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

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

COURT OF APPEAL, CIVIL DIVISION

[1974] QB 313, [1973] 3 All ER 796, [1973] 3 WLR 647, 137 JP 846

Hearing Date: 29 JUNE, 2, 26 JULY 1973

26 JULY 1973

Index Terms:

Immigration - Leave - Non-patrial - Right of entry - Onus of satisfying immigration officer of right of enter - Non-partial treated as having indefinite leave to enter and remain in United Kingdom - Non-patrial returning to United Kingdom after visit abroad - Whether entitled to entry as of right - Whether onus on non-partrial to satisfy immigration officer of right to enter - Immigration Act 1971, ss 1 (2), (5), 3 (2) - Immigration Rules (1973), r 51.

Immigration - Leave - Non-patrial - Indefinite leave to enter and remain in United Kingdom - Persons in United Kingdom at coming into force of Immigration Act 1973 and settled there - 'In the United Kingdom' - Physical presence at relevant date - Non-patrial settled in United Kingdom before relevant date - Non-patrial on visit abroad on relevant date - Whether to be treated as being in the United Kingdom on that date - Immigration Act 1971, s 1 (2).

Immigration - Immigration officer - Examination of entrant - Natural justice - Duty of officer to act fairly - Duty to allow entrant to give explanation of why he should be given leave to enter - Whether duty to give entrant an opportunity to explain evidence tending to contradict statements made by entrant.

Held:

On 29th March 1973 the applicant arrived at Manchester Airport on a flight from Amsterdam. He produced a Pakistani passport to the immigration officer which showed that he had left the United Kingdom on 6th November 1972, arriving in Pakistan on the following day, and that he had left Pakistan on 28th March 1973. He told the immigration officer that he lived in England, that he had come to England in 1962 and that, having worked for a grocer in Newcastle followed by a period of self-employment as a tailor, he had been employed by a firm in Lancashire since February 1969. The officer was suspicious of the passport and contacted the Pakistani government representative in Bradford who had issued it, is as well as the Inland Revenue and National Insurance authorities. The information supplied by those sources contradicted the story which the applicant had told. The Inland Revenue records showed that the applicant had only paid tax from February 1969 when he started working for the firm in Lancashire.In consequence of that information the immigration officer was not satisfied that the applicant had been lawfully settled in the United Kingdom before his departure for Pakistan.In consequence a notice was served on the applicant directing his removal to Pakistan. The applicant failed to comply with the notice and so the immigration officer signed an order authorising his detention. The applicant applied for a writ of habeas corpus on the ground that his detention was unlawful. In his affidavit the applicant admitted that he had told lies to the immigration officer and stated that he had entered the United Kingdom clandestinely in November 1967.If that were the case it would follow that, in consequence of the legislation in force at that time, he was lawfully resident in the United Kingdom in November 1972 when he left on his visit to Pakistan. It was contended by the applicant that, since he was 'settled', i e lawfully resident for an indefinite period, in the United Kingdom when the Immigration Act 1971 came into force on 1st January 1973 he was to be treated by virtue of s 1 (2) a of the 1971 Act as having 'indefinite leave to enter or remain in the United Kingdom', i e a right to enter and remain there without having to satisfy an immigration officer that he was entitled to do so; alternatively he contended that, if he had to satisfy the immigration officer, the officer had acted contrary to natural justice in failing to give him an opportunity of providing an explanation of the information given to him by the Inland Revenue and other source. a Section 1 (2) is set out at p 801 f, post Held - The applicant was not entitled to writ of habeas corpus for the following reasons -- (i) The onus lay on the applicant to satisfy the immigration officer that he was a person who was entitled to be admitted by virtue of s 1 (2) of the 1971 Act because -- (a) (per Lord Denning MR) if a person who was not a patrial went abroad he was required, on his return, to have or to obtain leave to enter; even if he had previously been in the United Kingdom with indefinite leave by virtue of s 1 (2), his leave lapsed when he left on his visit abroad; on his return, unless he was exampt under s 1 (3) or s 8 of the 1971 Act, he was required to obtain leave although, if the succeeded in satisfying the immigration officer that he had been settled in the United Kingdom within the last two years, he was, by virtue of s 1(5) b of the 1971 Act and r 51 c of the Immigration Rules (1973) d, entitled to be admitted (see p 802 a b and g to p 803 a, post); b Section 1 (5), so far as material, is set out at p 802 c, post c Rule 51 is set out at p 807 c, post d See Statement of Immigration Rules for Control on Entry: Commonwealth Citizens, laid before Parliament on 25th January 1973 under s 3 (2) of the 1971 Act (b) (per Megaw and Scarman LJJ) a person who, by fulfilling the conditions of s 1 (2), was to be treated as having 'indefinite leave to enter or remain', did not thereby acquire a right to be in the United Kingdom; 'indefinite leave' to enter or remain was only one sort of permission avaiable to those who did not have a right of abode and who were therefore subject to the regulation and control of entry imposed by the 1971 Act and by the Immigration Rules (1973) made under s 3 (2) of the Act; under r 51 of those rules a person claiming to have indefinite leave under s 1 (2) was, on entry, required to satisfy an immigration officer that he was entitled to it (see p 805 e, p 806 h and j and p 807 a d e and g, post); (c) furthermore (per Megaw LJ) even if it were accepted that the applicant, having fulfilled the conditions of s 1 (2), had a right to enter and so did not require leave to do so, that non-requirement of leave was by virtue of an examption from the general requirement of leave imposed by s 3 (1) (a) e; it followed therefore that, under the provisions of s 3 (8) f, the onus lay on the applicant to prove that he was entitled to that exemption (see p 804 g to j and p 805 b to d, post). e Section 3 (1), so far as material, is set out at p 801 d, post f Section 3 (8) is set out at p 804 j, post (ii) In any event the applicant did not qualify under s 1 (2) for indefinite leave to enter or remain in the United Kingdom since, at the date when the 1971 Act came into force, he was not 'in the United Kingdom' but was in Pakistan. The words 'in the United Kingdom' meant physical presence in the United Kingdom and could not be construed as meaning that the applicant could be treated as having a constructive presence there (see p 801 f, d and e and p 807 e to g, post). (iii) The immigration officer's decision could not be faulted on the ground that, in examining the applicant, he had failed to comply with the rules of natural justice. The officer was not a judge conducting a judicial enquiry but an administrative officer engaged in administering the control of immigrants. All that was necessary was that he should act fairly by giving the applicant an opportunity of satisfying him that he was entitled to admission and that the officer had done (see p 803 d to f, p 805 j and p 807 j to 808 a, post).

