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

Start your day with The Independent, sign up for daily news emails
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: Production & Quality Control Assistant

£19000 - £21000 per annum: Recruitment Genius: An excellent opportunity for a ...

Ashdown Group: Group HR Advisor - Kettering - £32,000

£28000 - £32000 per annum: Ashdown Group: Group HR Advisor with an established...

Guru Careers: HR Manager / HR Generalist

£40 - 50k (DOE) + Bonus: Guru Careers: We are seeking a HR Manager / HR Genera...

Recruitment Genius: Human Resources Officer

£24000 - £28000 per annum: Recruitment Genius: This role will cover all areas ...

Day In a Page

Inside the Kansas greenhouses where Monsanto is 'playing God' with the future of the planet

The future of GM

The greenhouses where Monsanto 'plays God' with the future of the planet
Britain's mild winters could be numbered: why global warming is leaving UK chillier

Britain's mild winters could be numbered

Gulf Stream is slowing down faster than ever, scientists say
Government gives £250,000 to Independent appeal

Government gives £250,000 to Independent appeal

Donation brings total raised by Homeless Veterans campaign to at least £1.25m
Oh dear, the most borrowed book at Bank of England library doesn't inspire confidence

The most borrowed book at Bank of England library? Oh dear

The book's fifth edition is used for Edexcel exams
Cowslips vs honeysuckle: The hunt for the UK’s favourite wildflower

Cowslips vs honeysuckle

It's the hunt for UK’s favourite wildflower
Child abuse scandal: Did a botched blackmail attempt by South African intelligence help Cyril Smith escape justice?

Did a botched blackmail attempt help Cyril Smith escape justice?

A fresh twist reveals the Liberal MP was targeted by the notorious South African intelligence agency Boss
Tony Blair joins a strange and exclusive club of political leaders whose careers have been blighted by the Middle East

Blair has joined a strange and exclusive club

A new tomb has just gone up in the Middle East's graveyard of US and British political reputations, says Patrick Cockburn
Election 2015: Meet the top 12 wacky candidates seeking your vote in May

Election 2015

Meet the top 12 wacky candidates seeking your vote in May
Countdown to the election: Operation Save Danny Alexander shifts into high gear as the SNP target his Commons seat

Operation Save Danny Alexander shifts into high gear

The Chief Secretary to the Treasury didn’t forget his Highland roots in the Budget. But the SNP is after his Commons seat
The US economy is under threat because of its neglected infrastructure

The US is getting frayed at the edges

Public spending on infrastructure is only half of Europe’s, and some say the nation’s very prosperity is threatened, says Rupert Cornwell
Mad Men final episodes: Museum exhibition just part of the hoopla greeting end of 1960s-set TV hit

New Yorkers raise a glass to Mad Men

A museum exhibition is just part of the hoopla greeting the final run of the 1960s-set TV hit
Land speed record: British-built hybrid rocket car aims to be the fastest on Earth

British-built hybrid rocket car aims to be the fastest on Earth

Bloodhound SSC will attempt to set a new standard in South Africa's Kalahari desert
Housebuilders go back to basics by using traditional methods and materials

Housebuilders go back to basics - throwing mud at the wall until it sticks

Traditional materials are ticking all the construction boxes: they are cheap, green – and anyone can use them
Daniel Brühl: 'When you have success abroad, you become a traitor. Envy is very German'

Daniel Brühl: 'Envy is very German'

He's got stick for his golden acting career and for his beloved restaurant - but Daniel Brühl is staying put in Berlin (where at least the grannies love him)
How Leica transformed photography for ever: Celebrating 100 years of the famous camera

Celebrating 100 years of Leica

A new book reveals how this elegant, lightweight box of tricks would transform the way we saw life on the street and in fashion, on the battlefield and across the world