R v Secretary of State for the Home Department, ex p. To-Ming Lam

(Computer Aided Transcription by John Larking, Chancery House, Chancery Lane, London WC2. Telephone No. 071 404 7464. Official Shorthand Writers to the Court.)

MR. R. SCANNELL (instructed by Messrs Simons Muirhead & Burton, London, W1) appeared on behalf of the Applicant. MR. D. PANNICK Q.C. (Treasury Solicitor) appeared on behalf of the Respondent. ____________________

MR. JUSTICE DYSON: This is an application by To-Ming Lam for judicial review of the decision of an immigration officer ma on 25th September 1993 declaring him to be an illegal entrant as defined by section 33(1) of the Immigration Act 1971; that is a person who unlawfully entered in breach of the immigration laws.

It is submitted on behalf of the Secretary of State the (1) the applicant entered into the United Kingdom in reliance on an invalid work permit and has accordingly at all times been an illegal entrant, and (2) the immigration officer was therefore able to give directions for his removal from the United Kingdom under paragraph 9 of Schedule 2 of the Act.

For the applicant, it is argued that (1) it has not bee shown by the Secretary of State to the required standard of proof that the applicant entered on 29th March 1991 in reliance on an invalid work permit, so as to be an illegal entrant, and (2) even if the original entry was illegal, the was no power to give directions for removal, since (a) on the true construction of paragraph 9 of Schedule 2 there was no power because the applicant was granted a subsequent leave to remain and/or (b) the applicant re-entered the United Kingdom on 29th December 1992 as a legal entrant.