R v Secretary of State for the Home Department, ex parte Khan
COURT OF APPEAL, CIVIL DIVISION
 2 All ER 531,  1 WLR 798,  Imm AR 327
Hearing Date: 31 JANUARY, 15 FEBRUARY 1990
15 February 1990
Immigration -- Leave to enter -- Leave obtained by deception -- Entry as a child using passport issued in third party's name -- Entrant not aware of passport deception -- Entrant subsequently obtaining passports in false name and using passports to re-enter United Kingdom -- Whether entrant entitled to be treated as being settled in United Kingdom -- Whether deceptions practised on re-entry constituting entrant an 'illegal entrant' -- Immigration Act 1971, ss 26(1)(c), 33(1) -- Statement of Changes in Immigration Rules (HC Paper (1982--83) no 169), para 56.
Held:The appellant was born in Bangladesh. In 1969, when he was aged 12 years, his father paid a third party who was coming to the United Kingdom to bring the appellant into the United Kingdom as his son using a passport issued in the third party's family name. At the time the appellant was unaware of the deception being practised to enable him to gain admission to the United Kingdom. The appellant remained in the United Kingdom until 1974, when he visited Bangladesh using a new Bangladesh passport issued in the false name used for his entry into the United Kingdom. He married in Bangladesh before returning to the United Kingdom. Thereafter he visited Bangladesh on a number of occasions and had five children. On one such visit in 1984 he obtained another Bangladesh passport in the same false name. Because he had entered the United Kingdom before immigration restrictions were introduced he was able to enter the United Kingdom freely, using the Bangladesh passports. His wife and children remained in Bangladesh until 1985, when he applied for his family to come to the United Kingdom for settlement and the immigration authorities then discovered that in 1969 he had entered the United Kingdom by means of a deception which was repeated whenever he used the false passports to enter the United Kingdom. The Secretary of State decided that the appellant was an illegal entrant and should be removed from the country. The appellant applied for judicial review of the Secretary of State's decision but the judge held that irrespective of what had happened in 1969 the use by the appellant of what he knew to be a false passport in 1974 and thereafter was a breach of s 26(1)(c) of the Immigration Act 1971 and, in consequence, rendered the appellant an 'illegal entrant' under s 33(1) of that Act. Held -- Where a person entered the United Kingdom before immigration restrictions were introduced by the 1971 Act, albeit on the basis of a deception practised by a third party but of which he was not aware, he was entitled to be treated as being settled in the United Kingdom by virtue of para 56 of the Statement of Changes in Immigration Rules (HC Paper (1982--83) no 169), and any subsequent deception practised by the applicant when returning to the United Kingdom after 1971, even if it was an offence under s 26(1)(c) of the 1971 Act, did not constitute him an illegal entrant under that Act. Accordingly, since the appellant was entitled to be treated as being settled in the United Kingdom after his entry in 1969 the deceptions practised by him when returning to the United Kingdom on a false passport in 1974 and thereafter did not constitute him an illegal entrant. It followed that the appeal would be allowed and the decision of the Secretary of State quashed. Dictum of Woolf LJ in R v Secretary of State for the Home Dept, ex p Miah  2 All ER 523 at 527 applied. Khan v Secretary of State for the Home Dept  3 All ER 538 distinguished.
Notes:For illegal entry into the United Kingdom, see 4 Halsbury's Laws (4th edn) para 1027, and for cases on the subject, see 2 Digest (Reissue) 199--200, 1153--1154. For the Immigration Act 1971, ss 26, 33, see 31 Halsbury's Statutes (4th edn) 80, 84.
Cases referred to in the Judgment:Khan v Secretary of State for the Home Dept  3 All ER 538,  1 WLR 1466, CA. Khawaja v Secretary of State for the Home Dept  1 All ER 765,  AC 74,  2 WLR 321, HL. R v Secretary of State for the Home Dept, ex p Miah  2 All ER 523, CA.
