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

R v Secretary of State for the Home Office ex parte Crew

Court of Appeal (Civil Division)

[1982] Imm AR 94

Hearing Date: 25 November 1982

25 November 1982

Index Terms:

Children - Application by illegitimate daughter born Hong Kong to join father - Immigration Act 1971 s 2(1)(b).

Held:

The applicant, the twenty three years old illegitimate daughter, born in Hong Kong, of a Chinese mother and a father said (and assumed to be by the court) to be English, applied on 24 November 1974 for entry clearance to the United Kingdom as a student. Enquiries revealed that her intention was permanent residence and the application was refused on the ground that as an illegitimate child she had no claim to patriality under the Immigration Act 1971: this decision was upheld by an adjudicator and the Immigration Appeal Tribunal. On 15 October 1979 solicitors applied, she having been admitted for one month as a visitor, for her to be accepted as having the right of abode under section 2(1)(b) of the Immigration Act 1971. This application was refused, and the subsequent appeal dismissed by an adjudicator, for the same reasons as before. The present appeal was from the decision of Mr Justice Stephen Brown refusing her application for judicial review. Held: (i) The word "parent" within the meaning of section 2(3)(a) of the Immigration Act 1971, did not include the father of an illegitimate child. (ii) In consequence the applicant had no right of abode under section 2(1)(b) of that Act.

Cases referred to in the Judgment:

In re M., An Infant [1955] 2 QB 479. Butler v Gregory [1902] 18 TLR 370.

Counsel:

L Crawford for the Appellant; S Brown for the Respondent. PANEL: Lord Lane CJ, Watkins LJ and Sir Roger Ormrod.

Judgment One:

LORD LANE CJ: This is an appeal from a determination of Mr. Justice Stephen Brown on 21st April this year, refusing an application for judicial review by Sally Anne Crew, who was seeking to quash the determination of the Adjudicator of Immigration Appeals at Gatwick Airport on 6th May 1981. The facts of the case are simple, and one cannot help having sympathy for the appellant. The circumstances are these. Sally Anne is the illegitimate daughter of a Chinese mother and her father is said to be English, and for the purposes of this application we assume that the father is English. She is aged 23. She was born in Hong Kong. This is not the first occasion on which she has, so to speak, tangled with the immigration laws of this country, because as long ago as 1974 she applied for entry clearance to come to the United Kingdom in order to pursue her studies. That application was refused. There was an appeal to the Adjudicator which failed. She appealed to the Immigration Appeal Tribunal in London. That appeal was heard on 25th May 1976 and was dismissed. We are told that the same point as has been argued in the present appeal was part of the notice of appeal in that case, but the point was expressly abandoned by those appearing for the young lady, and consequently this is the first time, so far as she is concerned, that this matter has been argued in full before the Court of Appeal today. The question is whether she can bring herself within the terms of the Immigration Act 1971. In order to do that she must come within the scope of section 2(1)(b) of that Act. In so far as it is material, the section reads as follows:

"A person is under this Act to have the right of abode in the United Kingdom if --... (b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either -- (i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or (ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it..."

