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

R. v. SECRETARY OF STATE FOR HOME AFFAIRS, Ex parte SOBLEN.

QUEEN'S BENCH DIVISION COURT OF APPEAL [1963] 1 QB 829, [1962] 3 All ER 373, [1962] 3 WLR 1145 HEARING-DATES: 17, 18 July 1962, 26 July 1962 26 July 1962

Index Terms:

Alien -- Leave to land -- Alien in transit to U.S.A. was landed at airport in United Kingdom for sole reason of saving his life -- Alien taken to hospital on doctor's orders with approval of immigration authorities -- Notice of refusal of leave to land communicated to alien two days later, the earliest date reasonably practicable for medical reasons -- Meaning of "to land" -- Whether leave to land validly refused -- Aliens Order, 1953 (S.I. 1953 No. 1671), art. 1 (1).

Alien -- Detention -- Leave to land -- Refusal communicated to alien at earliest reasonably practicable time -- Whether detention lawful under Aliens Order, 1953 (S.I. 1953 No. 1671), art. 8 (4).

Held:

In July, 1961, S. was convicted of espionage in the United States of America, and in August, 1961, was sentenced to life imprisonment. He was released on bail pending appeal which was heard and dismissed in March, 1962. Three briefs were filed on his behalf [1]* but they were rejected by the United States Supreme Court on June 25, 1962, on the night of which day S., whose bail had been renewed pending the consideration of the Supreme Court, left by air for Israel, using his brother's passport. Within a few days of his arrival at Te Aviv, he was removed from Israel and flown to Athens where he was transhipped to an aircraft for carriage back to the United States via London. During that journey he inflicted severe wounds on himself with a knife with the sole object of ensuring that he would be landed in the United Kingdom. On landing at London Airport on July 1, 1962, S. was examined by a doctor who took the view that there was a real danger of death if he was not at once removed to hospital. An immigration officer attended the aircraft with the doctor, but was unable to serve on S. notice refusing S. leave to land under art. 1 (1) of the Aliens Order, 1953[2]** owing to S.'s state of health; the notice was, however, served on a United States marshal who was accompanying S., and, as soon as practicable, notice of the refusal to land was served on the owners o the aircraft. The surgeon at the hospital refused to allow S. to be interviewed or served with any legal document there until July 3, when an immigration officer served S. with, and read over to him, the notice refusing himleave to land. On July 5, 1962, it was proposed to put S. on an aircraft the following day, but in the meantime he applied for a writ of habeas corpus which was granted. Before te writ was served, authority for the detention of S. was signed pursuant to art. 8 (4) of the Order of 1953[3]***. From the time S. landed in the United Kingdom to the time he was taken to prison he was under the supervision of a police officer. On the questions whether S. was granted leave to land within the meaning of art. 1 (1) of the Order of 1953, and whether he was validly refused leave to land for the purposes of art. 8 (4), Held: (i) for the purposes of a grant under art. 1 (1) of the Aliens Order, 1953, of leave to land the words "to land" meant to land as a free man, free to move about in the United Kingdom, whether subject to conditions or not (see p. 377, letter B, and p. 379, letter D, post), and on the facts, S. had not been given implied leave to land in that sense. (ii) it was not necessary that leave to land should be refused at once and leave to land was validly refused for the purposes of art. 8 (4) of the Order of 1953, since the notice of refusal served on S. on July 3, 1953, was communicated to him as soon as was reasonably practicable (see p. 378, letter C, and p. 379, letter F, post). Per LORD PARKER, C.J.: contravention of art. 1 (1) of the Aliens Order, 1953, is an absolute offence and does not depend on mens rea (see p. 378, letter G, post).

Notes:

As to restrictions on aliens landing in the United Kingdom, see 1 HALSBURY'S LAWS (3rd Edn.) 510-511, para. 988; and for cases on the subject, see 2 DIGEST (Repl.) 180, 181, 98-101. As to detention of aliens, see 1 HALSBURY'S LAWS (3rd Edn.) 513, 514, para. 992. For the Aliens Order, 1953, art. 1, art. 8, see 2 HALSBURY'S STATUTORY INSTRUMENTS (1st Re-issue) 27, 31.

Cases referred to in the Judgment:

Lannoy, Re, [1942] 2 All E.R. 232; sub nom. R. v. Brixton Prison (Governor), Ex p. Lannoy, [1942] 2 K.B. 281; 111 L.J.K.B. 719; 167 L.T. 195; 2 Digest (Repl.) 180, 101. R. v. Larsonneur, (1933), 149 L.T. 542; 97 J.P. 206; 24 Cr. App. Rep. 74; 2 Digest (Repl.) 180, 100.