Notes:

For the general principles governing the control of immigration, see the Supplement to 1 Halsbury's Laws (3rd Edn) para 987A, 1. For the Immigration Act 1971, ss 1, 3, 8, see 41 Halsbury's Statutes (3rd Edn) 16, 20, 29.

Cases referred to in the Judgment:

A (an infant), Re, Hanif v Secretary of State for Home Affairs, Re S (N) (infant) Singh v Secretary of State for Home Affairs [1968] 2 All ER 145, sub nom Re Mohamed Arif (infant), Re Nirbhai Singh (infant) [1968] Ch 643, [1968] 2 WLR 1290, CA, Digest (Cont Vol C) 19, 157ra. Abdul Mann, Re [1971] 2 All ER 1016, [1971] 1 WLR 859, CA. Azam v Secretary of State for the Home Department, sub nom R v Governor of Pentonville Prison, ex parte Azam, R v Secretary of State for the Home Department, ex parte Khera, R v Secretary of State for the Home Department, ex parte Sidhu [1973] 2 All ER 765, [1973] 2 WLR 1058, HL; affg [1973] 2 All ER 741, [1973] 2 WLR 949, CA. K (H) (an infant), Re [1967] 1 All ER 226, sub nom Re H K (infant) [1967] 2 QB 617, [1967] 2 WLR 962, DE, Digest (Cont Vol C) 18, 157qa. R v Brixton Prison Governor, ex parte Ahson (or Ahsen or Ahsan) [1969] 2 All ER 347, [1969] 2 QB 222, [1969] 2 WLR 618, 133 JP 407, DC, Digest (Cont Vol C) 20, 157w. Director of Public Prosecution v Bhagwan [1970] 3 All ER 97, [1972] AC 60, [1970] 3 WLR 501, 134 JP 622, 54 Cr App Rep 460, HL, Digest (Cont Vol C) 20, 157y.

Introduction:

Appeal. On 30th March 1973 the applicant, Mohammed Ashraf Mughal, was detained in Risley Remand Centre pursuant to a detention order made by an immigration officer under the Immigration Act 1971, Sch 2, para 16. By notice dated 6th June 1973 to the Secretary of State for the Home Department the applicant moved the Divisional Court of the Queen's Bench Division for an order that a writ of habeas corpus should issue directing the governor of the remand centre do show cause why the applicant should not be released immediately. The applicant submitted that his detention was unlawful in that he was a person who was settled in the United Kingdom on the coming into operation of the Immigration Act 1971 and had been granted indefinite leave to enter and remain in the United Kingdom by the provisions of the 1971 Act and the former immigration laws. On 1jth June 1973 the Divisional Court dismissed the application and the applicant appealed. The facts are set out in the judgment of Lord Denning MR.

Counsel:

S Kadri for the applicant. Gordon Slynn for the Secretary of State.

