Last Updated: Thursday, 18 January 2018, 15:22 GMT

R v. Secretary of State for the Home Department, Ex parte Sultan Mahmood

Publisher United Kingdom: Court of Appeal (England and Wales)
Author Criminal Division
Publication Date 26 July 1978
Citation / Document Symbol [1981] QB 58, [1980] 3 WLR 312
Cite as R v. Secretary of State for the Home Department, Ex parte Sultan Mahmood, [1981] QB 58, [1980] 3 WLR 312, United Kingdom: Court of Appeal (England and Wales), 26 July 1978, available at: http://www.refworld.org/cases,GBR_CA_CIV,3ae6b68a0.html [accessed 18 January 2018]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte SULTAN MAHMOOD [NOTE]

COURT OF APPEAL CRIMINAL DIVISION

[1981] QB 58, [1980] 3 WLR 312

Hearing Date: 14, 26 July 1978

26 July 1978

Index Terms:

Immigration -- Illegal entrant -- False statement -- United Kingdom citizenship by registration -- Registration in name of deceased cousin -- Validity of registration -- Whether entrant patrial until deprived of citizenship-British Nationality Act 1948 (11 & 12 Geo. 6, c. 56), ss. 5A, 20 (2) -- Immigration Act 1971 (c. 77), Sch. 2, para. 16

Cases referred to in the Judgment:

Reg. v. Bhagwan [1972] A.C. 60; [1970] 3 W.L.R. 501; [1970] 3 All E.R. 97, H.L.(E).

Introduction:

APPEAL from the Divisional Court of the Queen's Bench Division.

The appellant, Sultan Mahmood, was detained in custody at Horfield Prison, Bristol, pending his removal from the United Kingdom as an illegal entrant, pursuant to the order of an immigration officer made on August 1, 1977, under paragraph 16 of Schedule 2 to the Immigration Act 1971. He applied for a writ of habeas corpus directed to the respondents, the Secretary of State for the Home Department and the governor of the prison, on the ground that his detention was unlawful as he was a citizen of the United Kingdom and Colonies by registration under section 5A of the British Nationality Act 1948 and entitled to the benefit of section 20 of the Act of 1948. The appellant was released on bail on September 7, 1977, by a judge in chambers, pending the hearing of the proceedings in the Divisional Court. On January 18, 1978, the Divisional Court (Lord Widgery C.J. and Melford Stevenson and Lloyd JJ.), refused the application. The appellant appealed and was granted bail on January 18, 1978, pending the hearing of the appeal.

The facts are stated in the judgment of Roskill L.J.

Counsel:

David Turner-Samuels Q.C. and Sibghatullah Kadri for the appellant.

Harry Woolf for the respondents.

Judgment-READ:

Cur. adv. vult.

PANEL: Stephenson, Roskill and Geoffrey Lane L.JJ.

Judgment One:

STEPHENSON L.J. I will ask Roskill L.J. to give the first judgment.

Judgment Two:

ROSKILL L.J. On January 18, 1978, the Divisional Court of the Quenn's Bench Division refused an application for a writ of habeas corpus made on behalf of the appellant, the applicant in the court below. He is currently known as Sultan Mahmood, having changed what he claims to be his former name, Javed Iqbal, by deed poll dated April 7, 1975. He was detained under the authority of a detention order dated August 1, 1977, issued by the immigration officer at Bristol Airport. We were told that he had taken into custody at the house where he was living in Bristol and brought thence to that airport for interrogation as a result of which that order was made. That order purported to be made under paragraph 16 of Schedule 2 to the Immigration Act 1971. He was released on bail by the judge in chambers on September 7, 1977, pending proceedings before the Divisional Court. Following the failure of his application to the Divisional Court on January 18, 1978, he was again released on bail by this court on the afternoon of the same day. He has since then been on bail pending the result of this appeal.

The appellant claims to be a citizen of the United Kingdom by registration by virtue of the provisions of section 5A of the British Nationality Act 1948 which was inserted into that statute by Appendix A of Schedule 1 to the Act of 1971. That being so, as he alleges, he claims that the order of August 1, 1977, for his detention was unlawful, since he is entitled as a citizen of the United Kingdom by registration to the benefits and protection accorded by section 20 of the Act of 1948, which provides for the manner in which and indeed, as Mr. Turner-Samuels, on the appellant's behalf urged, the only manner in which such a citizen may be deprived of that citizenship.

The appellant further claims that the provisions of Schedule 2 and the machinery thereby prescribed under the Act of 1971 have no application to him. Hence his detention under the order and indeed the making of the order was unlawful and the motion for a writ of habeas corpus is directed to the Secretary of State for Home Affairs as responsible for the order and the Governor of Horfield Prison, Bristol, into whose custody he was taken under that order.

