Last Updated: Wednesday, 30 July 2014, 15:15 GMT

Re H.K. (an infant)

Publisher United Kingdom: High Court (England and Wales)
Author High Court (Queen's Bench Division)
Publication Date 7 December 1966
Citation / Document Symbol [1967] 2 QB 617 [1967] 1 All ER 226, [1967] 2 WLR 962
Cite as Re H.K. (an infant), [1967] 2 QB 617 [1967] 1 All ER 226, [1967] 2 WLR 962, United Kingdom: High Court (England and Wales), 7 December 1966, available at: http://www.refworld.org/docid/3ae6b6d74.html [accessed 31 July 2014]
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.

Re H.K. (an infant).

QUEEN'S BENCH DIVISION

[1967] 2 QB 617 [1967] 1 All ER 226, [1967] 2 WLR 962

Hearing Date: 2, 7 December 1966

7 December 1966

Index Terms:

Commonwealth Immigrant -- Admission -- Discretion of immigration officer -- Duty to act fairly -- Child under sixteen of Commonwealth citizen -- Dispute over age of immigrant -- Examination by immigration officers and medical officer who formed view immigrant was over sixteen years old -- Refusal of admission -- Whether rules of natural justice apply -- Mandamus, not certiorari nor habeas corpus, appropriate remedy if further investigation to be ordered -- Commonwealth Immigrants Act, 1962 (10 & 11 Eliz. 2 c. 21), s. 2 (2) (b), s. 3 (1), Sch. 1, paras. 1 (1), 2 (1), (3).

Held:

A.R., a native of Pakistan and a Commonwealth citizen to whom s. 1 of the Commonwealth Immigrants Act, 1962, applied, had settled in England in 1961, leaving his wife and family in West Pakistan. Intending to visit them and return with his eldest son, H.K., he forwarded to the Pakistan High Commission in England a sworn declaration dated June 8, 1966, stating that H.K. was 15 1/2 years old and that it was his intention to be responsible for and maintain H.K. in England. On Oct. 18, 1966, a passport was issued in Pakistan to H.K., his date of birth being given as Feb. 29, 1951 (a non-existent date). On Nov. 21, 1966, A.R., having been to Pakistan, arrived at London Airport with H.K., where they were interviewed by the immigration authorities. The immigration officer who first saw them formed the view H.K. was sixteen years old or more. He therefore sent H.K. to the medical officer whose opinion was that H.K. was seventeen plus. Both A.R. and H.K. were then interviewed separately through interpreters and, finally, by the chief immigration officer, who, exercising his powers under s. 3 (1) * of, and Sch. 1, paras. 1 and 2 n+ to, the Commonwealth Immigrants Act, 1962, caused a formal notice in writing dated Nov. 21, 1966, to be served on H.K. pursuant to s. 2 n++ of, and Sch. 1, para. 2 (1) to, the Act of 1962, refusing him admission. On the next day it appeared that H.K. had in his possession a school leaving certificate in arabic script and modern English figures which, by translation, seemed to show that H.K. was born on Feb. 29, 1951. There was evidence before the court that there was no compulsory registration of births in Pakistan. On motion for habeas corpus to secure H.K.'s release from the custody of the chief immigration officer and for an order of certiorari to quash that officer's decision refusing H.K. admission to the United Kingdom,

* Section 3 (1), so far as material, is set out at p. 228, letter E, post.

n+ Schedule 1, paras. 1 and 2, so far as material, are set out at p. 228, letters F to I, post.

n++ Section 2, so far as material, is set out at p. 227, letter I, and p. 228, letter B, post.

Held: (i) an immigration officer in exercising his discretion to refuse admission to the United Kingdom under s. 2 (1) of the Commonwealth Immigrants Act, 1962, was bound to act impartially and fairly, and to that extent was bound to act in accordance with the rules of natural justice, but he was not bound to hold any full scale inquiry or to adopt judicial procedure (see p. 231, letter D, p. 230, letter I, p. 232, letter I, to p. 233, letter A, p. 233, letter D, and p. 235, letter A, post).

Shareef v. Comr. for Registration of Indian and Pakistani Residents ([1966] A.C. 47) and dictum of LORD RADCLIFFE in Nakkuda Ali v. M. F. de S. Jayaratne ([1951] A.C. at p. 81) considered and distinguished.