Judgment-READ:

Cur adv vult. 26th July. The following judgments were read. PANEL: LORD DENNING MR, MEGAW AND SCARMAN LJJ

Judgment One:

LORD DENNING MR. This case raises a point of much importance for many Commonwealth citizens who are now resident in England. Suppose one of them goes abroad for a holiday, taking, of course, his passport with him, or goes to his homeland to see his relatives for a few weeks, and then comes back by air or sea to one of the parts of entry. Is the entitled, on his return, on presenting his passport again, to re-enter this country as of right? Or has he, on his return, to obtain the leave of an immigration officer before he is allowed to re-enter? Broadly speaking, the answer is that: if he was residing here lawfully before he left, he can return as of right. But if he was here unlawfully, he must obtain leave to return. That seems fair enough. If he was unlawfully, he cannot, by going abroad for a short time, convert his unlawful residence into a lawful one. But here comes the point: suppose on his return that, when he presents himself with his passport at the port of entry, the immigration officer is doubtful about his standing and examines him. Must the returning resident do more than produce his passport? Must he produce more credentials so as to satisfy the immigration officer? Must he satisfy the immigration officer that his original resident here was lawful? or can he say to the immigration officer: 'I was settled in England before I went on holiday. You ought not to assume that I was residing in England unlawfully. You ought to let me in.' The position is acute for those who entered clandestinely -- in a little boat -- as so many did. If they entered clandestinely before 9th March 1968, their entry was perfectly lawful; because they came through the gap in the law which is called the Bhagwan Gap: see Director of Public Prosecutions v Baghwan n1. But if they entered clandestinely after 9th March 1968, their entry was unlawful and their residence here was unlawful. It was in breach of the immigration laws; and they cannot claim to be 'settled' here so as to have any leave to remain: see Azam v Secretary of State for the Home Department. n1 [1970] 3 All ER 97, [1972] AC 60 So the date of the original entry -- before or after 9th March 1968 -- is crucial. In our present case the applicant, Mr Mughal, says in an affidavit that he came here clandestinely in November 1967, and is entitled to the freedom of the Bhagwan Gap; but the immigration officer was not satisfied about this. He thought that Mr Mughal may have come clandestinely in October 1968. So he refused him leave to enter. Mr Mughal now challenges this ruling of the immigration officer in the courts. He says that the immigration officer did not treat him fairly and went outside his province. This makes it necessary for me to set out the facts in some detail. It all happened on Thursday, 29th March 1973, at Manchester Airport. The flight from Amsterdam was on time, at 9.50, on that morning. The passengers got off and went through passport control. One of them was a man who produced a Pakistani passport. The immigration officer examined it. It bore the name of Mohammed Ashraf Mughal. It was no AC593944. It had been issued by the Pakistan Government's office at Bradford in England on 13th February 1970. It bore visa stamps showing that the bearer had left Manchester nearly five months earlier, on 6th November 1972; that he had entered Pakistan on 7th November; and that he had left Pakistan on 28th March 1973. The man told the immigration officer that he lived in Colne in Lancashire and had worked for a firm called Pickle & Sons (Knitters) in Clone for several years. At that point the immigration officer throught all was in order. So he stamped the passport with the words 'Given leave to enter the United Kingdom for an indefinite period, 29th March 1973'. But, before handing the passport back to the man, the immigration officer looked at it a little closer. He turned back one page and saw an indorsement which made him suspicious. It was made with a rubber stamp, but in part had handwritten. It said: 'The holder of the passport travelled on the passport No AC156309 Dated 1.6.1962 issued at Karachu which has been cancelled. Return.' The date '1.6.62' was in handwriting. So was the name 'Karachu' and the word 'Returen'. Seeing the wrong spelling, the immigration officer doubted the authenticity of the indorsement. So he changed his mind about giving leave. He wrote 'cancel' across the words 'Given leave' etc, and kept the passport. He called an interpreter and, through her, asked several questions of the man. He said that he had come to England in 1962; that from 1962 to 1966 he had lived in Newcastle and worked in a grocer's stop (but the could not describe anything about Newcastle); that from 1966 until 1969 he had been self-employed working as a hairdresser and a tailor; that from February 1969 he had worked for Pickle & Sons (Knitters) of Colne. He said that he had gone back to Pakistan in 1967, and that a friend, Mr Sawar, had paid for his ticket; but that he had come back in October 1968. At two o'clock that afternoon the immigration officer telophoned to the Pakistani government representative in Bradford. He wanted to check on the validity of the passport. The Pakistani representative looked up his records. He said that Mr Mughal had come to his office in January 1970, and had siad that he had lost his passport. So they issued him with a new passport, no AC593944, on 13th February 1970. The Pakistani representative said that neither he nor anyone in his office was responsible for the indorsement, since Mr Mughal was unable to provide a number for his previous passport. The immigration officer also telephoned the Inland Revenue. He wanted to enquire about Mr Mughal's tax record. He was told that he had paid tax from 25th February 1969 when he started working for Pickle & Sons (Knitters); that he then told the Inland Revenue that he had first come to the United Kingdom in November 1968; and that he had been claiming tax relief in respect of a wife and three children who were all said to be living in Pakistan. He gave the dates of the births of the three children as 15th July 1960, 10th November 1963, and 7th September 1967. At about 5 pm the immigration officer interviewed two men who had arrived to meet Mr Mughal. One of them was Mr Sawar. He said he had first met Mr Mughal at the end of 1968, and that he had never helped him buy an air ticket. The other man was a Mr Latif.He said he had first met Mr Mughal in 1969. The long and short of it was that these enquiries made by the immigration officer did nothing to corroborate Mr Mughal's story. Rather the reverse. They showed him to be telling lies right, left and centre. He claimed to have come here in 1962. How could he have then a chold in Pakistan born on 10th November 1963? He claimed to have had a previous passport, no AC156309, which he had produced to the Pakistani government representative at Bradford. How could this be true when the Pakistani representative had records showing that he told them he had lost it? He had said that Mr Sawar paid for his air ticket, but how could this be true when Mr Sawar denied it?In view of all this, the immigration officer was not satisfied that Mr Mughal was lawfully settled in England before he left for Pakistan. He referred the matter to the chief immigration officer. At 5.30 pm on the same day notice was served on Mr Mughal refusing him entry. It ran:

'You have asked for leave to enter the United Kingdom as a person who was settled in the United Kingdom within the past two years, but I am not satisfied that this is so. I therefore refuse you leave to enter the United Kingdom. I have given directions for your removal on 30.3.73 to Rawalpindi via Amsterdam.You are entitled under section 13 (1) of the Act to appeal against refusal of leave to enter but only after you have left the United Kingdom.' The form then gave information as to how to appeal and of the help given by the Immigration Advisory Service.

Mr Mughal did not comply with this notice. He did not return to Pakistan. The immigration officer authorised his detention and signed a detention order accordingly. He was taken to the Risley Remand Centre. Application was then made on his behalf for a writ of habeas corpus on the ground that his detention was unlawful. His application was refused by the Divisional Court. He now appeals to this court. Now in his affidavit in support of this application Mr Mughal admits that he told lies to the immigration officer. He told a lie when he said that he came in 1962. He did it because he had heard, before he left Pakistan, that those who came illegally by boat after 1962 would be deported or refused entry. He also told lies when he told the Department of Social Security that he had arrived in November 1968. He did it because he was advised by friends that he would have to pay a large sum of money as a fine for not paying self-employed stamps. So it is clear that he is a man who is ready to tell lies when it suits his case to do so. But, despite all these lies, he had made an affidavit that he has been settled here since about November 1967, coming in clandestinely by boat. So he claims to have entered through the Bhagwan Gap and to be entitled to be here. Counsel for the Secretary of State has not applied to cross-examine him on his affidavit. The reason was, he said, because of the attitude taken by the Divisional Court in the case of the eleven Pakistanis with wet clothes and shoes: see R v Brixton Prison Governor, ex parte Ahson n1. It was unheard of for a man, applying for a writ of habeas corpus, to be cross-examined. n1 [1969] 2 All ER 347, [1949] 2 QB 222 The law The first thing to notice is that Mr Mughal was not a patrial. He was not a United Kingdom citizen. If he had been, he would have had the right of abode in the United Kingdom. That means that he would be free to live in, and to come and go into and from the United Kingdom without let or hinderance: ses s 1 (1) of the 1971 Act. Even a patrial is, however, not exempt from examination by an immigration officer. He can be examined to see whether or not he is a patrial: see Sch 2, para 2 (1) (a); and it lies on him to prove it: see s 3 (8). He usually proves this without question by producing his United Kingdom passport. Seeing that Mr Mughal was not a patrial, he was not entitled as of right to come and go into and from the United Kingdom. He could only do so leave. The 1971 Act expressly provides in s 3 (1) that:

'Except as otherwise provided by or under this Act, where a person is not patrial -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act...'

Now here is the point. Mr Mughal claims that he had already been given leave to enter. He says that before he left England he had been given indefinite leave to enter or remain in the United Kingdom. So he did not require any fresh leave, and the various regulations in that regard did not apply to him. He made this claim by reason of s 1 (2) of the 1971 Act, which provides:

'... indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there...'