Since in the ultimate analysis in my view this appeal turns upon section 20 of the Act of 1948, it seems strange that this section is not mentioned in the judgments of the Divisional Court. We were told by Mr. Woolf, who appeared for the respondents in that court and before us, that this point had been raised before the Divisional Court, but had somehow become submerged in that court in a debate upon the facts of the case, some of which were in dispute. However that may be, in consequence we do not have the advantage of the judgments of the Divisional Court upon this, the only, question argued before us. It is a novel question which does not seem previously to have arisen, namely, whether on the somewhat remarkable facts alleged by the Crown (it was common ground in this court that, though some of those facts were in dispute, we must proceed upon the assumption that they could and would be proved at the appropriate time and place), the appellant is entitled to the benefits and the protection of section 20.

The facts in question can be briefly summarised as follows. (1) The appellant was a citizen of Pakistan. He first came to this country in the 1960s. His last entry to this country was on May 5, 1973. He then possessed a Pakistan passport in the name of Javed Iqbal, which was found in his possession at the time of his detention. The photograph on that passport was a photograph of the appellant: see paragraph 4 of the affidavit of Mr. McLean, the immigration officer concerned. According to paragraph 19 of Mr. McLean's affidavit, when the appellant was interviewed on August 1, 1977, he said: "... he had been unemployed after leaving school in Pakistan. He had obtained the passport of his brother-in-law, Javed Iqbal, who is also his cousin, who had died in 1972. He had given the passport to a Kashmiri called Malik who is an employee of Pakistan Airlines. Malik arranged for his photograph to be substituted in the passport for that of Javed Iqbal. He paid 7,000 10 8,000 rupees for the photograph substitution and the air fare to the United Kingdom. He travelled by air to the United Kingdom and went to live with his father in Birmingham. He said his wife is Jannat Khatoon and she lives in Batli village. He last saw her in 1973."

(2) On May 20, 1974, a certificate of registration as a citizen of the United Kingdom was issued to the appellant in the name of Javed Iqbal. The date of birth in the certificate was the same as that given on the Pakistani passport above referred to. (3) The appellant applied for a United Kingdom passport in the name of Javed Iqbal and this was issued to him on or about June 2, 1974. (4) On April 7, 1975, as already mentioned, the appellant purported to change his name from Javed Iqbal to the mane of Sultan Mahmood by deed poll. (5) In or about May 1975 he lost the British passport above referred to. A fresh passport was issued to him in consequence. This passport has as his distinguishing marks "scar over left eye." The Pakistani passport had given "cut marks on neck" as "visible distinguishing marks." (6) In June 1977, a letter was received from a Mrs. Jannat Khatoon stating that she was the appellant's wife, that Javed Iqbal had died in 1972, that the Pakistani passport originally issued to Javed Iqbal now dead and used by her husband, the appellant, was a forgery in that he had replaced the original photograph with his own. This letter led to the inquiries which culminated in the appellant's detention. (7) The appellant when taxed with these allegations admitted that he had "tampered with the photograph in my passport." He now asserts that this admission was made involuntarily and under duress and he denies that he made any other admissions as alleged. (8) There was independent evidence from another immigration officer that the Pakistani passport had been tampered with and that the appellant's photograph was not the original photograph but had been substituted.

On those facts it was argued that the appellant's registration evidenced by the certificate -- it was common ground that the appellant had taken the oath of allegiance before the application was granted -- involved that he had become and now was a citizen of the United Kingdom by registration, and that under section 20 of the Act of 1948, he could only be deprived of that status in accordance with that section and not otherwise. It was contended that the Secretary of State was alleging fraud, false representation, the concealment of material facts, and that therefore, the case fell fairly and squarely within section 20 (2). Accordingly, section 20 (6) and (7) was applicable and the machinery prescribed by Schedule 2 to the Act of 1971 was not.

This argument has the merit of attractive simplicity and it was forcibly advanced by Mr. Turner-Samuels, in this court on behalf of the appellant. But before the provisions of section 20 (2), (6) and (7) can be prayed in aid, in my judgment the appellant must show that he can bring himself within subsection

(1) of that section. He seeks to do so by reliance upon the fact of registration as evidenced by the certificate. If it were clear that the appellant was the Javel Iqbal originally named and identified in the Pakistani passport and in the other relevant documents and that the Secretary of State had intended to grant registration to that person, this argument would clearly have great force because it would be to that person so named and identified that that grant would have been directed. But the evidence is that that person was dead. The Secretary of State's intention cannot have been to grant registration to the appellant for he did not know who the appellant was. He wrongly believed the appellant to be Javed Iqbal, which he was not, nor could have been, for that individual was dead.

