Immigration Appeal Tribunal v. Maheswary Chelliah

IMMIGRATION APPEAL TRIBUNAL v MAHESWARY CHELLIAH

Court of Appeal (Civil Division)

[1985] Imm AR 192

Hearing Date: 8 October 1985

8 October 1985

Index Terms:

British citizenship -- qualification by virtue of s 11(1) of the British Nationality Act 1981 -- definition of "right of abode" with reference to s 2(1)(c) of the Immigration Act 1971 -- interpretation of "ordinarily resident there for the last five years or more" -- whether periods as an overstayer break the continuity of a period of residence -- whether an extension of leave by the Secretary of State is or can be retrospective -- whether the five year period must be an unbroken period.

Held:

The respondent was a citizen of the United Kingdom and Colonies. In May 1975 she came to the United Kingdom as a visitor. She was then granted extensions of stay until 31 December 1976. She then became an overstayer but on 9 February 1977 applied for further leave to remain, which was granted on 7 April 1977. That extension expired on 31 December 1977. She then became an overstayer again, because not until 10 January 1978 was a further application for leave to remain made on her behalf. The periods of overstaying appeared to have arisen through oversights by her relatives. They did not prevent her being granted indefinite leave to remain on 6 February 1978. She continued to reside in the United Kingdom until the coming into force of the British Nationality Act 1981, on 1 January 1983. Under s 11(1) of that Act she qualified as a British citizen if, within the meaning of s 2(1)(c) of the Immigration Act 1971, she had, on 1 January 1983 a right of abode in the United Kingdom. Her application for citizenship under those provisions was refused. She appealed and her appeal was dismissed by an Adjudicator and the Tribunal. She sought and secured judicial review. On appeal to the Court of Appeal it was argued that her application was properly refused because she had been an overstayer during part of the five years before the coming into force of the 1981 Act. Held: 1) Periods spent in the United Kingdom as an overstayer were periods when the respondent was in the United Kingdom unlawfully and could not constitute periods of ordinary residence. 2) The Secretary of State had no power to grant or vary leave to remain retrospectively; it followed that the grant of indefinite leave to remain on 6 February 1978 could not be treated as beginning on 1 January 1978. 3) The requirement of the Act, of being "ordinarily resident . . . for the last five years or more" required a period of unbroken ordinary residence. Periods of unlawful residence as an overstayer could not be discounted by adding to the period, earlier periods of lawful residence.

Cases referred to in the Judgment:

Suthendran v Immigration Appeal Tribunal [1977] Imm AR 44. R v Bello [1978] Crim LR 551. R v Secretary of State for the Home Department ex parte Khawaja [1982] Imm AR 139. R v Secretary of State for the Home Department ex parte Margueritte [1982] 2 All ER 909. R v Barnet London Borough ex parte Shah [1982] 1 All ER 698. Grant v Borg [1982] 2 All ER 257. R v Immigration Appeal Tribunal ex parte Hamood (QBD 7 February 1983), unreported.

Counsel:

Andrew Collins QC for the appellant; Ian Macdonald for the respondent PANEL: Kerr, Stephen Brown, Ralph Gibson LJJ

Judgment One:

KERR LJ: This is an appeal from a judgment given by Hodgson J on 21 February 1985. He had before him an application for judicial review by Mrs Maheswary Chelliah seeking to quash all decisions concerning her application for a certificate of entitlement under the Immigration Act 1971 and confirmation that she became a British citizen on 1 January 1983 pursuant to section 11 of the British Nationality Act 1981. Her applications were refused by the Secretary of State on 5 May 1983, and her appeal to an adjudicator under section 13(2) of the Immigration Act 1971 was dismissed on 20 September 1983. A further appeal to the Immigration Appeal Tribunal was then dismissed on 10 January 1984. On 18 April 1984 she obtained leave from McNeill J to apply for judicial review to quash all these decisions. On 21 February 1985, in the judgment appealed from, Hodgson J granted her application, and in order to avoid sending the case back made a declaration that she was a British citizen within the meaning of the British Nationality Act 1981. That course was taken by him by consent in the light of his judgment. The Immigration Appeal Tribunal now appeals against that decision. The applicant is a lady of 66, of Sri-Lankan origin. She was and is a Citizen of the United Kingdom and Colonies. The sole issue, in effect, is whether she was ordinarily resident here for the necessary period of five years before 1 January 1983. She came here on 4 May 1975 to visit her son, with a visit entry clearance issued in Kuala Lumpur on 11 April 1974. She was granted leave to enter for six months, subject to the usual conditions as to employment. There were then various extensions to 31 December 1976. Thereafter she became what is commonly referred to as an overstayer on two occasions. First she inadvertently failed to apply for a further extension beyond 31 December 1976 in time, but applied on 9 February 1977, and on 7 April 1977 she was granted an extension until 31 December 1977 on the same conditions. Although the gap in her leave to stay from 1 January to 7 April 1977 effectively raises the same point as a similar gap in the following year it is not, in itself of direct relevance for present purposes since this gap occurred more than five years before 1 January 1983. We are therefore concerned with the similar events in 1978. There was again an inadvertent failure to apply for an extension in time. On 10 January 1978, some ten days out of time, her son applied on her behalf in writing, and went to the Home Office on the following day to pursue that appliction. After enquiries she was granted indefinite leave to remain on 6 February 1978. That decision was communicated to her, and to her son, who was her sponsor and with whom she was staying, in the following terms, so far as material, on 6 February 1978. The letter from the Home Office to her began as follows:

"I am writing to say that there are no longer any restrictions on the period for which you may remain in the United Kingdom. An appropriate endorsement has been placed in your passport which is enclosed."

It is unnecessary to read any more. The letter to her son, so far as material, was in the following terms:

"I am writing to say that the time limit has been removed from the stay of Mrs M Chelliah."

Three points have been argued on this appeal and I will come to the relevant statutory provisions in a moment. The first point can be described as the breach of the immigration laws point. The issue is whether the appellant was ordinarily resident in this country, in the sense of not being in breach of the immigration laws, during the period from 1 January to 6 February 1978. In other words, is the applicant entitled to count this period as part of her ordinary residence here for five years before 1 January 1983? The second point can be described as the retrospection point. If the answer to the first issue is 'no', was the effect of the decision to grant her indefinite leave on 6 February 1978 retrospective, so that she is entitled to count this period on that ground in any event? The judge dealt with both these poins and answered them both in favour of the applicant, and the Immigration Appeal Tribunal is now appealing against those two decisions. The third point can be referred to as the five years point and is raised by a respondent's notice on behalf of the applicant. The submission is that the five year period need not be continuous, so that even if there is a period which cannot be counted within the last five years before 1 January 1983, the applicant is still entitled to succeed if she can show an aggregate period of five years ordinary residence prior to 1 January 1983 as the applicant would clearly be able to do even allowing for the two gaps respectively in early 1977 and 1978. This last point was not dealt with by the judge, possibly because he considered it to be unnecessary on the conclusions which he had already reached or because he considered that it might be regarded as being in conflict with an unreported decision of Stephen Brown J (as he then was) in R v Immigration Appeal Tribunal, Ex parte Hamood, decided on 7 February 1983. I will briefly refer to that case at the end of this judgment. What was said on behalf of the applicant on this appeal was that that case was either wrongly decided or the relevant points, and in particular what I have called the five year point, were not argued in that case. I then turn to the various statutory provisions which are relevant to one or more of these issues. Nearly all of them are to be found in the Immigration Act 1971, and I must set out the following provisions. Section 1(1):

"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."

Subsection (2):

"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 I need not read any further. Section 2(1)(c): "A person is under this Act to have the right of abode in the United Kingdom if . . . (c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more." Then section 2(3)(d): "subject to section 8(5) below" -- which is irrelevant for present purposes --

"references to a person being settled in the United Kingdom and Islands are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain."

And subsection (6) of section 2:

"In the following provisions of this Act the word 'patrial' is used of persons having the right of abode in the United Kingdom."

Section 3, subsection (1): "Except as otherwise provided by or under this Act, where a person is not patrial -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act: (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period." Then section 3(3)(a): "In the case of a limited leave to enter or remain in the United Kingdom -- (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions . . ." Section 3(5) "A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported. Section 14 provides for rights of appeal to adjudicators, and that -- "a person who has a limited leave under this Act to . . . remain in the United Kingdom may appeal . . . against any variation of the leave (whether as regards duration . . .)" or otherwise, and shall not "be required to leave the United Kingdom . . . so long as his appeal is pending . . .". Then section 24(1)(b) is one of the provisions in Part III of the Act dealing with criminal proceedings and is in the following terms: "A person who is not patrial shall be guilty of an offence punishable on summary conviction with a fine . . . or with imprisonment . . . or with both, in any of the following cases . . . (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly . . . (i) remains beyond the time limited by the leave." Then section 33, subsection (2), is part of the interpretation provision and falls to be read in particular with section 2(1)(b). It provides as follows:

"It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the immigration laws."