The Act came into force on 1st January 1973. Mr Mughal was not actually in the United Kingdom at that date. He was in Pakistan on a short visit. So strictly speaking he is not able to take advantage of this section. But as he was only temporarily away, we heard argument as if he had been here for this point -- of a 'returning resident' -- is of much importance to many. In order to support his claim to the benefit of this section, counsel for Mr Mughal said that he was 'settled' here and that, therefore, he had indefinite leave to enter or remain. He recognises that 'settled' means ordinarily resident here without being in breach of the immigrant laws: see ss 2 (3) (d) and 33 (1) (2). But counsel claims that Mr Mughal, having come, as he says, in November 1967, was lawfully settled here. So he had indefinite leave to enter and could not be refused.He says that Mr Mughal, by swearing an affidavit that he came in Vovember 1967, has made out a prima facie case that he was settled here; and, that case not having been disproved, he is entitled to a writ of habeas corpus: see on this point Azam's case n2 in this court. n2 [1973] 2 All ER at 751, [1973] 2 WLR at 960, 961 Pursuing his argument one stage further, counsel said that a person who has 'indefinite leave to enter' under s 1 (2) is not a person who is 'required... to have leave to enter' under s 3 (2) or 'to obtain leave to enter' within s 3 (4). So the immigation rules do not apply to him. Accordingly, he is entitled to come and go into or from the United Kingdom as freely as a patrial who has the right of abode here. I cannot accept these arguments. Any person who is not a patrial, if he goes abroad, is required, on his return, to have or to obtain leave to enter. Even if he has previously been here on indefinite leave, his leave lapsed when he left on his visit abroad. That is how I read the 1971 Act, and for this reason: the Act draws a pointed distinction between a patrial who is 'free to live in and to come into and go from the united Kingdom without let or hindrance', and a non-patrial who has only an 'indefinite leave to enter or remain in the United Kingdom'. That lapses as soon as he goes abroad beyond these islands, and he can only enter again by leave. This position is made clear by the Immigration Rules (1973) which the Secretary of State is authorised so to make under s 3 (2) of the 1971 Act. These rules regulate the entry of non-patrials into the United Kingdom. The Act says that the rules are to be so framed that Commonwealth citizens 'settled' in the United Kingdom are not to be 'any less free to come into and go from the United Kingdom than if this Act had not been passed': see s 1 (5). Now, if the 1971 Act had not been passed, the position of persons ordinarily resident here would be governed by s 2 (2) (a) of the Commonwealth Immigrants Act 1962, as amended by s 2 of the Commonwealth Immigrants Act 1968. That gave an immigration officer power to refuse admission to a Commonwealth citizen, but went on to say expressly that the power to refuse admission --

'shall not... be exercised on any occasion in respect of a person who -- (a) satisfies an immigration officer that he is ordinarily resident in the United Kingdom or was so resident at any time within the past two years...'

In that section 'ordinarily resident' means lawfully ordinarily resident: see Re Abdul Manan n1. So it is plain that, before the 1971 Act, it was incumbent on a returning resident to satisfy the immigration officer that he or she was lawfully ordinarily resident in the United Kingdom, or had been so resident during the past two years. Now, under the 1971 Act, the rules are not to be any less favourable to the returning resident. It seems to me that they have been so framed and are decisive of this case. Rule 51 of the Immigration Rules (1973) says: n1 [1971] 2 All ER 1016, [1971] 1 WLR 859

'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...'

That rule is in entire accord with the previous law. It has statutory force.It says, as plainly as can be, that it is for the passenger to satisfy the immigration officer that he was settled here; that is, lawfully settled here. No argument can overcome the effect of that rule. I know that counsel says that Mr Mughal is not a person who is 'required' to have or obtain leave to enter within s 3 (2) and (4), and so the rules do not apply to him; but I think he is. The only persons who are exempt from getting leave are persons who have only been over to the Channel Islands or to Ireland (see s 1 (3)); or seamen or airmen when their ship or aircraft is in port; or any other special class (see s 8 (1) (2)). Apart from persons in those restricted classes, every person who is not a patrial must, on returning from abroad, obtain leave to enter. The fact that he has been settled here previously does not exempt him from getting leave; but, if he satisfies the immigration officer that he was settled here within the last two years, he is entitled to be admitted. Normally he will be able to satisfy the immigration officer by producing his passport which will show the date when he left and when he returned. But, if the immigration officer thinks, for any reason, that the matter warrants further enquiry, he is entitled to examine the man and require him to satisfy him that he was lawfully settled here within the last two years. I ought to mention one point. In s 13 (4) of the 1971 Act it provides:

'An appeal against a refusal of leave to enter shall be dismissed by the adjudicator if he is satisfied that the appellant was at the time of the refusal an illegal entrant...'

