R v. Secretary of State for Home Affairs and Another, Ex parte Bhajan Singh

R v Secretary of State for Home Affairs and another, ex parte Bhajan Singh

COURT OF APPEAL, CIVIL DIVISION

[1976] QB 198, [1975] 2 All ER 1081, [1975] 3 WLR 225, 139 JP 676

Hearing Date: 16, 19 MAY 1975

19 MAY 1975

Index Terms:

Immigration - Detention - Illegal entrant - Detention pending deportation - Rights of entrant - Temporary release - Right to marry - Right to temporary release to get married - Whether illegal entrant entitled to release for purpose of getting married - Immigration Act 1971, Sch 2, para 21(1) - Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 12.

State - Construction - Convention - Convention guaranteeing certain human rights for all people - Convention adopted by United Kingdom - Statute making provision for depriving people of their liberty in certain circumstances - Statute not referring to convention - Whether statute to be construed in accordance with convention - Whether terms of statute subject to convention - Immigration Act 1971, Sch 2, para 21(1) - Convention for the Protection of Human Rights and Fundamental Freedoms 1950, arts 5(1), 12(1).

Held:

The applicant, an illegal entrant from India, was arrested and detained in prison pending his deportation from the United Kingdom under the Immigration Act 1971. Two days after his arrest he told the immigration authorities that he wished to marry before he was deported. The immigration officer refused the applicant permission to marry. When the matter was submitted to the Home Office for further consideration, it was decided that there was no reasonable ground for authorising the applicant's temporary release from prison, under Sch 2, para 21(1) a, of the 1971 Act, to enable him to marry, and that he should be deported forthwith. The applicant applied for an order of manadamus to the Secretary of State for Home Affairs and the chief immigration officer directing them to provide facilities for the applicant's marriage; alternatively directing them to determine according to law his request to be escorted from prison for the performance of a marriage ceremony. The applicant relied on art 12 b of the Convention for the Protection of Human Rights and Fundamental Freedoms c which guaranteed his right to marry and found a family. a Paragraph 21(1) so far as material, provides: 'A person... detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily... released from detention...' b Article 12 is set out at p 1083 a, post c (1953) Cmd 8969. Held - Although, in the absence of any direct conflict, the 1971 Act ought to be construed in conformity with the convention, art 12 did not give people an unlimited right to marry simply because they were of marriageable age, but only insofar as the circumstances in which they were placed permitted. Article 12 was subject to art 5(1)(f) d of the convention, which recognised that a person subject to deportation proceedings might be deprived of his liberty, and accordingly, as the applicant had been lawfully detained, he had no right to be released in order to get married. The application for mandamus would therefore be refused (see p 1083 b to e and g to p 1084 b and d, post). d Article 5(1), so far as material, is set out at p 1083 j, post Per Lord Denning MR. The right to marry may exist even though there is no immediate prospect of founding a family (see p 1084 c, post).

Notes:

For the removal of an illegal entrant, and for temporary release from detention, see 4 Halsbury's Laws (4th Edn) 499-501, 522, paras 1008, 1031. For the effect of international agreements on the construction of statutes, see 36 Halsbury's Laws (3rd Edn) 411, para 623. For the Immigration Act 1971, Sch 2, para 21, see 41 Halsbury's Statutes (3rd Edn) 69.

Cases referred to in the Judgment:

Birdi v Secretary of State for Home Affairs (11th February 1975) unreported, [1975] Bar Library transcript 67 B, [1975] The Times, 12th February, CA. Waddington v Miah [1974] 2 All ER 377, [1974] 1 WLR 683, 59 Cr App Rep 149, HL; affg sub nom R v Miah [1974] 1 All ER 110, [1974] Crim LR 430, CA.

Introduction:

Appeal. This was an appeal by the applicant, Bhajan Singh, against the judgment of the Divisional Court of the Queen's Bench Division (Lord Widgery CJ, James LJ and May J) on 2nd May 1975 refusing the applicant leave to apply for an order of mandamus directed to the respondents, the Secretary of State for Home Affairs and the chief immigration officer, directing them (i) to provide facilities for the marriage of the applicant and Paramjit Kaur before action was taken to deport the applicant; alternatively (ii) to determine according to law the applicant's request that he be escorted from HM Prison, Winson Green, Birmingham, to the office of the Registrar of Births Deaths and Marriages at Stafford Street, Wolverhampton, for the purpose of the performance of a ceremony of marriage between the applicant and Paramjit Kaur. The facts are set out in the judgment of Lord Denning MR.

