R v. Governor of Ashford Reman Centre, Ex parte Bouzagou

R v GOVERNOR OF ASHFORD REMAND CENTRE Ex parte BOUZAGOU

Court of Appeal CIVIL DIVISION

[1983] Imm AR 69

Hearing Date: 22 June 1983

22 June 1983

Index Terms:

Illegal entrant -- Directions for removal -- Original permitted entry for one month -- Overstayed then went to Republic of Ireland -- Returned thence via Liverpool where there was no immigration officer -- Conviction for attempted theft followed by order for detention pending removal -- Whether he had entered unlawfully -- Immigration Act 1971 s 33(1), Schedule 2 para 16(2) -- Immigration (Control of Entry Through Republic of Ireland) (Amendment) Order 1979 (SI 1979/730).

Held:

The applicant, a citizen of Morocco, was admitted for one month on 20 April 1977. His application for an extension, made after the expiry of his permitted stay, was refused on 15 August 1977. He later left for the Republic of Ireland where he married a citizen of that country. After the breakdown of the marriage he came by ship to Liverpool, where there was no immigration officer to deal with passengers from the Republic. According to him he was interviewed and admitted by an official in plain clothes. After conviction for attempted theft an order under Schedule 2 paragraph 16(2) of the Immigration Act 1971 for his detention pending removal was issued. The present appeal arose from the refusal by the Divisional Court to grant him a writ of habeas corpus against the respondent. Held: (i) The appellant was prohibited from entering the United Kingdom unless he was given leave in writing by an immigration officer. (ii) He had not been given such leave and his entry was unlawful.

Cases referred to in the Judgment:

Khawaja (and Khera) v Secretary of State for the Home Department [1983] 1 All ER 765, [1983] 2 WLR 321, [1982, Appendix] Imm AR 139, HL. Lim Chin Aik v The Queen [1963] AC 160, PC. R v Governor of Pentonville Prison, ex parte Azam [1974] AC 18, HL.

Counsel:

Nicholas Blake for the appellant; Alan Moses for the respondent. PANEL: Lawton and Dillon LJJ

Judgment One:

LAWTON LJ. This is an appeal by Mr Ahmed Bouzagou against a refusal by Woolf J, made on 30 March 1983, to grant him a Writ of Habeas Corpus against the Governor of the Ashford Remand Centre, where the applicant has been detained since 15 February 1983 awaiting directions for his removal from the United Kingdom pursuant to the provisions of Schedule 2, paragraph 16(2) of the Immigration Act 1971. Those directions to the Governor were given on the ground that the applicant was an illegal entrant into the United Kingdom. The applicant has submitted that he was not an illegal entrant; alternatively, that even if he were he did not know he was, and the respondent has not suggested that he did know. Surprisingly, the point which has arisen for decision in this case has never before, as far as the researches of counsel go, come before the courts. Mr Bouzagou, who is about 29 years of age, entered the United Kingdom on 20 April 1977. He is a Moroccan citizen. On entry he was given one month's leave to stay in the United Kingdom. He did not go after one month. It follows, and he must have known it followed, that his continued stay here was illegal. Some time after the month had expired he applied to the Immigration Department of the Home Office for an extension of time to stay in the United Kingdom, giving as his reason that he wished to start as a student at a language school in Cambridge. It is clear from the investigations which have been carried out by the Home Office that he almost certainly had no such intention. He continued to stay in the United Kingdom for some time. His application for an extension of time was refused on 15 August 1977. Some time after that date, which has not clearly been established, he left the United Kingdom and went to stay in the Republic of Ireland. Whilst there he married an Irish girl. He had two children by her. The marriage broke down. A court in the Republic of Ireland made an order prohibiting him from cohabiting with his wife. On 13 January 1983 he left the Republic by boat which arrived at Liverpool. According to him, his object in coming to the United Kingdom was to renew his Moroccan passport at the Moroccan Embassy in London. He had to come, so he says, because there was not a Moroccan Embassy in Dublin. From this point onwards it is difficult to say where the truth lies so far as his assertions are concerned. The evidence in the case consists of an affidavit sworn by his solicitor. It is an affidavit of information and belief. The information came from the applicant. The applicant has since been interrogated by an Immigration Officer, who has sworn a long affidavit, from which it is clear that the applicant has considerable difficulty in giving reliable information about what he has been doing and his reasons for doing it. In those circumstances I propose to be somewhat selective about subsequent events. There is no doubt, however, that he did arrive by boat at Liverpool from Dublin on 13 January 1983. On the landing stage at Liverpool there is a notice under the Immigration Act telling those who have no right to stay in the United Kingdom what they should do. Unfortunately, it is a notice which has not been brought up to date as the result of the issuing of a Statutory Instrument in 1979, to which I shall refer later. It is a fact, which is admitted on behalf of the respondent, that at Liverpool there is no Immigration Officer who deals with passengers arriving by boat from the Republic of Ireland. According to the applicant, he was interviewed by an official in plain clothes, to whom he produced his Moroccan passport. That official was not an Immigration Officer. If there was such an official, he was almost certainly a Police Officer whose function was to survey passengers from the Republic of Ireland for the purposes of the Prevention of Terrorism Act. According to the applicant, he was told by that official (if he spoke to one), that he could stay in the United Kingdom for three months. That is a most unlikely story. The Home Office have investigated the possibility of that story being correct. The Police in Liverpool have no note whatsoever of any Police Officer interviewing the applicant. That perhaps is not surprising if they had no suspicions about him, but it is highly unlikely that any Police Officer would have given him the advice which the applicant says he was given. I do not accept his evidence on this point. Having passed the surveillance of such Police Officer (if any) as there was, the applicant left the port area of Liverpool and went to London. His story about intending to go to the Moroccan Embassy to renew his passport seems likely to be untrue, because further investigation by the Home Office Immigration Officer show that he never went anywhere near the Moroccan Embassy on arriving in London. What he did was to get himself arrested and convicted for attempted theft. Once he had come into the custody of the Police in London it was discovered from his passport what had happened about his over-staying his permission to be in the United Kingdom. That resulted in the Metropolitan Police communicating with the Immigration Department of the Home Office and that in turn resulted in that Department making an order under Schedule 2, paragraph 16(2), for his detention in the Ashford Remand Centre pending directions being given for his removal from the United Kingdom. On those facts, Mr Blake, who has given most careful consideration to this case and who has been most helpful to the court in his submissions, has said this. First, that if anyone enters the United Kingdom from the Republic of Ireland and there was no Immigration Officer at Liverpool to control that entry, it cannot be said that it was an unlawful entry. Alternatively, on the facts there is nothing to show that the applicant knew that he was entering the United Kingdom illegally, and that view of his conduct is supported by the fact that the immigration authorities have not sought to prefer any charge against him under the provisions of section 24(1)(a) of the Immigration Act 1971, which make it an offence for any person, contrary to that Act, to knowingly enter the United Kingdom without leave. Mr Blake supported his submissions by inviting our attention to the definition of "illegal entrant" which is contained in section 33(1) of the Immigration Act 1971. The relevant parts of that section read as follows: "For purposes of this Act, except in so far as the context otherwise requires . . . 'entrant' meants a person entering or seeking to enter the United Kingdom, and 'illegal entrant' means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered". Mr Blake had to accept, of course, that his client was a person who had entered the United Kingdom, but he went on to submit that he had not entered unlawfully, because on the facts the inference was -- and it was an inference accepted by Woolf J -- that he had not known that he was entering in breach of the immigration law, and the use of the word "unlawfully" in the definition of "illegal entrant" meant that the applicant had done something which amounted to a criminal offence under the Act. In those circumstances, it was necessary for the respondent to this application to show that the applicant at all times had intended to do the prohibited act of knowingly entering without leave, and the evidence just did not establish that he had entered the United Kingdom with that intent. Mr Blake invited our attention to the Privy Council case of Lim Chin Aik v The Queen LR [1963] AC 160. In the course of that case Lord Evershed, giving the opinion of the Board, had pointed out that where there is an Act dealing with illegal immigration, prima facie, unless the context shows otherwise, those who are seeking to rely upon the commission of a criminal offence must prove the appropriate mens rea. The submission in this case was that, if the court looks at the whole of this Act and takes into account the draconian powers which the immigration authorities undoubtedly have of dealing with those who are illegal entrants, then the court should infer that there has to be the kind of mens rea sufficient to prove a case under either section 24 or section 26 of the 1971 Act before adjudging a person to be an illegal entrant. An Immigration Officer can, as in this case, order the detention of an illegal entrant. Similar paowers exist in respect of those who come in breach of a deportation order or who over-stay their leave to be in the United Kingdom. This being a matter relating to the liberty of the subject, the argument was that the court should be slow to construe this Act in such a way as to put anyone who comes into the country without leave, but does so innocently, into