Ajit Singh Rahi and Ors v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 24 February 1987 |
| Citation / Document Symbol | [1987] Imm AR293 |
| Cite as | Ajit Singh Rahi and Ors v. Secretary of State for the Home Department, [1987] Imm AR293, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 24 February 1987, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b66024.html [accessed 17 September 2023] |
| Disclaimer | This 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. |
AJIT SINGH RAHI and ORS V THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Immigration Appeal Tribunal
[1987] Imm AR293
Hearing Date: 24 February 1987
24 February 1987
Index Terms:
Diplomatic immunity -- when diplomatic immunity under the Diplomatic Privileges Act begins -- whether a person entering the United Kingdom to take up a diplomatic post is exempt from immigration control before his appointment is advised to the Foreign and Commonwealth Office, that taking place after his entry into the United Kingdom -- whether (per Watkins LJ in Yusufu) there is a temporary immunity between arrival and advice of appointment. Vienna Convention on Diplomatic Relations 1961, arts 2, 4, 10, 31, 39(1): Diplomatic Privileges Act 1964, sch 1: Immigration Act 1971 ss 8(3), 8(5) sch 2, para 6(1).
Held:
The appellants were an Indian diplomat and his family. The first appellant was appointed by the Indian government to a post in the mission in the United Kingdom. He arrived on 2 March 1975: he took up his post on 3 March 1975: the Foreign and Commonwealth Office was not advised of his appointment until 17 March 1975. His passport on arrival was not endorsed with limited leave. His appointment was terminated in September 1978, but he did not leave the country. When his immigration status was queried the Home Office took the view that he had no leave to remain in the United Kingdom. His appeal was dismissed by an adjudicator. Before the Tribunal it was argued on his behalf that he did not enjoy diplomatic immunity until the Foreign and Commonwealth Office was advised of his appointment. He was not therefore exempt from immigration control under s 8(3) of the 1971 Act on arrival. He was not then granted limited leave and it followed he secured indefinite leave under schedule 2 of the 1971 Act. That indefinite leave continued after he lost his diplomatic immunity when he ceased to be a member of the mission. For the Secretary of State it was argued that following the dictum of Watkins LJ in Yusufu, the appellant had temporary immunity on arrival and thus never secured leave, limited or indefinite on arrival. Held: 1. The appellant's diplomatic immunity began when the Foreign and Commonwealth Office was advised of his appointment. 2. It followed that he was not exempt from immigration control on his arrival in the United Kingdom. 3. He was not then granted leave and he must be deemed to have been granted indefinite leave. 4. The dictum of Watkins LJ in Yusufu was somewhat "difficult to understand" and not followed.Cases referred to in the Judgment:
Fenton Textile Association Ltd v Krassin (1921) (CA) 38 TLR 259 R v Governor of Pentonville Prison ex parte Teja [1971] 2 QB 274 [1971] 2 All ER 11. R v Lambeth Justices ex parte Yusufu (DC) [1985] Crim LR 510 Secretary of State for the Home Department v Abdulrazzak Sabbagh [1986] Imm AR 244. Florentine v Secretary of State for the Home Department [1987] Imm AR 1. Olaleye v Secretary of State for the Home Department [1987] Imm AR 51.Counsel:
L Grant for the appellants; A Beasley for the respondent PANEL: Prfessor DC Jackson (Vice-President), BJS Edmonds Esq, Major RAK MacAllan MCJudgment One:
THE TRIBUNAL: The appellants, citizens of India, appeal against the decision of an adjudicator (Mrs MMM Greenaway) dismissing their appeals against the decision that having ceased to be exempt from immigration control, they require leave to remain in this country. This case is the latest in a number of cases recently before the Tribunal concerning the construction and effect of section 8(3) of the Immigration Act 1971. In other recent cases the Tribunal has been faced with the question of the link between the Immigration Act 1971 and the Diplomatic Privileges Act 1964 and in particular between exemption from immigration control and immunity under the latter Act. The cases have