The definition of "parent" is to be found in section 2(3)(a), and reads as follows: "In relation to the parent of a child born after the parent's death, references in subsection (1) above to the time of the child's birth shall be replaced by references to the time of the parent's death; and for purposes of that subsection -- (a) 'parent' includes the mother of an illegitimate child;...." The question is whether the word "parent" in the present case includes also the putative father of this young lady who, for the purposes of argument, is assumed to be a British subject. Mr. Crawford in an argument which was both clear and succinct, and for which we are greatly indebted to him, has submitted to us in forceful terms that for a variety of reasons the word "parent" in this context must include the father of an illegitimate child. The way he put it is this. He says that the Acts of Parliament should be construed in an ordinary fashion, that is to say, words used in an Act of Parliament must receive the interpretation which ordinary people would put upon them. Secondly he suggests that the word "parent" in ordinary conversation must include the father of an illegitimate child: a man in the street would so conclude. He puts that forward as the basis of his argument, and a powerful argument it is. Unhappily for him, and for the argument, this matter in a different context was considered by a Division of this Court in 1955, a Court presided over by Lord Justice Denning, the other two Judges being Lord Justice Birkett and Lord Justice Romer. The case was In re M., An Infant L [1955] 2 All ER 911, [1955] 2 QB 479, That was a consideration by the Court of the meaning of the word "parent" in the Adoption Act 1950. The Court came to the conclusion, so far as that Act was concerned, that the word "parent" did not include the father of an illegitimate child. Lord Justice Denning delivering the leading judgment, said this: "I must say that if the word 'parent' is to be read in its ordinary meaning, I should have thought that the natural father was a parent just as much as the natural mother is: but I do not think that it is to be so read in this Act." Pausing there in the citation, if the judgment stopped there, Mr. Crawford's argument would be very strongly reinforced. The judgment goes on as follows: "In my opinion the word 'parent' in an Act of Parliament does not include the father of an illegitimate child unless the context otherwise requires. This is implied in the decision of Butler v. Gregory (1902) 18 TLR 370, with which I agree. The reason is that the law of England has from time immemorial looked upon a bastard as the child of nobody, that is to say, as the child of no known body except its mother. The father is too uncertain a figure for the law to take any cognizance of him except that it will make him pay for the child's maintenance if it can find out who he is." Then the Lord Justice goes on to consider a series of specific examples, and he ends a little lower down the page with these words, summarising what he has said earlier: "The natural father has no right at law to succeed on intestacy. He has no rights at all, so far as I can see, though no doubt he can apply for the child to be made a ward of court just as anyone else can. The truth is that the law does not recognize the natural father at all. The only father it recognizes as having any rights is the father of a legitimate child born in wedlock." Lord Justice Birkett concurs, although in different terms, with what Lord Justice Denning said. Lord Justice Romer in a judgment which is characteristically scholarly and full, says in effect that if ever an Act of Parliament should perhaps be wide enough to include a putative father in the term "parent", it would be the Adoption Act, but even so, according to Lord Justice Romer, he was driven to the conclusion that even in that Act the word "parent" does not include a putative father. The upshot of that decision is that we are bound by it, and if that is the case, then the matter has to be viewed by us in the light of the first few words of Lord Justice Denning at page 487, namely "In my opinion the word 'parent' in an Act of Parliament does not include the father of an illegitimate child unless the context otherwise requires." In my judgment the context does not otherwise require. One only has to look at the definition section which I have already read, which reads" 'parent' includes the mother of an illegitimate child". One only has to apply to that the well known maxim of construction expressio unius est exclusio alterius to see that the express inclusion of the mother excludes the father of the illegitimate child. Consequently for that reason alone I would dismiss this appeal. But I go further than that. I agree respectfully and entirely with the judgment in In re M, [1955] 2 QB 479, [1955] 2 All ER 911. It seems to me to make no difference, as Mr. Crawford has suggested it does, that in In re M the Court was looking at the rights of the father whereas in the present case we are in effect looking at the rights of the illegitimate child. It seems to me that it makes no difference to the construction. Finally we were referred by Mr. Crawford to the definition section, section 87, of the Child Care Act 1980.There the word "parent" is defined as: "'parent', in relation to a child who is illegitimate, means his mother to the exclusion of his father". It seems to me that that definition does not assist Mr. Crawford's argument. All that that definition is doing is putting in plain terms what is to be implied in the Immigration Act 1971 by reason of the Latin maxim which I have cited. Despite the practical arguments deployed before us, and recognising that one sympathises with this young lady, in my judgment this appeal must be dismissed.

Judgment Two:

WATKINS LJ: I agree.

Judgment Three:

SIR ROGER ORMROD: I agree and I would only add one sentence. There is at present, naturally enough, a strong movement to eliminate so far as possible the difference between illegitimate children and legitimate children. Everyone would sympathise with that policy. But the inescapable fact is that paternity is difficult to prove and it rests, so far as legitimate children are concerned, on a presumption of legitimacy from birth in wedlock. If the Legislature is to go outside that, it leaves wide open the question of proof, and proof of natural father as opposed to legitimate father may be very difficult to obtain. So the legal rule is not a piece of legal (Illegible Word), it is based upon very practical considerations. I too would dismiss this appeal.

DISPOSITION:

Appeal dismissed, no order as to costs.

SOLICITORS:

Signy & Co; The Treasury Solicitor.

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