(ii) the burden was on the applicant for entry to the United Kingdom to satisfy the immigration authorities of the matters mentioned in s. 2 (2) of the Act of 1962, and both A.R. and H.K. had been given ample opportunity so to do; accordingly no case justifying the issue of habeas corpus or certiorari had been made out (see p. 232, letters C and H, and p. 234, letters C, F and G, post).

Per CURIAM: even if further opportunity to satisfy the immigration authorities ought to have been given to A.R. or H.K., the appropriate prerogative order would have been mandamus not certiorari (see p. 232, letter E, p. 234, letter B, and p. 235, letter B, post).

Notes:

As to the control of immigration of Commonwealth citizens and examination of immigrants, see SUPPLEMENT to 5 HALSBURY'S LAWS (3rd Edn.) title COMMONWEALTH AND DEPENDENCIES, paras. 1513, 1514.

As to powers of immigration officers, see 1 HALSBURY'S LAWS (3rd Edn.) 513, 514, para. 992.

For the Commonwealth Immigrants Act, 1962, s. 2, s. 3, Sch. 1, see 42 HALSBURY'S STATUTES (2nd Edn.) 5, 7, 21.

Cases referred to in the Judgment:

Liversidge v. Anderson, [1941] 3 All E.R. 338; [1942] A.C. 206; 110 L.J.K.B. 724; 116 L.T. 1; 17 Digest (Repl.) 422, 27.

Nakkuda Ali v. M. F. de S. Jayaratne, [1951] A.C. 66; 8 Digest (Repl.) 802, 562. Shareef v. Comr. for Registration of Indian and Pakistani Residents, [1966] A.C. 47; [1965] 3 W.L.R. 704; 3rd Digest Supp.

Introduction:

Motion for habeas corpus and certiorari. This was a motion by Abdul Rehman for a writ of habeas corpus to secure the release of one H.K., an infant, detained by the chief immigration officer at London Airport with a view to H.K. being returned to Pakistan; and, further, for an order of certiorari to quash the decision of the chief immigration officer dated Nov. 21, 1966, and made on behalf of the Home Secretary, whereby it was decided that H.K. should be refused admission to the United Kingdom. The facts are set out in the judgments of LORD PARKER, C.J.

Counsel:

E. F. N. Gratiaen, Q.C., and L. J. Blom-Cooper for the applicant. Nigel Bridge for the respondent, the chief immigration officer.

PANEL: Lord Parker, C.J., Salmon, L.J., and Blain, J.

Judgment By-1: LORD PARKER, C.J.

Judgment One:

LORD PARKER, C.J.: The applicant, Abdul Rehman, a native of Pakistan, came to this country in 1961 and settled and engaged in work at Bradford. He left behind, so he says, in West Pakistan his family, said to consist of his wife and five children, one of whom, the eldest, is the infant H.K. said to have been born in February, 1951. Earlier this year the applicant was minded to visit his family in Pakistan and to bring back to this country H.K. With this in view, he forwarded to the office of the High Commission for Pakistan a sworn declaration dated June 8, 1966, in which he gave particulars of H.K. as being his son and as being 15 1/2 years of age, and he undertook to be responsible for the son's maintenance and expenses in coming to and in this country. That declaration was in due course sent to the passport authorities in Rawalpindi, recommending them to issue a passport to H.K., subject to verification of his age and of his relationship with the applicant. In due course, on Oct. 18, a passport was issued in Rawalpindi to H.K., his date of birth being given as Feb. 29, 1951. In passing, it is to be observed that this was an impossible date as 1951 was not a leap year. The applicant in fact had gone to Pakistan as he intended and on Nov. 21 he and H.K. arrived by air at London Airport and were interviewed by the immigration authorities.

Before describing what then happened, it is convenient to look at the relevant legislation. By s. 2 (1) of the Commonwealth Immigrants Act, 1962, it is provided as follows:

"Subject to the following provisions of this section, an immigration officer may, on the examination under this Part of this Act of any Commonwealth citizen to whom s. 1 of this Act applies who enters or seeks to enter the United Kingdom -- (a) refuse him admission into the United Kingdom; or (b) admit him into the United Kingdom subject to a condition restricting the period for which he may remain there, with or without conditions for restricting his employment or occupation there."

