R v. Secretary of State for Foreign Affairs and Secretary of State for the Colonies, Ex parte Greenberg and Others

R. v. SECRETARY OF STATE FOR FOREIGN AFFAIRS AND SECRETARY OF STATE FOR THE COLONIES ex parte GREENBERG AND OTHERS.

Pritt, K.C., and S.N. Bernstein for the applicants.

The Solicitor-General (Sir Frank Soskice, K.C.), H.L. Parker and John Foster for the respondents.

JENKINS, J.: This is a motion directed to the Secretary of State for Foreign Affairs and to the Secretary of State for the Colonies for a writ of habeas corpus in respect of six named persons who are members of a party of some 4,500 persons on board one or other of three British steamships, "Empire Rival," "Ocean Vigour" and "Runnymead Park," which are now on their way from the south of France to Hamburg. The claim by these six persons is founded on the contention that they are unlawfully detained, and the motion has been launched to test the validity of the alleged detention.

The circumstances in which these persons find themselves in their present situation are briefly these. The question of the immigration of Jews into Palestine has for many years been the subject of acute controversy, and His Majesty's Government and the Government of Palestine have found it necessary to impose certain restrictions on immigration. Those restrictions are strenuously objected to by many of the Jews, and it has become the common practice for the champions of unrestricted immigration to organize parties of Jews from Europe and to send them to enter Palestine, if they can, in defiance of the regulations restricting immigration. These six persons were members of a party of illegal immigrants which set sail from the south of France bound for Palestine in a ship called the "President Warfield," with the intention either of getting into Palestine by stealth, or, if intercepted, of embarrassing the authorities who would then have on their hands a further 4,500 people to be dealt with somehow. When the "President Warfield" was nearing Palestine, it was intercepted by His Majesty's ships. Whether the actual interception took place inside or outside the territorial waters appears to be open to some doubt. On the whole, I think that the better view is that it took place inside territorial waters, but, be that as it may, the ship was escorted into territorial waters, and while it was within the jurisdiction of Palestine a deportation was made in respect of the immigrants in the ship under the Palestine Defence (Emergency) Regulations, 1945. Pursuant to that deportation order the immigrants were transferred to the three British ships I have mentioned and were taken in those ships to Port de Bouc in the south of France, arriving there on or about July 29, 1947. Port de Bonc was selected because it was in the south of France, and the south of France was the place from which these illegal immigrants had set sail. On arrival at Port de Bouc the immigrants were invited, and, indeed, pressed, to land in France. The French authorities were ready for them to land, but they refused to do so. Finally, an ultimatum was given that, unless they landed by 6 p.m. on August 22, the ships would sail and they would be disembarked at Hamburg in Germany. Substantially all the 4,500 or so people on board the ships refused to land, with the result that the ships set sail and are now on their way to Hamburg.

The only question for me, is whether the six persons named in the notice of motion are now under unlawful restraint by the orders, in effect, of the two Secretaries of State who are respondents to the motion. To decide that question, it is necessary to look, first, at the deportation order and the authority under which it was made. It is not in dispute that the High Commissioner had power to make the order that he did make, but the dispute centres about its extent, and, largely, its territorial extent. The relevant power to make such orders is contained in reg. 112 of the Defence (Emergency) Regulations, 1945, which were made in exercise of the powers vested in the High Commissioner by art. 6 of the Palestine (Defence) Order in Council, 1937. Regulation 112 provides:

(1)        The High Commissioner shall have power to make an order, under his hand (hereinafter in these regulations referred to as "a deportation order") for the deportation of any person from Palestine. A person in respect of whom a deportation order has been made shall remain out of Palestine so long as the order remains in force.

(2)        The High Commissioner shall have power to make an order under his hand (hereinafter in these regulations referred to as "an exclusion order") requiring any person who is out of Palestine to remain out of Palestine. A person in respect of whom an exclusion order has been made shall remain out of Palestine so long as the order remains in force.

(3)        A deportation order or an exclusion order may be made subject to such terms and conditions as the High Commissioner may think fit.

(4)        Any person in respect of whom a deportation order or an exclusion order has been made and is in force may be arrested without warrant by any member of Majesty's forces or any police officer.

(5)        A person in respect of whom a deportation order is made shall be liable, awaiting deportation and whilst being deported, to be kept in custody in such manner as the High Commissioner may by the deportation order or otherwise direct, and all such custody shall be lawful custody.

(6)        The master of a ship or the pilot of an aircraft about to call at any port or place outside Palestine shall, if so directed by the High Commissioner, receive a person in respect of whom a deportation order is made on board the ship or aircraft and afford him a passage to that port or place, and proper accommodation and maintenance during the passage.

