R v. Secretary of State for the Home Department, Ex parte Abdul Musawwir
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE ABDUL MUSAWWIR CO/444/88
Queen's Bench Division
 Imm AR 297
Hearing Date: 17 January 1989
17 January 1989
Evidence -- illegal entrant -- leave stamp in passport a forgery -- no other evidence produced to show applicant was granted leave -- whether Secretary of State entitled to rely on forgery in passport to discharge burden of proof of showing applicant was an illegal entrant -- whether the Secretary of State was obliged to show how an illegal entrant gained admission to the United Kingdom. Immigration Act 1971 ss 1(2), 3(1), 3(4), 4(1), 4(2)(c), 33 sch 2 paras 9, 16(2): HC 169 para 56.
Held: The applicant for judicial review had been declared an illegal entrant by the Secretary of State. His passport contained a stamp granting him indefinite leave to remain in the United Kingdom, but that stamp was a forgery. The applicant asserted that he had been granted leave but produced no evidence, beyond his passport to support that contention. It was submitted to the Court that the evidence of the forged stamp in the passport was insufficient to discharge the burden of proof that was on the Secretary of State. The Secretary of State was also obliged to show how the applicant had gained entry to the United Kingdom -- whether clandestinely or by deception. Held: 1. Following Khawaja the burden of proving that the applicant was an illegal entrant was on the Secretary of State. 2. However, in the absence of any other evidence to prove the applicant's assertion that he had been granted leave, the Secretary of State was entitled to rely on the forged stamp in the passport, "the document . . . upon which such leave would normally be endorsed." 3. The Secretary of State had accordingly discharged the burden of proof that was on him. The Secretary of State did not have to demonstate how the applicant secured admission to the United Kingdom.
Cases referred to in the Judgment: Khawaja v Secretary of State for the Home Department  1 AC 74:  Imm AR 139.
Counsel: A Azhar for the applicant; M Kent for the respondent PANEL: Schiemann J
Judgment One: SCHIEMANN J: The applicant, Mr Abdul Musawwir, entered this country in March 1988 and was served with a notice headed "Notice to an Illegal Entrant" by the immigration officer, who said in the notice: "I have considered all the information available to me and I am satisfied that you are an illegal entrant as defined in section 33(1) of the Immigration Act 1971. You are therefore a person who is liable to be detained pending the completion of arrangements for dealing with you under the Act. I propose to give directions for your removal from the United Kingdom in due course and details will be given to you separately." No such directions for removal from the United Kingdom have been given though the applicant was granted bail pending the hearing of the case before me. He was under a duty to surrender pursuant to that bail and I understand that he is in Court today in front of me. The factual background to the matter is that the applicant maintains that he is a person who has been settled in the United Kingdom since about 1964. What happened is that in November 1981, as it appears from this passport, he left this country and went to the Far East. Since then, as is evidenced by his presence here, he has come back to this country. The legal background to the Secretary of State's action is contained in the Immigration Act 1971, which provides by section 4(2)(c) that the provisions of schedule 2 to the Act shall have effect with respect to "the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully." Schedule 2, paragraph 9, to that Act says: "Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1). It suffices to say that if one looks at paragraph 8(1) and in due course at paragraph 16(2), the Secretary of State has power to order the detention of someone who is in truth an illegal entrant. What is an illegal entrant? The answer to that question is to be found in section 33 of the Act -- which is the definition section. "'Entrant' means a person entering or seeking to enter the United Kingdom, and 'illegal entrant' means a person unlawfully entering or seeking to enter in breach of" -- I leave some words out -- "the immigration laws, and includes also a person who has so entered". "Immigration laws" is defined in the same sub-section as meaning "this Act and any law for purposes similar to this Act", and I leave some words out which are not presently relevant. The Secretary of State says that this applicant is an illegal entrant and the applicant says that he is not. The applicant says that it is for the Secretary of State to prove that he, the applicant, is an illegal entrant and, indeed, the Court has to be satisfied, in accordance with the criteria laid down in the well-known case of R v Home Secretary ex parte Khawaja, reported in  AC 74. The Secretary of State's case is simple. He says that the applicant needs leave to enter and does not have it. He has entered and therefore he is an illegal entrant. My attention has been drawn to section 1(2) of the Immigration