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

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

COURT OF APPEAL, CIVIL DIVISION

[1974] QB 684, [1974] 2 All ER 261, [1974] 2 WLR 593

Hearing Date: 30, 31, JANUARY, 1ST, 4TH @FEBRUARY 1974

4 FEBRUARY 1974

Index Terms:

Immigration - Leave - Non-patrial - Right of entry - Expellee - Obligation of country under international law to receive back its nationals expelled from other countries - British protected person - Non-patrial expelled from normal country of residence - Expellee claiming to be British protected person - Right of British protected person to enter United Kingdom - Expellee refused leave to enter United Kingdom - Whether expellee entitled to enter United Kingdom as of right for purpose of settling there permanently - Immigration Act 1971, s 3(1).

International law - Municipal law - Relationship - Right of individual under international law - Enforcement of right in English courts - Necessity of showing rule of international law has been adopted by English law - Duty of country to receive back nationals expelled by foreign state - British protected person - Whether British protected person having right to enter United Kingdom on being expelled from country of residence - Whether right enforceable by individual in English courts.

Held:

The applicant, who was of Asian origin, was born in Uganda in 1939. Uganda was then a British protectorate and, after the passing of the British Nationality Act 1948, the applicant was a British protected person within the meaning of that Act. In 1962, under the Uganda Independence Act 1962, Uganda ceased to be a protectorate and became an independent country. Individuals who had formerly been British protected persons within the meaning of the 1948 Act retained that status unless they became Ugandan citizens. In March 1967, on the registration of birth of the elder of his two children, the applicant's nationality was stated to be 'Citizen of Uganda'. In 1969 the applicant obtained a trading licence available only to Ugandan citizens. In August 1972 the government of Uganda ordered the removal from the country of all non-Ugandan Asians. The applicant left Uganda and came to England in September 1973. He did not have an entry certificate and on his arrival at Heathrow airport he was refused leave to enter the United Kingdom by an immigration officer. The applicant moved the Divisional Court for an order quashing that decision. The matter was further considered by the Home Office. The Home Office authorities concluded that on the evidence the applicant had at some time applied for and obtained Uganda citizenship. The Secretary of State decided therefore that the applicant had failed to satisfy him that he was a British protected person. Following that decision the Divisional Court a dismissed the applicant's motion and the applicant appealed, contending, inter alia, (i) that as a British protected person he was as much a British national as a citizen of the United Kingdom and colonies and accordingly, if he was expelled from the country where he was living, under the rules of international law he was entitled as of right to come to the United Kingdom, and (ii) that he remained in English law a British protected person since he had never submitted to the High Commission in Uganda a declaration renouncing his status as a British protected person in accordance with art 20(1) b of the British Protectorates, Protected States and Protected Persons Order 1969 c. a [1947] 1 All ER 415 b Article 20(1), so far as material, provides: '... any person of full age and capacity who is a British protected person by or under any provision... of this Order and -- (a) is also a citizen of any country mentioned in section 1(3) of the [British Nationality Act 1948] or of the Republic of Ireland or a national of a foreign country as defined in section 32(1) of the [1948] Act; or (b) satisfies the authority to whom the declaration of renunciation is submitted that after registration of the declaration he will become such a citizen or national, may by declaration renounce his status as a British protected person.' c SI 1969 No 1832 Held - The appeal would be dismissed for the following reasons -- (i) There was no rule of public international law that a British protected person who had never lived in the United Kingdom was entitled to settle in the United Kingdom on being expelled from his own country. Even if there were such a rule the applicant could not rely on it since (a) not having been adopted by English municipal law it would not be enforced by the English courts; rules of international law only had validity to the extent that they were accepted and adopted by domestic law; (b) the rules of international law only governed the relations between states and could not therefore be relied on by the applicant for his own benefit (see p 266 b and d to g, p 272 c and d and p 273 f and g, post); Chung Chi Cheung v R [1938] 4 All ER 786 applied. (ii) Even if the applicant were a British protected person, he required leave under s 3(1) d of the Immigration Act 1971 as a non-patrial to enter the United Kingdom. The 1971 Act was a comprehensive code and could not be construed as preserving any right the applicant might have had under international law. Accordingly, although the fact that an entrant was a British protected person would assist his claim for leave to enter, it did not give him a right to do so (see p 267 f and g, p 271 e g and h and p 272 f, post). d Section 3(1), so far as material, is set out at p 271 f, post (iii) The applicant was not in any event entitled to be treated as a British protected person. Under s 2(1) e of the Uganda Independence Act 1962 and art 18(2) f of the 1969 order a British protected person ceased to be such on becoming a citizen of Uganda under the law of that country. It was therefore immaterial that the applicant had never submitted a declaration to the British High Commission renouncing his status as a British protected person. On the evidence submitted to him the Secretary of State was justified in concluding that the applicant had registered as a Ugandan citizen under Ugandan law and thus ceased to be a British protected person (see p 268 h, p 269 b to d and f, p 270 g and j, p 271 b and p 272 e, post). e Section 2(1), so far as material, is set out at p 268 j, post f Article 18(2), so far as material, is set out at p 269 a, post Decision of the Divisional Court of the Queen's Bench Division sub nom R v An Immigration Officer at Heathrow Airport, ex parte Thakrar [1974] 1 All ER 415 affirmed.

