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

Publisher United Kingdom: Court of Appeal (England and Wales)
Author Court of Appeal (Civil Division)
Publication Date 2 April 1980
Citation / Document Symbol [1981] QB 46, [1980] 2 All ER 735, 1980 3 WLR 302
Cite as R v. Secretary of State for the Home Department, Ex parte Akhtar, [1981] QB 46, [1980] 2 All ER 735, 1980 3 WLR 302, United Kingdom: Court of Appeal (England and Wales), 2 April 1980, available at: http://www.refworld.org/cases,GBR_CA_CIV,3ae6b6cf4.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.

R v Secretary of State for the Home Department, ex parte Akhtar

COURT OF APPEAL, CIVIL DIVISION

[1981] QB 46, [1980] 2 All ER 735, 1980 3 WLR 302

Hearing Date: 25, 26 March, 2 April 1980

2 April 1980

Index Terms:

Immigration - Detention - Minor - Minor given leave to enter United Kingdom - Minor registered as United Kingdom citizen on application made on his behalf by his alleged father - Evidence subsequently obtained that minor not son of alleged father - Detention of minor pending removal from United Kingdom as illegal immigrant - Whether minor immune from order directing his removal by virtue of registration as United Kingdom citizen - Whether registration as United Kingdom citizen effective - Whether detention lawful - British Nationality Act 1948, ss 7, 20.

Held:

The applicant was admitted into the United Kingdom as P, the infant son of W, an immigrant who had lawfully settled in the United Kingdom. In due course W applied under s 7(1) a of the British Nationality Act 1948 to register P, the son of W, as a citizen, and the Secretary of State duly registered a person of that description as a citizen. Following inquiries made at a later date, the immigration authorities acting on behalf of the Secretary of State believed on reasonable grounds that the applicant was neither P nor W's son and that he was not the person registered as a citizen on W's application. The applicant was detained by order of the Secretary of State pending his removal from the United Kingdom as an illegal immigrant. He applied for a writ of habeas corpus, contending that it was not open to the Secretary of State to treat him as an illegal immigrant or to apply the procedure for removal of an illegal immigrant, because he was a citizen of the United Kingdom by virtue of his registration under the 1948 Act and that registration remained effective until such time as he was deprived, under s 20(2) b of that Act, of the benefit of that registration following a proper inquiry conducted in accordance with s 20(6) and (7). At the hearing the applicant conceded that the Secretary of State had, on the evidence, reasonable grounds for believing that he was not W's son, although he did not concede that that belief was correct. The Divisional Court of the Queen's Bench Division ([1980] 1 All ER 1089) refused his application. The applicant appealed.

a Section 7(1) provides: 'The Secretary of State may cause the minor child of any citizen of the United Kingdom and Colonies to be registered as a citizen of the United Kingdom and Colonies upon application made in the prescribed manner by a parent or guardian of the child.'

b Section 20, so far as material, provides:

'(1) A citizen of the United Kingdom and Colonies who is such by registration (including a person registered under subsection (6) of section twelve of this Act) or is a naturalised person shall cease to be a citizen of the United Kingdom and Colonies if he is deprived of that citizenship by an order of the

Secretary of State made under this or the next following section.

'(2) 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 or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact...'

Held - The appeal would be dismissed for the following reasons

(1) Although the registration applied for by W was undoubtedly intended to procure the registration of the applicant and although the registration which was in fact procured was that of P, son of W, the effect of the registration could not depend on the intention of W. The registration would apply to the applicant and be conclusive of his claim if, but only if, he was P, son of W. Since however the applicant had not shown that he answered to the description of P, son of W, he had not shown that he was registered as a citizen of the United Kingdom and Colonies (see p 738 f to j, p 739 j to p 740 a and e to h, p 741 g and p 742 d, post).

(2) Section 20 of the 1948 Act had no relevance to the case because it only applied to a person who was without dispute an admitted or proven citizen (see p 739 b, p 740 f g, p 741 b c g and p 742 b to d, post).

Decision of the Divisional Court of the Queen's Bench Division [1980] 1 All ER 1089 affirmed.

Notes:

For citizenship of minors by registration, see 4 Halsbury's Laws (4th Edn) para 914.

For the Biritish Nationality Act 1948, ss 7, 20, see 1 Halsbury's Statutes (3rd Edn) 869,878.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department, ex parte Choudhary [1978] 3 All ER 790, [1978] 1 WLR 1177, CA.

