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

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

COURT OF APPEAL, CIVIL DIVISION

[1978] 3 All ER 790, [1978] 1 WLR 1177, 143 JP 109

Hearing Date: 19, 20, 23 MAY 1978

23 MAY 1978

Index Terms:

Immigration - Detention - Illegal entrant - Entry in breach of immigration laws - Entrant remaining in United Kingdom as illegal entrant after expiry of visitor's permit - Entrant obtaining new passport and going on visit abroad - Entrant returning to United Kingdom and convincing immigration officer that he was settled in United Kingdom - Officer stamping passport with indefinite leave to stay - Entrant subsequently detained as illegal entrant - Whether entrant entitled to rely on stamp in passport - Whether court entitled to interfere in Secretary of State's exercise of discretion to detain entrant - Immigration Act 1971, ss 3(1), 33(1).

Held:

In 1970 the applicant came to the United Kingdom from Pakistan, having obtained permission to stay in the United Kingdom as a visitor for six months. At the end of that time he remained in the United Kingdom illegally and, his original passport having been lost or destroyed, he obtained a new passport from the Pakistan High Commission containing no restrictions on entry into the United Kingdom. In 1972 the applicant visited Pakistan and on his return some months later in 1973 he was able to convince the immigration officer that he was lawfully settled in the United Kingdom even though, under para 51 a of the Immigration Rules for Control on Entry: Commonwealth Citizens b, that was not the case. The officer purported to give the applicant leave to enter the United Kingdom, under s 3(1) c of the Immigration Act 1971, and stamped his passport 'Indefinite leave to enter'. In 1977 the facts regarding the applicant's entry into the United Kingdom and his subsequent illegal stay were discovered and on 22nd November he was taken into custody as an illegal entrant, within s 33(1) d of the 1971 Act. On 26th November he was served with an order made on behalf of the Secretary of State directing that he be removed from the United Kingdom. The applicant applied for a writ of habeas corpus, relying on the indefinite leave stamped on his passport. a Paragraph 51, so far as material, is set out at p 793 c, post. b Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (H of C Paper (1972-73) No 79) c Section 3(1), so far as material, is set out at p 793 a b, post d Section 33(1), so far as material, is set out at p 793 d, post Held - When the applicant returned to the United Kingdom from Pakistan in 1973 he was an illegal immigrant. The immigration officer had therefore had no authority to stamp his passport with indefinite leave to enter because he was not a person who was 'settled' in England, and the applicant could not rely on a stamp in his passport made without authority. In any event the detention of the applicant was a matter for the discretion of the Secretary of State and unless it was shown that the Secretary of State had acted on unreasonable grounds or mala fide the court would not interfere to examine the truth or otherwise of the factual basis on which he had acted (see p 792 j, p 793 d to h and p 794 a to d and h to p 795 b, post). R v Secretary of State for the Home Department, ex parte Hussain [1978] 2 All ER 423 applied.

Notes:

For illegal entry into the United Kingdom, see 4 Halsbury's Laws (4th Edn) paras 976, 1027. For detention of persons liable to removal from the United Kingdom, see ibid para 1009. For the Immigration Act 1971, ss 3, 33, see 41 Halsbury's Statutes (3rd Edn) 20, 52.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department, ex parte Hussain [1978] 2 All ER 423, [1978] 1 WLR 700, DC and CA. R v Secretary of State for the Home Department, ex parte Mughal [1973] 3 Al ER 796, [1974] QB 313, [1973] 3 WLR 647, 137 JP 846, CA, Digest (Cont Vol D) 25, 101j.

Cases cited in the Judgment:

Andrews, Re (1873) LR 8 QB 153, 28 LT 355. Barnard v Gorman [1941] 3 All ER 45, [1941] AC 378, HL. Barnardo v Ford, Gossage's Case [1892] AC 326, 61 LJQB 728, HL. Eleko v Government of Nigeria (Officer Administering) [1931] AC 662, PC Gregory, Ex parte [1901] AC 128, 70 LJPC 19, PC. Guerin, Re (1888) 58 LJMC 42, 60 LT 538, DC; subsequent proceedings 5 TLR 160, 188, DC. Hartog v Colin and Shields [1939] 3 All ER 566. Hornal v Neuberer Products Ltd [1956] 3 All ER 970, [1957] 1 QB 247, CA. Laker Airways Ltd v Department of Trade [1977] 2 All ER 182, [1977] QB 643, CA. Lever (Finance) Ltd v Westminster Corpn [1970] 3 All ER 496, [1971] 1 QB 222, CA. Liversidge v Anderson [1941] 3 All ER 338, [1942] AC 206, HL. R v Halliday [1917] AC 260, 86 LJKB 1119, HL. R v Governor of Brixton Prison, ex parte Ahson [1969] 2 All ER 347, [1969] 2 QB 222, DC. R v Governor of Pentonville Prison, ex parte Azam [1973] 2 All ER 741, [1974] AC 18, CA; affd [1973] 2 All ER 765, [1974] AC 18, HL. R v Governor of Risley Remand Centre, ex parte Hassan [1976] 2 All ER 123, [1976] 1 WLR 971, DC. R v Secretary of State for Home Affairs, ex parte Greene [1941] 3 All ER 104, [1942] 1 KB 87, CA; affd sub nom Greene v Secretary of State for Home Affairs [1941] 3 All ER 388, [1942] AC 284, HL. R v Secretary of State for Home Affairs, ex parte O'Brien [1923] 2 KB 361, CA; subsequent proceedings sub nom Secretary of State for Home Affairs v O'Brien [1923] AC 603, HL. R V Secretary of State for the Home Department, ex parte Ahmed [Tamoor] (15th February 1978) unreported, DC. R v Secretary of State for the Home Department, ex parte Anwar (Mohammed) (19th January 1978) unreported, DC. R v Secretary of State for the Home Department, ex parte Badaike (Edorha Frank) (3rd May 1977) unreported, DC. R v Secretary of State for the Home Department, ex arte Khan [1977] 3 All ER 538, [1977] 1 WLR 1466, CA. R v Secretary of State for the Home Department, ex parte Shah (Dawood) (5th October 1977) unreported, DC. Smith v Hughes (1871) LR 6 QB 597, [1861-73] All ER Rep 632. Wiltshire v Barrett [1965] 2 All ER 271, [1966] 1 QB 312, CA.

Introduction:

Appeal. Iftikhar Ali Choudhary appealed against the judgment of the Divisional Court (Lord Widgery CJ, Stevenson and Lloyd JJ) dated 18th January 1978 refusing his application for a writ of habeas corpus ad subjiciendum directed to the Governor of Horfield Prison, Bristol, and to the immigration officer at Bristol Airport following his detention pursuant to an order made on behalf of the Secretary of State under para 10 of Sch 2 to the Immigration Act 1971. The facts are set out in the judgment of Lord Denning MR.

Counsel:

Alexander Irvine QC and Sighbat Kadri for Mr Choudhary. Harry Woolf for the Secretary of State. PANEL: LORD DENNING MR, GEOFFREY LANE AND EVELEIGH LJJ

Judgment One:

LORD DENNING MR. Iftikhar Ali Choudhary was born in Pakistan. He came to England in November 1970 when he was 21 with a Pakistan passport. He was given permission to stay here as a visitor for six months, and his passport was marked accordingly. He overstayed his leave and remained here illegally. Soon afterwards his passport was lost or destroyed. We do not know whether he did this deliberately or not. Maybe it was deliberate because it cntained the tell-tale words 'for six months only'. So he set about obtaining another one. He went to the Pakistan High Commission in London and told them that he had lost his original passport. The Pakistan High Commission here gave him another Pakistan passport which contained no restrictions on him. They thought that he was here lawfully, else they would not have issued him with it. A year later in 1972 he went back to Pakistan. On leaving England, he showed this Pakistan passport at Folkestone. It was marked by the officer there: 'Embarked 16 Dec 1972 Folkestone.' He returned to England again on 6th April 1973 by air. He came to the airport at Heathrow. He produced the Pakistan passport to Mr Denns Hall who was the immigration officer. Mr Hall does not remember what questions he asked of Mr Choudhary except that he would, according to his usual practice and in accordance with his duty, have made enquiries as to the circumstances in which Mr Choudhary had first come into this country to see whether he came in illegally or not. According to Mr Hall, Mr Choudhary must have given answers such as to satisfy Mr Hall that he was settled lawfully here. So Mr Hall stamped his passport: '6 Apr 1973 Indefinite leave to enter'. Mr Hall went on to say that if he had been told the truth (that Mr Choudhary had only come here for six months as a visitor and had overstayed) he certainly would not have given him leave and would not have stamped those words on Mr Choudhary's passport. As Lord Widgery CJ n1 once said, those words 'Indefinite leave to enter' on a passport are worth a goldmine to the holder. Taking advantage of them, Mr Choudhary went in and out of England time and time again. n1 Cf R v Secretary of State for the Home Home Department, ex parte Hussain [1978] 2 All ER 423 at 426, [1978] 1 WLR 700 at 702 In 1977 Mr Choudhary wanted to obtain permission for his wife and family to come from Pakistan and join him in England. Mrs Choudhary went to the British High Commission in Pakistan so as to get entry clearance. That put them on enquiry. They sent a request to London. The officers here in London looked for the husband and went to see him in November 1977. The truth came out. It was discovered that he had come here in 1970 with leave to stay for six months, and had overstayed. S those concerned took the view that he was an illegal entrant. He was taken into custody on 22nd November 1977. To be fair to him, he has worked in this country for most of the time he has been here. He has worked with a firm in Bristol, earning about L52 a week, and he has been sending about @ 12 a week to his wife and children in Pakistan. So as far as we know he is of good character. But now he has challenged his detention, and he has brought a writ of habeas corpus before the courts saying that he is unlawfully detained. The order for his detention was made in completely prper form. It was made on 26th November 1977 on behalf of the Secretary of State, and it says:

'On 22.11.77 you were detained as an illegal entrant as defined in Section 33 of the Immigration Act 1971, having entered the United Kingdom in breach of the Immigration laws. The Secretary of State has therefore given directions under paragraph 10 of Schedule 2 to the Act for your removal from the United Kingdom on Thursday 1.12.77 by flight PK 782 at 1805 hrs. to Karachi.' He was given information about his right to appeal. He can only appeal after he has returned to his country of origin. Instead of appealing, he has brought a writ of habeas corpus before the court, saying he has been unlawfully detained.

I start with this. The order for his detention and removal was completely in order. The return, on the face of it, affords sufficient justification for his detention and removal from the United Kingdom. It is prima facie good. If that return is to be challenged, it is for him to challenge it. The burden is on him to show that he is being unlawfully detained. That appears from many cases which we have had in these courts. In order to discharge the burden, Mr Choudhary relies on the stamp on his passport 'Indefinite leave to enter'. But that stamp is of no avail to him unless it was put on by an immigration officer who had authority in that behalf. So the enquiry becomes this: were those words stamped on the passport with lawful authority? The authority of the immigration officers is derived from the statute and the rules. Section 3(1) of the Immigration Act 1971 provides that: '... where a person is not [a] patrial [and Mr Choudhary is not a patrial] he shall not enter the United Kingdom unless given leave to do so in accordance with this Act.' So his entry is only lawful if the leave is given lawfully. Mr Choudhary on 6th April 1973 claimed to be a returning resident. In order to qualify as such, he had to come within para 51 the Immigration Rules for Control on Entry: Commonwealth Citizens n1 which says: n1 H of C Paper (1972-73) No 79

'A passenger 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.'

And para 55 says: 'A passenger who does not qualify for admission under the foregoing provisions of these rules is to be refused leave to enter.' As I read those provisions, the passenger must satisfy two conditions: (1) he must in fact have been settled here, and (2) he must satisfy the immigration officer of it. Mr. Choudhary certainly did not satisfy the first condition. He was not settled here. He was an illegal entrant. Section 33(1) of the 1971 Act says that an 'illegal entrant's means 'a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered'. Mr. Choudhary was clearly an illegal entrant. When he came back in 1973 he was an illegal entrant. He was not settled here. The immigrantion officer had no authority to stamp on his passport the words 'Indefinitie leave to enter's as he did. That want of authority in the immigration officer is a complete answer to Mr Choudhary's claim. There is another way of reaching the same conclusion. It is the way pointed out in R v Secretary of State for the Home Department, ex parte Hussan n2. Geoffrey Lane LJ stated the position in these words: n2 [1978] 2 All ER 423 at 429, [1978] 1 WLR 700 at 707

'If, on the evidence taken as a whole, the Secretary of State has grounds, and reasonable grounds, for coming to the conclusion that the application is here illegally, in contravention of the terms of the 1971 Act, this court will not interfere. Put into terms of the present case, was the indefinite permission given by the immigration officer at Dover in May 1974 a proper exercise of discretion by which the Secretary of State is bound, or was it a decision brought about by deception, misrepresentation or fraud of the applicant? If it was, then the applicant cannot rely on it and the Secretary of State was entitled to act as he did and this appeal would fail.' It will be observed that Geoffrey Lane LJ there used the phrase 'the Secretary of State has grounds, and reasonable grounds, for coming to the conclusion that the applicant is here illegally'. That leaves the decision to the judgment of the immigration officer acting for the Secretary of State. I think that is the right approach. If the immigration officer acts honestly and on reasonable grounds, that is sufficient and the court will not further enquire into it. If the applicant is dissatisfied, there is a remedy by way of appeal. There is not a remedy by way of writ of habeas corpus.