The "immigration laws" are defined in subsection (1) of section 33 as meaning "this Act and any law . . . similar to this Act . . . in force", but for present purposes the expression "in breach of the immigration laws" means being in breach of the Immigration Act 1971. Finally, and also to be read together with the latter provisions, there is section 11(1) of the British Nationality Act 1981 in the following terms: "Subject to subsection (2)" -- which is immaterial -- "a person who immediately before commencement -- (a) was a citizen of the United Kingdom and Colonies; and (b) had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force, shall at commencement become a British citizen." The relevant date for that purpose is 1 January 1983. Against that background I then turn to the three issues to which I have referred. I should say at the outset, however, that no question of the applicant's right to remain here for as long as she wishes arises on this appeal. The issue is simply whether she is already a British citizen. If not then she will have wasted a fee of -- I think a sum of @100 was mentioned -- in applying for a certificate of entitlement, and she would have to apply for naturalisation to acquire British nationality, which we have been told would cost about @250 and would be discretionary. I turn first to the breach of the immigration laws point. This is a short point and in my view it is virtually settled by authority against the applicant. The position is that from 1 January to 6 February 1978 the applicant required leave to be here, but her leave to be here had expired: se section 1(2) and 3(1)(b) of the Act. She therefore remained "beyond the time limited by the leave" as referred to in section 3(5)(a), and was consequently liable to deportation under that provision. Of course, no question of deporting her ever arose in the circumstances of this case, but the provision making her liable to deportation as a sanction for overstaying is clearly of the greatest relevance in considering whether or not she was then here in breach of the Act. In that connection it seems to me that section 3(1)(b) must be read in the context of section 1(2). The latter provides for regulation and control, and that is what section 3 provides for in detail. Accordingly in my view, purely as a matter of first impression, her presence in this country during that period was in breach of the Act and unlawful. That approach is supported by authority to which the judge was evidently not referred, or at any rate he does not mention the relevant authorities in his judgment. Subject to a point of distinction to which I come in a moment the same issue arose in the decision of this court in R v Secretary of State, Ex parte Margeritte [1983] 1 QB 180. In that case the applicant applied for registration as a citizen of the United Kingdom and Colonies under section 5A of the British Nationality Act 1948, which also appears in Appendix A to Schedule 1 of the 1971 Act, but for the purposes of this issue I do not think that makes any difference. I should say at once that the applicant in that case was a deliberate overstayer who went to ground for about four years. Mr Macdonald seeks to distinguish that decision on that ground, but the decision itself did not turn on the question whether or not he was guilty of any criminal offence. The decision was that an overstayer is, during the period of his or her unauthorised overstay, not lawfully resident here, and therefore in breach of the Act, and therefore not ordinarily resident here. That was the decision in Ex parte Margueritte and I do not think that I need read anything from the judgments in that case. The principle of the decision, and the decision itself, were approved by the House of Lords in R v Barnet London Borough Council, Ex Parte Shah [1983] 2 AC 309. In the sole speech delivered in that case by Lord Scarman he said this at the bottom of page 343, having dealt with the meaning of the expression "ordinarily resident" as being "a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes": "There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, eg in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may be able to do so)", and then he referred to Ex parte Margueritte and another case, and went on as follows:

"There is, indeed, express provision to this effect in the Act of 1971, section 33(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."

