Singh (Gurdev) v. The Queen

Singh (Gurdev) v The Queen

QUEEN'S BENCH DIVISION

[1974] 1 All ER 26, [1973] 1 WLR 1444, 138 JP 85

Hearing Date: 3 OCTOBER 1973

3 OCTOBER 1973

Index Terms:

Immigration - Illegal entry and similar offences - Time limit for prosecution - Continuing offences - Remaining in United Kingdom beyond time limited for leave - Failure to observe condition of leave - Entrant given leave to enter limited to one month - Entrant taking up employment during month in breach of condition of leave - Entrant remaining in employment in United Kingdom for four years - Whether entrant committing offences four years later - Immigration Act 1971, ss 24(1)(b)(3), 28 (1).

Held:

On 4th January 1969 the appellant, who was not a patrial, entered the United Kingdom with limited leave to remain for one month on condition that he did not engage in employment for reward. In January 1969 he entered into employment and remained so employed until 18th January 1973. Informations were preferred against the appellant charging that he, not being a patrial, (i) on 18th January 1973 did knowingly remain longer than one month in breach of the limited leave given to him, contrary to s 24(1)(b)(i) a of the Immigration Act 1971; and (ii) knowingly failed to observe a condition of that leave by entering into employment and engaging in an occupation for reward on 18th January 1973, contrary to s 24(1)(b)(ii) of the 1971 Act. He appealed to the Crown Court on the ground that the prosecutions were out of time but the court dismissed the appeal holding that, although the appellant's continued residence and employment in the United Kingdom commenced in late January of early February 1969, both offences were continuing offences and therefore the appellant had been committing the offences on 18th January 1973. On appeal. a Section 24(1), so far as material, is set out at p 29 b, post Held - On the true construction of the 1971 Act, in particular having regard to the fact that under s 24(3) b the offence was expressly made subject to the provisions for an extended time limit for prosecution under s 28(1) c, the offence under s 24(1)(b)(i) of remaining in the United Kingdom beyond the time limited by the leave to enter was not a continuing offence despite the use of the verb 'remain'. Furthermore, as a condition attached to a grant of leave to enter, which was itself limited in point of time, only continued to apply so long as the limited leave was in force, the lesser offence, under s 24(1)(b)(ii), of infringing that condition could only continue during that period, thereafter being merged in the greater offence of remaining beyond the expiry of leave. Accordingly the prosecution of the appellant for both offences was out of time and the appeal would be allowed (see p 31 h to p 32 a and c to e, post). b Section 24(3) provides: 'The extended time limit for prosecutions which is provided for by section 28 below shall apply to offences under subsection (1) (a), (b) (i) and (c) above.' c Section 28(1), so far as material, is set out at p 30 f g, post

Notes:

For illegal entry and similar offences under the Immigration Act 1971, see 4 Halsbury's Laws (4th Edn) 518, para 1027, and for proceedings under that Act, see ibid, 520, para 1029. For the Immigration Act 1971, ss 24, 28, see 41 Halsbury's Statutes (3rd Edn) 43, 49.

Cases cited in the Judgment:

Azam v Secretary of State for the Home Department [1973] 2 All ER 765, [1973] 2 WLR 1058, HL.

Introduction:

Case stated. This was an appeal by way of a case stated by the Crown Court at Birmingham in respect of its adjudication, sitting on appeal from a stipendiary magistrate for the city of Birmingham in and for the petty sessional division of Birmingham, on 8th June 1973. On 8th February 1973 at the magistrates' court acting in and for the petty sessional division of Birmingham informations were preferred against the appellant, Gurdev Singh, that in the city of Birmingham the appellant, not being a patrial (a) was given leave to enter and remain in the United Kingdom for one month on 4th January 1969 and on Thursday, 18th January 1973, knowingly remained longer than one month, contrary to s 24(1)(b)(i) of the Immigration Act 1971, and (b) having only a limited leave to enter or remain in the United Kingdom, knowingly failed to observe a condition of that leave, namely he entered into employment and engaged in an occupation for reward on Thursday, 18th January 1973, contrary to s 24(1)(b)(ii) of the 1971 Act. Those informations were found proved by the stipendiary magistrate who in respect of the first information passed a sentence of one month's imprisonment suspended for two years and made a recommendation for deportation, and in respect of the second information passed a sentence of one month's imprisonment suspended for two years to run concurrently with the first sentence. An appeal (as amended) against the convictions and sentence was made by the appellant to the %crown Court at Birmingham which appeal was heard on 8th June 1973. The following facts were admitted. The appellant was not a patrial. The appellant entered the United Kingdom on 4th January 1969 with limited leave to remain for one month. It was a condition of the foregoing leave that the appellant should not enter into employment or engage in an occupation for reward. The appellant had remained continuously in the United Kingdom since 4th January 1969. In January 1969 the appellant entered into employment as a galvaniser and remained continuously so employed until 18th January 1973. It was contended by the appellant (1) that the alleged offence under s 24(1)(b)(i) of the 1971 Act was committed more than six months before the information relating thereto was laid and therefore the information was by virtue of s 104 of the Magistrates' Courts Act 1952 incapable of being tried, since s 28(1)(a) of the 1971 Act did not apply to the information; (2) the alleged offence under s 24(1)(b)(ii) was committed more than six months before the laying of the information and by virtue of s 104 of the 1952 Act was incapable of being tried. It was contended by the respondent that both offences were committed on 18th January 1973 and therefore the offences were charged within six months of being committed as required by s 104 of the Magistrates' Courts Act 1952 and that accordingly the extended time provisions contained in s 28(1)(a) of the 1971 Act had no application. The court was of the opinion (i) that notwithstanding that the appellant's continued residence and employment in the United Kingdom commenced in late January or early February 1969 both offences were continuing offences and therefore the appellant was committing the offences on 18th January 1973; (ii) the making of the recommendation for deportation was reasonable having regard to all the circumstances of the case. The questions for the opinion of the High Court were (1) whether under s 24(1)(b)(i) of the 1971 Act the offence committed by a person who was not a patrial of remaining beyond the time limited by leave to enter the United Kingdom was an offence which could be committed once only or was an offence which was committed continuously so long as such person remained in the United Kingdom beyond the time so limited; and (2) whether under s 24(1)(b)(ii) of the 1971 Act the offence committed by a person who was not a patrial of failing to observe a condition of leave to enter the United Kingdom was an offence which could be committed once only or was an offence which was committed continuously so long as the failure to observe such condition continued.

Counsel:

Patrick Garland QC and Geoffrey D Mercer for the appellant. David Farrer for the respondent. PANEL: LORD WIDGERY CJ, BRIDGE AND MAY JJ

Judgment One:

BRIDGE J delivered the first judgment at the invitation of Lord Widgery CJ. This is an appeal by case stated from a decision given on 8th June 1973 in the Crown Court at Birmingham by Mr Gilbert Griffiths sitting as recorder affirming, on appeal by the appellant, his conviction by justices in the Birmingham Petty Sessional Division of two offences contrary to s 24 of the Immigration Act 1971. First he was convicted under s 24(1)(b)(i) that he not being a patrial had been given leave to enter and remain in the United Kingdom for one month on 4th January 1969 and on Thursday, 18th January 1973, he knowingly remained longer than one month. Secondly he was convicted under s 24(1)(b)(ii) that having only a limited leave to enter or remain in the United Kingdom he knowingly failed to observe a condition of that leave, namely he entered into and engaged in employment on Thursday, 18th January 1973. The point which is raised by the appeal is whether petty sessions and the recorder were right in holding these two offences under the 1971 Act to be continuing offences. If they were not continuing offences the prosecution in each case was out of time and the appellant was entitled to be acquitted. The 1971 Act provides by s 24(1), reading at the moment only the immediately relevant words:

'A person who is not patrial shall be guilty of an offence punishable [as provided in the section] in any of the following cases... (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either -- (i) remains beyond the time limited by the leave; or (ii) fails to observe a condition of the leave...'

The facts of the case were in no way in dispute. The appellant entered the United Kingdom in January 1969 with limited leave for one month but remained here continuously until the day of the offences alleged against him, 18th January 1973. It was a condition of the leave to enter for one month which was given to him in January 1969 that he should not engage in employment, but he nevertheless did so and remained in that employment again until the day of the offence alleged against him, 18th January 1973. On the face of the statutory language, if one concentrates attention, as I propose to do for the moment, on the first of the two offences, remaining beyond the time limited by the limited leave, it is clear that 'remaining', in its essential character, remaining in any place for any time, is a continuing activity, and I am not at all surprised that petty sessions and the learned recorder both reached the conclusion that the offence under s 24(1)(b)(i) was a continuing offence. I accept the view urged on us by counsel for the respondent that cogent indications to displace the prima facie conclusion suggested by the language of the subsection immediately applicable must be found before one can legitimately conclude that in this case the creation of a continuing offence was not intended. Having heard the whole of the argument, I have reached the view that such indications are to be found. To discover them it is necessary to look rather more widely both at the provisions of the 1971 Act and at some of the provisions of the earlier legislation in this series. As is well known, the series begins with the Commonwealth Immigrants Act 1962, and the first provision in this corpus of legislation creating offences analogous to the offences with which we are concerned in this appeal was the provision embodied in s 4(1) of the 1962 Act in the following terms:

'If any person being a Commonwealth citizen to whom section one of this Act applies -- (a) enters or remains within the United Kingdom, otherwise than in accordance with the directions or under the authority of an immigration officer, while a refusal of admission under section two of this Act is in force in relation to him... he shall be guilty of an offence; and any offence under this subsection, being an offence committed by entering or remaining in the United Kingdom, shall be deemed to continue throughout any period during which the offender is in the United Kingdom thereafter.'

The ambit of s 4 of the 1962 Act was substantially enlarged by the addition of a new sub-s (4) A introduced by the Commonwealth Immigrants Act 1968, but for present purposes I do not find it necessary to refer in detail to that provision. Then we come to the 1971 Act. The first point to be observed is that this Act introduces what had been absent from the earlier legislation, namely a power of what one may call administrative deportation of illegal immigrants, and it is not without significance in my judgment to observe that whatever the outcome of this appeal the appellant, even though entitled, if he is right, to acquittal of the offences of which he was charged, remains and will remain as long as he is in this country liable to administrative deportation. That appears clearly from the provisions of s 3(5) of the 1971 Act, which provides:

'A person who is not patrial [as it is common ground the present appellant is not] 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 remain beyond the time limited by the leave...'

There is no suggestion or indication anywhere in the Act that that liability to administrative deportation to which a person in the appellant's position is subject is itself subject to any time limit. Then one turns to the provisions of ss 24, 25 and 26, some of which, including the provision with which we are concerned in s 24(1)(b)(i), are subject to a provision, introduced for the first time by the 1971 Act, giving an extended period for prosecution for summary offences. I must read some additional provisions of s 24(1). Amongst the cases which are made offences as well as para (b) there are paras (a) and (c) :

'... (a) if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave... (c) if, having lawfully entered the United Kingdom without leave by virtue of section 8(1) above, he remains without leave beyond the time allowed by section 8(1)...' Then one goes to s 24(3). All three of the offences created by paras (a), (b) (i) and (c) of s 24(1) are made subject to the extended time limit for prosecutions provided by s 28.

Turning to s 28(1), the provision for an extended time limit for prosecution is in these terms:

'Where the offence is one to which, under section 24, 25 or 26 above, an extended time limit for prosecutions is to apply, then -- (a) an information relating to the offence may in England and Wales be tried by a magistrates' court if it is laid within six months after the commission of the offence, or if it is laid within three years after the commission of the offence and not more than two months after the date certified by a chief officer of police to be the date on which evidence sufficient to justify proceedings came to the notice of an officer of his police force...'