been concerned mainly with claims to exemption by members of a mission or members of the family of a member of a mission after being admitted to this country (see Sabbagh, Olaleye and Florentine). The present case concerns the status of Mr Rahi when he entered this country on his way to take up appointment at the Indian High Commission. Conversely to the other cases recently before us Mr Rahi's claim is based on the contention that he was not exempt from immigration control when he entered the country. The facts are not in dispute. On 2 March 1975 Mr Rahi arrived in the United Kingdom, as we understand it, bearing documents showing that he had been appointed to the Indian High Commission. Mr Rahi's passport was simply stamped with a rectangular stamp denoting entry. A copy of the appropriate page in the passport is before us. On 3 March 1975 Mr Rahi took up his position with the Indian High Commission and on 17 March 1975 his appointment was notified to the Foreign and Commonwealth Office. On 18 September 1978 the Foreign and Commonwealth Office were notified of the termination of the appointment. Apparently Mr Rahi and his family did not leave the country once his appointment had ended and the matter came to light through an enquiry by his then solicitors as to the immigration status of the family. In response to that enquiry the Home Office on 15 November 1985 stated that as he was no longer exempt from the provisions of the Immigration Act 1971, he required leave to enter and remain in the United Kingdom. He was given leave until 15 February 1986 in order to enable him to apply for further leave or make arrangements for his departure. The appellant's case is in essence that as the immunity conferred on him under the Diplomatic Priviliges Act 1964 did not start until his appointment was notified to the Foreign and Commonwealth Office, he was not exempt from immigration control on entry. It followed that when his passport was stamped without conditions, either the stamp conferred indefinite leave or indefinite leave must be deemed to have been granted by the provisions of schedule 2 paragraph 6(1) of the Immigration Act 1971. That being so, the leave was suspended during the period when Mr Rahi was exempt from immigration control but was reimposed (or reconferred) at the end of that period by virtue of section 8(5) of the Immigration Act 1971. Of this line of reasoning the only point of challenge by the Secretary of State (and it is a fundamental point) is the claim that on entry Mr Rahi was not exempt from immigration control. Mr Beasley put his case in three ways: 1. that Mr Rahi was a member of the mission on his entry because responsibility for his appointment had been transferred to the High Commission by the Ministry of External Affairs in India; 2. (in the alternative) that there was a retrospective validation of the appointment through notification so that the immunity conferred on notification related back to the time of entry into the country; and 3. (perhaps connected with (ii)) that following a dictum of Watkins LJ in R v The Governor of Brixton Prison ex parte Yusufu [1985] Crim LR 510 there was a temporary immunity between entry and notification. The relevant legislative provisions The Diplomatic Privileges Act 1964 enacts part of the Vienna Convention on Diplomatic Relations signed in 1961. The provisions enacted are set out in schedule 1 to the Act and by section 2 of the Act are given "the force of law" in the United Kingdom. Section 8(3) of the Immigration Act 1971 links exemption from immigration control to the provisions of the Diplomatic Privileges Act. Relevant to the point at issue in this case is the Immigration Act 1971 section 8(3), article 39(1) of the Vienna Convention as set out in schedule 1 of the Diplomatic Privileges Act 1964 and article 10 of the Vienna Convention which, it must be said, does not form part of schedule 1 of the Diplomatic Privileges Act. These provisions read: Immigration Act 1971 "8(3) The provisions of this Act relating to those who are not patrial shall not apply to any person so long as he is a mamber of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as conferred by that Act on a diplomatic agent".. . .
Diplomatic Privileges Act 1964 -- Schedule 1 Article 39 "1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed".. . .