Act, which says: "Those not having that right" - the right of abode -- "may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there". The Home Secretary is content that I should decide this case on the basis that the applicant was indeed someone who was settled here at the coming into force of the Immigration Act. However, Mr Kent, who appears for the Secretary of State, then drew my attention to section 3(1) of the Act, which says: "Except as otherwise provided by or under this Act, where a person is not a British Citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act." Section 3(4) provides: "A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area . . . unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter". Mr Kent submitted that the applicant's case, at best, assuming that he was indeed settled in the way that I have indicated, is that he is someone who had indefinite leave to enter, that that indefinite leave lapsed upon his going to a country outside the common travel area, which he did in 1981 (that is common ground); that there are, in the present case (this also appears to be common ground) no circumstances in which he was not required to obtain leave to re-enter, that therefore he did require leave to enter but that no such leave had been given. My attention was drawn to section 4(1) of the same Act which indicates that that leave is to be given in writing. The only other bit of background to which I ought to refer is paragraph 56 of House of Commons paper 169, entitled "Statement of Changes in Immigration Rules", which deals with returning residents. It says: "A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement." There is a procedure for readmitting persons who have been settled here and a direction to immigration officers to allow them to settle here if they satisfy him of various matters. The position of this applicant is that he is, as I have indicated, in this country, and he was in possession of a passport. That passport has, according to the evidence in front of me, a stamp on it, apparently dated 18 March 1982, which says: "Given leave to entar" -- spelt entar -- "the United Kingdom for an Indefinite" -- with a capital "I" -- period." The evidence before me indicates that that stamp is a forgery. There is no other indication on the passport of any other leave to enter having been given to this applicant. The case on behalf of the Home Office is a simple one; namely, that he required by virtue of provisions to which I have referred, leave to enter but has never obtained leave, the Home Office, relying on no more than the absence of any document showing that he has obtained leave, because the only document in evidence is a forgery and therefore not leave. Mr Azhar submits that that evidence is not such as can leave the Court satisfied that the applicant did not get leave. He says, and I accept it, that the burden is on the Home Office to satisfy the Court that the applicant did not get leave. Mr Azhar submitted that the applicant did get leave. There is, however, no evidence in front of me at all to show that the applicant did get leave. Mr Azhar appeared at one stage to suggest that the mere fact that he was in this country indicated that he must have got leave, but that is not tenable as a proposition. Mr Azhar submitted that the burden of proof being on the Home Office, it is for the Home Office to show how the applicant got into this country, whether he swam in, flew in by helicopter and did not land at a place where there was an immigration officer, on the one hand -- in short, whether he got in clandestinely -- or whether, on the other hand, he indulged in a piece of deception of the immigration officer and, therefore, obtained what one might describe as a fraudulently procured leave. Since the Home Office evidence does not indicate under which limb of these possible approaches it puts its case, it has not discharged the burden of proof, he submitted. He said that although section 4(1) refers to the need to give decisions in writing, one could envisage a case where a permission had in fact been given orally to an immigrant and the immigration officer forgot to put it into writing or something of that kind. There may well be a possibility -- I make no ruling on it one way or another -- in such a hypothetical case, and there is no evidence in front of me, that that hypothesis is applicable to this case. The position here, it seems to me, is quite simple. The burden is indeed on the Home Office to show that this person requires leave and has not obtained leave, but that burden is discharged by a production of the document, namely, the passport, upon which such leave would normally be endorsed. It may be that the applicant could produce some other document which shows that there was leave, but the applicant has not done so. In those circumstances, I am satisfied that he did require it, that he had not obtained leave, that he is an illegal entrant and the application will be dismissed because the Secretary of State was entitled to do that which he has done.
DISPOSITION: Application dismissed
SOLICITORS: Hafiz & Co; Treasury Solicitor
Copyright notice: Crown Copyright