Notes:

For the rules governing the entry to the United Kingdom of persons born outside the United Kingdom, see 4 Halsbury's Laws (4th Edn) 470-472, paras 974-976. For the Uganda Independence Act 1962, s 2, see 4 Halsbury's Statutes (3rd Edn) 441. For the Immigration Act 1971, s 3, see 41 Halsbury's Statutes (3rd Edn) 20. For the British Protectorates, Protected States and Protected Persons Order 1969, arts 18, 20, see 2 Halsbury's Statutory Instruments (3rd Reissue) 19.

Cases referred to in the Judgment:

A (an infant), Re, Hanif v The Secretary of State for Home Affairs, Re S (N) (an infant), Singh v The Secretary of State for Home Affairs [1968] 2 All ER 145, sub nom Re Mohamed Arif (an infant), Re Nirbhai Singh (an infant) [1968] Ch 643, [1968] 2 WLR 1290, CA, Digest (Cont Vol C) 19, 157ra. Chung Chi Cheung v R [1938] 4 All ER 786, [1939] AC 160, 108 LJPC 17, 160 LT 148, 19 Asp MLC 243 PC, 14 Digest (Repl) 153, 1164. Heathfield v Chilton (1767) 4 Burr 2015, 98 ER 50, 11 Digest (Repl) 632, 551. K (H) (an infant), Re [1967] 1 All ER 226, sub nom Re H K (Infant) [1967] 2 QB 317, [1967] 2 WLR 962, DC, Digest (Cont Vol C) 18, 157qa. Mwenya, Re [1959] 3 All ER 525, [1960] 1 QB 241, [1959] 3 WLR 767, CA, 16 Digest (Repl) 282, 517. Nyali Ltd v Attorney-General [1955] 1 All ER 646, [1956] 1 QB 1, [1955] 2 WLR 649, CA; affd [1956] 2 All ER 689, [1957] AC 253, [1956] 3 WLR 341, HL, Digest (Cont Vol A) 267, 879a. Ol le Njogo v Attorney-General (1913) 5 EALR 70. R v Secretary of State for Home Affairs, ex parte Soblen [1962] 3 All ER 373, [1963] 1 QB 829, [1962] 3 WLR 1145, DC, Digest (Cont Vol A) 22, 99a. R v Secretary of State for the Home Department, ex parte Mughal [1973] 1 WLR 1133, DC; affd [1973] 3 All ER 796, [1973] 3 WLR 647, CA. Sobhuza II v Miller [1926] AC 518, 95 LJPC 137, 135 LT 215, PC, 8 Digest (Repl) 686, 12.

Introduction:

Appeal. The applicant, Pravinal Amarshi Thakrar, applied to the Divisional Court of the Queen's Bench Division (i) for an order of certiorari to remove into the court with a view to its being quashed a refusal of leave to enter the United Kingdom, which refusal was made by an immigration officer to the applicant at Heathrow airport on 5th September 1973, (ii) for an order of mandamus directed to the immigration officer and to the Secretary of State for the Home Department to give the applicant leave to enter the United Kingdom, or otherwise to admit him into the United Kingdom, and (iii) for an order that a writ of habeas corpus be issued directed to the Secretary of State for Home Affairs and the chief immigration officer to have the applicant brought before the court immediately after the receipt of the writ to undergo and receive all and singular such matters and things as the court should then consider concerning him. The motion came on for hearing before the Divisional Court n1 (Lord Widgery CJ, Bridge and May JJ) on 9th October 1973. The court had before it an affidavit sworn by Mr A E Corben, an assistant secretary at the Home Office in charge of B2 Division of the Immigration and Nationality Department, in which he stated that, although he was not satisfied that the applicant was a British protected person, on the assumption that he was, the applicant should in any event be refused leave to enter the United Kingdom for settlement, under s 3(2) of the Immigration Act 1971 and r 38 of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens n2, since he had no special voucher or entry certificate. The court adjourned the hearing for further consideration by the Home Office. The hearing was resumed on 23rd October when the court had before it (i) a second affidavit sworn by Mr Corben, containing the decision of the Secretary of State, which made it clear that he had not been satisfied by the applicant that the applicant was a British protected person and accordingly was required to treat the applicant as not being of that status; and (ii) an affidavit sworn by Mr Robert Calder, a member of HM Diplomatic Service who was serving as Uganda Desk Officer in the Nationality and Treaty Department of the Foreign and Commonwealth Office, which had been placed before the Secretary of State and had formed the basis of his decision; in the affidavit Mr Calder gave in detail all the factors which had been put before him on the question whether the applicant had applied for and obtained Uganda citizenship and which had led to his own conclusion that the applicant had not retained British status. Much of that material had been supplied by the applicant. The court concluded that there were no grounds for interfering with the Secretary of State's decision and accordingly dismissed the motion for orders of certiorari and mandamus but granted the applicant bail pending an appeal to the Court of Appeal. The applicant appealed on the grounds: (i) that the court was wrong in holding that the applicant was not a British protected person; (ii) that the court had wrongly held that the Secretary of State had dealt with the matter fairly in arriving at the conclusion that the applicant had lost his status as a British protected person and had acquired Uganda citizenship; (iii) that the court had wrongly held that there was no error in law in the Secretary of State's failure to deal with the issue of renunciation; in particular that the court was wrong in holding that a renunciation of status as a British protected person need not be registered with the British authorities; (iv) that the court was wrong in holding that the legal obligation to admit British nationals who were expelled from other countries had not survived after the passing of the Immigration Act 1971; (v) that the court had failed to take into account that the duty to admit expellees from Uganda had been recognised by the British Government and by the Secretary of State. The facts are set out in the judgment of Lord Denning MR. n1 [1974] 1 All ER 415, [1974] 2 WLR 34 n2 HC 79, laid before Parliament on 25th January 1973 under s 3(2) of the Immigration Act 1971

