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



[1973] 1 WLR 1133

Hearing Date: 14 June 1973

14 June 1973

Index Terms:

Commonwealth Immigrant -- Admission -- Refusal of -- Entrant returning to United Kingdom after holiday in Pakistan -- Immigration officer refusing admission -- Not satisfied that entrant settled in United Kingdom -- Entrant choosing to remain in custody rather than return to Pakistan -- Application for habeas corpus -- Whether habeas corpus or certiorari proper remedy -- Burden of proving entrant settled in United Kingdom -- Immigration Act 1971 (c. 77), ss. 1 (2), 3 (2), Sch. 2, para. 1 (3) n1 -- Statement of Immigration Rules for Control on Entry, Commonwealth Citizens (1973), (H.C. 79), r. 51 n2

n1 Immigration Act 1971, s. 3 (2): see post, p. 1137D-E. Sch. 2, para. 1 (3): see post, p. 1137F. n2 Statement of Immigration Rules for Control on Entry, Commonwealth Citizens, r. 51: see post, p. 1137G-H.


The applicant, a Commonwealth citizen, who had entered the United Kingdom illegally before the Immigration Act 1971 came into force, went on a holiday to Pakistan in 1972. On his return to the United Kingdom in March 1973 he was interviewed by an immigration officer in the course of which he stated at first that he had originally arrived in the United Kingdom in 1962, but later changed that date to 1967. His passport, which was new, did not assist with the original entry; it merely showed his departure from the United Kingdom in 1972. The first time that he obtained a national insurance card and had also made an income tax return was in 1969. The immigration officer refused him leave to enter stating that he was not satisfied that the applicant was a person who was settled in the United Kingdom within the past two years. Rather than return to Pakistan, the applicant chose to be held in custody while he applied for a writ of habeas corpus and, during the pendency of the proceedings, he was granted bail. On his application for a writ of habeas corpus: -- Held, refusing the application, (1) that, since the applicant had not been arrested in England but had been refused admission to the country and had chosen to remain in custody during the pendency of the present proceedings rather than return to Pakistan, it was not a proper case for an application for a writ of habeas corpus and the applicant should have applied for an order of certiorari to bring up and quash the immigration officer's decision refusing him admission to the United Kingdom. (2) That, if the applicant had applied for an order of certiorari, he would have had to have shown, under section 1 (2) of the Immigration Act 1971, that he was settled in the United Kingdom on January 1, 1973, and, accordingly, on the facts of the present case, he had to satisfy the immigration officer that he entered the United Kingdom before March 9, 1968; that, since he had failed to do so and the immigration officer's decision could not be criticised, the application would have been refused.

Cases referred to in the Judgment:

Reg. v. Bhagwan [1972] A.C. 60; [1970] 3 W.L.R. 501; [1970] 3 All E.R. 97, H.L.(E.). Reg. v. Governor of Brixton Prison, Ex parte Ahsan [1969] 2 Q.B. 222; [1969] 2 W.L.R. 618; [1969] 2 All E.R. 347, D.C. Reg. v. Governor of Pentonville Prison, Ex parte Azam [1973] 2 W.L.R. 949; [1973] 2 All E.R. 741, C.A.; [1973] 2 W.L.R. 1058; [1973] 2 All E.R. 765, H.L.(E.).


APPLICATION for a writ of habeas corpus. The applicant, Mohammed Ashraf Mughal, a Pakistani, who had entered the United Kingdon illegally at an unknown date between 1967 and 1970, in contravention of section 4A of the Commonwealth Immigrants Act 1962, and was not examined by an immigration officer in pursuance of paragraph 1 of Schedule 1 to that Act, went on holiday to Pakistan in 1972 and on his return in March 1973 he was interviewed by an immigration officer at Manchester airport. The immigration officer was not satisfied that the applicant was a person who was settled in the United Kingdom within the past two years and refused him leave to enter. The applicant sought a writ of habeas corpus directed to the Secretary of State for the Home Department on the grounds that he was a person who was settled in the United Kingdom on the coming into operation of the Immigration Act 1971 and had been granted indefinite leave to enter and remain in the United Kingdom by the provisions of that Act and the Commonwealth Immigrants Acts 1962 and 1968. The applicant, who had been detained at H.M. Prison at Risley, was granted bail pending the outcome of his application for habeas corpus.


Sibghat Kadri for the applicant. Gordon Slynn for the Secretary of State for the Home Department. PANEL: Lord Widgery C.J., Cusack and Mars-Jones JJ.