Pausing there, both the applicant and H.K. are undoubtedly Commonwealth citizens to whom the Act of 1962 applies and that subsection on its face gives the immigration authorities complete unfettered discretion whether to admit them or not, and whether, if admission is granted, it should be on conditions. Section 2 (2) provides as follows:

"The power to refuse admission or admit subject to conditions under this section shall not be exercised... in the case of any person who satisfies an immigration officer that he... (a) is ordinarily resident in the United Kingdom or was so resident at any time within the past two years; or (b) is the... child under sixteen years of age, of a Commonwealth citizen who is resident in the United Kingdom..."

I have read only the relevant words, but it becomes perfectly clear from what I have read that the applicant could not possibly be refused entry or made the subject of conditions because he was ordinarily resident in the United Kingdom or at any rate was so resident within the past two years. Equally, there was no power to refuse to admit H.K. or to impose any conditions on his entry, if he satisfied an immigration officer that he was the child of a Commonwealth citizen and was under sixteen years of age. In other words, sub-s. (2) is fettering the absolute discretion which there would otherwise be under sub-s. (1). Section 3 (1) provides that:

"The provisions of Part 1 of Sch. 1 to this Act shall have effect with respect to... (b) the exercise by immigration officers of their powers of refusal of admission or admission subject to conditions under s. 2 of this Act, and the cancellation, variation and duration of such refusals and conditions." Turning then to Sch. 1 to the Act of 1962, para. 1 provides that:

"(1) Subject to the provisions of this paragraph, an immigration officer may examine any person who lands or seeks to land in the United Kingdom for the purpose of ascertaining whether that person is or is not a Commonwealth citizen subject to control under Part 1 of this Act, and if so for the purpose of determining what action, if any, should be taken in his case under the said Part 1; and it shall be the duty of every such person to furnish to an immigration officer such information in his possession as that officer may reasonably require for the purpose of his functions under this paragraph.

"(2) A person shall not be required to submit to examination under this paragraph after the expiration of the period of twenty-four hours from the time when he lands in the United Kingdom unless, upon being examined within that period, he is required in writing by an immigration officer to submit to further examination."

Paragraph 2 is dealing with the general provisions as to refusal of admission and provides:

"(1) The power of an immigration officer under s. 2 of this Act to refuse admission into the United Kingdom or to admit into the United Kingdom subject to conditions shall be exercised by notice in writing; and subject to sub-para. (2) of this paragraph, any such notice shall be given by being delivered by the immigration officer to the person to whom it relates.

"(3) Subject to the following provisions of this Schedule, a notice under this paragraph shall not be given to any person unless he has been examined in pursuance of para. 1 of this Schedule, and shall not be given to any person later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph."

Accordingly, it is clear that the period that can elapse before a notice is given will, subject to any question of further examination, be no more than thirty-six hours from the time of landing. By para. 2 (4) it is provided:

"A notice refusing a person admission into the United Kingdom may at any time be cancelled by a subsequent notice in writing given to him by an immigration officer..."

That indeed is a provision that one would expect because quite clearly the immigration officer must have authority, must have jurisdiction, to reconsider his decision at any time before the immigrant is actually admitted to the United Kingdom or physically removed from it.

To return to the events at London Airport, the applicant and H.K. were met by Mr. Mottram, an immigration officer employed by the Home Office at London Airport. Turning to his affidavit, one finds in para. 2 the inception of what happened. He says:

"On Nov. 21, 1966, I was on duty at the immigration control, No. 3 building, when two persons approached my position at the control. They each presented a passport. The elder person had a passport in the name of [the applicant], and the younger in the name of [H.K.]. The older person appeared to have been ordinarily resident in the United Kingdom within the past two years. I saw from the passport of the younger person that he was stated to be the son of [the applicant], that the photograph matched the appearance of the bearer, but the date of birth was expressed to be '29.2.1951'. [Mr. Mottram adds:] I did not at the time notice that this was a non-existent date but my suspicions were aroused because the bearer appeared to be well over the age of fifteen years," that is to say, sixteen years or more. Having formed that impression, he sent H.K. along to the port medical officer with a form requiring the officer to estimate the age. According to Mr. Mottram, some half an hour later H.K. returned with this form on which the medical officer had endorsed "seventeen years +. The two third molars of lower jaw are well erupted." Following that, Mr. Mottram caused both of them, both the applicant and H.K., to be interviewed, and interviewed separately, and for that purpose had an interpreter, in the first instance a Mr. Ross and later a Mr. Irons. It is quite clear that what happened as a result of these interviews increased Mr. Mottram's suspicions. It is unnecessary to go into the details, but at one time he understood that the applicant was saying that the present age of his wife was twenty years. Finally, he referred the matter to the chief immigration officer, Mr. Collison.

