Kwasi Minta v. Secretary of State for the Home Department

Kwasi Minta v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1992] Imm AR 380

Hearing Date: 8 April 1992

8 April 1992

Index Terms:

British citizenship -- whether a British Visitor's passport was proof under the 1971 Act, of British citizenship -- whether an immigration officer could be satisfied as to an individual's British citizenship on evidence other than a valid full British passport. Immigration Act 1971 (as amended) ss 1(1), 2(1), 3(1), 3(9), 8(2), sch 2 paras 2, 4, 16; Immigration (Exemption from Control) Order 1972 para 5(1)(a); EEC Directive 68/360 arts 1, 3; United Nations International Covenant on Civil & Political Rights 1966: European Convention on Human Rights.

British citizenship -- disputed claim -- burden of proof -- possessor of British Visitor's passport -- whether prima facie evidence of citizenship -- whether burden of proof lay on Secretary of State to show possessor was not a British citizen. Immigration Act 1971 (as amended) s 3(8).

Appellate authorities -- jurisdiction -- whether the appellate authorities had jurisdiction to entertain an appeal against a refusal of leave to enter, on the ground that the applicant had a right of abode in the United Kingdom. Immigration Act 1971 (as amended) s 13(3).

Judicial Review -- refusal of leave to enter the United Kingdom -- immigration officer not satisfied applicant was a British citizen -- whether the question of the applicant's citizenship was a precedent fact reviewable by the Divisional Court -- Khawaja and Bamgbose considered.

Held:

Appeal from Hutchison J. The appellant claimed to be a British citizen. He had been refused leave to enter on return from a short visit abroad. He sought to enter the United Kingdom on the basis of a British Visitor's passport. He was detained after being refused leave to enter. He appealed to an adjudicator who allowed his appeal. The adjudicator held that a British Visitor's passport was prima facie evidence of citizenship; the burden of proof had shifted to the Secretary of State who had not shown the appellant was not a British citizen. The Secretary of State had appealed to the Tribunal which had held that on a true interpretation of section 13(3) of the 1971 Act (as amended), neither the adjudicator nor the Tribunal had jurisdiction to entertain the appeal. The Secretary of State's decision accordingly stood. On application for judicial review it was argued at first instance that in accordance with the provisions of section 3(9), only the production of a valid full British passport to an immigration officer could allow him to be satisfied that a person seeking entry to the United Kingdom was a British citizen. Before the Court of Appeal it was argued for the Secretary of State that while an immigration officer could be satisfied by other evidence, he was only bound to accept a full British passport as evidence of British citizenship. For the appellant it was argued that a British Visitor's passport was proof of citizenship under section 3(9) and paragraph 4 of the second schedule of the 1971 Act. In the alternative it was argued that the appellant, holding a British Visitor's passport, was exempt from immigration control pursuant to paragraph 5 of the Immigration (Exemption from Control) order 1972. Counsel also prayed in aid EEC Directives on the freedom of movement, the British Visitor's passport being a form of identity card. Counsel also argued that the question of the appellant's citizenship was, following Khawaja, a precedent fact which the Divisional Court should determine. Held 1. The Tribunal had been correct to conclude that in the events which had happened, the appellate authorities had no jurisdiction to entertain the appeal. 2. The adjudicator had erred, on a true interpretation of s 3(8) of the 1971 Act, in concluding that the burden of proof had shifted to the Secretary of State because the appellant held a British Visitor's passport. 3. A British Visitor's passport was not proof of citizenship under s 3(9) of the 1971 Act. 4. Because he claimed he was a British citizen, the appellant could not rely on the provisions of paragraph 5 of the 1972 Exemption Order, that being limited in its application to those who were not British citizens. 5. The Court accepted the proposition that while an immigration officer might be satisfied by other evidence, he was only bound to accept a valid full British passport or certificate of entitlement (as provided by s 3(9) of the 1971 Act) as proof of citizenship. 6. The wording of s 3(9) was unambiguous: following Brind, no assistance could therefore be derived from international conventions on human rights. 7. The provisions of the EEC Directives had no application; they would not come into play until the citizenship of the appellant had been established. 8. Following Bamgbose and in the circumstances of the case it was not for the court to enquire into the facts or to seek to determine the appellant's citizenship.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74; [1982] Imm AR 139. in Re Adeniji Bamgbose [1990] R 135. R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696; [1990] 1 All ER 469. R v Immigration Appeal Tribunal ex parte John Kwasi Minta (unreported, QBD, 3 June 1991).