There are, I think, only three possible effects of the purported registration. First, it was a grant to Javed Iqbal. Secondly, it was a grant to the appellant. Thirdly, it was a grant to nobody but was a nullity. I have given my reasons already for rejecting the first two possibilities. There remains the third, that the purported grant was a nullity. Mr. Woolf drew an analogy between contracts which are void and contracts which are voidable. This analogy, as I think, is useful though, like most analogies, incomplete. I accept that in some cases it may be difficult to draw a dividing line in these cases between a registration which is a nullity and therefore void, as I think is the case with the present registration, in which case the alleged citizen by registration cannot bring himself within section 20 (1) at all, and a registration which is only voidable, in which case the machinery of section 20 (2), (6) and (7) has to be invoked to the exclusion of the relevant provisions of the Act of 1971. Mr. Woolf accepted that it was easy to formulate a dividing line between the two classes of case.I agree, but wherever that line is drawn, I am clearly of the view that the instant case is one in which the alleged British registration was a nullity.

This was the view of Melford Stevenson J., who gave the first judgment in the Divisional Court, when he said: "It is impossible to avoid the conclusion that that registration was a nullity," though, as already stated, before that court the appellant does not seem to have rested his case upon section 20. I would only add this. Mr. Turner-Samuels laid emphasis upon a passage in the speech of Lord Diplock in Reg. v. Bhagwan [1972] A.C. 60, 82. Lord Diplock there said: "Under our system of Parliamentary government what Parliament enacts are not policies but means for giving effect to policies. Those means often involve imposing upon private citizens fresh obligations or restrictions on their liberties to which they were not previously subject at common law. The constitutional of the court in relation to enacted law is limited to interpreting and applying it. It is the duty of the judge to ascertain what are the means which Parliament has enacted by the Act. In construing the enacting words he may take account of what the Act discloses as the purpose that those means were intended to achieve and, in the case of ambiguity alone, he may interpret them in the sense in which they are more likely to promote than hinder its achievement. But it is no function of a judge to add to the means which Parliament has enacted in derogation of rights which citizens previously enjoyed at common law, because he thinks that the particular case in which he has to apply the Act demonstrates that those means are not adequate to achieve what he conceives to be the policy of the Act. To do so is not to carry out the intention of Parliament but to usurp its functions."

I have that warning very well in mind as also the fact that we are here concerned with the liberty of the individual, an individual who, so far as the evidence goes, has lived peacefully in this country for some years. But in the present case we are not concerned with filling any gap in the legislative provisions. It is our task to apply the facts of this case to section 20 of the Act of 1948 upon the true construction of that section.In the result I take the view that the detention order was perfectly lawful, as did the Divisional Court, and I would refuse the application for a writ of habeas corpus and dismiss this appeal.

I would only add that if the appellant wishes to challenge the facts, his remedy is to invoke the appellate machinery of the Act of 1971 after he has left this country. In my view he is not entitled to rely upon the investigatory machinery provided for in section 20 of the Act of 1948.

Judgment Three:

GEOFFREY LANE L.J. We were invited to approach this appeal on the basis that the respondents' version of the facts was true. Those facts in brief are as follows: The appellant's true name, in so far as it is known at all, is and always was Sultan Mahmood. His cousin, Javed Iqbal, a much younger man, died in Pakistan in 1972. The appellant appropriated Javed Iqbal's Pakistani passport, had the original holder's photograph removed and his own put in its place and came to this country masquerading as his dead cousin. In due course he applied for registration as a citizen of the United Kingdom under section 5A of the British Nationality Act 1948 and took the oath of allegiance in his dead cousin's name. As a result, the name "Javed Iqbal" was in due course placed in the register of citizens of the United Kingdom. The appellant now contends that he is by virtue of the foregoing fact a "citizen of the United Kingdom and Colonies who is such by registration," and can accordingly only be deprived of that citizenship under the terms of section 20 of the British Nationality Act 1948. Subsection (2) of that section reads:

"Subject to the provisions of this section, the Secretary of State may by order deprive any such citizen of his citizenship if he is satisfied that the registration... was obtained by means of fraud, false representation or the concealment of any material fact."

Subsections (6) and (7) require the Secretary of State to notify the person of the grounds of any proposed order and give the person the right to require the holding of an inquiry. Since those steps have not been taken, goes the argument, he remains a citizen of the United Kingdom and his detention and proposed removal are unlawful.