Mr. Collison apparently then took over the conduct of the interviews, and he sets out in his affidavit and there is set out in the affidavit of the interpreter, Mr. Irons, the answers which they obtained. It is enough to say that again those answers apparently increased Mr. Collison's suspicions. He was surprised at the absence of relatives, bearing in mind that this was a Pakistani family, both saying apparently that there were no uncles, aunts or cousins at all and matters of that sort. In the end, it is quite clear that Mr. Collison made up his mind that he was not satisfied by H.K. or the applicant that H.K. was under sixteen years of age, and accordingly he caused that information to be conveyed to H.K. and a formal notice in writing to be served refusing admission. Accordingly, it was on the afternoon or evening of Nov. 21 that a decision refusing admission was made. It is pointed out to me that the notice also stated that he would be removed from the United Kingdom at noon on the following day, Nov. 22.

Now on Nov. 22 in the morning, according to Mr. Collison, he read in the paper something to the effect that H.K. had in his possession a school leaving certificate. There is some doubt -- one cannot put it higher than that -- whether the presence of a school leaving certificate could have come to the notice of Mr. Collison through a newspaper, but, at any rate he was minded to inquire whether there was a school leaving certificate on that morning, and it is not suggested that he had any knowledge of such a certificate when he arrived at his decision on the evening of Nov. 21. According to Mr. Collison what happened was this. He says:

"I, therefore, accompanied by Mr. Irons [the interpreter] interviewed H.K., and asked him if he had such a certificate. H.K. produced from his outside breast pocket a folded piece of paper, which he opened and showed to me, and which appeared to contain arabic script and modern English figures. I asked H.K. to read out the headings on the said paper, as Mr. Irons was unable to read the script. H.K. said that one such heading showed that he had left school on Mar. 31, 1965, but he was unable to make sense of the other headings. H.K.

then replaced the said piece of paper in his pocket, and at no time has it been in my possession."

Further questions followed as a result of which Mr. Collison, so far from cancelling the notice, was confirmed in his opinion and further had doubts whether H.K. was the son of the applicant. Pausing there, this court has seen a translation of that school leaving certificate and it appears to say that the date of birth of H.K. was the date stated in the passport, Feb. 29, 1951, and it may well be that the date on the passport was taken from this school leaving certificate. Meanwhile, about noon on Nov. 22, proceedings were taken by way of an application to the judge in chambers for a writ of habeas corpus, and meanwhile also Mr. Collison had undertaken that H.K. would not be removed pending that application until Nov. 23.

Those are the facts up to the time of the application, and counsel for the applicant submits that in deciding whether or not he is satisfied as to the matter set out in the subsection -- in this case whether he is satisfied that the boy is under sixteen -- an immigration officer is acting in a judicial or quasi-judicial capacity and must conform to the rules of natural justice. Subject to there being due compliance with those rules, counsel admits that the decision of the immigration officer cannot be challenged and that this court should not interfere. He does, however, maintain that the rules of natural justice require that before reaching his decision the immigration officer must give the immigrant an opportunity to satisfy him and if, as in this case, he has formed an impression that the immigrant is sixteen or more, he must give the immigrant an opportunity to remove that impression. He claims that if that opportunity had been given evidence would have been provided such as has been produced before us in these proceedings, which evidence he claims would have satisfied the officer. Having regard to the course which these proceedings have taken, it is unnecessary and I think indeed inadvisable to comment on that further evidence. It is enough to say that there has been produced to us medical evidence, evidence from medical experts, to the effect that the conclusion reached by the port medical officer may not be right or at any rate the grounds on which that report was made are inconclusive. There is also evidence now that there being no births registration in Pakistan the date of birth on the school leaving certificate is generally regarded as some evidence at any rate, if not strong evidence, of the date of birth, and finally there is the evidence of the applicant himself and of friends of his and of the surrounding circumstances which counsel for the applicant would say show that H.K. is the applicant's son. All this, it is said, if proper inquiries had been made by the immigration officer, would have come to light and would have resulted in the immigration officer being satisfied of the matters in the section. On one thing I myself am quite clear, and that is that even if an immigration officer is required to act judicially or quasi-judicially, he is not under any duty to hold a full-scale inquiry or to adopt judicial process and procedure. The burden here under the Act of 1962 is on the immigrant to satisfy the immigration officer and the provisions of the schedule to which I have referred quite clearly show that it is impossible and therefore not contemplated that an immigration officer should hold any inquiry of that sort.