Counsel:

Sir Dingle Foot QC and Eugene Cotran for the applicant. Gordon Slynn and J W Priest for the Secretary of State.

Judgment-READ:

Cur adv vult. 4th February. The following judgments were read. PANEL: LORD DENNING MR, ORR AND LAWTON LJJ

Judgment One:

LORD DENNING MR. In 1972 a sword fell on the Asians living in Uganda. It was the sword of the President, General Amin. He declared that all Asians who were not citizens of Uganda must leave the country within 90 days. The declaration placed thousands in sore plight. This is the story of one of them. Pravinlal Amarshi Thakrar is 33 years of age. He was born in Uganda. He had lived there all his life save for four years as a student in Bombay. He had married a Tanzanian girl, and they had two little daughters, aged five and two. He was engaged in the family business in Masaka. His father and mother lived there too. They had come originally from India and had been in Uganda for over 40 years. They had six sons and two daughters, all born in Uganda. The father and mother, having been born in India, had always been British subjects. They had been registered, ever since 1953, as citizens of the United Kingdom and colonies. But their sons and daughters, having been born in Uganda whilst it was a protectorate, were British protected persons. After Uganda became independent in 1962, all the members of the family were able, if they chose, to apply to become citizens of Uganda. The father and mother remained British subjects. They held British passports. Some of the others of the family remained British protected persons. Others became Ugandan citizens. But what did Pravinlal do? Did he become a Uganda citizen or not? That is the question. But before I go into it, I must say what happened to the family after President Amin's sword fell. Quite a number of the family went to Bombay. These were the father and the mother, two of the sons and a daughter. In addition, Pravinlal's wife and two children went to Bombay, but Pravinlal himself did not go with them. Two other sons went to England. But Pravinlal and one of his brothers stayed on for a time in Uganda. Pravinlal himself had at one time held a passport as a British protected person. He had held it from 1954 to 1964. He had used it when he went for four years as a student to Bomday. But he had not renewed it after 1964. When Amin's sword fell in October 1972 he tried to renew it. He went to the British High Commission in Kampala, but found it difficult to get there. There were queues a mile long. Everything was in confusion. Eventually he was seen. The High Commission gave him a letter to take to the Uganda Immigration Department to get their remarks on him. He took it there. The Uganda authorities wrote on it: 'Subject has never been registered as citizen of Uganda. No previous Uganda passport.' Seeing that that document said he was not a Uganda citizen, Pravinlal hoped to claim that he was a British protected person. He hoped to get a passport from the British High Commission. For that purpose he was travelling from Masaka to Kampala. He was stopped at a road block. He was kicked and punched by the soldiers. They took from him all his money and his case with all his papers. So he never got a passport from the British High Commission. He went to the Red Cross office in Kampala. They issued him with a United Nations document which authorised him to travel to Austria. His brother did the same. On 7th November 1972 Pravinlal went to Austria. He stayed there in the United Nations camp. He worked for a time on a farm. In March 1973 his brother got to England. So Pravinlal determined also to get to England himself if he could. On 4th September 1973 Pravinlal went by air to Zurich and thence to London. He arrived at 6.30 p m. He told the immigration officer that he wished to spend ten days in the United Kingdom to visit his brother and that he then intended to travel on to India to spend a short holiday with the family; he produced an Austrian passport for aliens; but it did not have a visa for the United Kingdom, nor a visa for India. It described his nationality as 'not established'. He produced a ticket for India which was out of date. The immigration officer made careful enquiries. He was not satisfied with his story and refused to admit him. He served him with this notice:

'To Pravinlal Thakrar

'You have asked for leave to enter the United Kingdom as a visitor but you do not have a United Kingdom visa. You have also asked for leave to enter as a visitor for ten days, but I am not satisfied that you intend to stay only for this period. I therefore refuse you leave to enter the United Kingdom. I have given/propose to give directions for your removal on 5 Sept, 1973... by flight... to Zurich.'