It seems to me that the only question to be decided is whether the appellant ever was a citizen of the United Kingdom by registration. I find it difficult to see how he could be. He chose to assume the identity of a dead man, he took to oath of allegiance and filled in the necessary forms in the dead man's name. I find it impossible to say that in those circumstances Sultan Mahmood became a citizen of the United Kingdom any more than did Javed Iqbal. The proceedings were ineffective and section 20 never applied.

I would dismiss the appeal.

Judgment Four:

STEPHENSON L.J. The only question raised for our decision in this appeal is: is the appellant a person registered as a citizen of the United Kingdom and Colonies within section 5A of the British Nationality Act 1948? Or, more precisely, is he the person registered as such and named in the Certificate of Registration no. 327015 issued by the direction of the Secretary of State, Home Office, on May 20, 1974?

Mr. Turner-Samuels, for the appellant, submits, accepting the facts sworn by the immigration officer for the purpose of these proceedings only: (1) that the answer to the question is "yes" and the appellant is a citizen of the United Kingdom and Colonies by registration; (2) that therefore he can only cease to be such, and be subjected as not patrial to immigration control and detention under paragraph 16 of Schedule 2 to the Immigration Act 1971, if he is deprived of his citizenship by an order of the Secretary of State made under section 20 of the British Nationality Act 1948.

Mr. Woolf, for the Secretary of State concedes that if the first submission is right and the appellant is a person registered as a citizen of the United Kingdom and Colonies, the second submission is also right and the appeal succeeds, but he contends that the first submission is wrong and the appellant is not a person registered as such.

Mr. Woolf tells us that the application of section 20 to the facts of this case was raised by counsel appearing for the appellant in the Divisional Court, though not in the forefront of his case. It faded so far into the background that the judges of the Divisional Court lost sight of it and make no mention of it in their judgments. But I think that the conclusion stated in the judgment of Melford Stevenson j. "that the registration was a nullity" implies that the submission based on section 20 was rejected, and it is clear that all three judges held that the appellant was not the person registered and named in the certificate of May 20, 1974.

Three answers only are proffered to the question to whic this appeal is confined by the submissions made to us: that person was the appellant; or it was the dead Javed Iqbal; or it was nobody. This registration was obtained by means of fraud and false representation. The appellant fraudulently impersonated his dead cousin and brother-in-law, and falsely represented himself to be the dead man, taking the oath of allegiance required by section 19 of the Act of 1948, and thereby obtained this registration.

Now that fact seems to bring him straight into section 20 (2) of the Act of 1948, and to render him liable to be deprived of his citizenship, subject to the safeguards provided by section 20 (5), (6), and (7). The fraud and the false representation and the concealment of any material fact are not limited so as to exclude false personation. They could have been limited, for instance, to the five matters of fact set out in section 5A (2) of the Act of 1948, but they are not. They appear wide enough to include false personation as carried out by the appellant.

Doubtless such frauds have multiplied since 1948 and since immigration control was extended, but I cannot assume that such frauds were unknown to Parliament or the Home Office in the many years of aliens' registration and counter-espionage, when false identity papers were as well known in fact as in fiction during and between the two world wars in which this country was engaged. It might be thought that such a thorough-going fraud as the appellant has practised to obtain this registration was contemplated by section 20 (2). But to get to subsection (2) the appellant has to enter section 20 by subsection (1). It is only "a citizen of the United Kingdom and Colonies who is such by registration" who can be deprived of his citizenship.

For the reasons given by Roskill and Geoffrey Lane L.JJ., I have come to the conclusion, in spite of the deep impression which the language of section 20, read against that background, and the powerful argument of Mr. Turner-Samuels first made on my mind, that the appellant never became a citizen of the United Kingdom and Colonies by registration and was not registered as such, any more than Javed Iqbal. On the assumed facts, his fraud was so thorough-going as to take him over the dividing line referred to by Roskill L.J. and to keep him outside the section altogether.

Mr. Woolf pointed out that on the contrary view the appellant would, if he had impersonated his cousin earlier between his death in 1972 and the coming into force of the Act of 1971 in April 1973, have obtained not a temporary right to be free of immigration control until deprived of his citizenship, but a permanent right to remain here under section 7 of the Act of 1971.

I would accordingly uphold one more decision in support of the view that "a person who obtains some essential documents by fraud should not be allowed to enjoy a superior status on that account": see the judgment of Lord Widgery C.J. in this case in the Divisional Court.

I agree that this registration was a nullity, that the question for our decision must be answered "no" and tht the appeal should be dismissed.

DISPOSITION:

Appeal dismissed. Legal aid taxation of appellant's costs. Leave to appeal refused.

SOLICITORS:

Veale Benson, Bristol; Treasury Solicitor.

Copyright notice: Crown Copyright

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