Cases cited in the Judgment:

I.e., Liversidge v. Anderson, [1941] 3 All E.R. 338; Kuchenmeister v. Home Office, [1958] 1 All E.R. 485.

Introduction:

Motion. This was an application by way of motion for the discharge of Robert Soblen, detained in Her Majesty's prison, Brixton, in respect of whom a writ of habeas corpus ad subjiciendum was issued on July 6, 1962, on the order of MOCATTA, J., in chambers, and directed to the Secretary of State for Home Affairs. The facts are set out in the judgment of LORD PARKER, C.J.

Counsel:

Elwyn Jones, Q.C., and P. Solomon for the applicant. The Attorney-General (Sir John Hobson, Q.C.) and J. R. Cumming-Bruce for the Secretary of State for Home Affairs.

PANEL: Lord Parker, C.J., Winn and Widgery, JJ., Lord Denning MR., Donovan and Pearson L.JJ. LORD PARKER, C.J.: In these proceedings, counsel moves for the discharge of one Robert Soblen, now detained in Her Majesty's prison at Brixton, in respect of whom a writ of habeas corpus was issued on the order of MOCATTA, J. The matter arises in this way: On July 13, 1961, the applicant was found guilty in the United States of America of delivering defence information to aid the Soviet Union. On Aug. 7, 1961, he was sentenced to life imprisonment. Thereafter, pending an appeal, he was released on bail in the sum of $100,000. The appeal was in fact dismissed on Mar. 13, this year, and on June 25, the Supreme Court rejected three briefs filed on his behalf. The applicant was then still on bail, and, on hearing the result, he left by aeroplane at 9 p.m. that evening, June 25, and flew to Tel Aviv, using his brother's passport. On arrival, however, in Israel steps were taken to remove him forcibly, and on Sunday, July 1, he was put on board a specially chartered plane and taken to Athens. With him were a Dr. Gottlieb and a United States marshal, called McShane, and others who assisted in his removal. At Athens he was transhipped to an aircraft of the "El Al" Airline for carriage to the United States via London. On the journey he inflicted severe wounds to his left wrist and his abdomen, and on his own admission he did this with the sole object of ensuring that he should be landed in this country. When the wounds were discovered the pilot of the aeroplane sent a radio message to London Airport, and, as the result, an ambulance was available there and also a doctor. Dr. Miller, who was at London Airport, boarded the aircraft, and there he found the applicant in a condition which he describes as follows:

"I... found a man in a curtained cubicle on the port side lying prone on two seats. He was covered with a blanket and I formed the opinion that he was considerably shocked, that he had lost a considerable amount of blood. He was sweating and appeared almost unconscious. From time to time he groaned. He gave me the impression of being unable to speak to anyone or of being unable to understand what was said to him."

Dr. Miller took the view that ther was a real danger of death if the applicant was not at once removed to hospital. He thereupon gave instructions to that effect, and the applicant was removed by ambulance to Hillingdon Hospital, accompanied by a police constable and a hospital sister. It is also clear that that was done with the knowledge and with the acquiescence of the immigration authorities. On arrival at Hillingdon Hospital, he was seen by Mr. Duncan, the consultant surgeon, who, amongst other things, said that the aplicant was in a precarious condition

"and in no circumstances would we [that is, the hospital] have allowed him to be interviewed fo the purpose of serving any legal document. Some three hours later shock was decreasing and it seemed probable that internal haemorrhage had ceased. His condition was somewhat improved on the following day but he was not deemed medically fit to be interviewed until Tuesday, July 3..."

Mr. Duncan summarises his views by saying that it was absolutely necessary for the purpose of preserving his life that the applicant should have been treated in the hospital on July 1, and, for the purpose of preventing continuing danger to his life or the recurrence of danger to his life, it was necessary to keep him in the hospital until July 6. By July 3, as Mr. Duncan said, the applicant was fit to be interviewed, and Mr. Saunders, an immigration officer on the staff of the Home Office, having tried to see the applicant on July 2 but being told that was impossible, went on July 3 and there he served the applicant with a notice on Home Office Form 1.B.31. That notice was in this form: --

"Aliens Order, 1953.

"To the Alien

"Leave to land has been refused to Robert Soblen of doubtful nationality brought to the port of London Airport in the aircraft LY 213 from the port of Tel Aviv.