That notice was served on Pravinlal at 8 p m. He was detained overnight pending his departure next day. Meanwhile one of his brothers got into touch with the Joint Council for the Welfare of Immigrants. Next day at 10.45 a m Pravinlal told a different story to the immigration authorities. He said that he had come to England to settle here and that he had a right to be here. He said he had @ 30,000 in England. He gave the immigration officer particulars of his father and mother and the rest of the family. He claimed that he was a British protected person and not a citizen of Uganda. He said that Her Majesty's Government had, through the Secretary of State for Home Affairs, accepted moral and legal responsibility to allow entry into England of all British Ugandan Asians, i e Asians who are either citizens of the United Kingdom and colonies or British protected persons who had not acquired Ugandan citizenship. In view of this assertion, Pravinlal was not sent off straightaway. He was detained pending further enquiries. On 14th September 1973 Pravinlal by his solicitor applied for a writ of habeas corpus. On 5th October 1973 he applied for certiorari and mandamus. Thes were refused n1. He appeals to this court. n1 [1974] 1 All ER 415, [1974] 2 WLR 34 International law Counsel for Pravinlal raises this fundamental point: let us assume for the time being that Pravinlal is, as he asserts, a British protected person. Counsel says that as such he is a British national just as much as a citizen of the United Kingdom and colonies. As a British national, if he is expelled from the land where he is living, he is entitled as of right to come into the United Kingdom. This right, says counsel, is given by international law; and international law, he says, is part of the law of the land. It is incorporated into it and is to be enforced by the courts unless it is excluded by Parliament. To support this claim in international law, counsel quoted Oppenheim n2: 'The home State of expelled persons is bound to receive them on the home territory.' n2 International Law (8th Edn, 1955), vol 1, p 646 To support his assertion that international law is part of the law of the land, counsel quoted Sir William Blackstone in his Commentaries n1, and Lord Mansfield in Heathfield v Chilton n2. They said that the law of nations is 'part of the law of the land'. But they were speaking of the law of nations, and then only of that part of it which was universally accepted and known for certain, such as the immunity of ambassadors. They were not speaking of rules which were not universally accepted nor known for certain. In my opinion, the rules of international law only become part of our law insofar as they are accepted and adopted by us. I would follow the words of Lord Atkin in Chunk Chi Cheung v R n3: n1 Volume IV, p 67 n2 (1767) 4 Burr 2015 at 2016 n3 [1938] 4 All ER 786 at 790, [1937] AC 160 at 167, 168

'It must be always remembered that, so far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law.'

Test it by reference to the very point we have to consider here: the mass expulsion of Asians from Uganda. International law has never had to cope with such a problem. None of the jurists, so far as I can discover, has considered it. The statement of Oppenheim n4 is all very well when one is considering a home state which is a self-contained country with no overseas territories or protectorates. If one of its citizens goes to a foreign country and is expelled from it, the home state may well be bound to accept him on his home territory if he has nowhere else to go. But that rule does not apply when the home state is an outgoing country with far-flung commitments abroad, such as the United Kindgom has or recently did have. Take the class of persons with whom we are here concerned -- British protected persons. They are said to be British nationals, but they are not British subjects. These number, or used to number, many millions. They were not born here. They have never lived here. They live thousands of miles away in countries which have no connection with England except that they were once a British protectorate. Is it to be said that by international law every one of them has a right if expelled to come into these small islands? Surely not. This country would not have room for them. It is not as if it was only one or two coming. They come not as single files but in battalions. Mass expulsions on this scale have never hitherto come within the cognisance of international law. To my mind, there is no rule of international law to which we may have recourse. There is no rule by which we are bound to receive them. n4 International Law (8th Edn, 1955), vol 1, p 646 Even in regard to self-contained countries, however, the rule of international law is only a rule as between two states. It is not a rule as between an individual and a state. The expelling state -- if it had a good case -- might call on the home state to receive the person whom it expelled. But the individual could not pray the rule in aid for his own benefit. Moreover, the rule would only apply if he had nowhere else to go. If he went to Austria, as Pravinlal did, the rule would not apply to him; or, if he could go to India, where his wife and children are, the rule would not apply to him. So, even that rule of international law would not avail Pravinlal here. Domestic law So I turn to our domestic law. To understand it, I must first describe the legal position of Uganda. It has never been part of Her Majesty's Dominions. It was a British protectorate from 1894 to 1962, when it became independent. In strict international law, the sovereignty over Uganda was not in the Queen of England, but in the local rulers, the Kabake of Buganda and the kings of Toro, Ankoli and Bunyoro. The defence and external affairs were under the control of the government of the United Kingdom and much of the internal administration also: see the qualities of a protectorate described in Sobhuza II v Miller n1; Nyali Ltd v Attorney-General n2; Re Mwenya n3. The people born there and living there were not British subjects, but they were British protected persons. As such they were under the protection of the British Crown, but they had not the same rights as British subjects. They had never, so far as I can discover, the right of entry, without leave, into the United Kingdom. So far as our courts were concerned, they were until 1949 classified as aliens: see Mervyn Jones on British Nationality Law and Practice n4 and Halsbury's Laws of England n5. This was altered by ss 3(3) and 32(1) of the British Nationality Act 1948. Those sections said that in that Act and the Aliens Restriction Acts 1914 and 1919, the expression 'alien' shall not include a British protected person. But those Acts did not deal with the right of entry into the United Kingdom. It seems that in that respect the position remained unchanged. That is to say, a British protected person had not an absolute right to enter the United Kingdom; he could only come by leave. The issue to him of a passport by the governor of a protectorate would, no doubt, import leave. So every British protected person, on getting a passport, could enter. But without a passport, he had no right at all. Such was the position until Uganda became independent in 1962. n1 [1926] AC 518 at 528 n2 [1955] 1 All ER 646, [1956] 1 QB 1 n3 [1959] 3 All ER 525, [1960] 1 QB 241 n4 (1947), p 289 n5 4th Edn, vol 4, p 457, para 948 In 1962 the Commonwealth Immigrants Act 1962 was passed. In 1968 it was amended. It put British protected persons on a par with Commonwealth citizens generally; see s 1(4). They had no right to come without leave. They were subject to examination by an immigration officer, who would admit or refuse admission according to the rules. In 1971 there was the Immigration Act 1971. It is a new code which comprehends all persons who wish to enter into or stay in the United Kingdom. It divides them into two broad classes: (1) those who have a right of abode in the United Kingdom; these are called patrials; (2) those who have not the right of abode in the United Kingdom; these are not patrials. Pravinlal Thakrar was not a patrial. He was, he says, a British protected person. Assume that he was. He would come within the governing provision in s 3(1):