a position where these kind of powers can be used against them. In the course of discussion with counsel a number of situations were canvassed in which one can see that in many circumstances it is possible for people who have no legal right to be in the United Kingdom to come in without leave without appreciating that they had committed an offence under section 24(1)(a) of the 1971 Act. It would on the face of it be very harsh that those who had come in innocently should be detained by an Immigration Officer without any right to trial and then be removed by order from the United Kingdom. I felt at first there was force in that submission. Mr Blake also called our attention to two cases in the House of Lords in which it seems to have been assumed that all cases calling for the exercise of the draconian powers under the 1971 Act come about because of the commission of criminal offences. The two cases to which we were referred were based on facts where criminal offences almost certainly had been committed. In point of time the first of these cases was that of Azam and Another v The Secretary of State for the Home Department LR [1974] Ac 18, and the second and more recent one was that of Khera and Another v The Secretary of State for the Home Department [1983] 2 WLR 321. It is pertinent to remember, however, that in both those cases the problem with which we are concerned in this case, namely, an allegedly innocent entry into the United Kingdom without leave, was never discussed at all. For my own part I found no help from those two cases. It seems to me that this case can only be decided by construing the Act and adjudging what the policy of it is when considered as a whole. In this respect we got much help from Mr Moses, who appeared on behalf of the respondent. He pointed out to us that the Act was one which repealed a large number of statutes dealing with immigration into the United Kingdom. The Sixth Schedule sets out the Acts repealed. They start with the Aliens Restriction Act 1914. It repeals the Commonwealth Immigrants Act 1962, which was found to have many weaknesses when it came to be enforced. It also repealed the Commonwealth Immigrants Act 1968, which tried to remedy some of those weaknesses but was not wholly successful in doing so. The whole object of the 1971 Act was to control immigration into this country and to decide who has the right to enter and stay here. It is pertinent to start at the beginning of the Act. Section 1 has a sidenote "General Principles". Subsection (1) of section 1 is in these terms: "All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person". Then comes subsection (2) which deals with those who have not got the right under subsection (1) to stay in the United Kingdom but come here. It provides 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 Act had to make provision, however, for the Republic of Ireland. That was done in subsection (3), which is in these terms: "Arrival in and departure from the United Kingdom on a local journey from or to any of the Islands (that is to say, the Channel Islands and Isle of Man) or the Republic of Ireland shall not be subject to control under this Act, nor shall a person require leave to enter the United Kingdom on so arriving, except in so far as any of those places is for the purpose excluded from this subsection under the powers conferred by this Act; and in this Act the United Kingdom and those places, or such of them as are not so excluded, are collectively referred to as 'the common travel area'". It will be noted from that subsection that there are powers of control. Those powers are contained in section 9 of the 1971 Act. Two relevant Statutory Instruments have been made under the 1971 Act to control entry from the Republic of Ireland. The first was the Immigration (Control of Entry through Republic of Ireland) Order 1972 (SI 1972/1610). That purported to be made under the powers given by section 9(2) and (6) of the 1971 Act. It is unnecessary for me to go into the detail of that Instrument save to say this, that those who had not got the right to enter and live in the United Kingdom could, in general, stay in the United Kingdom on arriving here from Ireland for a period not longer than three months. It seems to have been discovered after the making of that order that there was a loophole under it for those who, like the applicant, had over-stayed their stay in the United Kingdom and then gone to Ireland and then come back to the United Kingdom after a short stay in Ireland. That loophole was blocked by the Immigration (Control of Entry through Republic of Ireland) (Amendment) Order 1979 (SI 1979/730). The effect of the 1979 Order was to exclude from the right to stay in the United Kingdom for not more than three months on arriving from the Republic of Ireland those who had over-stayed their leave in the United Kingdom. It was accepted in this court by Mr Blake that the consequence of the 1979 Order was that the applicant had no right whatsoever to stay in the United Kingdom even though he had arrived here from the Republic of Ireland. The next stage of this matter, submitted Mr Moses (and in my judgment rightly submitted) was this, that having prescribed who has the right to enter and stay in the United Kingdom and who has not, the Act went on to define rights of abode, and the like. Section 3 sets out what the sidenote calls "General provisions for regulation and control". Subsection (1) of section 3 starts as follows: "Except as otherwise provided by or under this Act, where a person is not patrial" -- and I interpose "and the applicant certainly is not" -- "(a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act". That is a general prohibition of entry to anyone who is not a patrial. It follows that the applicant was prohibited from coming into the United Kingdom unless given leave to do so in accordance with the Act. He could only be given leave by an Immigration Officer and that leave had to be, in ordinary circumstances, in writing. There was no leave given by an Immigration Officer and it follows, of course, there was nothing in writing giving him leave. The general policy, therefore, of the Act was to exclude all who had not got leave from an Immigration Officer given in writing. Anyone who comes here without leave is doing something which is contrary to the Act. That which is contrary to an Act of Parliament is something which is unlawful. It follows, therefore, on the face of it, that the applicant's entry into the United Kingdom at Liverpool was unlawful. It was submitted by Mr Blake that there was nothing else he could do except enter the United Kingdom without the leave of the Immigration Officer. First of all, he could have stayed away. He knew perfectly well that he had over-stayed his leave, that he had no right to be here, and he could have left Ireland and gone back to Morocco or elsewhere without coming to the United Kingdom. It is a matter of common knowledge that there are direct air routes between Dublin and the continent of Europe, and there are also routes by sea. So it is no answer for him to say that he had to come to the United Kingdom. It was then said that once he was here and, assuming that he would have appreciated that he would have to get the permission of an Immigration Officer, he had left the boat and the immediate port area of Liverpool he would have been doing something which was unlawful. Maybe he would have been but there is no particular hardship in that, because once he had found an Immigration Officer -- and he would have had no difficulty in doing so had he tried -- under the provisions of paragraph 2 of the Second Schedule to the 1971 Act he could have been given permission to stay in the United Kingdom by a properly appointed Immigration Officer. So the picture of an unfortunate entrant into the United Kingdom at Liverpool, wandering around likely at any moment to be arrested and sent to prison, is one which is not a true and accurate picture at all. Mr Moses pointed out that all the powers given to Immigration Officers under the Second Schedule to the 1971 Act are discretionary powers and, as such, they have to be used reasonably. If Immigration Officers do act unreasonably, then, as Mr Moses accepted on behalf of the respondent, this court can intervene by way of judicial review. It seems to me, looking at the Act as a whole, that the policy of it is to exclude certain kinds of person; that there is a power to remove those who have no right to be here, and, as an additional power, those who knowingly are here without leave can be prosecuted for criminal offences. In my judgment, there was nothing wrong with Woolf J's judgment. I would dismiss the appeal.