R v Secretary of State for the Home Department, ex parte Hussain [1978] 2 All ER 423, [1978] 1 WLR 700, CA.

R v Secretary of State for the Home Department and Governor of Horfield Prison, ex parte Sultan Mahmood [1978] Court of Appeal Transcript 541.

Cases cited in the Judgment:

Eshugbayi Eleko v Government of Nigeria (Administering Officer) [1931] AC 662, [1931] All ER Rep 44, PC.

Guerin, Re (1888) 58 LJMC 42, 60 LT 538, DC.

R v Brixton Prison Governor, ex parte Ahsan [1969] 2 All ER 347, [1969] 2 QB 222,DC.

R v Home Secretary, ex parte Budd [1942] 1 All ER 373, [1942] 2 KB 14, CA.

Introduction:

Appeal. The applicant, Parvaz Akhtar, appealed against the judgment of the Divisional Court of the Queen's Bench Division (Shaw LJ and Kilner Brown J) ([1980] 1 All ER 1089) given on 21st December 1979 dismissing his application for an order directing the issue of a writ of habeas corpus ad subjiciendum to the Secretary of State for the Home Department for his release from detention at the Latchmere Remand Centre. The facts are set out in the judgment of Templeman LJ.

Counsel:

Nicholas Blake for the applicant. Simon Brown for the Secretary of State.

Judgment-READ:

Cur adv vult. 2nd April. The following judgments were read.

PANEL: MEGAW, TEMPLEMAN LJJ AND SIR PATRICK BROWNE

Judgment One:

TEMPLEMAN LJ (delivering the first judgment at the invitation of Megaw LJ). The question is whether registration of a citizen of the United Kingdom and Colonies pursuant to the British Nationality Act 1948 protects the person on whose behalf the registration was sought when that person fails to prove that he is the person described in the register.

The applicnt was allowed into this country as Parvaz Akhtar, infant son of Waris Ali. If he was not the son of Waris Ali he was an illegal entrant and was not entitled to be registered as a citizen of the United Kingdom and Colonies. In due course on the application of Waris Ali there was registered as a citizen Parvaz Akhtar, son of Waris Ali. The Secretary of State acting through immigration officers believes, and has reasonable grounds for believing, that the applicant is Abdul Hamid, son of Noor Hussein, and that Parvaz Akhtar, son of Waris Ali either never existed or was some person other than the applicant. The Secretary of State acting under powers conferred by the Immigration Act 1971 has directed the removal of the applicant from the United Kingdom as an illegal entrant. The applicant claims that he is Parvaz Akhtar, son of Waris Ali and that as a citizen of the United Kingdom by registration under the British Nationality Act 1948 he is not liable to be so removed.

By ss 1(1) and 2(6) of the Immigration Act 1971 a patrial is free to enter the United Kingdom. By ss 1(2) and 3 a person who is not patrial shall not enter the United Kingdom unless given leave to do so. By s 2(6) the word 'patrial' is used of persons having the right of abode in the United Kingdom. Such persons are defined by s 2(1) and (2) and include a citizen of the United Kingdom and Colonies who has that citizenship by registration in the United Kingdom. An 'entrant' is defined by s 33(1) as a person entering or seeking to enter the United Kingdom and 'an illegal entrant' is defined as a person unlawfully entering or seeking to enter in breach of the immigration laws and includes also a person who has so entered.

Thus a person who seeks to enter the United Kingdom may be a patrial entitled to enter, or a non-patrial entrant who requires and properly seeks leave to enter, or an illegal entrant who requires leave to enter but seeks to enter or has entered in breach of the immigration laws.

By s. 3(8) when any question arises whether or not a person is patrial, 'it shall lie on the person asserting it to prove that he is'. By s 4(1) the power to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers. By para 2(1) of Sch 2 an immigration officer may examine any person who has arrived in the United Kingdom for the purpose of determining whether he is or is not patrial and, if he is not, whether he shall be given leave or should be refused leave to enter the United Kingdom. By paras 8, 9 and 10 of Sch 2 an immigration officer or the Secretary of State may give directions for any illegal entrant or any person who is refused leave to enter the United Kingdom to be removed from the United Kingdom. By para 16 of Sch 2 an illegal entrant or person refused leave to enter the United Kingdom may be detained pending his removal from the United Kingdom.