'... where a person is not patrial... he shall not enter the United Kingdom unless given leave to do so in accordance with this Act...'

Section 3(2) authorises the Secretary of State to make rules. He has done so in a statement n6 which governs Commonwealth citizens and British protected persons alike (see para 1). The position since the 1971 Act is clear. Although Pravinlal was expelled from Uganda, he would by our law require leave to enter. He had no right whatever to enter without leave. No doubt if he was a British protected person, the immigration authorities would take it as a point in his favour. But it would give him no right to enter. n6 Statement of Immigration Rules for Control on Entry: Commonwealth Citizens, laid before Parliament on 25th January 1973 (HC 79) The question was raised before us as to the jurisdiction of the immigration officer. In a case where a man is undoubtedly a Commonwealth citizen or a British protected person, the immigration officer, of course, enquires into the facts of a case so as to see whether the man should be given leave to enter or not. In so doing he must act fairly: see Re K (H) (an infant n7 and Re A (an infant) n8. But a question may arise as to the status of the man who wishes to enter. Suppose he claims to be a patrial; or a citizen of the United Kingdom and colonies; or a British protected person. The immigration officer may have doubts about his claim. In such a case I am clearly of opinion that the immigration officer has jurisdiction to enquire into it. In doing so, he must of course act fairly. He is to be guided by s 3(8) of the 1971 Act, which says: n7 [1967] 1 All ER 226 at 231, [1967] 2 QB 617 at 630, per Lord Parker CJ n8 [1968] 2 All ER 145 at 151, 152 [1968] Ch 643 at 661

'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.'

If the immigration officer decides against his claim and refuses him leave to enter, the man can appeal to an adjudicator and thence to the Immigration Appeal Tribunal under ss 12 to 23 of the 1971 Act. Alternatively he can, in a proper case, move for certiorari to quash the immigration officer's decision on the ground that it is bad in law, and mandamus. But he cannot do anything else. I agree with Lord Widgery CJ in R v Secretary of State for the Home Department, ex parte Mughal n1, that in a case where any immigrant is coming into England for the first time and is refused admission, he can choose to go away if he pleases. If he opposes, and is detained, or is sent back, his detention or removal is not unlawful. So it is not a case for habeas corpus: see R v Secretary of State for Home Affairs, ex parte Soblen n2. n1 [1973] 1 WLR 1133 at 1136 n2 [1962] 3 All ER 373, [1963] 1 QB 829 The point of law Counsel for Pravinlal said that Pravinlal was in point of law a British protected person and should be treated as such. Even though he had no right to enter without leave, yet he should be given special consideration. Counsel submitted that after 1962 a British protected person living in Uganda -- who wished to become a Ugandan citizen -- did not lose his status unless three things happened. (1) He applied to the Ugandan Government to be registered as a Ugandan citizen and made a declaration of his willingness to renounce his status as a British protected person: see s 3 of the Uganda Citizenship Ordinance 1962. (2) He submitted to the British High Commission in Uganda a declaration renouncing his status as a British protected person: see arts 20 and 22 of the British Protectorates, Protected States and Protected Persons Order 1969 n3. (3) He produced evidence to the Uganda government that he had renounced his status as a British protected person: see s 6(2) of the Uganda Citizenship Ordinance 1962. n3 SI 1969 No 1832 Counsel for Pravinlal said that there was no evidence that Pravinlal had ever satisfied the second requirement. He had never submitted to the British High Commission in Uganda a declaration renouncing his status as a British protected person. Accordingly under Uganda law he was never a citizen of Uganda. Counsel for the Secretary of State admitted that Pravinlal had never submitted to the British High Commission any declaration of renunciation. But he said that counsel for Pravinlal was wrong in his law. Those three requirements would only be necessary if a British protected person in Uganda wanted to become a citizen of another country, such as Kenya. But those three requirements were not necessary if he wanted to become a citizen of Uganda itself. I think counsel for the Secretary of State is right. The present case is governed by art 18 of the British Protectorates, Protected States and Protected Persons Order 1969, which is to be read with art 13 of that order and s 1(3) of the British Nationality Act 1948 and s 2(1) of the Uganda Independence Act 1962. The most material sections are these. Section 2(1) of the Uganda Independence Act 1962 says that a British protected person in Uganda shall cease to be such 'upon his becoming a citizen of Uganda under the law thereof'. Article 18(2) of the 1969 order (as applied here) reads:

'A person who, by virtue of his connection with [the former protectorate of Uganda] is a British protected person... shall cease to be such if he becomes a [citizen of the former protectorate of Uganda].'