Counsel:

P Engleman for the appellant; Miss A Foster for the respondent PANEL: Parker, Stuart-Smith, Beldam LJJ

Judgment One:

STUART-SMITH LJ: This is an appeal from a judgment of Hutchison J given on 3 June 1991 in which he dismissed the appellant's application for judicial review. It is an immigration case. The facts are these: the appellant maintains that he is John Kwasi Minta Akuamoh, who was born in the United Kingdom on 11 October 1963, as evidenced by a birth certificate and is therefore a British citizen. He says that at the age of three he went to Ghana with his parents, but returned to this country with his father sometime between 1971 and 1978. His father left him here and returned to Ghana. The appellant says that he has lived here ever since. In 1988 he decided to take a fortnight's holiday and applied for and obtained a British Visitor's Passport (BVP) on 31 August 1988. On his return from Belgium on 29 September 1988 he was interviewed by immigration control. The immigration officer was not satisfied that he was a British citizen, and accordingly he needed leave to enter, which was refused, and he was detained. While still in this country he appealed to the adjudicator who reversed the decision. The adjudicator considered that the BVP was prima facie evidence of citizenship and that the burden was upon the Secretary of State to prove to a high degree of probability that the appellant had obtained a BVP to which he was not entitled. He said that the Secretary of State had not discharged that onus. He also stated that if the onus had been on the appellant he would not have discharged it. For reasons which will become clear in the course of this judgment, the adjudicator was in my judgment wrong in holding that there was any onus on the Secretary of State. The Secretary of State appealed to the Immigration Appeal Tribunal. They took the point that neither the adjudicator nor they had jurisdiction to entertain the appeal because the case fell within section 13(3) of the Immigration Act 1971 (the 1971 Act) as amended. Pursuant to leave granted by Simon Brown J, the appellant sought judicial review of that decision. The relevant statutory provisions are to be found in the 1971 Act as amended by the Immigration Act 1988. Section 1(1): "All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person . . ." Section 2(1): "A person is under this Act to have the right of abode in the United Kingdom if (a) he is a British citizen . . ." Section 3(1): "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(8): "When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is." Section 3(9) (as from 1 August 1988) "A person seeking to enter the United Kingdom and claiming to have the right of abode there shall prove that he has that right by means of either (a) a United Kingdom passport describing him as a British citizen or as a citizen of the United Kingdom and Colonies, having the right of abode in the United Kingdom; or (b) a certificate of entitlement issued by or on behalf of the Government of the United Kingdom certifying that he has such a right of abode." Section 13(3) (as from 1 August 1988) "A person shall not be entitled to appeal, on the ground that he has a right of abode in the United Kingdom, against a decision that he requires leave to enter the United Kingdom unless he holds such a passport or certificate as is mentioned in section 3(9) above; and a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit." Section 3(9) and 13(3) are amendments introduced by the 1988 Act and make significant changes in the law. Also relevant are certain provisions of schedule 2 of the 1971 Act, namely: "2(1) An immigration officer may examine any persons who have arrived in the United Kingdom by ship, aircraft or through the tunnel system (including transit passengers, members of the crew and other not seeking to enter the United Kingdom) for the purpose of determining -- (a) whether any of them is or is not a British citizen; and (b) whether, if he is not, he may or may not enter the United Kingdom without leave; and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave . . . 4(1) It shall be the duty of any person examined under paragraph 2 or 3 above to furnish to the person carrying out the examination all such information in his possession as that person may require for the purpose of his functions under that paragraph. (2) A person on his examination under paragraph 2 or 3 above by an immigration officer shall, if so required by the immigration officer -- (a) produce either a valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship;" Before Hutchison J counsel for the Secretary of State submitted that the only way in which a would-be entrant could establish his status as a British citizen having an unrestricted right to enter is by the production of a full United Kingdom passport describing him as a British citizen, under section 3(9)(a). In other words the language of that subsection was mandatory and exclusive and the immigration officer could not be satisfied by any lesser means of proof. The judge accepted this submission, though he regarded it as unpalatable. He considered however that the consequences would not be so dire as might appear, since he was prepared to imply into section 3(9) the words "if required to do so" before the words "prove that he has that right by means of either (a) a passport or (b) a certificate". He considered this implication was justified because section 3(8) and 3(9) had to be read together and section 3(8) is predicated by the words "when any question arises . . . whether or not a person is a British citizen." The question would not arise if the immigration officer was satisfied on other evidence that the entrant was a British citizen, and this would often be the case with someone who had lost their passport while abroad or who sought to re-enter on a BVP. Before this court Miss Alison Foster did not seek to uphold this somewhat extreme contruction. She accepted that the immigration officer might be satisfied on other evidence whether documentary or oral, that the entrant was a British citizen, but he was not required to do so. Only if the entrant produced a UK passport describing him as a British citizen was he bound to accept it as proof. In my judgment this is the effect of section 3(8) and 3(9), coupled with the provisions of schedule 2 to which I have referred. It would still leave it open to the immigration authority to assert that the full United Kingdom passport was either a forgery or stolen and did not relate to the entrant. This is because Parliament has provided that this document and the certificate referred to in 3(9)(b) are sufficient in themselves to constitute proof of citizenship. This being so, Miss Foster submits first that the immigration officer was entitled not to be satisfied that the appellant was a British citizen, notwithstanding his BVP, and secondly that there is no appeal from this decision to the adjudicator since a BVP is not a document which describes him as a British citizen as required by section 3(9) and therefore section 13(3) applies. She accepts that the decision of the immigration officer is subject to judicial review but only on well-recognised Wednesbury principles. The decision which was based on marked discrepancies in the appellant's account and lack of any convincing description of where he had lived or what he had done in this country, could only be attacked if it was irrational and Mr Engleman for the appellant does not suggest that it was. Mr Engleman seeks to counter this argument with three submissions. 