The court was referred by counsel for the applicant to Shareef v. Comr. for Registration of Indian and Pakistani Residents n(1), a decision of the Judicial Committee. It is unnecessary to consider that in any detail, but that was a case where the commissioner of registration of Indian and Pakistani residents was specifically required by the statute to hold an inquiry and specific provision was made for the serving of notices and for hearings. That is a clear case where not only was the commissioner acting judicially or quasi-judicially but also he was required to adopt the judicial processes envisaged by the statute. This, as it seems to me, is a very different case, and I doubt whether it can be said that the immigration authorities are acting in a judicial or quasi-judicial capacity as those terms are generally understood. At the same time, however, I myself think that even if an immigration officer is not acting in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but of acting fairly, and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially. It has sometimes been said that if there is no duty to act judicially or quasi-judicially there is no power in the court whatever to interfere. I observe that in the well-known case of Nakkuda Ali v. M. F. de S. Jayaratne n(2), again a decision of the Privy Council, the court were considering this sort of case. There the controller of textiles in Ceylon was empowered to revoke licences where the controller had reasonable grounds to believe that any dealer was unfit to be allowed to continue as a dealer. Those were the words to be considered in that case which are of course different from those in the present case. LORD RADCLIFFE when giving the advice of the Judicial Committee, however, began by distinguishing that case from Liversidge v. Anderson n(3) and went on to consider the position of the controller in law. He said n(4):

n(1) [1966] A.C. 47.

n(2) [1951] A.C. 66.

n(3) [1941] 3 All E.R. 338; [1942] A.C. 206.

n(4) [1951] A.C. at pp. 78, 79.

"In truth, when he cancels a licence he is not determining a question: he is taking executive action to withdraw a privilege because he believes, and has reasonable grounds to believe, that the holder is unfit to retain it... the power conferred on the controller... stands by itself on the bare words of the regulation and, if the mere requirement that the controller must have reasonable grounds of belief is insufficient to oblige him to act judicially, there is nothing else in the context or conditions of his jurisdiction that suggests that he must regulate his action by analogy to judicial rules." Having come to that decision, LORD RADCLIFFE then went on in effect to deal with the position if that was wrong, and if the controller was acting in a judicial capacity. Later he said n(5):

n(5) [1952] A.C. at pp. 81, 82.

"It is impossible to see in this any departure from natural justice. The respondent had before him ample material that would warrant a belief that the appellant had been instrumental in getting the interpolations made and securing for himself a larger credit at the bank than he was entitled to. Nor did the procedure adopted fail to give the appellant the essentials that justice would require, assuming the respondent to have been under a duty to act judicially." That might be understood as saying that if there was no duty to act judicially then it would be impossible to interfere, even if the applicant had not been given the essentials that justice requires. I very much doubt however whether it was intended to say any more than that there is no duty to invoke judicial process unless there is a duty to act judicially. I do not understand him to be saying that if there is no duty to act judicially then there is no duty even to be fair. When however that has been said, it seems to me impossible in the present case to say that the decision made on the evening of Nov. 21 was not arrived at, as I put it, fairly. It is impossible to believe other than that both the applicant and H.K. knew full well of what they had to satisfy the authorities. They were, as it seems to me, given ample opportunity to do so, and the fact that the officer was not satisfied is not, as is admitted, a matter for this court.

Counsel for the applicant, however, goes on to contend that if after a decision has been made information reaches the authorities that might on investigation cause them to cancel the decision they are under a duty to let the immigrant know what it is and enable him to deal with it and thus persuade the authorities to cancel the notice. Having listened with care to what counsel for the applicant has said and the way in which he puts it, it seems to me that even if that submission is correct, this would not be a matter for habeas corpus or certiorari at all. The decision under which H.K. is held is the decision arrived at on Nov. 21. Even if it can be said that the presence of this school certificate ought to have been inquired into more closely by the immigration officer, and that further opportunity ought to have been given to the applicant to satisfy the immigration officer that the notice should be cancelled, it seems to me to be entirely a matter for mandamus, and could not be a matter for certiorari.