The sole question is, therefore: did Pravinlal become a citizen of Uganda under the law thereof? The law of Uganda is to be found in the Uganda Citizenship Ordinance 1962. The relevant sections are s 3(1)(3), especially the form of declaration in Sch 3, and s 6(2). As I read those proviions, in order to become a Uganda citizen, Pravinlal would only have to go to the Uganda authorities and make a declaration there in the prescribed form. That would be enough. As soon as that was done, he would become a Ugandan citizen. The result is this. When Uganda attained independence in 1962 Pravinlal was a British protected person in that country. After independence he would cease to be a British protected person as soon as he became a Ugandan citizen. In order to become a Ugandan citizen he only had to register with the Ugandan government and make a declaration in the specified form to that government. Thereupon he automatically became a citizen of Uganda. There is no need for him to renounce his status as a British protected person, seeing that he automatically lost that status by reason of s 2(1) of the Uganda Independence Act 1962. It is satisfactory to find that the British High Commission in Uganda acted on that footing. Mr Calder in his affidavit says:

'To my knowledge the British High Commission only registered renunciations of status of British protected persons where such persons had become or wished to become a citizen of a country other than Uganda. To my knowledge it was not the practice of the British High Commission to accept registration of renunciations by British protected persons who had become or wished to become Ugandan citizens because it was considered that such persons automatically ceased to be a British protected person by virtue of the above-mentioned provisions when they citizens of Uganda.'

In my opinion the practice of the British High Commission was and is correct. If a British protected person in Uganda wished to become a Ugandan citizen, it was only necessary for him to register himself as a Ugandan citizen with the Ugandan government and make the required declaration of allegiance and so forth to that government. The facts Finally I turn to the facts in this case. Counsel for Pravinlal recognised that he could not seek to reverse the immigration officer's decision on a point of fact; but he submitted that Pravinlal had not been treated fairly, at any rate in the later stages, because he was not given an opportunity of dealing with a point about the business in Masaka. I must say that I think the immigration officers acted with the utmost fairness. But the matter is of such moment to Pravinlal himself that I would state the points which go to show that he was not a British protected person. There is good ground for thinking that he had registered himself as a citizen of Uganda at any rate by 1967. (1) In March 1967 when the birth of the elder child was registered at the registry office in Masaka. The mother gave the information of the nationality of the parents. The register says: 'Father: Citizen of Uganda. Mother: Citizen of Tanzania.' (2) After 2nd April 1969 it was necessary for every person who was not a citizen of Uganda to obtain a valid passport from his own country. Otherwise his presence in Uganda would be unlawful: see s 8 of the Uganda Immigration Act 1969. Pravinlal never obtained a passport from the British High Commission. So his presence would have been unlawful unless he had taken Ugandan citizenship. (3) In March 1969 it was necessary for anybody carrying on business in Uganda to have a trading licence. These licences were issued in two different forms: one for citizens of Uganda; the other for non-citizens. Pravinlal was issued with trade licences for the years 1970, 1971 and 1972, which were all in the form issued to citizens of Uganda and not to non-citizens. They were issued for the carrying on of a wholesale and retail business at plot 5, shop 2, Kampala Road, Masaka. (4) Under the Trade (Licensing) Act 1969 of Uganda the Minister was authorised to, and did, divide the trading areas into two categories: (1) general licence areas where anyone could trade; (ii) special areas where only Ugandan citizens were allowed to trade and non-citizens were prohibited. One of the special areas (for Ugandan citizens only) was Kampala Road, Masaka. So Pravinlal would not have been allowed to trade there unless he was a Ugandan citizen. At a very late stage Pravinlal said he was given special permission to trade there by the town clerk of Masaka; but this cannot be regarded as very reliable. (5) Pravinlal relied on the registration of the younger child, a daughter, who was born on 3rd March 1970. But the registration of the birth was not made until 11th September 1972-2 1/2 years later -- after President Amin had ordered the expulsion of immigrants. The grandfather gave the information and gave the nationality of the father then as: 'Father: British protected person. Mother: a citizen of Tanzania.' I am afraid that at that time such an entry cannot be regarded as reliable. (6) The statement made by the Ugandan authorities in October 1972 that the 'subject has never been registered as a citizen of Uganda'; and in January 1974 that he was not a Uganda citizen. Mr Calder, an expert at the Foreign Office here, says that such statements could not be relied on. They were often put out by the immigration authorities in Uganda during or since the exodus, without regard to the provisions of Ugandan law concerning citizenship and in order to deny Ugandan citizenship to those who had acquired it. (7) Finally, in June 1973, when Pravinlal was in Austria, his case was taken up by the Joint Council for the Welfare of Immigrants. They submitted that he was entitled to passport facilities. That submission was not accepted. He did not wait to see if he could get a passport. On the contrary, he came on 4th September 1973. On arrival, he said he came on a ten day visit. That was not true. Telling a lie is no passport to favour. It is quite plain to me that the immigration officers acted fairly. They took everything into account. Even while these proceedings have been in progress, they have considered all additional information which has been put forward. Right up to the hearing of the court, new affidavits have been put in. In the result the immigration officers are not satisfied that Pravinlal was a British protected person; and I must say there is ample material for them to so hold. I would commend the care and consideration which they gave to this case. There is no ground whatever for interfering with their decision. Conclusion In conclusion, I would say this. Pravinlal Thakrar has asserted that he is a British protected person, and that, on being expelled from Uganda, he has a legal right to enter this country. I am satisfied that he has no such right. There is no legal right in him to enter this country. If he had been a British protected person, that would be a factor in his favour which would be given serious consideration by the immigration officers and by the Secretary of State. It might tip the scale and he migh be allowed to enter. But Pravinlal never got anywhere near showing that he was a British protected person. So he is not entitled to any special consideration. Everyone will be sorry for the plight in which he finds himself. He is a man of standing, intelligence and ability. But, he ought to consider this. His father and mother are in India. His wife and two children are in India. It might be better for him to join them in that great country, where there may be more scope for him than here. This country is not large enough to take in all those whom we would gladly accept. I would dismiss the appeal.