Judgment One:

LORD WIDGERY C.J. In these proceedings Mr. Kadri moves on behalf of one Mohammed Ashraf Mughal for a writ of habeas corpus. The applicant is a Commonwealth citizen, and having surrendered to his bail this morning, is presently in the custody of the Governor of Her Majesty's Prison at Risley. The matter arises in this way, and it is hardly necessary to say that it is another not very simple problem arising out of the modern immigration legislation affecting Commonwealth immigrants. According to the applicant, he came to this country in or about November 1967; he came clandestinely in a boat, in other words he did not come through the normal channel and submit himself to examination by an immigration officer, and not having been so examined within 24 hours of his arrival, he says he was then in a position in which he could not be sent home. He describes how having so arrived he was self-employed for some period as a clothes-maker, but in 1969 he moved to an address in Colne in Lancashire, and took employment with a firm called Pickles & Son of Colne. When he began employment with Pickles & Son he for the first time obtained a national insurance card, and for the first time made a return of income tax. The point is of some significance, as will be seen presently, because the vital question in the whole of this case is whether he did come in 1967, or a later date. The absence of any national insurance card or income tax return between the dates when he says he arrived in this country and 1969 is explained by his being frightened that he would incur some severe penalty for not haing had a card initially on arrival. He says he stayed in this country until December 1972, when he went on a temporary visit to Pakistan. On March 29, 1973, returning from what he describes as a holiday in Pakistan, he was examined by an immigration officer at Manchester airport, and that immigration officer refused him entry into the United Kingdom. We have before us the actual notice of refusal, and the reason given for it is "... you have asked for leave to enter the United Kingdom as a person who was settled in the United Kingdom within the past two years, but I am not satisfied that this is so. I therefore refuse you leave to enter the United Kingdom," and the notice of refusal informs him of his right to appeal against the decision to an adjudicator and thence, if necessary, to the appeals tribunal set up under this legislation. The case for the applicant is that since he came in in 1967, as on his testimony he did, he came through what has recently become popularly known as the "Bhagwan gap" (see Reg. v. Bhagwan [1972] A.C. 60), because in general principle a Commonwealth immigrant who entered without examination before March 9, 1968, can remain in this country, there being no machinery whereby he can be removed. On the other hand, a Commonwealth citizen who entered illegally after March 9, 1968, is in general liable to removal, as was decided by the House of Lords in Reg. v. Governor of Pentonville Prison, Ex parte Azam [1973] 2 W.L.R. 1058. Everything, as I say, turns on the question of whether it is right that he came in in 1967 as he alleges, or at some later date. The applicant, and one does not want to be offensive to him, has never shown any particular regard for the truth. It is perfectly clear on his own admission that he has been prepared from time to time to give an untruthful answer to a question put to him by the immigration authorities if he thought there was some good reason for doing it, or some reason which would assist his case. For example, when first asked by immigration officers at Manchester airport on his examination in March 1973, when he had first come to the United Kingdom, he said 1962. Asked to explain why he said 1962, which was on any view of the matter five years before he came, his counsel says for him that he had some notion that in order to secure protection of entry into this country, he had to have entered before 1962, so he said so. That is, I feel bound to say without seeking to gie offence, quite consistent with his general attitude to questions which have been put to him. Accordingly, the immigration officer who examined him, and who appreciated that he was obviously not a man who consistently told the truth, was concerned to see whether his story could be verified in its vital and essential parts. His passport when he came back in March 1973 did not answer the questions with which we have concern, because according to him he lost the passport which he had on entry to this country and the new passport which he was carrying when he returned showed his departure from this counry in November of December 1972, but did not help in any way to ascertain the date on which he originally entered. The first question which one has got to consider is what is the proper approach to the issue on the proceedings now before us, and where does the burden of proof lie, and what has to be established and by whom. To begin with, I would not regard this as a true habeas corpus case. I say that because where a man is free in this country and going about his ordinary business, and is arrested by the police and charged with being an illegal immigrant, his proper remedy is habeas corpus, and the burden in such matters may very well not lie on him. I say deliberately "may not lie on him" because we have other cases of the kind to which I have just referred coming before this court shortly where the matter will have to be specially considered, and it is also to be remembered that in Reg. v. Governor of Pentonville Prison, Ex parte Azam [1973] 2 W.L.R. 949, 960-961, Lord Denning M.R. in the Court of Appeal emphasised that in a true habeas corpus case it was not really open to the court to refuse the writ merely because some other procedure for disposing of the issue might be more covenient. Also we have been referred today by Mr. Kadri to Reg. v. Governor of Brixton Prison, Ex parte Ahsan [1969] 2 Q.B. 222, where a number of Commonwealth immigrants who had entered this country and remained in this country for a period were arrested, and who sought relief, and properly so, by an application for habeas corpus. The issue in that case was whether they had been apprehended within 24 hours of their arrival, and this court held on the application for habeas corpus that it was the duty of the authorities to establish that they had been in this country for less than that period, and not the duty of the immigrants to show that they had been in for longer. I find all that quite consistent with a general proposition that a man walking freely in this country who is arrested under this legislation can properly seek habeas corpus with the sort of consequence to which I have referred. But this is not in truth a habeas corpus matter at all, because it is quite clear that the immigration officer when refusing him permission did act within his jurisdiction. Accordingly the answer to the writ of habeas corpus in this case will at once be the decision to refuse him admission which was given by the immigration officer. Furthermore, this man is in custody not because he has been totally denied his freedom, but because he chose to remain in custody while this matter was being determined, rather than go back to Pakistan, as he could have done the very day that he arrived. For all these reasons, I am quite satisfied that the real issue in this case is whether, if the immigration officer's decision had been challenged on an application for certiorari, this court would have set aside the immigration officer's decision. This is not an application for certiorari, but I would not wish that to be an obstacle in the applicant's way, and procedural matters of that kind could easily be looked after. But the principle of the case which seems to me to be of great importance is that only if Mr. Kadri can show that the immigration officer's decision ought to be set aside on certiorari had such an application been made is he really in a position to sustain his claim for his client's remaining in this country. What, then, is the position in regard to a possible application for certiorari to set aside the immigration officer's decision? Under the previous legislation, the Commonwealth Immigrants Act 1962 as amended by the Act of 1968, the immigration officer had a discretion to refuse admission to a Commonwealth citizen seeking to enter the United Kingdom, but by section 2 (2) the power to refuse admission was taken away if the applicant, that is to say, the intended entrant at the port, satisfied the immigration officer that he was ordinarily resident in the United Kingdom or so resident at any time within the past two years. Accordingly, if this matter had arisen last year before the new Act came into force, the applicant on presenting himself at Manchester airport and claiming to be a returning resident would have had upon him the onus of showing and satisfying the immigration officer that he was ordinarily resident in the United Kingdom within the terms of that section. We have now to learn a new set of rules and indeed a new Act, because the old Acts with which the courts are familiar are repealed, and the Immigration Act 1971 is substituted. But as far as I am concerned the position of returning immigrants is exactly the same. I remind myself that under section 1 (1) of the Act of 1971 a patrial who has a right of abode in the United Kingdom can go to and fro without hindrance, but this applicant not being a partial can only claim right of entry under section 1 (2) and that involves him showing he was settled here on January 1, 1973. To be so settled requires him to be ordinarily resident, and lawfully ordinarily resident, and that takes us back to the fact, if he entered after March, 1968, he was not lawfully resident so as to claim the right to remain under section 1 (2). In considering the position of an applicant who seeks to claim he is ordinarily resident and thus settled and thus has a right to return to this country, one has to remind oneself that section 3 (2) of the Act of 1971 prescribes:

"The Secretary of State shall from time to time... lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter..."

This man did require leave to enter although if he came within section 1 (2) he would thereby show that he had obtained leave under the Act for the purpose. Further when one comes to Schdule 2, which deals with the functions of the immigration officers, paragraph 1 (3) provides: "In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State..." So to find the detailed instructions given pursuant to the statute to immigration officers, one turns to the rules contemplated by the provision, and they are the Statement of Immigration Rules for Control on Entry, Commonwealth Citizens (H.C. 79), laid before Parliament on January 25, 1973. Rule 51 of those Rules is the modern version of section 2 (2) of the Act of 1962, and it reads:

"Returning residents. A passenger 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 two years preceding his return, is to be admitted for settlement..."

The importance of that language is that consistent with the approach of the Act of 1962, the requirement is placed upon the would be entrant or passenger to satisfy the immigration officer that he was settled in accordance with the Act. That means in the present case that there was an obligation on the applicant when he appeared at Manchester airport to satisfy the immigration officer that he had first entered this country before March 9, 1968. He did not satisfy the immigration officer upon the issue, and speaking for myself I do not find it in the least a matter of surprise that the immigration officer was not satisfied. He had at that time nothing to go on except this man's own word, and he had already demonstrated, as I have said, that he had no particular regard for the truth, and such external pointers as there were to confirm his story, the existence of insurance cards, the making of tax returns and things of that kind all pointed against the story which had been told by the applicant. I am bound to say that this is not a case in which I feel any doubt about the propriety of the immigration officer's decision, because the evidence at the time was all one way, save only for what the applicant was prepared to say and aver himself. However, once one reaches the point where the applicant was required to satisfy the immigration officer, and the immigration officer was not so satisfied, then one has to ask oneself what is really the final question in this case: is there any ground upon which this court would have set aside the immigration officer's decision had an application for certiorari been made, and I think clearly there is no such ground. Certainly the decision was within the officer's jurisdiction, and there is no denial of natural justice, no allegation of unfairness in the questioning, or failure to give the applicant a chance to state. his case. Furthermore, it could not possibly be said that on the evidence before the immigration officer he acted perversely in not being satisfied of the applicant's right to enter. I am therefore satisfied that had this been an application for certiorari to set aside the immigration officer's decision, we should have refused that application, and that being so, it necessarily follows in this case that the writ of habeas corpus should be discharged.

Judgment Two:

CUSACK J. I agree.

Judgment Three:

MARS-JONES J. I agree.


Application Dismissed.


Michael Sears & Co.; Treasury Solicitor.

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