This looks at first sight as if the burden was the other way round. But that section is only dealing with the position on appeal. It does not affect the position of the immigration officer who hears the case in the first instance. The conduct of the immigration officer Assuming that it was the duty of Mr Mughal to satisfy the immigration officer that he was lawfully settled here, counsel for Mr Mughal said that the immigration officer, in his examination, had not complied with the requirements of natural justice. In the first place, counsel suggested that the immigration officer, when he got reports which were adverse to Mr Mughal -- that is, the report from the Pakistani government representative about the passport, and the report from the Inland Revenue about his tax returns -- he ought to have put those reports before Mr Mughal and asked for his explanation of them. I cannot accept this criticism. An immigration officer is not a judge or a judicial officer. He has not to obey set reles 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: see Re K (H) (an infant n1) by Lord Parker CJ; and Re A (an infant) n2. On the evidence in this case I think the immigration officer acted with scrupulous fairness and thoroughness. When his suspicions were aroused, he made them known to Mr Mughal. He gave him every opportunity of dispelling them. If Mr Mughal had been lawfully settled here, the enquiries which the immigration officer made would go to help him -- to corroborate his story -- rather than hinder him. There was no need at all for the immigration officer to put them to him when they proved adverse. The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke 'the rules of natural justice' so as to avoid the consequences. n1 [1967] 1 All ER 226 at 231, [1967] 2 QB 617 at 630 n2 [1968] 2 All ER 145, [1968] 1 Ch 643 In the second place, counsel suggested that, although Mr Mughal told lies, the immigration officer should not have taken the lies against him. He quoted the familiar words of Lord Parker CJ in Ahson's case n3: 'Lies do not prove the converse'. But, when it is up to a man to give an explanation, if he tells lies in a material respect, it goes heavily against him. He will find that, when he does tell the truth, no one will believe him. So found the shepherd lad in the fable, who cried 'Wolf! Wolf!' So, I fear, must Mr Mughal find now. It was up to him to satisfy the immigration officer that he came here in November 1967, and not in November 1968. How can he expect to satisfy him when he told so many lies on so many matters? No wonder the immigration officer was not satisfied; and no being satisfied, he was quite justified in refusing him leave to enter and in directing his removal. n3 [1969] 2 All ER at 351, [1969] 2 QB at 230 Conclusion In this case, as in Azams' case n4, a man who has lived here -- and worked here -- for some years is not allowed to be here. All because he was unwise enough to go for a few months back to Pakistan. But he has only himself to thank. He came in clandestinely in the first place. When here, he faked an indorsement on a Pakistani passport so as to give him the appearance of legality. If he were allowed in, it would encourage others to do the same. No person can be expected to be admitted to this country on a faked passport. There is no case here for habeas corpus or for certiorari. I would dismiss the appeal. n4 [1973] 2 All ER 765, [1973] 2 WLR 1058

Judgment Two:

MEGAW LJ. The principal point argued on behalf of the applicant is that the immigration officer applied the wrong burden of proof in reaching his decision to refuse the applicant leave to enter the United Kingdom. It is said, if I have understood the argument correctly, that once the applicant asserted that he had been ordinarily resident in the United Kingdom before he left in November 1972, for a visit to Pakistan, he had provided prima facie evidence that he had been 'settled' in the United Kingdom, within s 1 (2) of the Immigration Act 1971; and, unless the immigration officer on making further enquiries had evidence which justified the conclusion that he was not so 'settled' (meaning, lawfully ordinarily resident), the applicant must be admitted. The argument, even if it were otherwise correct as to the construction of the 1971 Act, would not avail this applicant. The argument depends on the assumed applicability of s 1 (2) as giving the applicant 'indefinite leave'. But s 1 (2), by its express terms, applies only to 'those in the United Kingdom at its coming into force'. There is no dispute that the applicant was not physically in the United Kingdom on 1st January 1973. I cannot accept the submission on behalf of the applicant that he can be treated as having had a 'constructive presence' in the United Kingdom on that date. The words, in the context, must mean physical presence. We were, however, invited to express our view on the argument as to burden of proof on the assumption that the applicant had been in the United Kingdom at the coming into force of the 1971 Act. In my opinion, even on that hypothesis, the applicant's submission as to burden of proof is wrong. By the express terms of the Act itself, without having recourse to the Immigration Rules (1973), the burden of proof was on the applicant to establish any fact necessary to bring him within the scope of s 1 (2). The applicant was not patrial. That is not in dispute. Section 3 (1) says:

'Except as otherwise provided by or under this Act, where a person is not patrial -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act...'

Let is be assumed for the moment in favour of the applicant that if the applicant were within s 1 (2), leave to enter would not have been required to be given on this occasion. On that assumption, the non-requirement of leave would be by reason of the opening words of s 3 (1): 'Except as otherwise provided by... this Act'. It would be an exemption, under the Act, from the general requirement that one who is not patrial must be given leave if he is to enter the United Kingdom on any particular occasion when he seeks to do so. Section 1 (2) is just as much an 'exemption' for this purpose as are the provisions of s 1 (3) and the various subsections of s 8 of the Act.Section 3 (8) says:

'When any question arises under this Act whether or not a person is patrial, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is.'