1. He submitted that the appellant was exempt from the provisions of section 3(1) of the 1971 Act by reason of the Immigration (Exemption from Control) Order 1972 SI 1972/1613. This order was made pursuant to section 8(2) of the Act which provides: "The Secretary of State may by Order exempt any person or class of persons, either unconditionally or subject to such conditions as may be imposed by or under the Order, from all or any of these provisions of this Act relating to those who are not British citizens." Paragraph 5 of the Order is as follows: "(1) Subject to the provisions of this Article the following persons who are not British citizens shall, on arrival in the United Kingdom, be exempt from the provisions of section 3(1)(a) of the Act (which requires persons who are not British citizens to obtain leave to enter the United Kingdom), that is to say -- (a) any citizen of the United Kingdom and Colonies who holds a passport issued to him in the United Kingdom and Islands and expressed to be a British Visitor's Passport;" This point was not taken before the judge, and that is hardly surprising since the section and order only applies to persons who are not British citizens and the appellant was asserting that he was such. The argument appears to have been inspired by a comment by the editor of Butterworth's Statutory Instruments on the decision of Hutchison J. Mr Engleman embraced the argument, though it is fair to say with dwindling enthusiasm. His submission was that the Crown asserted that the appellant was not a British citizen, therefore on such evidence as there was it must be inferred that he was born in Ghana and was therefore a citizen of the United Kingdom and Colonies. In my judgment the argument is untenable. It is quite inconsistent with the contention that he is a British citizen born in London as the BVP purports to show. If that is rejected there is no reliable evidence as to his origin or status at all, and certainly quite insufficient to show that he is a citizen of the United Kingdom and Colonies. What is curious about paragraph 5(1)(a) of the Order is how a BVP should come to be issued to a citizen of the United Kingdom and Colonies, unless he was also a British Dependent Territories citizen or a British Overseas citizen, since condition 1 of the BVP states that it may only be issued to these categories of citizen, in addition to British citizens. 2. Mr Engleman submitted that a BVP is a passport within section 3(9) of the 1971 Act. He relied upon the condition to which I have referred. But this condition also makes it plain that the BVP will not be accepted as definite evidence of national status. Like the full national passport, the BVP is issued under the prerogative. But there are two important differences in the procedure for obtaining it. It can be obtained on application to a Post Office and not to the Passport Office and it is unnecessary to produce certification of identity by a reputable person who has known the applicant for at least two years and accordingly it is much more readily obtained. I cannot accept Mr Engleman's submission that a BVP is a passport to which section 3(9) applies. It does not, unlike the full national passport, describe the holder as a British citizen and makes plain as I have indicated that it is not definite evidence of national status, though no doubt in the great majority of cases a BVP is accepted by immigration officers as satisfying the onus of proof under section 3(8). Mr Engleman sought to support his argument by reference to Council Directive of 15 October 1968 of the European Community (68/360 EC). Article 1 requires Member states to abolish restrictions on movement of nationals of the said States and article 3 provides that Member States shall allow persons referred to in article 1 (ie nationals of those States) to enter their territory simply on production of a valid identity card or passport. Mr Engleman submits that the BVP is an identity card or passport. But this begs the whole question of whether he is a national of this country, ie a British citizen. It does not assist. Likewise in my judgment no assistance is to be obtained for the appellant from the International Bill of Human Rights or the European Convention on Human Rights. There is no ambiguity in the construction of section 3(9) and it is unnecessary to pray in aid these conventions as an aid to construction. See R v Secretary of State for the Home Office ex parte Brind [1990] 1 All ER per Lord Donaldson MR at page 477G. 3. Finally Mr Engleman submitted that the question of fact whether or not the appellant was a British citizen was reviewable by the Divisional Court. He submitted that this was a precedent fact which went to jurisdiction and as such was reviewable and he further submitted that the BVP was prima facie evidence of British citizenship and that the onus shifted to the respondent to negative his case. In my judgment the last of these propositions is contrary to the decision of this court in ex parte Bamgbose [1990] Imm AR 135. That was an application for habeas corpus by the applicant who had been arrested in this country for some other offence and on enquiry he was suspected of being an illegal entrant and detained. He produced a birth certificate showing the birth of a person of his name in a London hospital. It was argued that the birth certificate was prima facie evidence of citizenship and that following the case of Khawaja v Secretary of State for the Home Department [1984] 1 AC 74 the burden shifted to the respondent to disprove it. The argument was rejected. The case of Khawaja had no bearing on a question of British citizenship which is expressly dealt with under section 3(8) of the Act and which places the onus of proof both before the immigration officer and the court on the applicant. A BVP not being within section 3(9) is in the same category as a birth certificate or any other document which may tend to show citizenship but does not necessarily amount to proof of it. It is for this reason that the adjudicator was wrong in the view he took of the present case. But in the case of Bamgbose the court did consider whether the applicant had discharged the onus of proving citizenship and held that on the evidence he had not. Mr Engleman therefore submits that the court should enquire into that issue in the present case, though he invited this court to remit the matter to the single judge to determine after filing further evidence, and, if necessary, cross-examination. But Bamgbose was an illegal entrant case. His detention was unlawful unless he was an illegal entrant and on the application for habeas corpus the court was bound to enquire into the lawfulness of the detention. That is not this case. This is a case where the applicant has been refused leave to enter because the immigration officer was not satisfied that he was a British citizen and there were no grounds for granting him leave to enter. The only review this court can undertake is of the immigration officer's decision, which was plainly not irrational. Mr Engleman submits, with some force, that that is an anomalous situation since a person who attempts to enter the country by falsely describing himself as a British citizen is within the definition of illegal entrant (see section 33 of the 1971 Act). The appellant might therefore, though he was not, have been treated as an illegal entrant. And Mr Engleman points out that it is somewhat ironic that a person whose deceit is successful in getting him past the immigration officer and therefore enters the country and lives here until the law catches up with him is in a better position than one who attempts, but fails, to deceive the immigration officer, though of course Mr Engleman maintains that there was no deceit in the present case and that the appellant is in truth a British citizen. But the anomaly arises from the fact that the detention of the illegal entrant is only lawful if in fact he is such, and where citizenship is in issue the applicant for habeas corpus must prove that he is not an illegal entrant. Whereas in the case of refusal of leave to enter because the immigration officer is not satisfied either that he does not require leave or if he does he should be granted it the detention is lawful under paragraph 16 of schedule 2 of the 1971 Act. For these reasons I would reject Mr Engleman's submissions and dismiss this appeal.