By s 13 a person who is refused leave to enter the United Kingdom may appeal to an adjudicator but he is not entitled to appeal so long as he is in the United Kingdom. By s 16 a person who is directed to be removed from the United Kingdom on the ground that he is an illegal entrant may appeal to the adjudicator but again no appeal lies so long as the appellant is in the United Kingdom. By s 19(1) the adjudicator shall allow an appeal if, inter alia, he considers that the decision or action against which the appeal is brought is not in accordance with the law or that any discretion should have been exercised differently. By s 20 an appeal lies from an adjudicator to the appeal tribunal.

In the result, an applicant who seeks to enter the United Kingdom on the grounds that he is patrial may be refused entry into the United Kingdom by an immigration officer who has reasonable grounds for believing that the applicant is not patrial and the applicant may appeal to the adjudicator and to the appeal tribunal, but any appeal can only take place once the applicant has left or been removed from the United Kingdom.

An applicant who seeks to enter the United Kingdom is bound by the machinery of the Immigration Act 1971. The court will not interfere if, on the evidence as a whole, the Secretary of State, acting by theimmigration officer, has grounds and reasonable grounds for coming to the conclusion that an applicant is seeking to enter or has entered in contravention of the immigration laws:see R v Home Secretary, ex parte Hussain [1978] 2 All ER 423 at 429, [1978] 1 WLR 700 at 707. That decision concerned a person who claimed that he had been given unconditional leave to stay permanently in the United Kingdom. In my judgment the principle of the Hussain decision applies equally to an applicant who claims that he is patrial, and entitled to enter the United Kingdom because he is a citizen of the United Kingdom by registration. If the immigration officer reasonably decides that the applicant has not proved that he is a citizen by registration as he asserts, and if the immigration officer determines that the applicant is not patrial and if the immigration officer believes and has reasonable grounds for believing that the applicant is an illegal entrant, then the court will not interfere; the sole remedy of the applicant is to appeal to an adjudicator and if necessary to the appeal tribunal under the Immigration Act 1971 after he has been removed from the United Kingdom.

The 1971 Act thus confers fearsome powers on an immigration officer and prevents the effective recourse of an individual to the courts which administer justice in this country, provided that the officer has reasonable grounds for believing that he has a jurisdiction to exercise his powers to exclude and remove. On this appeal and in this court it is not open to the applicant to debate the principles or operation of the Act.

The applicant was, as I have stated, admitted to this country as Parvaz Akhtar, infant son of Waris Ali who had been settled in the United Kingdom for many years and was himself a citizen of the United Kingdom and Colonies. Section 7 of the British Nationality Act 1948 provides that the Secretary of State may cause the minor child of any citizen of the United Kingdom and Colonies to be registered as a citizen of the United Kingdom and Colonies on application made in the prescribed manner by a parent or guardian of the child. The applicant remained in this country under the name of Parvaz Akhtar and on 16th June 1976, as a result of an application by Waris Ali, there was registered as a citizen of the United Kingdom and Colonies, Parvaz Akhtar, son of Waris Ali.

In March 1978 the applicant went to Denmark and returned having lost his passport. He demanded entry into the United Kingdom on the grounds that he was patrial, being a citizen of the United Kingdom and Colonies by registration, namely the registration effected by Waris Ali of Parvaz Akhtar, son of Waris Ali.

The immigration officer received information and evidence, and the applicant at one stage confessed (but has since denied), that he is not Parvaz Akhtar, son of Waris Ali, but Abdul Hamid, son of Noor Hussein. The immigration officer decided that the applicant had not proved, as he asserted, that he was a citizen by registration and patrial; the immigration officer determined that the applicant was not patrial; the immigration officer believed that the applicant was an illegal entrant. There existed reasonable grounds for all the conclusions reached by the immigration officer. The applicant was not allowed to enter and directions were given for his removal from he United Kingdom. Once outside the United Kingdom the applicant will of course be entitled to appeal to an adjudicator and if necessary to the appeal tribunal, and if he proves that he is a citizen his appeal will succeed. In my judgment, however, in order to prove that he is a citizen by registration the applicant must prove that he is Parvaz Akhtar, son of Waris Ali in conformity with the only entry in the register on which he claims to rely. The applicant was detained in this country pending removal and applied for a writ of habeas corpus. On 21st December 1979 the Divisional Court of the Queen's Bench Division, Shaw LJ and Kilner Brown J, refused the application ([1980] 1 All ER 1089). The applicant, who remains in detention in this country pending the outcome of these proceedings, appeals to this court.