It thus lay on the applicant, when a question arose whether or not he required leave to enter, to prove that he was entitled to exemption, under the Act, from the provision of s 3 (1) (a) that, except as provided by the Act, he should not enter unless given leave. The burden of proff is on the non-patrial just as, by the same subsection, the burden of proof is on a patrial, if a question arises, to prove the facts necessary to show that he is a patrial. That the immigration officer may enquire into such matters, affecting a patrial or non-patrial, for the purpose of arriving at a determination, is laid down by para 2 of Sch 2 to the 1971 Act. In order to bring himself within s 1 (2), therefore, if for any reason the immigration officer did not accept the applicant's assertion that he had been 'settled' in the United Kingdom at the coming into force of the Act, it lay on the applicant, as a result of the express provisions of the Act, to prove that he was so settled.The argument that his mere assertion provided a prima facie proof, altering the burden of proof, is inconsistent with the words of s 3 (8): 'it shall lie on the person asserting it to prove that he is.' Thus, the burden was on the applicant to prove that he was settled (meaning lawfully ordinarily resident) in the United Kingdom when the 1971 Act came into force. If he failed to prove that, he could not claim to be admitted without leave; and there would have been no possible ground on which he could have required that such leave be given. It follows that in my judgment the argument that the immigration officer acted on the wrong basis in respect of onus of proof must be rejected. This is even on the assumption of the correctness of the applicant's construction of s 1 (2) in respect of 'indefinite leave'. There was, however, argument before us on the question of the construction of s 1 (2) and of the effect of the phrase 'indefinite leave to enter or remain' in that subsection. On that issue I am content to say that, having had the advantage of having read the judgment about to be delivered by Scarman LJ, I am in full agreement with his reasoning and his conclusion. That provides another reason, with particular reference to the terms of r 51 of the Immigration Rules (1973), why the applicant's submission as to burden of proff is wrong. On behalf of the applicant it was contended also that the immigration officer's decision was, as it was described, 'perverse', particularly in that the immigration officer placed too much reliance on the admitted lies told by the applicant, and in that the immigration officer may have railed to give the applicant the opportunity to refute or explain various matters adverse to the applicant which came to the knowledge of the immigration officer as a result of the inquiries made by him. It is to be noted that before the Divisional Court there was no such submission. As was said in the judgment of Lord Widgery CJ:

'... there is no denial of natural justice, no allegation of unfairness in the questioning, or failure to give the applicant a chance to state his case. Furthermore, it could not possibly be said that on the evidence before the immigration officer he acted perversely in not being satisfied of the applicant's right to enter.'

It is right, as counsel for the applicant says, that the applicant ought not to be prejudiced in this appeal because of any failure to raise matters which could properly have been raised and which are now raised on the basis of the evidence in the various affidavits -- all of which were before the Divisional Court. While that is right, I am bound to say that I am not surprised that no such point was taken in the Divisional Court. In particular, whatever might have been the position on the burden of proof argument, I should certainly not accept the submission that the fact that the applicant had told lies was something which ought to be wholly disregarded when the immigration officer was assessing the truth of later statements made by the applicant. It is, of course, the duty of the immigration officer to act fairly. I cannot see on the evidence any justification for the allegation that he acted other than fairly. He clearly conducted a most careful enquiry. He says in his affidavit, and it is not contradicted, that he explained to the applicant the reason for the refusal of leave to enter. I would dismiss the appeal.

Judgment Three:

SCARMAN LJ. On 29th March 1973 the applicant was refused entry to the United Kingdom when he arrived at Manchester Airport. He claimed to be lawfully settled in the United Kingdom but failed to satisfy the immigration officer that he was. Not being willing to return to Pakistan whence on this journey he had come, he was detained. He now applies for a writ of habeas corpus, claiming that his detention is unlawful. As Lord Widgery CJ commented when the Divisional Court, from whose decision he now appeals, refused his application, these proceedings are in substance certiorari: the applicant really seeks to quash the decision of the immigration officer as wrong in law; only if he succeeds, does the authority for his detention disappear. His case is put thus: first, that as a settler, he has a right to enter and remain in the United Kingdom; secondly, that his entitlement does not depend on satisfying the immigration officer but is his by law; thirdly, that, if he has to satisfy the immigration officer, the conduct of the immigration officer at the airport amounted to a failure of natural justice. It is a case which raises fundamental questions as to the true interpretation of the Immigration Act 1971. 'The right to enter' Counsel for the applicant submitted that on its true construction s 1 (2) of the 1971 Act conferred on those to whom it applied a right to come and go comparable with that given to patrials. The submission is, in my view, based on a misapprehension of the purpose of the 1971 Act. The 1971 Act draws a fundamental distinction between those who have the right of abode and everyone else. The right of abode carries with it the freedom ot come and go into and from the United Kingdom without let or hindrance. This freedom is, in express language, given to no one other than patrials, and those Commonwealth citizens who can claim the benefit of s 1 (5). But, so the argument runs, s 1 (2) confers on a class of people, of whom it is said the applicant is one, an entitlement which is the equivalent of this freedom. The subsection reads as follows:

'Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).'