Introduction:Appeal Hiran Khan alias Gias Ali appealed against the decision of Schiemann J on 3 July 1989 dismissing his application for judicial review by way of an order of certiorari to quash the decision of the Secretary of State for the Home Department dated 22 February 1989 and the decision of an immigration officer at Newcastle upon Tyne dated 6 March 1988 that the appellant was an illegal entrant. The facts are set out in the judgment of Russell LJ.
Counsel:Sibghatullah Kadri QC for the appellant. Robert Jay for the Secretary of State for the Home Department.
Judgment-READ:Cur adv vult 15 February. The following judgments were delivered. PANEL: LORD DONALDSON OF LYMINGTON MR, RUSSELL AND STAUGHTON LJJ
Judgment One:RUSSELL LJ (giving the first judgment at the invitation of Lord Donaldson MR). This is an appeal from a judgment of Schiemann J, who, on 3 July 1989, dismissed the appellant's application for judicial review, the relief sought being the quashing of a decision by the Secretary of State for the Home Department, declaring the appellant to be an illegal entrant as defined in s 33(1) of the Immigration Act 1971. The factual history, although spanning many years, can be shortly stated. The appellant was born in Bangladesh on 22 July 1956. When he was 12 years of age, on 22 January 1969, he came to the United Kingdom, travelling under the name of Gias Ali, the son of Anfar Ali. The appellant arrived here with Anfar Ali, his wife and their two children. As the appellant was subsequently to disclose in a statutory declaration, his father had paid Anfar Ali to bring the appellant to the United Kingdom, and a false passport was produced, bearing the name Gias Ali as opposed to the appellant's real name Hiran Khan. Thereafter the appellant remained in the United Kingdom until 6 October 1974, when he visited Bangladesh using a new Bangladesh passport issued in London, again in the false name of Gias Ali. Whilst in Bangladesh the appellant married. There have been five children of the marriage, the appellant having visited Bangladesh on a number of occasions after his marriage although his wife and children have remained in Bangladesh. During one such visit the appellant obtained a false passport again in the name of Gias Ali and he has used this passport when returning to the United Kingdom on a number of occasions. In 1985 the appellant made application for his family to come to the United Kingdom for settlement, and it was this application that led the authorities to discover the deception practised originally in 1969 and repeated whenever a false passport was used by the appellant thereafter. The Secretary of State came to the conclusion that the appellant was an illegal entrant and served notice on him. That decision the appellant contends is wrong in law. Before Schiemann J the submission made on behalf of the appellant can be summarised as follows. The original entry in 1969 was achieved by deception, but that deception was practised not by the appellant but by Anfar Ali and his wife. By reason of his age the appellant at that time could not have appreciated that the entry was achieved in breach of immigration control. So much is conceded on behalf of the Secretary of State. As for subsequent entries to the United Kingdom on the passports obtained by the appellant, then, despite his own deception, para 56 of the Statement of Changes in Immigration Rules (H C Paper (1982--83) no 169) afforded protection to the appellant. That paragraph reads:
'A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement.'Counsel who then appeared for the appellant submitted to Schiemann J that, because the entry in 1969 had not been in consequence of any breach of the immigration laws by the appellant, he was settled in the United Kingdom on 1 January 1973 when the Immigration Act 1971 came into force and that any subsequent entry, however deceitful, could not vitiate that original lawful entry. Schiemann J rejected these submissions, holding that, irrespective of what had happened in 1969, the use by the appellant of what he knew to be a false passport during and after 1974 was in breach of s 26(1)(c) of the 1971 Act and consequently those activities rendered the appellant an illegal entrant under s 33(1) of that Act. So far as material s 33(1) provides:
'. . . ''illegal entrant'' means a person unlawfully entering or seeking to enter in breach of . . . the immigration laws, and includes also a person who has so entered . . . ''immigration laws'' means this Act and any law for purposes similar to this Act which is for the time being or has (before or after the passing of this Act) been in force in any part of the United Kingdom . . .'Section 26(1) reads:
'A person shall be guilty of an offence . . . in any of the following cases . . . (c) if on any such examination or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of his Act a return, statement or representation which he knows to be false or does not believe to be true (d ) if, without lawful authority, he . . . has in his possession for such use, any passport . . . which he knows or has reasonable cause to believe to be false . . .'Schiemann J said:
'However, in the context of the present case, it is my judgment that the [appellant] quite clearly intended to deceive and succeeded in deceiving. In my judgment the Home Office has made good its case, the burden of proof, I remind myself, being on the Home Office. I do not base this decision on any deception back in 1969 but rather on the fact that he first of all was called Gias Ali but, second, on being asked the name of his father he maintained that the name of his father is Anfar Ali. He knew perfectly well that that was not the name of his father and he also had at the time, as appears from his own declaration, a guilty conscience about what he was doing. In my judgment it is simply insupportable to suggest that he was acting innocently throughout. In those circumstances it is my judgment that the Home Office is entitled to remove him as an illegal entrant. [Counsel for the appellant] can get no comfort, as he seeks, from para 56 of the Immigration Rules, which says that a Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of [the Immigration Act 1971], and that he has been settled here at any time during the two years preceding his return, is to be admitted for settlement, because the concept of being settled in the United Kingdom is a term of art, as appears from the first of these Immigration Rules where it is indicated: ''A person is 'settled in the United Kingdom' when he is ordinarily resident here without having entered or remained in breach of the immigration laws, and it is free from any restriction on the period for which he may remain.'' In my judgment it is clear that the [appellant] here has entered in breach of the immigration laws in any event during the 1980s. In those circumstances this application fails.'Having regard to the wording of paras 56 and 1 of the Statement of Changes in the Immigration Rules, for may part I can understand the reasoning of Schiemann J, but it is clear that that reasoning cannot stand alongside a decision of this court in R v Secretary of State for the Home Dept, ex p Miah  2 All ER 523. The decision of Schiemann J in the present case was given a few days before, and necessarily in ignorance of, the judgment of Woolf LJ in Ex p Miah with which Fox and Butler-Sloss LJJ agreed. In the course of his judgment Woolf LJ, having rehearsed the terms of para 56, said:
'Accordingly, if the appellant was settled here, he would be entitled to take advantage of that paragraph. As he was never absent for more than two years he would be entitled to be admitted under the provisions of that paragraph subject to what I have to say hereafter. The reason why counsel for the appellant addressed his submissions in the way that I have indicated was because he contends, and in my view correctly contends, that the effect of para 56 is that if it applies he can establish that the paragraph entitles his client to be readmitted to this country under the terms of that paragraph and if there was a deception practised by him on the occasions when he sought to come back to this country after he had already settled here that deception would not be effective.'Unlike the instant case, in Ex p Miah there was a finding that the appellant there was a party to the deception from the outset.Confronted with the authority of Ex p Miah, counsel for the Secretary of State in this appeal realistically acknowledged that he could not uphold the judgment of Schiemann J on the basis disclosed in the passage from his judgment to which I have referred. By a respondent's notice counsel sought to uphold the decision of the judge on the basis of para 76 of the Statement of Changes in the Immigration Rules, but during the course of argument this was abandoned in the light of para 77 and of the terms of s 1(5) of the 1971 Act, and ultimately counsel acknowledged that the outcome of this appeal must depend on a finding as to the status of the appellant when he first came to the United Kingdom in 1969. This was raised in the respondent's notice as follows: 'The Appellant's entry into the United Kingdom was in any event an illegal entry in that it was procured by the deception or deceptions practised by third parties.' Khan v Secretary of State for the Home Dept  3 All ER 578,  1 WLR 1466 was a case involving an illiterate woman who in 1975 sought entry to the United Kingdom by producing a passport which had been supplied to her by her husband. The passport did not belong to the entrant but had been that of her husband's second wife, the entrant being his third wife. In the Court of Appeal Megaw LJ said ( 3 All ER 538 at 541,  1 WLR 1466 at 1469):