The applicant relies on the registration effected on the application of Waris Ali. In my judgment, tht registration does not prove that the applicant is a citizen of the United Kingdom and Colonies by registration. When Waris Ali applied for the registration he undoubtedly intended to procure the registration of the applicant and nobody else. But the effect of the registration cannot depend on the intention of the applicant, Waris Ali. The registration which was in fact effected was the registration of Parvaz Akhtar, son of Waris Ali. This registration applies to the applicant and is conclusive of the claim of the applicant to be patrial if, but only if, the applicant is Parvaz Akhtar, son of Waris Ali. But the applicant has not proved that he is the person registered. The immigration officer believes, and has reasonabe grounds for believing, that the applicant is not the person registered, but is Abdul Hamid, son of Noor Hussein and as such an illegal entrant. The registration was expressed to apply and could only apply to a person who was named or who called himself Parvaz Akhtar and was a son of Waris Ali. There was no power and no intention on the part of the registration authorities to register Abdul Hamid and no power or official intention to register any Parvaz Akhtar other than the son of Waris Ali. In order to rely on the registration the applicant must show that he answers to the description of Parvaz Akhtar, son of Waris Ali. He has not done this and has not shown that he, the applicant, is registered as a citizen of the United Kingdom and Colonies.

In the Divisional Court and in this court the argument for the applicant was based on s 20 of the British Nationality Act 1948. By s 20(1) a citizen of the United Kingdom and Colonies who is such by registration shall cease to be a citizen of the United Kingdom and Colonies if he is deprived of that citizenship by an order of the Secretary of State. By s 20(2) the Secretary of State may deprive any such citizen of his citizenship if he is satisfied that the registration was obtained by fraud, false representation or the concealment of any material fact. If the Secretary of State proposes to make an order on any of the specified grounds, the citizen in question may be s 20(7) apply for an inquiry, whereupon the Secretary of State must refer the matter to a committee of inquiry. Pending the result of that inquiry and further action by the Secretary of State, the citizen remains a citizen and therefore patrial and must be allowed to enter and cannot be removed from this country pursuant to the Immigration Act 1971. The applicant argues that if it is alleged that he is not Parvaz Akhtar, son of Waris Ali, then it is implicit in that allegation that the registration of Parvaz Akhtar was obtained by means of fraud and false representation; therefore the Secretary of State must proceed under s 20. If and when the Secretary of State is able to deprive and does deprive the applicant of citizenship, then the applicant will cease to be a citizen, will cease to be patrial, and will then and only then be liable to be treated as an illegal entrant and to be removed from the United Kingdom.

In my judgment, s20 of the British Nationality Act 1948 does not prevent the Secretary of State from treating the applicant as an illegal entrant under the Immigration Act 1971, because the applicant cannot show that he is a citizen of the United Kingdom and Colonies by registration. The applicant cannot show this because he has not proved that he is the person registered; he has not proved that he is the registered son of Waris Ali. On the contrary, the immigration officer determined on reasonable grounds that the applicant is not the registered son of Waris Ali and is therefore not a citizen or patrial, but is an illegal entrant liable to be removed from the United Kingdom. Section 20 of the British Nationality Act 1948 applies to an admitted or proven citizen. The Immigration Act 1971 applies to a person who claims to be a citizen by registration if the immigration officer believes and has reasonable grounds for believing that the claimant is not a citizen by registration.

It is argued that if 'fraud' in s 20(2) of the British Nationality Act 1948 does not include the alleged fraud in the registration of Parvaz Akhtar, son of Waris Ali, then s 20(2) serves no useful purpose.

There is, however, ample scope for the operation of s 20(2) where fraud is involved without including fraud which in fact failed to procure the registration of the appellant as a citizen of the United Kingdom and Colonies. For example, s 6 of the British Nationality Act 1948 as originally enacted provided for the registration of a citizen of Eire, if he satisfied the Secretary of State that he had been residing in the United Kingdom throughout the period of 12 months immediately prior to his application. A citizen of Eire might obtain registration while fraudulently concealing the fact that he had not been resident in the United Kingdom throughout the specified period. In that event the registration of the applicant would be effective and would remain effective unless and until he was deprived of citizenship on the grounds of fraud under s 20.