"Grounds for refusal: Aliens Order, 1953, art. 1 (1).

"Directions have been given to the owners/agents of the aircraft in which you arrived to remove you from the United Kingdom in the aircraft in which you arrived."

The notice bears the stamp of an immigration officer, and is dated July 1 at London Airport. Mr. Saunders not only served the notice on the applicant but read it over to him, and told him that, nevertheless, his solicitor would have an opportunity of seeing him and of making representations to the Home Office before he was removed. On July 5, however, the applicant was thought to be approaching the time when he was fit to travel, at any rate as a stretcher case, and it was proposed to put him on an "El Al" aircraft on the following day, July 6. Meanwhile, solicitors had visited the applicant in hospital, had taken his instructions and, as a result, in the very early hours of the morning of July 6 an application was made to MOCATTA, J., who, as I have said, directed the issue of a writ of habeas corpus. Before that writ was served, however, namely, on the morning of July 6, authority for the detention of the applicant was signed pursuant to art. 8 (4) of the Aliens Order, 1953. That authority is in this form: It is headed as from Her Majesty's Immigration Office at London Airport, and reads:

"Robert Soblen. The above-named being an alien to whom leave to land has been refused, I have authorised his detention under art. 8 (4) of the Aliens Order, 1953. A copy of the refusal of leave to land notice is attached. I accordingly request you to see the said alien pending the completion of arrangements for dealing with him under art. 8 of the order."

That was signed by a Mr. Arthy, one of Her Majesty's chief immigration officers, and was addressed to the Commissioner of Police of the Metropolis and the governor of Her Majesty's prison at Rixton. As stated in that authority there was attached another copy of the Home Office Form 1B31 setting out the refusal to allow landing. Though it is a matter to which I must come back later, it is to be observed that the directions in the form which was served on the applicant differed from the directions which appear in the copy form attached to the authority for detention. That authority to detain the applicant is the authority which is relied on in the return of the writ of habeas corpus as authority for the applicant's detention in Brixton prison. Before proceeding further, I should refer to a few of the relevant provisions of the Aliens Order, 1953. Article 1 (1) provides:

"Subject to the provisions of this order, an alien shall not land or embark in the United Kingdom except with the leave of an immigration officer, and shall not so land or embark elsewhere than at an approved port or at such other place as an immigration officer may in any particular case allow."

Article 31 (2), which is the interpretation provision, provides:

"'Leave to land', except where the context otherise requires, means leave to land in the United Kingdom granted under art. 1 of this order."

I can now pass to art. 8 (1), which provides:

"Where leave to land is refused to an alien, an immigration officer may, subject to para. (2) of this article, give directions..."

and then there follow in (a), (b) and (c) provisions for the directions which can in any particular case be given, and I find it unnecessary to refer to them. Then, by para. (2):

"No directions shall be given under this article in respect of an alien after the expiration of two months from the date on which he last arrived in the United Kingdom."

Then, para. (4), which is the important provision, provides:

"An alien to whom leave to land is refused may be detained, under the authority of an immigration officer, pending the giving of directions in his case under para. (1) of this article and pending his removal in pursuance of directions so given; and where any such alien is on board a ship or aircraft he may, under the like authority, be removed therefrom for detention under this paragraph."

Those directions, as is provided in art. 29, may be varied. Article 29 provides:

"Any power conferred by this order to make orders or give directions shall include power to revoke or vary such orders or directions."

Finally, I should mention that, by art. 25 (1) it is provided:

"If any person acts in contravention of, or fails to comply with, any provision of this order or of any order made or conditions imposed or directions given thereunder, he shall be guilty of an offence against this order."

The applicant's main contention is that art. 8 (4) only authorises the detention of an alien when the alien has been refused leave to land, and that refusal of leave to land served on July 3 cannot form the basis for any authority for his detention, since he had been granted leave to land on July 1. The applicant recognises that all that was done at London Airport was undoubtedly done in his own interests and for the purpose of saving his life, but, nevertheless, he says that, in fact, what happened at London Airport amounted to a granting to him of leave to land. Accordingly, if in those circumstances he was to be removed from this country, then some different machinery, the deportation machinery, alone would be available. It seems to me that the first question that arises is whether he was granted leave to land within the meaning of art. 1 (1) of the order. Several things are, I think, clear in regard to that article. First, it seems to me clear that the grant of leave envisaged under that article is not merely the grant of leave to land physically, but involves the grant of leave to land and go as a free man anywhere inthis country or subject to such conditions as are imposed. Secondly -- perhaps it is looking at it in the same way -- the mere acquiescence in the physical landing of an alien is not enough, there must be something which amounts to the grant of leave to him to go as a free man throughout the country. Thirdly, no provison is made for the giving of notice, written or otherwise, providing for the grant of leave to land. Whether leave has been granted or not in any particular case must depend on all the circumstances of the case, the object being to see whether there has been a grant of leave given either expressly or impliedly. Lastly, I think that it is important to bear in mind what LORD GREENE, M.R., said in Re Lannoy[4] This is a useful judgment on a number of points, in particular as to what he said about the approach to art. 1 (1). He said this[5]2:

"Under art. 1 (1) (a), landing without leave is prohibited. The giving of leave is merely the lifting of this prohibition. The refusal of leave is merely an intimation that the prohibition will not be lifted..."

In these circumstances, it is necessary to see from all the circumstances, there being no express grant here of leave to land, whether a grant can be implied. The position at London Airport was this: Here was a man in urgent need of medical treatment, thought to be dying. When notice had been given to London Airport as to the imminent arrival of the aeroplane, Mr. Hargreaves, one of the immigration officers, was instructed to board the aircraft and to refuse the applicant leave to land. He had, as appears from his latest affidavit, prepared notices of refusal and, armed with those notices, he went on board at about the same time as Dr. Miller. He says that, when he went on board, he took the view that the applicant

"was either unconscious or at least in such a physical condition that he was incapable himself of appreciating any communication to him of my refusal of leave to land."

In his affidavit he goes on to say:

"I served notice of refusal of leave to [the applicant] to land upon the said McShane [that was the United States marshal] who claimed to be in charge of [the applicant]. As soon as was practicable I served upon the owners of the aircraft 'El Al' Israel Airline notice of refusal of leave to [the applicant] to land in the form of Home Office Form 1.B.31."

There is a dispute on the evidence as to the exact condition of the applicant. The applicant himself says that he was conscious, that at alltimes he could have understood if any notice of refusal had been given to him and, indeed, he says he talked to Dr. Miller. For my part, I unhesitatingly prefer the evidence of Mr. Hargreaves as to his condition, supported as it undoubtedly is by the evidence of Dr. Miller. Mr. Hargreaves then on the same day obtained from the air line an undertaking

"to remove the applicant from the United Kingdom at the earliest opportunity in accordance with art. 8 (1) (b) or art. 8 (1) (c) of the order under arrangements to be notified to and approved by you."

Undoubtedly, therefore, the authorities at London Airport were minded to refuse leave and were doing all that they could to communicate that refusal to the applicant. There follow, as I have already said, the attempts of Mr. Saunders to see the applicant on July 2, and, finally, when he gets leave to interview the applicant on July 3, he serves the notice of refusal. Thereafter, the authority of detention was made as soon as the applicant was ready to leave the hospital, and throughout the wole period from the moment he landed till the moment he went to Brixton prison he was under the supervision of a police constable. In those circumstances, for my part I find it quite impossible to imply a grant of leave to land in the sense which I have indicated. The evidence points all the other way, that there never was any intention to grant such leave, and that he was merely allowed to land physically for the purpose of saving his life. The fact, as I find, that he was not granted leave to land of course is not an end of the matter, because art. 8 (4) depends on refusal. Here, it is true that the refusal was not communicated until July 3, but, in my judgment, such a refusal is a perfectly valid refusal if it is communicated so soon as is reasonably practicable. Owing to the applicant's condition it was clearly impracticable to serve him with any notice of refusal until July 3, when it was done. Counsel for the Secretary of State for Home Affairs has raised an alternative contention that no communication of a refusal is necessary. I should hesitate to come to that conclusion. I should only do so after further argument on the matter. So far as this case is concerned, I find it unnecessary to deal with that point. A further point was taken by counsel for the applicant, a point that I am afraid that I still do not fuly understand. It is really an alternative, and it is something to this effect: that art. 8 (4) can only come into force when there has been a refusal, that a refusal can only be given to somebody who is in breach of art. 1 (1) of the order; that art. 1 (1) of the order, coupled with art. 25, makes landing without leave an offence; that here the applicant never intended to land without leave, he was landed involuntarily without leave, and, accordingly, he himself, applying ordinary principles of criminal law, was not committing an offence. I imagine that the argument continues that, if he was not committing an offence and not contravening art. 1 (1), he could not be the subject of a notice of refusal. I confess that I do not pretend to have fully understood it. As stated, I should have thought that it contained a non sequitur, and in any event I take the view that the applicant, as he himself said, did what he did with the sole object of being landed, and that that was his object regardless of whether he was refused or granted permission to land. Further if it is necessary, I would rely on R. v. Larsonneur[6]3, and, indeed, Re Lannoy[7]4, to which I have already referred, for the proposition that a contravention of art. 1 (1) was an absolute offence and did not depend on mens rea. Finally, an argument was put before this court based on the documents themselves and, in particular, on the fact that the notice of refusal attached to the authority of detention differs from the notice of refusal which was served on the applicant. They bear different stamps of different immigration officers, and the directions in the two notices differ, but, in my judgment, those matters cannot affect the validity of the refusal itself. Directions, as I have said, can be given at any time within two months of landing. They need not be given at the time of refusal. They can be varied at any time, and the mere fact that those notices contain different directions cannot, I think, invalidate the refusal which is contained in them nor, indeed, can the fact that in both notices the aircraft was described as being LY 213, whereas it turns out that that was not the number of the aircraft at all but merely the number of the flight. In my judgment, accordingly, there is no validity in the applicant's contentions, and the writ should be discharged. Before leaving the case, I would only point out that this court is in no way concerned with questions whether or not, as the applicant contends, he is innocent of the charges of which he has been found guilty, nor with any question as to his physical condition today and whether, if he serves his sentence, he will die in prison. Those matters, whatever we may think of them, are ot for us.