Vienna Convention Article 10 "1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of: (a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission; (b) the arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission; (c) the arrival and final departures of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons; (d) the engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities. 2. Where possible, prior notification of arrival and final departure shall also be given". The phrase "member of a mission" is defined in article 1 of the Vienna Convention which does form part of schedule 1 of the Diplomatic Privileges Act 1964. It is common ground that the appointment of Mr Rahi was as a "member of the mission" within the meaning of the Act. The link between exemption from immigration control and immunity under the Diplomatic Privileges Act 1964 Subsequent to the adjudicator's decision in this case, the Tribunal considered the link between section 8(3) of the Immigration Act 1971 and immunity under the Diplomatic Privileges Act 1964 at some length. In Florentine the Tribunal held that "'a member of a mission' in the context of the Diplomatic Relations Act has a meaning only insofar as immunity is conferred upon that category of persons". The Tribunal therefore construed the phrase "within the meaning of the Diplomatic Privileges Act 1964" as "referring to that category of person on whom an immunity is conferred by the Diplomatic Privileges Act 1964". In so holding the Tribunal said: It seems to us clear that the purpose of section 8(3) is to remove from immigration control those who have diplomatic immunity. Taking into account the purpose of the Immigration Act 1971, it is hardly arguable that exemption from that Act should be conferred upon a person who is employed by a foreign State even though that person is entitled to no diplomatic immunity in this country. Secondly, if it was simply to the definition provision of the Vienna Convention to which reference was made, in our view, reference would have been made specifically to that provision and not to the Act . . ." Secondly, the Tribunal held that following the express terms of article 39 of the Vienna Convention, a person in the United Kingdom appointed as a member of a mission was not entitled to immunity under the Diplomatic Privileges Act 1964 before notification to the Foreign and Commonwealth Office. The Tribunal left open the question as to whether acceptance by the Foreign Office was also a prerequisite. In Olaleye the Tribunal followed the decision in Florentine on both the point of the link between exemption from immigration control and immunity and the start point of that immunity in respect of a person already in this country. The Tribunal applied this reasoning to a claim to immunity as a member of the family of a member of a mission. The Tribunal referred to two Divisional Court decisions dealing with the question of immunity asserted on entry to this country by a person claiming to be a diplomat. These cases were not directly in point to the issue in Olaleye but are directly in point to the issue before us in this case. In R v Governor of Pentonville Prison ex parte Teja [1971] 2 QB 274 the court was concerned with the claim to diplomatic immunity by an India citizen who held a letter of credence from the Costa Rican Government stating that he was to be "identified as Economic Adviser to Costa Rica in Special Mission". The Indian Government sought extradition of Mr Teja, he was arrested and he applied for a writ of habeas corpus. The Costa Rican Charge d'Affaires stated that Mr Teja was an Economic Counsellor to the Costa Rican Embassy in El Salvador, and was in Europe on an official mission under the authority of the Costa Rican Government. One issue was whether by virtue of this appointment, Mr Teja was entitled to immunity and hence not liable to arrest and extradition. Counsel for Mr Teja relied on article 39(1) of the Vienna Convention and in particular the statement that "every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post . . ." In rejecting that argument, Lord Parker CJ said:"I confess that at the very outset this argument, simple as it was, seemed to me to produce a frightening result in that any foreign country could claim immunity for representatives sent to this country unilaterally whether this country agreed or not. As I see it, it is fundamental to the claiming of immunity by reason of being a diplomatic agent that that diplomatic agent should have been in some form accepted or received by this country . . ."
The court cited as authority for the view that "immunity depends on mutual agreement on the person entitled to the immunity" the decision in Fenton Textile Association Limited v Krassin [1921] 38 TLR 259, and further two articles of the Vienna Convention which like article 10 are not set out in schedule 1 to the Act -- articles 2 and 4. These articles read: "2. The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent. 4.1 The sending State must make certain that the agreement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State. 2. The receiving State is not obliged to give reasons to sending State for a refusal of agreement". It should be said that there were other points in the Teja case on which the declaration that the applicant was not entitled to immunity could have been made to depend. However, the view of the Divisional Court expressed through Lord Parker is clear and subject to comment by the Divisional Court in the later case of Yusufu, clearly we must follow it. In Yusufu the question of whether a person claiming to be a diplomat was entitled to immunity on entry into the country was even more at the heart of the case than in Teja. Mr Yusufu was accused of kidnapping Mr Umaru Dikko and claimed a declaration that he was entitled to diplomatic immunity. It appeared that in April 1984 Mr Yusufu was served with an official memorandum of posting to the political section of the Nigerian High Commission in London. The subsequent facts were summarised by Watkins LJ: "Following that he was issued with a diplomatic passport. That was on 2nd May 1984. On 10th May the Minister of External Affairs in Lagos applied on is behalf for a diplomatic entry certificate to enable him to travel to the United Kingdom. For issue of the