Judgment Two:

DILLON LJ. I agree. It is not surprising that there were no Immigration Officers on duty at Liverpool when the applicant arrived from the Republic of Ireland once it is appreciated that for the purposes of the Immigration Act 1971 the Republic of Ireland and the United Kingdom form a "common travel area", with the consequence that, with very minor exceptions, persons arriving in the United Kingdom on a local journey from the Republic of Ireland are not subject to control under the Act and do not require leave to enter the United Kingdom on so arriving. The applicant, however, is one of the exceptions, because he over-stayed his permitted period of entry on his previous visit to the United Kingdom. He, therefore, did require leave under the Act to enter. For my part, I do not doubt that he knew perfectly well that he required leave. Section 3 of the Act, therefore, applies inasmuch as he is not a patrial. Section 3 provides in mandatory terms that such a person "shall not enter the United Kingdom unless given leave to do so in accordance with this Act". The applicant was never given such leave. Therefore, his entry was in breach of the immigration laws and, being in breach of a statute, it was, on any ordinary use of that language, illegal. It was, on the ordinary use of language, illegal whether or not the applicant was also guilty of an offence under section 24 of the Act, because he had knowingly entered the United Kingdom without leave. Mr Lord has recounted what subsequently happened to the applicant. The immigration authorities seek to apply to him certain powers of removal under the Second Schedule to the Act, which they can only apply in respect of illegal entrants. The question is then, whether the applicant is an illegal entrant. That term is defined in section 33 as meaning "a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered". It seems to me that that quite plainly covers the applicant's case. The point is a short one. It was dealt with very clearly by Woolf J in his judgment. His answer to the case was, very shortly, "If you enter in breach of the immigration laws, then you are entering unlawfully". I entirely agree and I would dismiss this appeal.

DISPOSITION:

Appeal dismissed. Leave to appeal refused.

SOLICITORS:

Messrs Seifert Sedley; Treasury Solicitor.

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