May I add that this is borne out by two or three cases to which we were referred, starting with the case of R v Secretary of State for the Home Department, ex parte Mughal n3, where it was said: n3 [1973] 3 All ER 796 at 803, [1974] QB 313 at 325, per Lord Denning MR

'An immigration officer is not a judge or a judicial officer. He has not to obey set rules of procedure. He is an administrative officer. He is engaged in administering the control of immigrants into this country. It is a most responsible and delicate task. He is, of course, bound to act honestly and fairly, but, so long as he does so the courts cannot and should not interfere.'

On each of those two grounds, this is not a case where habeas corpus should issue. Mr Choudhary was clearly an illegal entrant; and, when he came back as he did in 1973 (we do not know by what means he persuaded the immigration officer to stamp on his passport the words 'Indefinite leave to enter'), the stamp on his passport was clearly invalid. It is not a matter on which Mr Choudhary can rely. He did not have in fact any true leave to enter and, therefore, he is an illegal entrant and the writ of habeas corpus must be refused. I would dismiss the appeal.

Judgment Two:

GEOFFREY LANE LJ. I agree and wish to add only a few words. I agree that this case can and should be decided on the narrow ground which was suggested by Eveleigh LJ in the course of argument, namely that the purported indefinite leave which was stamped on Mr Choudhary's passport by the immigration officer was not a true leave of any sort at all. The immigration officer in the circumstances and by virtue of the sections of the Immigration Act 1971 and the paragraphs of Sch 2 to the Act and the terms and regulations had no power lawfully to put that stamp on the passport or to give the leave which he appears to have given. By s 33 of the 1971 Act Mr Choudhary was plainly an illegal entrant and thereupon the Secretary of State, or those to whom he had delegated his powers, had all the powers of detention and removal which are contained in Sch 2 to the Act. Consequently, strictly speaking, the decision in R v Secretary of State for the Home Department, ex parte Hussain n1 does not arise for consideration, but argumets as to it have been addressed to the court by counsel for the applicant, and it is only courteous to deal with those arguments. n1 [1978] 2 All ER 423, [1978] 1 WLR 700 The basis of what counsel for Mr Choudhary was saying was, I think, this. He suggests and submits that by the passage in the judgment in that case to which Lord Denning MR has referred the enquiries of the court on an application for a writ of habeas corpus are being unduly restricted. He submits that the court must enquire in such circumstances not only into whether the Secretary of State has reasonable grounds for acting as he did but also into the truth or otherwise of the factual basis on which the Home Secretary has founded his actions. So far as the non-patrial is concerned, so far as the illegal entrant is concerned, that submission to my mind is wrong. The whole object of this part of the 1971 Act, read as a whole, is to ensure that there is a procedure, and a readily available and easy procedure, whereby the Secretary of State can detain pending removal any person such as the applicant in this case. The Secretary of State obviously, from the nature of things, has no desire to detain a man longer than is necessary to get him out of this country and back to Pakistan, or wherever it was he came from. It is conceded by counsel for Mr Choudhary, and, if I may say so, rightly conceded, that a reasonable belief held by the Secretary of State is sufficient to justify the initial detention of the man; but iit is said that, once the Secretary of State's enquiries are at an end, then one has to examine the basis of fact ad, if that shows that the Secretary of State had got the factual basis wrong, then the whole of the detention from the moment the enquiries have come to an end and onwards is unlawful. With that isubmission I cannot agree. It seems to me that the detention in circumstances such as these is throughout a matter for the discretion of the Secretary of State; and, if he was acting ion reasonable grounds and acting bona fide on those reasonable grounds, then he is protected. For those reasons, together with those advanced by Lord Denning MR, I too would dismiss this appeal.

Judgment Three:

EVELEIGH LJ. I agree. If we were required to enquire into the basic facts of the case, we would inevitably come to the conclusion that this man was an illegal entrant for the reasons stated by Lord Denning MR. However, in my view, it is not necessary or proper for this court to do that. I regard this case as governed by R v Secretary of State for the Home Department, ex parte Hussain n1; and for the reasons stated in both judgments I would dismiss this appeal under that heading. n1 [1978] 2 All ER 423, [1978] 1 WLR 700 However, I would only wish to emphasise that R v Secretary of State for the Home Department, ex parte Hussain n1 was a case of an illegal entrant and not a patrial. A patrial cannot be an illegal entrant, and other considerations may well apply, and indeed I think they do, to such a case. I agree that this appeal should be dismissed.

DISPOSITION:

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

SOLICITORS:

Veale, Benson & Co, Bristol (for Mr Choudhary); Treasury Solicitor.