It was as a result of arriving at that, at any rate provisional, conclusion that this court last week decided to adjourn this application. Counsel for the applicant had frankly said that all he could ask for was for the immigration authorities to reconsider the matter with a view to cancellation in the light of all the evidence now produced before this court, and the immigration authorities, through their counsel, frankly said that that was what they were going to do. That being so, the court thought it was proper to adjourn the case until today and retain, as it were, seizin of it. Today the court has been told that no decision has yet been come to. It appears that further information even beyond what has been submitted to this court is now available and not only that but the matter is having the personal attention of the Home Secretary. Accordingly, it seems to me that counsel for the applicant has had even more than he hoped for, and that there is no reason why this court should retain any further control over it. In those circumstances, it seemed right this morning that we should dispose of this case by giving judgment.

Accordingly for the reasons that I have endeavoured to state, I would dismiss both the application for habeas corpus and the application for certiorari.

Judgment By-2: SALMON, L.J.

Judgment Two:

SALMON, L.J.: I agree. The power conferred on the immigration officer by s. 2 (1) of the Commonwealth Immigrants Act, 1962, to refuse admission into the United Kingdom to a Commonwealth citizen is not unfettered. It is fettered by sub-s. (2) which enacts in effect that the immigration officer shall not refuse admission in the case of any person who satisfies him -- and I am merely referring to the words which are relevant to this case -- that he is a child under sixteen years of age of a Commonwealth citizen who is resident in the United Kingdom with whom he enters or seeks to enter the United Kingdom. I have no doubt at all that in exercising his powers under that section, the immigration officer is obliged to act in accordance with the principles of natural justice. That does not of course mean that he has to adopt judicial procedures or hold a formal inquiry, still less that he has to hold anything in the nature of a trial, but he must act, as LORD PARKER, C.J., has said, fairly in accordance with the ordinary principles of natural justice. If for example, and this I am sure would never arise, it could be shown that when he made an order refusing admission he was biased or had acted capriciously or dishonestly, this court would have power to intervene by the prerogative writ. There are, as LORD PARKER, C.J., has said, a good many cases in which the view has been expressed that unless a person exercising a power is acting in a judicial or quasi-judicial capacity the courts cannot intervene. An immigration officer is acting in an administrative rather than in a judicial capacity. What however is a quasi-judicial capacity has, so far as I known, never been exhaustively defined. It seems to me to cover at any rate a case where the circumstances in which a person who is called on to exercise a statutory power and make a decision affecting basic rights of others are such that the law impliedly imposes on him a duty to act fairly. When Parliament passed the Commonwealth Immigrants Act, 1962, it deprived Commonwealth citizens of their right of unrestricted entry into the United Kingdom. It laid down conditions under which they might enter, and left it to the immigration officers to decide whether such conditions existed. Their decisions are of vital importance to the immigrants since their whole future may be affected. In my judgment it is implicit in the statute that the authorities in exercising these powers and making decisions must act fairly in accordance with the principles of natural justice.

Counsel for the applicant has not suggested, nor would it be possible to suggest on the evidence before this court, that when on Nov. 21, 1966, the immigration officer refused permission to H.K. to enter the United Kingdom, he acted otherwise than in accordance with the rules of natural justice. It is quite plain that no one could say that, on the material then before him, as a fair man he must have been satisfied that H.K. was under sixteen years of age. The material before him did not satisfy him, and I for one am not at all surprised. Therefore, the refusal made and the notice served on Nov. 21 are unimpeachable. It follows that H.K.'s detention pending his removal abroad was lawful.

Schedule 1, para. 2 (4) to the Act of 1962 provides that:

"A notice refusing a person admission into the United Kingdom may at any time be cancelled by a subsequent notice in writing given to him by an immigration officer; and where a notice under this subparagraph cancelling such a notice is given to any person at any time, the immigration officer may, notwithstanding anything in sub-para. (3) of this paragraph, at the same time give to that person a notice admitting him into the United Kingdom subject to conditions under s. 2 of this Act."

The Act of 1962 clearly contemplates that the immigration officer who has exercised his power under s. 2 may change his mind as, for example, when he has decided to refuse entry on somewhat tenuous material put before him and then finds that there is other material which leads to the conclusion that he should allow entry.

