, that the Secretary of State has made some material mistake of fact which could swiftly be corrected.
58. Finally, lest it be thought that I have overlooked the matter, I refer to the observation in the Home Office letters "you will wish to complete your examination and, if appropriate, refuse leave to enter". The Home Office may have thought that further examination on other matters was uncompleted, but if they did they were mistaken. The Home Office had made the only decision which was outstanding and which might conceivably have called for further examination.
59. Henry J: I agree. I would construe the words in the regulations "on conclusion of his examination" as meaning (on the facts of these cases) at latest the signing or sending to the port of entry of the Home Office decision on the asylum point.
60. I would add just a few words. When one looks at the scheme of section 4 of the Act of 1971, there is a clear division of responsibility between the immigration officer and the Secretary of State. The power to give or refuse entry lies with the immigration officers, generally working at the port of entry. The power to give leave to remain, or to vary conditions of such leave, lies with the Home Secretary. The distinction between control and entry and control after entry is emphasized by section 11 of the Act.
61. However, when it comes to the treatment of asylum, under existing law that distinction is necessarily blurred. Seekers for asylum present themselves at the port. Usually their only case for entry is asylum, yet for good reason such cases are necessarily referred to the Home Office for decision. I emphasize that word "decision" because that is the word that is used in immigration rule 73.
62. In those circumstances the problem that arises here is having to apply the philosophy and wording of rules appropriate to an immigration officer's decision at the port of entry where Parliament has deliberately limited time for reflection after the conclusion of the examination to the decision taken by the Home Office on a matter profoundly affecting the life of the applicant which must often turn on a finely balanced evaluation, not only of the applicant's case but perhaps requiring investigation of the political stability of a distant part of the world. It seems to me that from this mis-match, most of the problems in this case arise.
63. At the port, the immigration officers proceed by examination of the would-be entrant. If one examination is not sufficient, there may be further examination of him; but the notice giving or refusing leave must be made not later than formerly 12 but now 24 hours after the conclusion of the would-be entrant's examination. It is clearly important that that time should be kept short, because he will often be in detention and if not, should not in any event be kept in suspense.
64. Now it would clearly defeat the object of that short period for the giving of the decision if examinations were artificially protracted because it was difficult or inconvenient to give the decision notice within the time provided. It seems to me that that decision notice should be given within that period after the time when the examination of the applicant's case really ended, when it ended in fact, rather than after some artificial protraction of it.
65. In all these cases asylum was the only point that could only be decided by the Home Secretary. The immigration officer's contribution to the examination was to gather and forward material to the Home Secretary under the form of the political asylum questionnaire and to add his comments thereon, but the asylum question he could not decide.
66. His role in the examination is effectively over once he has forwarded that questionnaire, because the decision on the only live issue, asylum, must under rule 73 be referred to the Home Office. Their 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.
67. I reach this conclusion without reluctance because, first, it seems to me, on the facts as we have seen them in these four cases, unreal to assume that anyone, unprompted by a note of what he said on an earlier interview, which in two of the four cases we have seen was conducted more than a year before, would be able to give a useful answer to a question as to whether he has anything to correct or add to that which he said so long before. Second, it would seem to me to be better if the Home Office were to discover the applicant's best case for asylum, including corrections of any misunderstandings, before the signing of the decision letter rather than after, particularly when, again judging by the examples before us, such decision letters apparently often have so long a gestation period.

Applications granted

Note 1   See [1988] 1mm AR 561    [Back]