Judgment Two:

ORR LJ. It would not have been possible to listen to the arguments in this case without feeling great sympathy for the sufferings of the Ugandan Asians, but I have come to the clear conclusion that the appeal must fail on each of the issues raised on the applicant's behalf. As to the questions whether the immigration officer treated the applicant unfairly and whether he fell into an error of law by misconstruing the relevant provisions of the British Protectorates, Protected States and Protected Persons Order 1969 or the Uganda Citizenship Ordinance 1962 (re-enacted, after Ugandan independence, in the Uganda Citizenship (Amendment) Act 1963, there is nothing I wish to add to the reasons given by Lord Denning MR; but I would add a brief reference to Sir Digle Foot's submission based on international law. His submission was that there existed prior to the enactment of the Immigration Act 1971 a rule of international law whereby the applicant, so long as he retained the status of a British protected person, had a right, in the event of his being expelled from Uganda, to come to this country, and that the Immigration Act 1971 should not be construed as depriving him of that right. This submission raises two questrions. One is whether assuming that the applicant remained a British protected person and enjoyed before the enactment of the 1971 Act the right under international law which is claimed on his behalf, that Act should be construed as preserving such a right. The other is whether the applicant, again assuming that he remained a British protected person, enjoyed before the enactment of the 1971 Act the right which is climed on his behalf. On the first of these questions we have been referred to conflicting theories in textbooks as to the circumstances in which a rule of international law may become a rule of municipal law; but I need not pause on this controversy since it is common ground (see per Lord Atkin in Chung Chi Cheung v R n1) that a rule of international law cannot be treated as incorporated into English municipal law where to do so would be inconsistent with the provisions of a statute. In the present case it is, in my judgment, clear beyond any doubt that the right the applicant claims under international law is in conflict with the opening words of s 3(1) of the Immigration Act 1971, which provides as follows: n1 [1938] 4 All ER 786 at 790, [1939] AC 160 at 167, 168

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

The Act is there saying that any exception to the rule that a non-patrial requires leave to enter the United Kingdom is to be found in the Act itself or in the regulations made under the Act, and it would plinly, in my judgment, be inconsistent with this provision to recognise any further exception based on international law. For this reason alone in my judgment the 1971 Act cannot be construed as preserving any such right under international law as the applicant claims; but I would add that, quite apart from the opening words of s 3(1), I should have reached the same conclusion on the basis of the first object of the Act, as declared in its long title, 'to amend and replace the present immigration laws', coupled with a consideration of the provisions of the Act as a whole, which introduced in this context a wholly novel distinction between 'patrial' and 'non-patrial' persons and was plainly intended to be a comprehensive code. In these circumstances, if it had been intended to preserve any rule of international law not embraced in the code, it is in my judgment clear that express reference would have been made to the rule in question. Having reached this conclusion as to the first question raised in this part of the case, I do not find it strictly necessary to consider the second; but, having heard a full argument, I think it right to express my conclusion on it. In his judgment in the Divisional Court Lord Widgery CJ said n2: n2 [1974] 1 All ER 415 at 418, [1974] 2 WLR 34 at 37

'... there clearly is authority that in international law an obligation on a country exists to receive back its nationals if those nationals are expelled from other countries in the world.'

Before this court counsel for the Secretary of State, while accepting that there is a rule of international law whereby a country is under an obligation in certin circumstances to receive its nationals expelled from another country, and while not for this purpose seeking to draw any distinction between British citizens and Brititish protected persons, made it clear that he did not accept that there is any such obligation owed to the individual concerned or that the obligation applies in every case of expulsion of a national from a foreign territory. He claimed that the obligation is owed, not to the individual expelled, but towards all other states and is restricted to the receiving of a national who has nowhere else to go. These limitations on the obligation are in my judgment supported by the relevant passage in Oppenheim n1 and by views expressed in certain other textbooks. On the whole of the argument I have not been satisfied that the obligation under international law goes beyond these limits and I am inclined, although it is unneccessary to decide the point, to accept counsel's contention that the rule came into being as a necessary corollary of the recognition by international law of a state's right not to accept aliens into its territory if it does not wish to do so. n1 International Law (8th Edn, 1955), vol i, p 646 For these reasons, in addition to those given by Lord Denning MR, I would dismiss this appeal.