Counsel:

Preetam Singh for the applicant. Harry Woolf for the respondents. PANEL: LORD DENNING MR, BROWNE AND GEOFFREY LANE LJJ

Judgment One:

LORD DENNING MR. The applicant, Mr Bhajan Singh, came to this country in April 1973. He came quite illegally. We do not know how, but I expect he probably came from India, crossed in a little boat and made his way to the Midlands. The next we know of him is that he was living in Coventry. As he had come since 1st January 1973, without permission, he was an illegal entrant and liable to be removed at any time. On 7th April 1975 he was arrested and detained with a view to his removal and deportation. He is a man of about 26 now. A day or two after he was arrested, his solicitor telephoned to the authorities and said that the applicant wished to marry a Miss Paramjit Kaur. The authorities saw the man and the girl. Both of them said that they had not thought of marriage prior to his arrest. She said that she had not thought of marriage until the previous day. She was only 16 at the time. She was born on 11th October 1958. She had just left school. Her parents would not think of her marrying until she left school. Lord Widgery CJ seems to have thought that this was a 'sham marriage'. But affidavits have been put before us which show that, in this community, marriages are often arranged by the parents or relatives without the young couple knowing anything about it. There was evidence that that is what happened here. In November 1974, when the girl was 16, the man's uncle and her father, with an intermediary, arranged that this couple should get married, but the marriage was not to take place until she had finished school. On those affidavits it is fair to say that this was not a 'sham marriage', but an arranged marriage, arranged by the relatives without the knowledge of the couple, but nevertheless a genuine engagement. In support of this application counsel for the applicant before us has relied on one of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 12 n1. It says: n1 (1953) Cmd 8969, ratified by the United Kingdom on 8th March 1951

'Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.' The national laws are those which cover consanguinity, bigamy, marriageable age and so forth; and also the formalities such as registration. So long as those national laws are complied with, counsel for the applicant urges that the first words of that article are such that this man has a right to marry the girl and should be released for the purpose.

What is the position of the convention in our English law? I would not depart in the least from what I said in the recent case of Birdi v Secretary of State for Home Affairs n1. The court can and should take the convention into account. They should take it into account whenever interpreting a statute which affects the rights and liberties of the individual. It is to be assumed that the Crown, in taking its part in legislation, would do nothing which was in conflict with treaties. So the court should now construe the Immigration Act 1971 so as to be in conformity witha convention and not against it. n1 (11th February 1975) unreported, [1975] Bar Library transcript 67B In addition, I would add that the immigration officers and the Secretary of State in exercising their duties ought to bear in mind the principles stated in the convention. They ought, consciously or subconsciously, to have regard to the principles in it -- because, after all, the principles stated in the convention are only a statement of the principles of fair dealing; and it is their duty to act fairly. I would, however, like to correct one sentence in my judgment in Birdi's case n1. I said: 'If [an Act of Parliament] did not conform [to the convention] I might be inclined to hold it invalid.' That was a very tentative statement, but it went too far. There are many cases in which it has been said, as plainly as can be, that a treaty does not become part of our English law except and insofar as it is made so by Parliament. If an Act of Parliament contained any provisions contrary to the convention, the Act of Parliament must prevail. But I hope that no Act ever will be contrary to the convention. So the point should not arise. n1 (11th February 1975) unreported, [1975] Bar Library transcript 67B I would repeat that when anyone is considering a problem concerning human rights, we should seek to solve it in the light of the convention and in conformity with it. In support of this view I would refer to Waddington v Miah n2, where it was a question of retrospective legislation, and Lord Reid, speaking for the whole House of Lords, referred to the convention and in particular art 7, and said: n2 [1974] 2 All ER 377 at 379, [1974] 1 WLR 683 at 694

'So it is hardly credible that any government department would promote or that Parliament would pass retrospective criminal legislation.' So I will say it is hardly credible that any government department or Parliament would do anything contrary to art 12.

So I turn back to art 12. It seems to me plain that that article does not give to people an unlimited right to marry simply because they are of marriageable age. It only gives such a right so far as the circumstances in which they are placed permit. A sailor out at sea on a voyage cannot be expected to have a right to marry until he gets home. A soldier who is posted on active service due to go the next day cannot say that he is entitled to stay at home because he wants to get married. Thus art 12 must be subject to the circumstances in which the parties are placed. In particular, it is subject to art 5(1), which says that no one is to be deprived of liberty save in the following cases, including --

'(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.'

Clearly a person in prison for a crime does not have any right to leave prison in order to get married. We were referred to a manual which is published by the European Convention on Human Rights. A man who was detained in a German prison complained that the German judicial authorities had refused him permission to marry. He took his complaint before the Commission on Human Rights and they rejected it. They held that art 12 of the convention was subject to art 5(1)(c) and (a). Similar considerations apply in regard to an illegal entrant who is detained with a view to his removal. Article 12 is subject to art 5(1)(f). A man who is detained as an illegal entrant with a view to his removal has no right to be released in order to get married. The Home Secretary in his discretion is entitled to have him removed. I think there is no ground for mandamus here. I would only add this. Lord Widgery CJ placed some emphasis on the words 'to found a family', as though a right to marry could not subsist without it. I would not myself take that view. I should have thought that a couple might have a right to marry even though there was no immediate prospect of founding a family. I would dismiss the appeal.

Judgment Two:

BROWNE LJ. I agree that this appeal should be dismissed for the reasons given by Lord Denning MR and I feel I cannot usefully add anything.

Judgment Three:

GEOFFREY LANE LJ. I also agree.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Clayton Leach Sims & Co, agents for Kendrick Williams & Feibusch, Wolver-hampton (for the applicant); Treasury Solicitor.

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.