It seems to me that if one looks at this statutory background, the indications of a Parliamentary intention that the offence of remaining beyond the time limited by a limited leave to enter this country should not be a continuing offence are in the end clearly to be discerned. The starting point in my judgment is the consideration, arising from the terms of s 4 of the 1962 Act, that the question whether or not the twin offences of entering without leave on the one hand and remaining beyond a time limited by leave on the other, should or should not be treated as continuing offences, cannot have been absent from the Parliamentary draftsman's mind when the immigration control legislation came to be radically recast, as it did in 1971. In 1962 the draftsman evidently thought that the matter should be put beyond doubt by a deeming provision. Such a provision was clearly necessary in relation to the offence of which the essential nature was the entry, not indeed necessary in the case of an offence of which the essential nature was remaining, but nevertheless the deeming provision applies to both. The deliberate omission in the new Act of a deeming provision which was present in the old, though not conclusive, goes some way to predispose me to think that here is a change of Parliamentary policy. But the matter is carried, to my mind, a very long step further when one looks at the nature of the three offences created by paras (a), (b) and (c) of s 24(1) of the 1971 Act: (a) is entering without leave, (b)(i) is staying beyond the period limited by an express permission to enter, but (c) is of striking significance in my judgment. That offence is committed by one who overstays the leave granted to him by s 8 of the 1971 Act, to which I need not refer in terms, but which provides in effect that the crews of ships and aircraft visiting United Kingdom ports and dirports may stay for such period as their ships and aircraft respectively are here, provided they leave with their ships and their planes in due course. I find it difficult, and counsel for the respondent's valiant efforts have not overcome the difficulty, to see any ground of policy or sense which could have prompted Parliament to wish to distinguish between the case, for instance, of a crew member from a ship at Liverpool who lands and then absconds and remains in England for more than three years on the one hand, and a stowaway on the same ship who lands without any leave at all and also stays beyond three years on the other. If the argument for the respondent is right, and the offence of remaining under paras (b) or (c) , where the language is identical, is a continuing offence, the crew member remains liable to be prosecuted beyond a period of three years, the stowaway does not, and it is an anomaly for which I can find no acceptable explanation. But finally one cannot overlook that the draftsman has deliberately made applicable to of offences under paras (b)(i) and (c) the extended time limit for prosecutions under s 28. I entirely accept, as was put in the course of argument, that such extended time limit may sensibly be applied to some continuing offences as, for instance, to the continuing offence of harbouring an illegal immigrant, which is I would have though clearly a continuing offence created under s 26 of this Act, and the offender remains liable to prosecution subject to the condition about a certificate from the chief officer of police for up to three years from the time when he ceases to harbour. Theoretically, I accept that an immigrant who has overstayed his limited leave might similarly be prosecuted under this extended time limit provision up to three years after he ceased to remain, in other words after he left the country; if at some time within the three year period he returned once more. But whilst I accept that as a theoretical possibility, in practical terms it seems to me to be so improbable and so artificial that I am unable to suppose that the draftsman had that possibility in mind in making, as he did make, this provision specifically applicable. It is, as it seems to me, in the highest degree unlikely that a situation would arise in which an immigrant having come to this country, outstayed his leave, and then gone away again, would come back more than six months but less than three years after his initial departure, and after his return a chief officer of police would be in a postion to certify that the evidence of his stale offence of overstaying his leave on the earlier visit had only just come to light. Accordingly, I am driven to the conclusion, even more cogently than by the other considerations to which I have directed attention, that by this deliberate application of s 28 to an offence under s 24(1)(b)(i), Parliament was indicating a clear intention, notwithstanding the use of the verb 'remain' to describe the offending activity, that the offence should not be a continuing one. It follows that in my judgment the appellant's appeal against his conviction for that offence must be allowed. His conviction for an offence under s 24(1)(b)(ii) for failing to observe a condition of his leave raises a very much shorter point. It was a condition of his one month's leave that he should not enter into or engage in employment. He certainly did, whether when he first came or thereafter matters not. But in my judgment counsel for the appellant's very short and succinct submission on this point is right. A condition attached to a permission which itself is limited in point of time, only continues to apply so long as the limited permission applies. Once the permission has expired, the condition expires with it. The lesser offence of infringing a condition of a limited permission is, so to speak, merged in the greater offence of remaining beyond the expiry of the permission, remaining when there is no permission to be here at all. I am relieved to reach that conclusion because it would seem to me to be an anomaly, if I am right that the offence under para (b)(i) of remaining beyond the time of the leave, can only be prosecuted within the period of three years from the expiry of the leave, that a person in the appellant's situation could nevertheless be prosecuted without limit of time for continuing to engage in employment in this country. For those reasons, I think the recorder came to a wrong conclusion in law and I would allow the appeal and quash the appellant's convictions.

Judgment Two:

MAY J. Although at the outset I was minded to think that the use of the word 'remains' in para (b) of s 24(1) of the 1971 Act indicated that the offence there created was a continuing offence, I am now quite satisfied, having listened to the argument and for the reasons given by Bridge J in the judgment just delivered, that that was a wrong view to take, that the offence created by that paragraph is not a continuing offence, and accordingly that this appeal should be allowed.

Judgment Three:

LORD WIDGERY CJ. I too have had doubts about this case and have been much impressed by the argument put before us by counsel for the respondent, but in the end I agree with the order proposed by Bridge J for the reasons which he gave.

DISPOSITION:

Appeal allowed. Convictions quashed.

SOLICITORS:

Rising & Ravenscroft, agents for H E Wynschenk, John Bassett & Co, Birmingham (for the appellant); D Emrys Morgan, Birmingham (for the respondent).

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