Judgment Three:

LAWTON LJ (read by Orr LJ). I too agree that this appeal should be dismissed. In my opinion there was ample evidence before the immigration officers to justify their refusal of leave to enter the United Kingdom; and had the issue in this appeal been whether the applicant had proved that he was a British protected person (which it was not), I would have adjudged that he had not done so. Further, for the reasons already given, I am satisfied that the immigration officers treated the applicant fairly and that they did not misconstrue the relevant statutory instruments and ordinances. Even if I had not come ot the conclusion I have on the evidence, I should have adjudged that the Immigration Act 1971 applies to him even if he was a British protected person with nowhere else to go who has been expelled from Uganda. I appreciate that the civilised states have for a very long time accepted that there is an obligation on them to receive back into their territories their subjects who have been expelled from other states and who have nowhere else to go. This is part of the comity of nations and has come to be recognised as a rule of public international law. But who is to define the limits of the rule? How is it to be enforeced between states? And who, if anyone, can enforce it against a state? In this sphere of jurisprudence there has been no Moses to bring the law of nations down from Mount Sinai. As with the Mosaic Law, there have been many learned doctors to comment on it, but without a Moses there is something lacking. Blackstone n2 seemed to think that the law of nations resulted 'from those principles of natural justice, in which all the learned of every nation agree'. But when anyone in the United Kingdom seeks to enforce against the Crown what he alleges is a right arising under public international law, the courts have to decide what is the nature ahd extent of the right and whether there are any limitations imposed on it by statute. This was the opinion of the privy Council in Chung Chi Cheung v r n3, per Lord Atkin. I would follow it. n2 Commentaries vol IV, p 67 n3 [1938] 4 All ER 786 at 790, [1939] AC 160 at 167, 168 When deciding the nature and extent of the rule of public international law which is under consideration in this appeal, it is, I think, pertinent to keep in mind the historical background which produced it. It is probable that it arose out of the medieval concept of allegiance. The King was under a duty to protect his liege subjects. Until the British Nationality Act 1948 the suatus of a British subject was based on allegiance. The right to come to the United Kingdom was enjoyed by those who owed allegiance. Those who lived overseas in territories which had been settled as colinies, ceded or acquired by conquest, did owe allegiance; but those who lived in territories which the Crown for various reasons found it convenient to administer without annexation probably did not owe allegiance. This was the opinion of the law officers given in 1855 in relation to the Ionian Islands (see McNair International Law Opinions n1). A similar view was expresed in relation to those living in what used to be called the East African Protectorate: see Ol le Njogo v Attorney-General n2. The source of law in these territories was derived form divers Acts which were consolidated in the Foreign Jurisdiction Act 1890. The very title of that Act reveals the attitude of the Crown to those territories and to those who lived in them. n1 (1956) Vol 1, p 40 n2 (1913) 5 EALR 70 at 77 The second half of the 19th century saw a vast increase in the number and size of the territories which the Crown administered without annexation. They came to be called protectorates. Uganda became one in 1894. Millions of people were affected. One of the benefits which they obtained was protection by the Crown. But they did not become British subjects and the places where they lived were not part of the Crown's dominions. Until the passing of the British Nationality Act 1948 they were in law aliens; and, until the Aliens Order 1943 n3, when in the United Kingdom they had to comply with the Aliens Order 1920. Before 1948, in my judgment, it could not have been argued that such persons were British subjects, or, to use a loose expression which is not used in the 1948 Act, British nationals for the purpose of the rule of public international law which is under consideration. The 1948 Act swept away the long established concept of allegiance as the basis of British citizenship and replaced it by new concepts. Citizens of specified self-governing countries were given the status of British subjects (see s 1 (3)) and as more and more-countries, which in the past had come under British administration, even if they were not British dominions, became independent, they were added to list in s 1(3). Uganda was added in 1963. The result was that by 1971 millions of people in different parts of the world who before 1948 were not British subjects although under British protection acquired the status of British subjects; and even if they had not acquired that status, they had ceased to be aliens (see s 32(1)). Did a rule of public international law which was probably based on allegiance apply to those millions who had acquired this status not under an international convention but by a municipal statute? In my judgment it did not. The rule is so vague and imprecise that it is difficult to know to whom it does apply. Those who owe allegiance to the Crown may be within its ambit. I am confident that British protected persons, which is what the applicant claims to be, are not. n3 SR & O 1943 No 1378 Whatever may be the nature and extent of the rule, I am satisfied that Parliament can decide whether it should be accepted and adopted within the realm; and by implication it has made its decision is the Immigration Act 1971 which regulates all entry into and stay in the United Kingdom. no person has any right of entry which is not given by that Act. Such rights as may be given by public international law to individuals are not rights given by the Act. It follows that they are of no value in municipal law. That does not mean that the Crown should disregard its duties under public international law. The fact that a British protected person had been expelled by another state and has nowhere else to go is, in my judgmet, a factor, but no more than a factor, to be taken into account when the giving of leave is being considered.

DISPOSITION:

Appeal dismissed. Applicant to surrender to his bail. Leave to appeal to the House of Lords refused.

SOLICITORS:

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