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

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

QUEEN'S BENCH DIVISION

[1980] 1 All ER 1089

Hearing Date: 21 DECEMBER 1979

21 DECEMBER 1979

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:

On his arrival in the United Kingdom the applicant, a minor, claimed that he was the son of X, an immigrant who had settled in the United Kingdom. The authorities initially had doubts about his alleged relationship to X but he was eventually admitted to the United Kingdom on the basis that he was X's son. X subsequently applied, under s 7 a of the British Nationality Act 1948, for the registration of the applicant as a United Kingdom citizen. The Secretary of Stage granted the application. Enquiries were later made from which it appeared that the applicant was not X's son. He 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 ot treat him as an illegal immigrant and 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 an inquiry conducted in accordance with s 20(6) and (7). At the hearing the applicant conceded that the Secretary of State was, on the evidence, entitled to take the view that he was not X's son. 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 - If the applicant was not X's son, he could not have been validly registered as a citizen of the United Kingdom since under the 1948 Act a minor could be registered as a citizen of the United Kingdom only on an application made under s 7 of that Act in the prescribed manner by his 'parent or guardian'. Since he was not a citizen of the United Kingdom, it followed that it was not necessary for steps to be taken under s 20 of that Act to deprive him of that citizenship, and the Secretary of State could deal with him as an illegal immigrant. Accordingly his detention was not unlawful and the application for a writ of habeas corpus would be dismissed (see p 1092 h to p 1093 b, post).

Notes:

For citizenship of minors by registration, see 4 Halsbury's Laws (4th Edn) para 914. For the British 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 and the Governor of Horfield Prison, ex parte Sultan Mahmood [1978] Court of Appeal Transcript 541.

Introduction:

Motion. By notice of motion dated 6th September 1979 the applicant, Parvaz Akhtar, applied for an order directing the issue of a writ of habeas corpus ad subjiciendum to the Secretary of State for the Home Department for the release of the applicant from detention at the Latchmere Remand Centre. The facts are set out in the judgment of Shaw LJ.

Counsel:

Ian MacDonald for the applicant. Simon Brown for the Secretary of State.

PANEL: SHAW LJ AND KILNER BROWN J

Judgment One:

SHAW LJ. This is a motion by leave of Mars-Jones J for a writ of habeas corpus in respect of the applicant, Parvaz Akhtar, at present detained in the Latchmere Remand Centre pending his removal from this country as an illegal immigrant. The material history can be shortly stated. The applicant claimed to be Parvaz Akhtar, the son of Waris Ali, and that he had been born at Mirpur, Pakistan, on 4th September 1958. He first came to this country in 1972 as one of the family of Waris Ali who had been settled in the United Kingdom for many years. Doubts then arose as to the alleged relationship between Waris Ali and the applicant. He was at first refused entry but after an appeal he was admitted in 1975 as a son of Waris Ali. He then went to school and obtained employment in England. A year or so later Waris Ali applied under s 7 of the British Nationality Act 1948 for the registration of his son Parvaz Akhtar as a United Kingdom citizen.The application was granted on the 16th June 1976. In March 1979 the applicant went to Denmark together with a daughter of Waris Ali, the applicant's purported sister. There they parted company and the applicant was sent back to England by the Danish authorities. As the result of interrogation and enquiries on his arrival back in the United Kingdom the original doubts as to his relationship to Waris Ali were revived. Further enquiry was made. In the result it appeared from the information then obtained, including the applicant's own admission, that his real identity was not Parvaz Akhtar, son of Waris Ali, but Abdul Hamid, son of Noor Hussein.Counsel who has appeared for the applicant in support of this motion conceded, though only for present purposes, that the evidence which was assembled after the applicant's return was adequate to support the conclusion that he was not related to Waris Ali as his son. On behalf of the applicant it was contended (i) that the applicant is immune from any order directing his removal inasmuch as he is a citizen of the United Kingdom by virtue of registration under the British Nationality Act 1948 (to which I shall refer as 'the 1948 Act'); (ii) that before he can be deprived under s 20(2) of the 1948 Act of that citizenship he is entitled to require that there should be an inquiry constituted and conducted in accordance with the provisions of s 20 (6) and (7); (iii) that until there has been such an inquiry his registration as a United Kingdom citizen remains effective and that his detention as an illegal immigrant is therefore unlawful. Counsel for the applicant submitted that it is not open to the Secretary of State to treat the applicant as an illegal immigrant and to apply the procedure of removal or deportation which is appropriate to somebody who can be so classified. What stands inexorably in the way, so it is contended, is the current status of the applicant as a citizen by registration of the United Kingdom. Until by due process under s 20 in the form of the inquiry there prescribed he is deprived of that status, he cannot, so the argument went, be dealt with as an illegal immigrant. The assumption underlying that argument, and the essential foundation for it, is that the purported registration of the applicant as a citizen of the United Kingdom was ab initio valid and effective and that it remains so until such time as he may be deprived of the benefit of that registration after due inquiry in accordance with s 20(6) and (7) of the 1948 Act. If the argument be ill-founded and the registration is a nullity from the outset, the applicant can appeal against his deportation or removal only pursuant to the provisions of the Immigration Act 1971 when he is out of this country. In the course of the argument reference was made to the unreported case of R v Secretary of State for the Home Department and the Governor of Horfield Prison, ex parte Sultan Mahmood n1 in which judgment was given by the Court of Appeal on 26th July 1978. In that case the applicant had sought and been granted registration under s 5A of the 1948 Act as a citizen of the United Kingdom. It appeared that his registration had been procured by a fraud, namely, the assumption by him of the identity of his dead cousin named Javed Iqbal. In the course of his judgment Roskill LJ said: n1 [1978] Court of Appeal Transcript 541