WINN, J.:

I agree.

WIDGERY, J.:

I also agree.

LORD DENNING, M.R.,

stated the facts and continued: It is on those facts that the applicant says that he had "leave to land" in this country and on which those detaining him say he was "refused" leave to land. It seems to me that, in essence, this question is one of fact. Counsel for the applicant is quite right in saying that leave to land can in some circumstances be implied, but I must say that, on the facts of this case, I see no possible ground for any implication that the applicant was ever given leave to land in the proper sense of the word. To "land" does not mean physically to land a body on the land of this country. To "land" in these articles means to land as a free man, free to move about in this country, either subject to conditions or not. The applicant was certainly not given leave to land in that sense at all. This is really the end of the case. I agree that it is necessary that leave to land should be "refused", but I am quite clear that it was refused to the applicant on July 3, 1962. When a man presents himself at an airport in this country seeking leave to land here, it is not necessary for the immigration officer to grant or refuse it at once. The matter may be in suspense whilst inquiries are made, or, as here, when he is not fit to receive a communication. So in the case of a shipwrecked mariner who was rescued from the sea, the question of leave to land might not be determined for a few days. The leave to land might be in suspense, but eventually when it is refused, it is refused, and that is all that matters. So, here, it may be that there was the intervening time from July 1 to July 3, when it was in suspense, but I am quite clear that, on July 3, when the applicant was served with this notice, leave to land was refused to him. I need not, therefore, go into the question which counsel for the Secretary of State for Home Affairs raised whether in point of law it is necessary for a refusal to be communicated. In this case, it was in fact communicated on July 3. Therefore, under the provisions of art. 8 (4) of the Order of 1953, the immigration officer was entitled to direct that the applicant should be detained. He was so detained, and lawfully detained, and I see no reason whatever to suggest the contrary. I think that this appeal should be dismissed.

DONOVAN, L.J.:

I agree. I add only this, that, as LORD PARKER, C.J., said in the Divisional Court, we have nothing at all to do with the merits of the applicant's conviction in America.

PEARSON, L.J.:

I agree.

DISPOSITION:

Writ discharged. The applicant appealed to the Court of Appeal. Elwyn Jones, Q.C., and P. Solomon for the applicant. The Attorney-General (Sir John Hobson, Q.C.) and J R. Cumming-Bruce for the Secretary of State for Home Affairs. Appeal dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Kaufman & Seigal (for the applicant); Treasury Solicitor.
 

[1]* A procedure under American law whereby an amicus curiae can prepare and file a brief, with the permission of the prosecutor and the defence, in an appellate court on behalf of an accused person. [2]** Article 1 (1) is set out at p. 376, letter C, post. [3]*** Article 8 (4) is set out at p. 376, letter G, post. [4] [1942] 2 All E.R. 232; [1942] 2 K.B. 281. [5] [1942] 2 All E.R. at p. 235; [1942] 2 K.B. at p. 285. [6] (1933), 149 L.T. 542; 24 Cr. App. Rep. 74. [7] [1942] 2 All E.R. 232; [1942] 2 K.B. 281.

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