Again, in the present case, if the applicant were proved to be the registered son of Waris Ali, he would been titled to the benefit of the registration and would be patrial. But, as a son of Waris Ali, he would only be entitled to be registered if Waris Ali himself was a citizen of the United Kingdom and Colonies. If Waris Ali was not a citizen of the United Kingdom and Colonies the registration of the applicant would be effective but would have been obtained by the fraudulent misrepresentation that Waris Ali was a citizen. The Secretary of State would be obliged to deprive the applicant of citizenship by the machinery of s 20 of the British Nationality Act 1948 before anyone could treat the applicant as an illegal entrant under the Immigration Act 1971.

On the evidence which has been produced the applicant cannot show that he is a citizen by registration because he has not proved that he answers the description of the person registered. If he does not show that he was registered the Secretary of State has power to direct that he be removed from the United Kingdom.

In my judgment, registration only protects the person described in the register. To succeed in this court the applicant must prove that the immigration officer did not have reasonable grounds for believing that theapplicant was not the person described in the register.

A similar result was reached by this court in the unreported case of R v Secretary of State for the Home Department and Governor of Horfield Prison, ex parte Sultan Mahmood [1978] Court of Appeal Transcript 541, in which judgment was delivered on 26th July 1978. In that case the applicant entered the United Kingdom in 1973 in the name of Javed Iqbal. In 1974 he procured the registration of Javed Iqbal as a citizen of the United Kingdom and Colonies. Subsequently it appeared that the Javed Iqbal described in the register had died in 1972 and that at the date of registration the applicant was Sultan Mahmood and an illegal entrant.

In that case the application for registration was undoubtedly intended by the applicant to secure the registration of the applicant and nobody else as a citizen of the United Kingdom and Colonies. But the registration which was effected was the registration of Javed Iqbal as described in the register. The registration did not prove that the applicant was a citizen. In order to rely on the registration it was necessary for the applicant to show that he was the Javed Iqbal described in the register. The applicant had not shown this or disproved that he was Sultan Mahmood. Geoffrey Lane LJ said:

"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... 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 Iqba.'

In the present case the applicant has not displaced the reasonable belief of the immigration officer that the applicant is Abdul Hamid and is not the registered son of Waris Ali. I find it impossible to say that Abdul Hamid became a citizen of the United Kingdom. I find it equally impossible to say that the applicant has shown that he is a citizen of the United Kingdom.

The applicant is, therefore, liable to be removed and has been directed to be removed from the United Kingdom by an exercise of the powers conferred on the Secretary of State under the Immigration Act 1971 and this appeal must be dismissed.

Judgment Two:

SIR PATRICK BROWNE. I agree that this appeal should be dismissed for the reasons given by Templeman LJ. I also agree with the judgment which Megaw LJ is about to deliver, except that I am not convinced that the concession made in R v Secretary of State for the Home Department and Governor of Horfield Prison, ex parte Sultan Mahmood [1978] Court of Appeal Transcript 541 was the same as the concession made in the present case.

If it is assumed that the applicant is not Parvaz Akhtar, the son of Waris Ali, he has never become a citizen of the United Kingdom and Colonies, in spite of the purported registration: see the decision of this court in ex parte Sultan Mahmood, to which Templeman LJ has referred, which, on this assumption, I find impossible to distinguish.

Counsel for the applicant concedes that the Secretary of State has reasonable grounds for believing that the applicant is not Parvaz Akhtar, the son of Waris Ali, but he does not concede that that belief is in fact correct. He submits that the applicant must be taken to be a citizen of the United Kingdom and Colonies until this issue of fact has been decided against him in proceedings under s 20 of the British Nationality Act 1948 and he has been deprived of citizenship under that section. If this is right, the immigration officer had no power to refuse him entry when he came back from Denmark, nor to detain him, nor to send him back to Pakistan. Counsel for the Secretary of State submits that, if (as is conceded) the immigration officer and the Secretary of State had reasonable cause to believe that the applicant is not Parvaz Akhtar, the son of Waris Ali, that is enough to justify their action under the Immigration Act 1971; he submits that s 20 of the British Nationality Act 1948 has no application. I must emphasise that we are not assuming or deciding that the applicant is not Parvaz Akhtar, the son of Waris Ali. If the actions of the Secretary of State stand, the applicant will be entitled to have that issue of fact decided in an appeal under Part II of the 1971 Act, though he will be at the serious disadvantage that his appeal will probably be heard and decided in his absence (see s 16(2)).