(7)        For the avoidance of doubt it is hereby declared that an order under this regulation may be made to relate to one person or to two or more persons and that it shall not be necessary to state in an order under this regulation the name or names of the person or persons to whom the order relates.

The order in the present case is dated July 18, 1947, and it is expressed to be made under reg. 112. It is in these terms:

Whereas I am of the opinion that it is expedient for securing the maintenance of public order to make an order under pt. X of the Defence (Emergency) Regulations, 1945, as from time to time amended, in respect of each and every one of the persons who entered Palestine on board a ship which arrived off Haifa in company with certain ships of the Royal Navy on July 18, 1947, and is believed to be known as "President Warfield." Now, therefore, in exercise of the powers conferred upon me by reg. 112 of the Defence (Emergency) Regulations, 1945, as from time to time amended and of all other powers enabling me in that behalf, I, General Sir Alan Gordon Cunningham, K.C.B., D.S.O., M.C., High Commissioner for Palestine, hereby order the deportation of each and every one of the persons who entered Palestine on board a ship which arrived off Haifa in company with certain ships of the Royal Navy on July 18, 1947, and is believed to be known as "President Warfield." And I do further order that, whilst awaiting deportation and whilst being deported, the said persons shall be kept in the custody of the General Officer Commanding, British Troops in Palestine and Trans-Jordan, and the Commodore Palestine and the Inspector General of Police or any of the said officers and persons acting by the authority of any of the said officers.

The legality and the validity of that order in respect of all the immigrants on the "President Warfield" is not disputed, but it is contended that its efficacy is strictly limited to the territorial jurisdiction of Palestine, i.e., it can only extend to the coast and to the three miles limit of sea from the coast. Therefore, it is contended that so soon as the three British ships to which these immigrants were transferred crossed the three miles limit the immigrants in those ships were no longer in lawful detention but were in unlawful detention because they had passed out of the Palestine jurisdiction. In support of that contention, counsel for the applicants referred me to R. v. Lesley (1). That was a case in which the Chilean Government, wishing to banish two Chileans, made a bargain with the master of a British ship under which the latter was to convey them to Liverpool. On arrival at Liverpool the Chileans brought proceedings against master for, among other things, false imprisonment, and those proceedings succeeded on the ground that, whatever the law of Chile might be, it could not justify the imprisonment of these Chileans in a British ship outside the area of the jurisdiction of Chile. By parity of reasoning, counsel says, whatever the situation might be within the jurisdiction of Palestine, once the immigrants were out of that jurisdiction the deportation order no more authorised the masters of the three British ships to keep them in the ships than the bargain with the Chilean government in Lesley's case (1) authorised the detention of the banished Chileans on board the British ship once they got outside the jurisdiction of Chile. I find myself unable to accept that argument, because, as the Solicitor-General has pointed out, in R. v. Lesley (1) the matter was entirely one of a bargain. The captain of the ship undertook for reward to remove the people in question, but here the masters of the vessels were acting in pursuance of the deportation order. There could be no ground for suggesting that the bargain made by the Chilean Government in R. v. Lesley (1) had any extra-territorial effect, but it does not follow that the deportation order has no extra-territorial effect.

On the question whether or not it has such an effect, I was referred to a number of authorities, of which I have derived most assistance from Cain's case (2). The headnote is:

Held, that s. 6 of the Dominion stat. 60 and 61 Vict. c. 11, as amended by 1 Edw. 7, c., 13, s. 3, is intra vires of the Dominion Parliament. The Crown undoubtedly possessed the power to expel an alien from the Dominion of Canada, or to deport him to the country whence he entered it. The above Act, assented to by the Crown, delegated that power to the Dominion Government, which includes and authorizes them to impose such extra-territorial, constraint as is necessary to execute the power.

The relevant section of the statute was in these terms:

The Attorney-General of Canada, in case he shall be satisfied that an immigrant has been allowed to land in Canada contrary to the prohibition of this Act, may cause such immigrant, within the period of one year after landing or entry, to be taken into custody and returned to the country whence he came, at the expense of the owner of the importing vessel, or, if he entered from an adjoining country, at the expense of the person, partnership, company, or corporation violating s. 1 of this Act.

LORD ATKINSON said ([1906] A.C. 545):

The validity of s. 6 was impeached on several grounds, and was held to transcend the powers of the Dominion Parliament, inasmuch as it purported to authorize the Attorney-General or his delegate to deprive persons against whom it was to be enforced of their liberty without the territorial limits of Canada, and upon this point alone the decision of the case turned.