Judgment Two:

BELDAM LJ: I agree with the judgment of Stuart-Smith LJ, and with the judgment about to be delivered by Parker LJ which I have read in draft, and I do not wish to add anything.

Judgment Three:

PARKER LJ: I agree that this appeal should be dismissed. Section 13(3) of the 1971 Act as amended presents the appellant with insurmountable difficulties. First, in so far as he seeks to appeal from the decision of the immigration officer not to accept that he is a British citizen, he cannot appeal because he admittedly does not hold such a passport or certificate as is mentioned in section 3(9) as amended. Secondly, in so far as he seeks to appeal against the immigration officer's refusal of leave to enter, he cannot appeal whilst still in this country because he neither held a current entry clearance nor was he a person named in a current entry permit. It follows that he could not appeal to an adjudicator and that neither the adjudicator nor the Tribunal had any jurisdiction to entertain his appeal. This is sufficient to dispose of the attack upon the decision of the Tribunal. Thirdly the suggestion that the decision of the immigration officer was bad in law because the burden of proof was on the Secretary of State to establish that he was not a British citizen is in the clearest terms negatived by section 3(8) of the 1971 Act, and it was not and could not be suggested that the immigration officer's failure to be satisfied that the appellant was a British citizen or his refusal of leave to enter was irrational. The attack upon the decision of the immigration officer must therefore also fail. I add only that the fact that section 13(3) as amended permits an appeal against refusal of leave to enter on the ground that the would-be immigrant has a right of abode only when such immigrant holds such a passport or certificate as is mentioned in section 3(9) in my view indicates that the holding of such a document does not constitute conclusive proof of British citizenship. The question whether the immigrant is or is not a British citizen will then arise on the appeal and I cannot for my part see how, in the light of section 3(8), the burden of proof can then be said to shift to the Secretary of State.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Nimoh Akainyah & Co; Treasury Solicitor