As I see it, the questions we have to decide are whether s 20 of the 1948 Act applies and, if not, whether or not reasonable cause to believe is enough to justify the actions of the immigration officer and the Secretary of State.

If the applicant has never become a citizen of the United Kingdom and Colonies, s 20 of the British Nationality Act 1948 can have no application (see Ex parte Sultan Mahmood). Nor, in my judgment, can it have any application where there is a disputed issue of fact whether he has so become. On its wording, s 20 only applies to a person who has become a citizen by registration (or naturalisation); it is dealing with depriving of citizenship and ceasing to be a citizen.

Paragraph 2 of Sch 2 to the Immigration Act 1971 gives immigration officers power to examine persons 'for the purpose of determining' whether or not a person is patrial and if not, whether to give leave to enter. I think that must imply that immigration officers have power to determine whether or not a person is patrial, subject to the right of appeal under Part II of the Act. Section 13 provides:

'(1) ... a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal...'

which I think again implies that immigration officers can decide whether a person is patrial.

If immigration officers have power to make this decision, it follows, in my opinion, that the same test of bona fides and reasonable belief must apply as in other illegal immigration cases: see R v Secretary of State for the Home Department, ex parte Hussain [1978] 2 All ER 423, [1978] 1 WLR 700 and R v Secretary of State for the Home Department, ex parte Choudhary [1978] 3 All ER 790, [1978] 1 WLR 1177, in spite of the reservation of Eveleigh LJ in the latter case.

I agree with Templeman LJ in rejecting the argument that this view would leave no scope for s 20 of the British Nationality Act 1948. He has given examples when it would apply to registration under the original s 6 and under s 7 of that Act and would also have ample scope in relation to registration under s 5A or s 12(6) and in relation to naturalisation (s10(1) and Sch 2).

Judgment Three:

MEGAW LJ. I agree that the applicant is not entitled to a writ of habeas corpus. I agree with what I respectfully regard as the very helpful analysis of the relevant statutory provisions in the judgment of Templeman LJ and I agree with the conclusions which he and Sir Patrick Browne have expressed.

We are bound by the decision of this court in R v Secretary of State for the Home Department and Governor of Horfield Prison, ex parte Sultan Mahmood [1978] Court of

We are bound by the decision of this court Appeal Transcript 541. We were told by counsel for the Secretary of State that application for leave to appeal against that decision was refused by the House of Lords.

It was the submission of counsel for the applicant and of counsel for the Secretary of State in the present appeal that the concession on the basis of which Sultan Mahmood's case was decided was, or is to be treated as having been, that the Secretary of State had reasonable grounds for his belief that the person applying for habeas corpus was not Javed Iqbal. The decision of the court was that the registration of citizenship which had been obtained under s 5A of the British Nationality Act 1948, even though it had been obtained on the application of the applicant in that case, did not entitle the applicant to invoke the machinery of s 20 of the Act, nor to claim that, pending the operation of that machinery, he was entitled to be regarded as a citizen of the United Kingdom and Colonies for the purpose of right of entry into the United Kingdom.

In the present appeal it was strenuously contended on behalf of the applicant that Sultan Mahmood's case was distinguishable. I am unable to see any material distinction between the position of the applicant in that case, whom the Secretary of State reasonably believed never to have been Javed Iqbal, and the position of the applicant in the present case, whom the Secretary of State reasonably believes never to have been Parvaz Akhtar nor to be the son of Waris Ali. It is conceded that the Secretary of State has reasonable grounds for that belief, through the applicant desires to challenge the correctness of that belief in whatever may be the appropriate further proceedings, just as Sultan Mahmood desired to challenge in subsequent proceedings the Secretary of State's reasonably held belief that he was not, and never had been, Javed Iqbal.

Just as the machinery of s 20 was held not to apply in Sultan Mahmood's case, here it must be held not to apply. I am unable to see any valid distinction. Therefore, the appeal must fail.

I would add two observations. First, I do not think that the decision in Sultan Mahmood's case depends on any suggested distinction between 'void' and 'voidable' registrations. Secondly, I would suggest that those who are responsible for legislation in this sphere should give consideration to the observations of Eveleigh LJ in R v Secretary of State for the Home Department, ex parte Choudhary [1978] 3 All ER 790 at 794-795, [1978] 1 WLR 1177 at 1183.

However, on the law as it stands, I am satisfied that this appeal fails.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Yusuf & Miller (for the applicant); Treasury Solicitor.

Copyright notice: Crown Copyright

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