Then this passage is significant (ibid.):

It was conceded in argument before their Lordships, on the principle of law laid down by this Board in the case of MacLeod v. Attorney-General for New South Wales (3), that the statute must, if possible, be construed as merely intending to authorize the deportation of the alien across the seas to the country whence he came if he was imported into Canada by sea, or if he entered from an adjoining country, to authorize his expulsion from Canada across the Canadian frontier into that adjoining country... No special significance was attached to the word "return." The reasoning of the judgment would apply with equal force if the word used had been "expel" or "deport" instead of "return."

At the top of p. 546 LORD ATKINSON says:

One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order and good government... But as it is conceded that by the law of nations the supreme power in every State has the right to make laws for the exclusion or expulsion of aliens, and to enforce those laws, it necessarily follows that the State has the power to do those things which must be done in the very act of expulsion, if the right to expel is to be exercised effectively at all, notwithstanding the fact that constraint upon the person of the alien outside the boundaries of the State or the commission of a trespass by the State officer on the territories of its neighbour in the manner pointed out by ANGLIN, J., in his judgment should thereby result. Accordingly it was in Re Adam (4) definitely decided that the Crown had power to remove a foreigner by force from the island of Mauritius, though, of course, the removal in that case would necessarily involve an imprisonment of the alien outside British territory, in the ship on board of which he would be put while it traversed the high seas.

Finally, LORD ATKINSON says (p. 547):

If, therefore, power to expel aliens who had entered Canada against the laws of the Dominion was by this statute given to the government of the Dominion, as their Lordships think it was, it necessarily follows that the statute has also given them power to impose that extra-territorial constraint which is necessary to enable them to expel those aliens from their borders to the same extent as the Imperial Government could itself have imposed the constraint for a similar purpose had the statute never been passed.

The Japanese Canadians case (5) was also cited and I refer to it only for this passage in LORD WRIGHT'S statement of their Lordships' reasons ([1947] 103):

Secondly, it was argued that, as a matter of construction, the War Measures Act, 1927, did not authorize the making of orders having an extra-territorial operation. This point was relevant by reason that the orders in question in terms authorized "deportation." This point may be shortly disposed of. Extra-territorial constraint is incident to the exercise of the power of deportation (Attorney-General for Canada v. Cain (2)), and was, therefore, in contemplation. Any lingering doubts as to the validity in law of an Act which for its effectiveness requires extra-territorial application were, it may be added, set at rest by the Canadian Statute, the Extra-Territorial Act 1933.

Zabrovsky v. G.O.C., Palestine (6) was a case in which a deportation order had been made in respect of the applicant's son. He was removed to Eritrea under, that order, and the applicant sought an order in the nature of habeas corpus. The decision was ([1947] A.C. 247):

That by virtue of s. 46 of the Palestine Order in Council, 1922, English common law rules evolved in respect of habeas corpus were applicable in Palestine, and that the detention must be illegal lay at the root of the whole matter. The order of deportation and the ancillary powers of providing a place to which the deportee might proceed were legal as being within the competence of the Palestine government under the relevant statutory emergency and defence provisions. No court in Palestine had authority to require production of the deportee in that country in defiance of an order lawfully made by its responsible government,…

In LORD WRIGHT'S statement of their Lordships' reasons, this passage occurs (ibid. 262):

While the deportation order stands and its legality is not overruled its effect is that Eliezer is required to leave and remain thereafter out of Palestine. Such an order is not ultra vires of a limited territorial power like Palestine, nor are the further or ancillary powers of providing a place to which the deportee may proceed (see Attorney-General for Canada v. Cain (2), recently followed and applied by this Board in The Co-operative Committee on Japanese Canadians v. The Attorney-General of Canada (5)). The order, indeed, so long as it remains in force renders it unlawful for Eliezer to seek to enter Palestine, and no court in Palestine has authority to require his production in that country in defiance of an order lawfully made by its responsible government.

The last of the cases that I need mention is R. v. Chiswick Police Station Superintendent; Ex parts Sacksteder (7) [1918] 1 K.B., 578. The headnote is:

The Home Secretary made an order under the Aliens Restriction Act, 1914, and art. 12 of the Aliens Restriction (Consolidation) Order, 1916, that a certain alien, who was a French subject of military age, should be deported from the United Kingdom and should remain out of the United Kingdom during the continuance of the war ... The Home Secretary had previously given general directions that any person named in a deportation order which was intended to be enforced immediately should be arrested and conveyed by ship from the United Kingdom and should be detained between the time of his arrest and the sailing of the ship selected for his passage. Acting under those general directions an assistant secretary in the Rome Office caused instructions to be given to the police for the alien's arrest and conveyance to the ship selected for his deportation. The alien was accordingly arrested. On an application for a writ of habeas corpus: –Held, that the order for arrest was a valid order, and that the applicant was in legal custody. Semble, an order for the arrest and detention of an alien against whom a deportation order has been made must be made by the Secretary of State himself in each individual case; but held that in this particular case this had been done. Semble:... the court can go behind an order for arrest, which is valid on its face, as, for instance, if it is a mere sham not made bona fide.