On Nov. 22 it came to the notice of the chief immigration officer, Mr. Collison, that H.K. was said to have with him a school leaving certificate, which was of importance in that it might provide strong evidence as to the boy's age. The school leaving certificate in Pakistan does shown or purports to show H.K.'s age, and it is a particularly important document since, as I understand it, there are no birth certificates in Pakistan. So very fairly and properly he went to see H.K. and asked for his school leaving certificate, but due I think to the fact that the interpreter whom he had with him was not as adept as he might have been in deciphering Urdu and H.K. was unable to explain what was on the certificate, Mr. Collison was quite unable to derive any assistance from it. The complaint made by counsel for the applicant is that he ought not to have left it at that; he ought to have taken steps to have had the certificate properly translated and then applied his mind to it and considered whether or not this provided sufficient evidence to justify him in changing his original decision. Counsel complains that in point of fact he took no further steps in relation to that certificate. Whether that argument is sound or not, it cannot avail counsel for the applicant in these proceedings. The refusal of Nov. 21 is admitted to have been properly made and the detention of the boy after that order was lawful. It was still lawful on Nov. 22. Now if Mr. Collison had done everything that counsel says that he ought to have done, he would still have kept H.K. lawfully in detention whilst these further investigations were being pursued. So it is quite plain that the most that this applicant could have hoped for in respect of the occurrence of Nov. 22 -- and I express no view whether he would have obtained it -- would have been an order for mandamus. On no possible view could habeas corpus have gone in respect of what happened on Nov. 21 or Nov. 22, nor could certiorari have gone in respect of the decision of Nov. 21 because when it was made it was unimpeachable.

Accordingly, the application in this case is quite hopeless. Although it fails, counsel for the applicant can perhaps properly regard it as a triumph from a practical point of view. It has had the effect of this matter being considered at a very high level indeed. As soon as the matter was drawn to the attention of the authorities they expressed their willingness to consider any fresh material which might be put before them. They have now fully considered an accurate translation of the school leaving certificate. Indeed they have re-investigated the matter most thoroughly. They came to the conclusion after that further investigation that nothing more could be done and that the original decision should stand. At the last moment, however, a cable has arrived from Pakistan suggesting that there is a medical certificate from the district medical officer of the district in which this boy was born testifying that he is under sixteen years of age, and very fairly and properly, as of course one would expect, the authorities have said that until that further evidence arrives in this country, providing it arrives in a reasonable time, no further steps will be taken to remove the boy. So either in the end as a result of this application he will be admitted or if he is removed he will at any rate have the satisfaction of knowing that every possible step has been taken and every relevant matter investigated in order to arrive at a just conclusion. I agree that the applications for habeas corpus and certiorari should be refused.

Judgment By-3: BLAIN, J.

Judgment Three:

BLAIN, J.: I agree. It is not suggested now at any rate that the decision to refuse admission come to on Nov. 21, 1966, was a decision which can be attacked in the light of the information then available to the immigration officer, and in the light of the consideration which he then gave to that information. That of itself is sufficient to mean that the application for leave to issue a writ of habeas corpus and the application for leave to issue an order of certiorari must fail. The case has however thrown up important considerations of what may happen after that first decision has been taken, a decision which the statute really contemplates would have to be taken within a very short time. Section 3 (1) of the Commonwealth Immigrants Act, 1962, provides thus:

"The provisions of Part 1 of Sch. 1 to this Act shall have effect with respect to... (b) the exercise by immigration officers of their powers of refusal of admission or admission subject to conditions under s. 2 of this Act, and the cancellation, variation and duration of such refusals and conditions." It is the question of cancellation which has given rise to further discussion in this court, and the relevant sub-paragraph of Sch. 1 -- para. 2 (4) -- reads, in so far as it needs to be read:

"A notice refusing a person admission into the United Kingdom may at any time be cancelled by a subsequent notice in writing given to him by an immigration officer...", and then there follow further administrative provisions for carrying that out. I would only say that an immigration officer having assumed the jurisdiction granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction, whether it be administrative, executive or quasi-judicial, fairly, by which I mean applying his mind dispassionately to a fair analysis of the particular problem and the information available to him in analysing it. If in any hypothetical case, and in any real case, this court was satisfied that an immigration officer was not so doing, then in my view mandamus would lie. That is not the position in this case nor indeed is the court in this case moved for leave to issue an order of mandamus. I need say no more than that I agree with what has fallen from my lords.

DISPOSITION:

Motion dismissed.

SOLICITORS:

Lawford & Co. (for the applicant); Treasury Solicitor.


 

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