Prima facie, therefore, Mrs Chelliah, having been an overstayer during the period in 1978 to which I have referred, was, during that period, not ordinarily resident because she was here unlawfully and in breach of the Act. However, Mr Macdonald makes two submissions in reply. First he submits that a person is only here unlawfully or in breach of the Act if he does something which violates an express requirement of the Act. In that context he points to section 3(1)(a) and contrasts that with section 3(1)(b). He points out that section 3(1)(a) provides that a person "shall not enter the United Kingdom", whereas there is no similar express obligation to leave the United Kingdom when the leave to stay expires, either in section 3(1)(a) or in section 3(1)(b). It is true, as Mr Macdonald has of course conceded that such a person is liable to be deported under section 3(5)(a). But he submits that that is not conclusive to show that the person is thereby in breach of the Act since deportation may follow under paragraphs (b) and (c) of that provision without any breach of the Act having taken place. In my view, however, that submission is directly contrary to the authorities of Ex parte Margueritte and Ex parte Shah. These decisions show that overstaying without leave is unlawful, in breach of the Act, and precludes the period in question from being counted as a period of ordinary residence. The second submission of Mr Macdonald, and on the basis of which he seeks to distinguish those cases, is that in Ex parte Margueritte the applicant was a deliberate overstayer and may well have committed a criminal offence under section 24(1)(b)(i) which I have set out. In the present case, on the other hand, it is common ground that the applicant did not act knowingly but only inadvertently in failing to apply for leave in time, and that she was not guilty of any criminal offence. Nevertheless in my view a person whose leave has expired, who is here without leave and therefore liable to deportation, is clearly here unlawfully even if in the circumstances his state of mind was not such as to make him liable to prosecution under some specific provision of the Act. Moreover, as Ralph Gibson LJ pointed out in the course of the argument, the decision of the House of Lords in Grant v Borg [1982] 1 WLR 638 has greatly limited the ambit of this criminal offence by holding that whether or not a criminal offence has been committed falls to be decided on the first day of the period of overstay. The second part of the holding in the headnote reads as follows:

"Held . . . that an offence under section 24(1)(b)(i) of the Immigration Act 1971 could only be committed on the day after the leave expired; that accordingly if the offence could not be proved to have been committed on that day because the immigrant remained in ignorance of some fact constituting a necessary element of the offence, his acquisition of knowledge of that fact on a later date, when he was still in the United Kingdom without leave, would not render him guilty of any offence on that later date."

It was because of that decision that I said earlier that the applicant in the Margueritte case was not necessarily guilty of an offence under section 24(1)(b)(i). On Mr Macdonald's argument, if a person did not advert to his position on the first day on which he became an overstayer, in the sense that he did not then know that he was overstaying without leave, he could nevertheless count the whole period of his overstay thereafter as a period of ordinary and lawful residence. I cannot accept that submission and therefore conclude that in principle this case is indistinguishable from the decision of this court in Ex parte Margueritte as approved by the House of Lords in Ex parte Shah. The judge, without referrring to those authorities, took a different view. He said at page 5-H: "The concept of being in breach of law connotes in my judgment some form of illegality and, although by inadvertently overstaying for a short period the applicant became liable theoretically to deportation and would have had no appeal under section 14, she was not actually in breach of any law. In this connection the way in which in Khera and Khawaja [1984] 1 AC 74 Lord Bridge rationalised the illegality of an entry by fraud by reference to section 26(1)(c) of the Act is, I think, of interest.

"In my judgment, it is not possible to say that during those two short periods the applicant was in breach of the immigration laws and it follows that she is entitled to the relief claimed."

With great respect, I cannot agree with that analysis. The Khawaja case raised an entirely different issue. Presumably the judge had in mind the passage in the speech of Lord Bridge at page 118. For my part I find it unnecessary to read that. The position in that case was that the appellant had obtained the necessary leave to enter, but had obtained it by deception. By obtaining leave by deception he had committed an offence under section 26, and he was therefore held to have been an illegal entrant on that ground. But in the present case, in far less serious circumstances, the applicant had no leave at all during the relevant period. For the reasons I have already stated that made her residence unlawful and in breach of the Act, and deprived her residence during that period of its character of ordinary residence. For those reasons I would allow this appeal in relation to the judge's first conclusion. I then turn to the retrospection point. The judge appears to have addressed his mind mainly to the letter to the son of the applicant, which stated that "the time limit has been removed from the stay of Mrs M Chelliah", and he apparently regarded that as indicating an intention to make the removal retrospective. Bearing in mind that the same person wrote a letter direct to the applicant on the same day, which I have also read, which does not bear that construction, I am not satisfied that there was any intention in any of these letters, on the part of the writer, to act retrospectively. But however that may be it is clear from a decision of the House of Lords to which the judge was not referred that the Secretary of State would in any event not have had power to vary a leave which had expired so as to grant leave retrospectively. The case is Suthendran v Immigration Appeal Tribunal [1977] AC 359. As in the present case, a person applied for an extension of leave after his leave had expired, but that application, differently from the present case, was refused. He then sought to appeal to an adjudicator. It was held by the Divisional Court and the Court of Appeal, and by a majority of three to two in the House of Lords, that on the true construction of section 14(1) of the 1971 Act an appeal was only open to a person who has leave, not to a person who no longer has leave because such leave has expired. Precisely the same argument appears to me to apply to section 3(3)(a), the words being "a person's leave may be varied", in the sense that such leave can no longer be varied when the leave itself no longer exists. That was the clear view of two members of the majority of the House of Lords. At page 366-H Viscount Dilhorne said this after referring to the construction of section 14 which I have already indicated:

"Consideration of this section leads me to the conclusion that Bridge LJ was right when he said in R v Immigration Appeal Tribunal, Ex parte Subramaniam [1977] QB 190, 204-B-C: 'Once a limited leave to enter has expired, there is nothing left to which an application to vary can sensibly relate'."

Lord Dilhorne went on:

"I see nothing in section 3(3) which points to any other conclusion."

Similarly Lord Russell of Killowen said this at page 372-A after quoting section 3(3) dealing with the power to vary:

"In my opinion this provision is not applicable to a limited leave which has expired and no longer has any operation: the Secretary of State has no powers in relation to such a former limited leave. He has in such a case a power to give de novo a leave to remain, and in the case of an application to vary an expired limited leave by extention he will no doubt treat the application as an application for the grant of leave to remain: though I observe that there is no right of appeal from a refusal to grant such leave to remain. The opinion expressed in this paragraph is fatal to the appeal: for the appellant's limited leave to enter (and remain) had expired long before even his application to vary it by extension was made. Accordingly his purported appeal to an adjudicator under section 14(1) from a refusal to vary had no standing, there being no power in the Secretary of State to vary the defunct limited leave."

I think that if the judge had been referred to those observations he would have been bound to come to a contrary conclusion. It is true that to a limited extent they can be treated as having been obiter in relation to the particular point which arose for decision in that case. Nevertheless the point is so close to the present one, and the remarks which I have read are so clear and succinct, that it seems to me, apart from the intrinsic conviction which they carry that they must undoubtedly be followed. Accordingly I would allow this appeal on the second issue as well. I should only add that the harsh results of the decision which might have flown from the decision in Suthendran for persons who apply in time but are only granted leave after the expiry of their leave were removed by the Immigration (Variation of Leave) Order 1976, SI 76: 1572. That provides, so far as material, in Regulation 3(1):

"Where a person has leave to enter or remain in the United Kingdom for a limited period and applies to the Secretary of State before the expiry of that period for such limited leave to be varied, then, except in a case falling within paragraph (2) below, the duration of his leave shall, by virtue of this Order, be extended until the expiration of the twenty-eight day after the date of the decision of the application."

I therefore follows that a person who applies before the expiry of the limited leave but is only granted an extension after the expiry of the limited leave will not be treated as an overstayer and will, on the view which I have expressed, not be in breach of the Act but will be lawfully here and ordinarily resident here. That leaves the point raised by the cross notice, which I have called the five year point, which was not argued below. It turns on the correct interpretation of section 2(1)(c). The position is that under section 2(3)(d) Mrs Chelliah became settled in the United Kingdom on 6 February 1978 when all restrictions on her period of stay were removed. The issue is therefore whether she had been ordinarily resident here before that date "for the last five years or more" under section 2(1)(c). I have already expressed the view that she was not so ordinarily resident from 1 January to 6 February 1978; nor, indeed, from 1 January to 7 April 1977. As a matter of first impression she was therefore not ordinarily resident here for "the last five years or more" before 6 February 1978. The words "the last five years" clearly appear to require uninterrupted continuity. Otherwise the words "the last" would have to be deleted.But Mr Macdonald challenged this and claims that the words "or more" indicate that discontinous periods of interrupted ordinary residence can be aggregated to the required total of five years. I think that the words "or more" were probably unnecessary and that they mean no more than "at least for the last five years". He also points to section 5A(3) of the British Nationality Act 1948, which appears as Appendix A to Schedule 1 of the Act, as I have already mentioned. That provides as follows:

"The condition that a person is required by subsection 1(b) or 2(b) above to fulfil is that throughout the period of five years ending with the date of his application to be registered", and then I omit immaterial words, "he has been ordinarily resident in the United Kingdom."