I was referred to this passage from the judgment of WARRINGTON, L.J. (ibid., 587):

First, with regard to the construction of the Act and the Order. It has been determined by the Court of Appeal in the Duke of Chateau Thierry's case (8) that the power to make a deportation order does not confer the power to order the alien to be deported to any particular country. The members of this court who decided that case also expressed the opinion that the Order in Council did confer upon the Secretary of State the power to select the particular ship upon which the man is to be placed. The decision in the Duke of Chateau Thierry's case (8) was only that the deportation order was a valid order. What we have to decide is whether the man was in lawful custody, which is a different question. The power to select the particular ship indirectly undoubtedly involves a power on the part of the Secretary of State to send a man to a particular country selected by the Secretary of State. Whether it is desirable that such a power should be indirectly given when the statute and Order in Council do not give that power directly may be a serious question, but it does not arise in this case.

Those are, I think, all the passages that I need cite from the authorities. The conclusion that I draw from them is that, on the principles stated in Cain's case (2), I must attribute to reg. 112 of the Palestine Defence (Emergency) Regulations, 1945, and to the deportation order made thereunder in the present case such extra-territorial effect as is necessary to make a deportation effective. Therefore, it seems to me that the effect of a deportation order must extend to the placing of the individual deported on a ship outward bound from Palestine on the footing that the person in question is to be conveyed in that ship to its destination whatever that may be. Unless that degree of extra-territoriality can be attributed to this regulation and to the order in question, it seems to me to be reasonably plain that no deportation could be effectively carried out at all. I think that one can go further, and say that the word "deportation" has implicit in it the taking of the person in question from the country from which he is deported to some other place, and I think that prima facie, as was stated in Care's case (2), the appropriate place to which the deportee should be taken where he arrives by sea must be the country from which he embarked. Therefore, I cannot accede to the argument of counsel for the applicants that the effect of the deportation order in this case was exhausted when the ships passed out of the territorial waters of Palestine. I think that it continued in force so far as was necessary to place the deportee, on the soil of some other country.

The matter, however, does not rest there, for, as has been pointed out by the Solicitor-General and stated in evidence, when the immigrants arrived in these three ships at Port de Bouc they were pressed to land there and they refused. They were told that, if they did not land, they would be taken to Hamburg.

They refused to disembark, and when the ultimatum, which in the end had to be given, had expired, the ships left. It seems to me that these immigrants, having been given the warning and the choice, deliberately elected to go on in the ships to the next destination of which they had been informed. Therefore, in my opinion, it would be possible to dispose of this case really on the short ground that, whatever the position was at any point of time before arrival at Port de Bouc, there can now be no question of illegal restraint, since the immigrants remained in the ships of their own free will after they had been invited to land at Port do Bouc. For these reasons a case for a writ of habeas corpus has not been made out.

There is the additional difficulty that, if in other respects there had appeared to be grounds for granting a writ, the effect of the writ asked for would be an order of the King's Bench Division to bring before it here in London the bodies of the six persons named in the notice of motion. Those six persons are aliens, and it is difficult to see what the effect of the writ would be in view of the restrictions that are in force in this country as regards the landing of aliens. Those restrictions are contained in the Aliens Order, 1920, para. 1 (1) of which says:

Subject to any exemptions which may be granted under art. 14 of this Order, an alien coming ... by sea ... to a place in the United Kingdom… (a) shall not land in the United Kingdom without the leave of an immigration officer, and (b) unless he is a seaman, shall not land in the United Kingdom elsewhere than at an approved port: Provided that the Secretary of State may, in special circumstances, allow an alien to land with such leave as aforesaid at any specified port, notwithstanding that it is not an approved port.

There are provisions elsewhere in the regulations, to which I need not refer in detail, enabling the Secretary of State to make deportation orders in respect of aliens. In view of those regulations I find great difficulty in seeing how the court could direct a writ of habeas corpus in the circumstances of the present case, even though it otherwise appeared proper to do so, but, in my judgment, for the reasons that I have given, no case has been made out for the writ. I do not think that the persons concerned are, or at any material time have been, under illegal restraint. The motion fails, and I refuse it with costs.

Application dismissed with costs.

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