Hearsay evidence was admissible in immigration case

LAW REPORT 28 January 1997

Re Rahman; Court of Appeal (Lord Justice Staughton, Lord Justice Hobhouse, Lord Justice Hutchison) 11 December 1996

In determining the validity of a person's detention as an illegal entrant, the High Court was entitled to take into account all the evidence relied on by the Home Secretary, including such as might otherwise be inadmissible at common law.

The Court of Appeal dismissed an appeal by Saudur Rahman against the refusal of Mr Justice Collins, on 26 June 1996, to grant him a writ of habeas corpus. The court unanimously dismissed the appeal on the point of law as to whether certain evidence relied upon by the Home Secretary was admissible. The court by a majority (Lord Justice Hutchison dissenting) also dismissed the appeal on the point of fact, that there was sufficient evidence to conclude that the entrant was an illegal immigrant.

The appellant claimed to have been born in Bangladesh, the son of Abdus Somad, on 29 July 1967. Abdus Somad had British citizenship and was living in the UK in 1989 when the entrant, expressing a wish to join him, was granted a certificate of entitlement to the right of abode in the UK. In November 1990 he obtained a British passport.

In 1991 the appellant's wife, Rina Akhter, whom he married in 1988, applied for a certificate of entitlement for herself and their two sons to join him in the UK. Before that application was granted, the Home Secretary received denunciatory letters claiming that one of the two boys was actually their nephew and that the appellant himself was not whom he claimed to be but a man named Mohammed Surab Ali Talukder.

The Home Secretary acting through entrance clearance officers in Bangladesh instituted inquiries about the appellant in two villages. It was common ground that the interview evidence thus obtained, if presented in admissible form and uncontradicted, would justify the conclusion that deception had been established to the requisite high standard. But without some of this evidence there was insufficient evidence to support that conclusion.

The appellant argued that the evidence of the village visits, in particular the interviews tendered by way of affidavits from immigration officers, was inadmissible in legal proceedings in this country because it was hearsay, and that the judge should not have taken it into account in determining the validity of the appellant's detention as an illegal entrant.

The question of law was thus whether a court, when inquiring into the truth of facts on which an administrative decision had been based, was entitled to look at all the material on which the decision-maker legitimately relied, or only such evidence as was presented in strictly admissible form.

Michael Shrimpton (Saf Awas, Luton) for the appellant; Mark Shaw (Treasury Solicitor) for the Home Secretary.

Lord Justice Hobhouse said it was common ground the governing authority was R v Home Secretary, ex p Khawaja [1984] AC 74, and that where the secretary of state sought to declare a person an illegal entrant, he must prove he was in fact an illegal entrant.

The tenor of their Lordships' speeches in Khawaja was an acceptance of evidence which did not necessarily meet the criteria of admissibility for a court conducting a trial. It was implicit that the court could take into account all relevant material, making appropriate allowance for the weight to be attached to it, which of course did not exclude the view that certain evidence should be disregarded if it was not worthy of any weight. The same conclusion was implicit in the judgments in Ex parte Miah [1989] IAR 559, and Ex parte Muse [1992] IAR 282.

The original determination (taking into account all material evidence) was either valid or invalid; the entrant either was or was not an illegal entrant. If the entrant challenged the validity of the decision in the courts, the exclusion of otherwise inadmissible evidence might result in a valid decision being held invalid. That could not be correct.

The role of the court in these cases was to consider all the available material and to decide for itself whether it had been satisfied by the secretary of state that the applicant was an illegal entrant. The appeal on the point of law therefore failed.

Paul Magrath, Barrister