entry certificate the Minister in Lagos arranged for application forms to be completed and signed by the applicant. These were lodged, along with his diplomatic passport, with the British High Commission. Apparently, they have to be submitted at least five days before the date of departure for the purpose of official clearance with the authorities in the receiving state. On 17th May he left Nigeria with instructions to report to the High Commission in London, there to be assigned to the diplomatic staff of the Political Division. He entered this country via Heathrow Airport on 17th May. His diplomatic passport was stamped at immigration. He wnet immediately from there to report to the Deputy High Commissioner. A few days later the Deputy High Commissioner was promoted, so the applicant says, and accredited to another country in East Africa. There was a general upheaval in the sense that there were postings, re-postings and transfers of one officer and another in the Diplomatic Service of Nigeria. He was instructed in the course of that to return to Nigeria along with others on the diplomatic staff. On 1st June 1984 he was re-posted he says, to London for the purpose of reassignment to the Political Division. He came back here on 1st June and again his diplomatic passport was stamped at immigration. When he arrived at the High Commission the High Commissioner had not formally presented his credentials to the Queen. He reported to the High Commissioner very soon after that had happened and he was, he claimed, assigned to the Political Division. He was not, so he was told, to take up his duties until the diplomat whom he was replacing had vacated his office. On 27th June 1984 the High Commissioner applied on his behalf for a dipomatic multiple entry visa to the United States of America. This was granted and endorsed on his diplomatic passport. On 5th July the alleged kidnapping of Dikko and the other offence were committed. The applicant was arrested when attempting to leave the country". The Foreign Office were never notified of the entries of the applicant to the country and said Watkins LJ " . . . there has therefore been no approval by our Government of him as a diplomat". The applicant in Yusufu claimed the benefit of article 31 of the Vienna Convention providing that "A diplomatic agent shall enjoy immunity from the criminal justice of the receiving State . . ." It was argued on the applicant's behalf that the failure to comply with the provisions of article 10 imposing a duty of notification of the appointment of members of the mission did not affect the question of whether the person was or was not a diplomat. The only value of notification, it was argued, was evidentiary. This argument was roundly rejected, Watkins LJ saying "I simply cannot agree. It is incumbent, so it seems to me, upon the sending State to ensure that the provisions of article 10 are complied with". The applicant's counsel further relied upon article 39. Watkins LJ said that he found submissions that lack of notice of appointment and lack of acceptance by the receiving state immaterial because of this provision to be "very surprising" in the light of the Teja case. He cited the passage of Lord Parker CJ which we have set out and added: " . . . with regard to article 39, that in agreement with what was argued in Teja's case article 39 is procedural in effect. It provides, it seems to me, at most, some temporary immunity between entry and notification to a person who is without doubt a diplomat". This dictum (on which Mr Beasley relied) is a reference to an argument put to the court in Teja's case against the granting of diplomatic immunity on entry into the country ie that "accreditation and recognition was a test of diplomatic immunity before the Diplomatic Privileges Act and remains so under the Act. Article 39 of the Vienna Convention is only procedural. The applicant must have entitlement to immunity before he arrives in the country where he is to be accredited" -- (see [1971] 2 QB at pp 277-278). Conclusions The effect of Teja and Yusufu is that immunity under the Diplomatic Privileges Act does not start until at least there is a notification of the claimant to the Foreign and Commonwealth Office. The principle on which both decisions are based is that the status of diplomat at any rate is a matter of mutual agreement between states. That agreement may be express or, presumably, could be implied if there has been notification and no objection. It is true that the Vienna Convention seems to emphasise the principle of mutual consent with particular reference to the head of mission but we see no reason for differentiating between the various immunities provided for by the Convention. The principle of mutual consent, if applicable, to any of these immunities seems applicable to all. Further, the claimants in the Teja and Yusufu cases were asserting immunity as "diplomatic agents" and the courts in both cses clearly thought that immunity to be based on mutual consent. Given the basis of mutual consent, it seems to us that unless Mr Rahi's case can be distinguished because of the existence of some factor not in Teja and Yusufu, it follows that when Mr Rahi entered this country he was not entitled to immunity under the Diplomatic Privileges Act and was not therefore exempt from immigration control. Mr Beasley sought to distinguish the present case from Teja and Yusufu first, on the basis that neither in Yusufu nor Teja was the person claiming immunity an accepted "diplomat" whereas in this case it is common ground that Mr Rahi was on his way to take up a post at the Indian High Commission. Secondly, in this case there was in due course notification of Mr Rahi's appointment and this, suggested Mr Beasley, would retroactively confer immunity back to the date of entry. We are unable to agree that either of the factors relied upon by Mr Beasley takes the case out of the general principle established by Teja and Yusufu. The very need for mutual agreement illustrates that prior to the notification and acceptance of a person as a member of a mission, no immunity should attach. It is the very establishment of the genuineness of the appointment which creates the immunity and it cannot therefore be said, in our view, that immunity stemming from notification and acceptance