Those words are clearly more explicit than the words "the last five years". But I do not think that the difference in language in the different context of section 2(1)(c) indicates any intention that the words "the last five years" were intended to bear any other than their ordinary meaning. I would accordingly reject this submission as well. It only remains to mention the unreported decision of Stephen Brown J in Hamood, to which I have already referred. In that case the applicant was an overstayer by only four days due to the lateness of his application for an extension, and he had been refused a certificate of patriality under section 2(1)(c) on that ground by the Secretary of State. Stephen Brown J, applying the Margueritte case, held that the applicant must fail in law and that his position could only be cured as a matter of discretion by the Home Secretary. None of the present arguments appears to have been adduced in that case, which appears to have been argued solely on the basis of the period of four days being de minimis. I can see no reason for doubting the correctness of that decision. I would only add that the Secretary of State may perhaps also wish to consider any executive discretion that he may have in the context of the present case in which the applicant is clearly entirely free from blame, as was common ground. However, that is not a matter for us. I would allow this appeal.

Judgment Two:

STEPHEN BROWN LJ: I agree that this appeal should be allowed. I find myself in complete agreement with the reasons given by my Lord, in his judgment and I do not desire to add anything.

Judgment Three:

RALPH GIBSON LJ: I also agree that this appeal must be allowed but I have some observations that I wish to add on the first point, the construction of the phrase "when he is there in breach of the immigration laws" in section 33, subsection (2). Mr Macdonald, on behalf of Mrs Chelliah, acknowledged that if a person having only a limited leave to remain remains beyond the time limited by his leave then his presence in the United Kingdom is in breach of the immigration laws if -- but only if -- he so remains knowingly so as to be guilty of the offence under section 24(1)(b). If he is not guilty of that offenc his presence, without leave to remain, is not in breach of the immigration laws, according to his argument, because he is not in breach of any obligation imposed upon him by the Act. The words in section 3(1)(a) "he shall not enter unless given leave" impose a clear obligation with reference to leave to enter. In section 3(1)(b) there are no similar words but, it is said, only permissive words which enable leave to remain to be given either for a limited or for an indefinite period but impose no obligation not to be present without leave. This construction, it was submitted, is supported by the decision of the House of Lords in Khawaja v The Secretary of State for the Home Department [1984] AC 74. In this case it was before the learned judge, and has been before this court, common ground that Mrs Chelliah was not guilty of the offence of knowingly remaining under section 24(1)(b). There has, accordingly, been no argument directed to the point or, in particular, to the nature of the knowledge which must be proved to show guilt of the offence. The learned judge dealt with the matter thus at page 3 of the judgment. He said:

"It is not contended that on either occasion there was anything other than oversight responsible for the applications being made late and it is not suggested that the applicant was on either occasion guilty of an offence under section 24(1)(b)."

He then later cited Mrs Chelliah's account of what happened from her evidence in respect of the 1978 gap. He read from her affidavit the following:

"'The reason was that I had simply forgotten over the Christmas and New Year period that I should renew my Visa, and only ralised a few days afater my leave had run out, when I was planning a trip to Sri Lanka in February 1978.'"

The judge added that the respondents accept that the reasons given were entirely true. Later in his judgment, the learned judge refers to Mrs Chelliah as having "inadvertently" overstayed for a short period. For my part I do not question the good sense of Mrs Chelliah's case having been treated in this way. Nevertheless it would not be right, in my judgment, for any report of this case to convey the impression that "inadvertence" must, in every case, mean that an overstayer cannot be guilty of knowingly remaining beyond his leave. Since the point has not been argued it is sufficient to draw attention to it and to say that it would require further consideration for the following reasons. The offence under section 24(1)(b) does not require proof of any prior purpose to remain without leave but only that the accused do so knowingly. The offence can only be committed on the day after the leave expires, and if the overstaying is not done knowingly on that day acquisition of knowledge of the necessary fact on a later date could not render the overstayer guilty of the offence: see Grant v Borg [1982] 1 WLR 638 at 639. There is no rule of law, so far as I am aware, which requires, in order to establish guilt of such an offence, proof that the accused not only had knowledge of the relevant fact but also that on a particular day, or when doing a particular act, he summoned that knowledge from his memory and consciously adverted to it. If the law made any such requirement it is difficult to see how, in the ordinary case, the burden of proof could be discharged. There is, moreover, authority relevant to the question, R v Bello [1978] 67 CAR 288, where in the Court of Appeal (Criminal Division) Lord Widgery LCJ, giving the judgment of the court, said with reference to section 24(1)(b) of the Immigration Act:

"A man can do an act knowingly even though at the moment when he does it the relevant fact is not actually in his mind. If he has the capacity to restore that fact to his mind then on the face of it we would have thought the requirement of knowingly is satisfied."