The first sentence makes clear that those who do not have the right of abode may live work and settle in the United Kingdom only by permission and subject to the regulation and control imposed by the 1971 Act. The second sentence appears to deal with a class of persons who, not having this right, need permission to be here; for they are to be treated as having been given indefinite leave to enter or remain in the United Kingdom. 'Leave to enter or remain' is a species of 'permission': it is not an apt phrase to describe presence here as of right. Save for the adjective 'indefinite' there could be no doubt but that the leave given by the subsection was subject to the rules laid down by the Secretary of State under s 3 (2) regulating the entry into and stay in the United Kingdom of persons required by the 1971 Act to have leave to enter, and to the other provisions of the Act dealing with leave to enter, e g s 3 (4) whereby a person's leave lapses on his going abroad. Does the qualifying adjective 'indefinite' remove the s 1 (2) type of leave out of the range of the general provision of the 1971 Act regulating leave to enter or remain here? In my opinion, it does not. Indefinite leave is to be contrasted with limited leave to enter or remain: see, for example, s 3 (5). It means no more than leave for an indefinite period. The 1971 Act treats entry as a moment at which conditions, including a condition as to time of stay, may be attached to leave to enter; there is nothing inconsistent with the tenor of the Act in construing 'indefinite leave to enter' as meaning leave to enter for an unlimited period of time. But, conversely, it would be very odd if the Act used the language of 'leave' to describe a right which was outside the control of the Act; and I do not so read the subsection. Accordingly, the indefinite leave given by s 1 (2) is only one sort of the permission available under the Act to those not having the right of abode, and is subject to the regulation and control of entry imposed by the Act. Such regulation is to a large extent to be found in the Immigration Rules (1973) made under s 3 (2), r 51 of which provides:

'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...'

For the reasons I have attempted to give I think the rules cover those who are to be treated under s 1 (2) as having indefinite leave to enter. Accordingly such a person, if he seeks to enter the United Kingdom, has to satisfy the immigration officer that he is entitled to the leave he claims -- exactly as, I would add, a patrial has to prove that he is a patrial (see ss 1(1) and 3(8)). The applicant failed so to satisfy the immigration officer. I answer, therefore, the applicant's first two submissions as follows: s 1 (2) confers on those to whom it applies a from of leave which is subject to the control imposed by the 1971 Act and the Immigration Rules (1973). A person claiming this form of leave has on entry to satisfy an immigration officer that he is entitled to it. Out of deference to the argument placed before us I have expressed my views on the meaning of 'indefinite leave to enter' and its place in the general scheme of the 1971 Act. But, in truth, the applicant cannot bring himself within the class of those entitled to be treated as having been given such leave. He is faced with this difficulty: he was not in the United Kingdom when the 1971 Act came into force, but in Pakistan, visiting his wife and children. The difficulty is, in my view, insurmountable; I am not prepared to accept that, when Parliament speaks of persons in the United Kingdom in the context o a statute which is largly concerned with coming and going, entering and remaining, it means to include those who, in fact, are not in but outside the United Kingdom at the relvant time. Should it be said that so strict an interpretation is harsh and operates unjustly on people taking a holiday abroad, there is an answer: first, there was plenty of warning, for the provision was enacted on 28th October 1971, but did not come into force until 1st January 1973; an secondly, by s 1 (5) of the 1971 Act, Commonwealth citizens, who are settled in the United Kingdom at the coming into force of the Act, are to be no less free to come and go than if the Act had not been passed. The effect of this subsection (to which the immigration rules faithfully adhere) is that any such citizen who satisfies an immigration officer that he is ordinarily resident in the United Kingdom, or had been so at any time during the two years preceding his entry, is to be allowed to enter. The ordinary residence to which the section refers is, of course, lawful residence: see Re Abdul Manan n1. n1 [1971] 2 All ER 1016, [1971] 1 WLR 859 Natural justice The applicant, whether he shought to rely on s 1 (2) or s 1 (5) of the 1971 Act, had to satisfy the immigration officer that he was entitled to be admitted to the United Kingdom. The immigration officer was not satisfied that he was lawfully settled in the United Kingdom, and so refused him admission. I am bound to say that I am not in the least surprised at his decision. But the applicant claims in this court, though he made no such suggestion to the Divisional Court, that the immigration officer failed to observe the requirements of natural justice. The immigration officer did not have to conduct a trial; he was an administrative officer engaged in an administrative enquiry, who at the end of it had to be satisfied before he took a certain decision. Natural justice required of him that he should give the applicant a real opportunity of satisfying him: and this he did. I suspect that the true gravamen of the attack in this court on the immigration officer is that he elicited information from the Inland Revenue and the National Insurance authorities. It may or may not be desirable that such authorities should, on request, communicate information about a would-be entrant to a member of the public service charged with the administrative control of entry into the United Kingdom; but that is a matter for Parliament. Under the existing law an immigration officer, who seeks to check or corroborate his information by such enquiries, does nothing wrong; and there is a deal of common sense in his so doing. If he does so, must he tell the entrant? No; it is an administrative function on which the immigration officer is engaged, not a forensic one. Provided he offers the applicant for entry a genuine opportunity to satisfy him that he is a lawful settler, there can be no failure of natural justice. For these reasons I would dismiss this appeal.

DISPOSITION:

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

SOLICITORS:

Sears & Co (for the applicant); Treasury Solicitor.

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