indicates that the immunity was there before that time. Further, we do not think that notification of acceptance can operate retrospectively. First, as Mr Grant said, there is no such provision in the Convention or the Diplomtic Privileges Act and secondly, on general principles it seems to us quite unworkable. The Foreign Office in considering the notification would then have to consider not only whether it was prepared to accept the person as entitled to immunity but also the effect of that acceptance on events which had taken place previously. In our view, therefore, there is no such principle as retrospective validation. Mr Beasley's main plank in his argument is article 39. He properly drew our attention to and relied on the dictum of Watkins LJ indicating that it may provide a ground for "some temporary immunity between entry and notification". It has to be said that with the greatest respect we find that dictum somewhat difficult to understand. As we have said, it refers back to the argument made in Teja that we have set out. The report of the argument was not referred to us at the hearing of this case but it does seem to us to underline a point made by Mr Grant at the hearing, ie that article 39 does not provide for the starting of privileges and immunities. The opening words of the article are "every person entitled to privileges and immunities . . ." and Mr Grant argued that because of these words the entitlement must lie somewhere other than article 39. We think this is the way in which article 39 must be read in order to be consistent with Teja and Yusufu. Meaning can be read into it in this sense for it could be intended to forestall any argument that a person who was entitled to an immunity through notification of his appointment was not entitled to that immunity while on the way to take up the post. Otherwise it might be said that although the entitlement to the immunity was established, it did not actually commence until he took up his post. Read in this way the "temporary" characterisitc of article 39 referred to by Watkins LJ simply means that period of time prior to actually taking up the post when an appointee is on his way to take up the post. With respect, we would see the article not as providing a "temporary" immunity but as simply extending the period of immunity back from the taking up of the post back to the point of entry into the country. However, the person is only "entitled to" that immunity on the basis of mutual agreement between sending and receiving State reflected in (at the very least) notification. Mr Beasley referred us to a comment on article 39 in Denza's Diplomatic Law in which the author discusses the Teja decision and its relationship to article 39(1). The author quotes Lord Parker's view that the claim of immunity on the basis of being a diplomatic agent was that the agent "should have been in some form accepted or received by this country". The author then comments: " . . . This was certainly the law in England before the enactment of the Diplomatic Privileges Act, 13 and it remains true if it is read as a general proposition and not as a gloss on Article 39(1). Had the intention been to appoint Teja to the Costa Rican diplomatic mission in the United Kingdom he could have been notified as such after his arrest, and a certificate to this effect issued by the Secretary of State to the court could have led to his release. As far as Article 39(1) is concerned however it is very difficult to maintain that a person appointed as a member of a permanent diplomatic mission does not begin his entitlement to immunity on entry into the receiving State and before he is accepted by that State. With respect, it is difficult to appreciate how the principle of Teja can stand if article 39(1) is read as conferring immunity on entry into the country. Further, even assuming that the conferment of diplomatic status after an arrest for an event which has taken place before the arrest confers immunity in relation to the arrest, on the principles of Teja that immunity would depend not only on notification but on at least an implied acceptance. Even if, as Denza implies, the Teja and Yusufu cases cannot qualify the entitlement to immunity on entry, the decisions bind us. However, as we have said, article 39(1) can be read so as to carry a meaning and at the same time to fit with the principle of mutual agreement. We respectfully agree with the public policy considerations as set out in Teja and Yusufu and we can see every reason why immunity from English jurisdiction is not conferred without at least the opportunity of a receiving state to at least be conscious of the identity of the person on whom the immunity is to be conferred. This being so, it follows that because of the linking of exemption from immigration control to immunity under the Diplomatic Privileges Act 1964, a person entering this country on his way to take up an appointment at a diplomatic mission is not exempt from control. We think this necessarily follows from the wording of section 8(3) of the Immigration Act and as presently advised, we see no practical immigration difficulties. It seems to us that if the situation which has occurred in this case is to be avoided then unless an entrant can produce a notification to the Foreign and Commonwealth Office (and possibly at least an acknowledgement of that notification) that entrant should be given limited leave. Such a course would perhaps encourage prompt notification to the Foreign and commonwelth office and hopefully continued liaison between the Foreign and Commonwealth Office and the Home Office. This, however, is a matter for the respective departments. It follows that as Mr Rahi was on entry to this country not exempt from immigration control, he was either granted or must be deemed to have been granted indefinite leave, a status which he now enjoys. No point was taken that the status of his family was any different to that of Mr Rahi and indeed according to the explanatory statement all were permitted to enter without leave as being exempt from immigration control. The appeals are allowed and we declare that the appellants are in this country by virtue of indefinite leave granted on entry.DISPOSITION:
Appeals allowedSOLICITORS:
Seifert Sedley WilliamsCopyright notice: Crown Copyright