That is, I am sure, enough on a point which has not been argued and does not arise in the case. In this case, Mrs Chelliah was not guilty of a section 24(1)(b) offence. When she remained in this country without leave to be here, but also without guilt of the offence, was she in this country in breach of the immigration law within section 33, subsection (2)? This is a question of construction of these particular words in the context of the Act as a whole. The Act, in Part I, provides rules and machinery for the regulation of entry into and stay in the United Kingdom of non-patrials, and the general provisions for regulation and control are contained in section 3. Whenever a non-patrial enters the United Kingdom he requires leave to do so: section 3(1)(a); and leave may be given for an indefinite or for a limited period; and if given for a limited period may be subject to certain specified conditions. The Act thus imposes a requirement that a non-patrial must have, at all times, an effective leave to remain in this country if his presence is to be lawful within the system of control imposed by the Act.The Act attaches to failure to comply with the requiremetn of leave different consequences according to the degree of blame. Th eperson who knowingly overstays may be prosecuted under section 24(1)(b), although, of course, I have no doubt that in a large number of cases of honest forgetfulness or delayprosecutions are rightly not pursued. The person who overstays without being guilty of that offence is liable to deportation under section 3(5). It seems to me that, as a matter of construction and subject to the argument based upon the case of Khawaja, the person who is in breach of this requirement of the Act that he have at all times an effective leave to remain, and who thereby becomes liable to deportation under section 3(5) because he has remained beyond the time limited by leave, is to be treated as remaining in the United Kingdom in breach of the immigration laws. But is that view and the proper construction of the phrase "in breach of the immigration laws" in section 33(2) made untenable by the reasoning upon which the decision of the House of Lords in Khawaja was based? Mr Macdonald's argument on this point, as I understood it, was based upon the reasoning in the speech of Lord Bridge, with which Lord Scarman and Lord Templeman expressly agreed, by which he reached the conclusion that a person was an illegal entrant even though he had been given leave to enter if that leave had been obtained by fraud. If the fraud is a contravention of section 26(1)(c) of the Act (making a false statement to an immigration officer), and if that fraud is the effective means of obtaining leave to enter -- in other words, if, but for the fraud, leave to enter would not have been granted -- then the contravention of the Act and the obtaining of the leave to enter were two inseparable elements in the single process of entry, and it must inevitably follow that the entry itself was in breach of the Act: see the speech of Lord Bridge at page 118-E. Mr Macdonald contends, as I understand it, that in the case of the overstayer, in accordance with this reasoning, he can only be treated as remaining in breach of the immigration laws if there is proved a contravention of a specific provision of the Act which is similarly connected to the act of remaining. I do not accept this argument. In the case known as Khawaja, so far as concerned the appellant Khera, whose appeal was allowed, he had been granted indefinite leave to enter and remain, and the question was whether any fraud had been proved which despite that leave granted caused him to have entered unlawfully in breach of the immigration laws. In other words, what facts justified treating an immigrant as having had no leave to enter, or as having entered in breach of the immigration laws, when he had been given leave to enter by the authorities? The case of the overstayer seems to me to be different. Such a person, having only limited leave to remain, if he remains after expiry of that leave has then in fact, whether he then knows it or not, no right to remain, and for the reasons I have given is, in my view, in breach of the requirement of the immigration law that he must, while in this country, have effective leave to remain. By section 33(2) a person is not, or ceases to be, ordinarily resident in this country at any time when he is there in breach of the immigration laws. It is unlawful presence which has this effect. If Parliament had intended that the effect be worked only if the presence of the immigrant in the country without leave was caused by or connected with a criminal offence under the immigration laws, or breach of some specific direction to him, it would not have been difficult to find words to express such an intention. In my judgment the argument based upon Khawaja's case does not compel a conclusion on the construction of the provisions of section 33(2) different from that which I have expressed above. On the other points raised on this appeal, whether power to grant retrospective leave to remain exists and, if it does, whether it was exercised, and "the last five years" point under section 2(1)(c), I agree with the judgment of Kerr LJ, which has been delivered, and I do not wish to add anything.

DISPOSITION:

Appeal allowed

SOLICITORS:

Treasury Solicitor; Bernard Sheridan & Co.