'The first proposition of counsel for the applicant is that the Divisional Court were wrong in holding that the applicant had the status of an illegal entrant. He submitted that while that conclusion might be justified, on the basis of a previous decision of the Divisional Court, if it were shown that the applicant herself had acted dishonestly in producing the passport and thus obtaining entrance, it was different when she herself, in producing the false document, was not guilty of any dishonest act but had acted innocently. She did not become an illegal entrant.'In rejecting this submission Megaw LJ, with whom Orr LJ and Park J agreed, referred to the definition in s 33(1) of the 1971 Act and continued ( 3 All ER 538 at 542,  1 WLR 1466 at 1469):
'But that ignores the fact that in s 3(1) the leave is said to be leave ''in accordance with this Act''. While leave is no doubt given by the mere formality of the immigration officer granting his leave by stamping or endorsing the passport or other document produced and in allowing the applicant to pass through the immigration barrier, nevertheless that does not mean that the person has not been in breach of the immigration laws in entering. For example, in this case a part of the necessary procedure to be gone through for the purposes of obtaining leave is that which is set out in para 4 of Sch 2 to the Immigration Act 1971. Paragraph 4(2) requires that ''A person on his examination . . . by an immigration officer shall, if so required by the immigration officer, (a) produce either a valid passport with photograph or some other document . . .'' and so on. In the present case the applicant, innocently, as I am assuming, produced a document which purported to be her passport, but which was certainly not ''a valid passport'' for the purposes of her application for permission to enter the country. It was a passport of a person other than herself which the immigration officer was led to believe was a valid passport for the applicant. Though the applicant did not know of the invalidity of the document she, as we now know, in fact produced an invalid passport. Thus she had failed to comply with that vital part of the provisions in the procedure involving entry. She both sought entry and entered in breach of the immigration laws. Accordingly in my judgment, it cannot be said here that the provisions of s 3(1)(a) of the 1971 Act do not apply. The applicant had not entered the United Kingdom with leave to do so ''in accordance with this Act''. She was an illegal ''entrant'' with the definition in s 33(1).'Khan's case is, of course, binding on us and, if it was indistinguishable from the facts and the law which we have to apply, we would loyally follow it. However, as counsel for the appellant in this appeal (who also appeared for the appellant in Khan's case) has pointed out, the appellant in this appeal first sought entry in 1969 prior to the passing of and the coming into effect of the 1971 Act. The material Act which was in force in 1969 was the Commonwealth Immigrants Act 1962, and there is in that statute no provision equivalent to that which defines the procedure involving production of a valid passport to be found in para 4(2) of Sch 2 to the 1971 Act. By contrast, the first (and only) occasion on which the appellant in Khan's case had sought entry was in 1975 at a time when the 1962 Act had been repealed and replaced by the 1971 Act. That, as it seems to me, distinguishes this appeal from Khan's case. For my part, I am of the opinion that, applying the decision of this court in Ex p Miah, we are obliged to hold that the deceptions practised by the appellant when returning to this country, after 1971, even if, as probably was the case, they constituted offences under s 26(1)(b) of the 1971 Act, did not constitute him an illegal entrant under that Act.It is worth observing that in Khawaja v Secretary of State for the Home Dept  1 All ER 765 at 788,  AC 74 at 119 Lord Bridge said:
'Finally, I would wish to leave for consideration on a future occasion the difficult questions that may arise when leave to enter has been obtained by the fraud of a third party, but the person entering had no knowledge of the fraud. I am not convinced that Khan v Secretary of State for the Home Dept  3 All ER 538,  1 WLR 1466, where it was held that the innocent wife who obtained leave to enter on a false passport procured for her by her husband was an illegal entrant, was rightly decided. In such cases the proper conclusion may depend on a variety of circumstances and I think it safer to express no present view but to leave such cases to be decided as they arise.'The Secretary of State having failed to establish that the appellant was an illegal entrant in 1969 or at all, his appeal must be allowed and the Secretary of State's decision quashed.
Judgment Two:STAUGHTON LJ. I agree.
Judgment Three:LORD DONALDSON OF LYMINGTON MR. I also agree.
DISPOSITION:Appeal allowed. Leave to appeal to the House of Lords allowed.
SOLICITORS:Hafiz & Co (for the appellant) Treasury Solicitor.
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