'On those facts it was argued that the appellant's registration evidenced by the certificate [it was common ground that the appellant had taken the oath of allegiance before the application was granted] involved that he had become and now was a citizen of the United Kingdom by registration, and that under s 20 of the 1948 Act he could only be deprived of that status in accordance with that section and not otherwise. It was contended that the Secretary of State was alleging fraud, false representation, the concealment of material facts, and that therefore the case fell fairly and squarely within sub-s (2) of s 20. Accordingly, sub-ss (6) and (7) of that section were applicable and the machinery prescribed by Sch 2 to the 1971 Act was not. This argument has the merit of attractive simplicity and it was forcibly advanced by counsel in this court on behalf of the appellant. But before the provisions of sub-ss (2), (6) and (7) of s 20 can be prayed in aid, in my judgment the appellant must show that he can bring himself within sub-s (1) of that section. He seeks to do so by reliance on the fact of registration as evidenced by the certificate. If it were clear that the appellant was the Javed Iqbal originally named and identified in the Pakistani passport and in the other relevant documents and that the Secretary of State had intended to grant registration to that person, this argument would clearly have great force because it would be to that person so named and identified that the grant would have been directed. But the evidence is that the person was dead. The Secretary of State's intention cannot have been to grant registration to the appellant for he did not know who the appellant was. He wrongly believed the appellant to be Javed Iqbal, which he was not, nor could have been, for that individual was dead. There are, I think, only three possible effects of the purported registration. First, it was a grant to Javed Iqbal. Secondly, it was a grant to the appellant. Thirdly, it was a grant to nobody but was a nullity. I have given my reasons already for rejecting the first two possibilities. There remains the third, that the purported granted was a nullity. Counsel for the Secretary of State drew an analogy between contracts which are void and contracts which are voidable. This analogy, as I think, is useful though, like most analogies, incomplete. I accept that in some cases it may be difficult to drew a dividing line in these cases between a registration which is a nullity and therefore void, as I think is the case with the present registration, in which case the alleged citizen by registration cannot bring himself within s 20(1) at all, and a registration which is only voidable, in which case the machinery of s 20(2), (6) and (7) has to be invoked to the exclusion of the relevant provisions of the 1971 Act.' Then Geoffrey Lane LJ in the course of his judgment said:

'It seems to me that the only question to be decided is whether is whether the appellant ever was a citizen of the United Kingdom by registration. I find it difficult to see how he could be. He chose to assume the identity of a dead man, he took the oath of allegiance and filled in the necessary forms in the dead man's name. I find it impossible to say that in those circumstances Sultan Mahmood became a citizen of the United Kingdom any more than did Javed Iqbal.' That was reiterated by Stephenson LJ in these terms:

'... I have come to the conclusion, in spite of the deep impression which the language of s 20, read against that background, and the powerful argument of counsel for the appellant first made on my mind, that the appellant never became a citizen of the United Kingdom and colonies by registration and was not registered as such, any more than Javed Iqbal. On the assumed facts, his fraud was so thorough-going as to take him over the dividing line referred to by Roskill LJ and to keep him outside the section altogether.' Roskill LJ had referred to the dividing line between a fraud which went to the root of the matter and a fraud which in a sense was merely incidental or collateral.

An examination of the relevant provisions of the 1948 Act shows that the present case is even stronger against the applicant. Section 5A of the Act empowers the Secretary of State to cause a person of full age to be registered as a citizen of the United Kingdom if that person satisfies the Secretary of State as to the matters prescribed in sub-ss (1) and (2) of that section. Once the Secretary of State is so satisfied in regard to such a person he may effectively cause that person to be registered as a citizen. If the Secretary of State has been induced to be so satisfied 'by means of fraud, false representation or the concealment of any material fact' in relation to the prescribed particulars he 'may by order deprive [the person registered] of his citizenship' as is enacted by s 20(2). Those particulars are collateral or incidental to the application for registration. If, however, the applicant for registration is not of full age or is not the person whose identity he claims, the application fails in limine, for the Secretary of State has no power under s 5A to grant registration to a minor or to any person of full age other than the actual named applicant. Any purported grant to a minor or such other person is ultra vires the Secretary of State. It is unnecessary, in my view, to consider the degree or nature of the fraud or to decide whether it is such as to vitiate the registration so as to render it void, or whether it is viodable only, and therefore calls for the inquiry contemplated by s 20(6) and (7) when it is sought to deprive a person of the grant of citizenship by registration. The power of the Secretary of State to cause a minor to be registered as a citizen of the United Kingdom is derived from s 7 of the 1948 Act. The power arises, however, only within the ambit of the section, that is to say where an application is made on behalf of a 'minor child of a citizen of the United Kingdom' and the application is made 'in the prescribed manner by a parent or guardian of the child'. If as is conceded, the Secretary of State is entitled, for present purposes, to take the view that Waris Ali is not the father of the applicant who is a minor, it follows that there was never been any due application for registration which would empower the Secretary of State to cause the applicant to be registered as a citizen of the United Kingdom. The applicant has, accordingly, never held that status. There is no occasion to take steps under s 20 to deprive him of citizenship for it has never been effectively conferred on him since the circumstances giving rise to the power of the Secretary of State in this regard have not existed. In my judgment, therefore, this appeal fails and the application for a writ of habeas corpus is refused.

Judgment Two:

KILNER BROWN J. I agree.

DISPOSITION:

Application dismissed.

SOLICITORS:

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

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