R v. Governor of Pentonville Prison and Another, Ex parte Azam

REGINA v. GOVERNOR OF PENTONVILLE PRISON AND ANOTHER, Ex parte AZAM

QUEEN'S BENCH DIVISION

[1973]1 WLR 528

Hearing Date: 23 February 1973

23 February 1973

Index Terms:

Commonwealth Immigrant -- "Ordinarily resident" -- Illegal entrant -- No examination by immigration officer -- Two years residence -- No longer liable to deportation or prosecution -- Whether detainable under provisions of new legislation -- Whether "settled" in United Kingdom as being "ordinarily resident" -- Meaning of -- Immigration Act 1971 (c. 77), ss. 1 (2), 2 (3) (d), 33 (1) (2), Sch. 2, para. 9 n1

n1 Immigration Act 1971, s. 1 (2): see post, p. 532C, D. S. 2 (3) (d): see post, p. 532E. S. 33 (1) (2): see post, pp. 531E, 532H. Sch. 2, para. 9: see post, p. 531C.

Held:

The applicant, a Commonwealth citizen who had entered the United Kingdom illegally before the Immigration Act 1971 came into force, could not be deported under the provisions of the Commonwealth Immigrants Act 1962 because he had not been examined by an immigration officer within 28 days of entry, and could not be prosecuted for the summary offence of illegal entry under section 4A of that Act, as amended, because more than six months had passed since the offence. The immigration authorities detained him and sought to remove him under paragraph 9 of Schedule 2 to the Immigration Act 1971 n1 as being an illegal entrant without leave to enter or remain here. On his application for a writ of habeas corpus on the ground that the should be treated as having leave to remain here: -- Held, refusing the application, (1) that the applicant was clearly an "illegal entrant" within section 33 (1) of the Act of 1971 and that "leave to enter or remain" within paragraph 9 of Schedule 2 could not be implied simply from the absence of refusal of such leave (post, pp. 531F, H -- 532A). (2) That the applicant had not "settled" in the United Kingdom when the Act came into force thus having leave to remain, within the meaning of section 1 (2), because, while "settled" meant ordinarily resident without restriction on the period for remaining by virtue of sections 33 (1) and 2 (3) (d), yet he was not "ordinarily resident" as explained by section 33 (2) having entered and remained in breach of the immigration laws, even though he was no longer liable to prosecution. [1973]1 WLR 528 Held, further, (3) that "ordinarily resident" in the Act of 1971 meant" lawfully ordinarily resident" and, in the circumstances, the applicant had not so resided at any material time (post, p. 534A, B.). In re Abdul Manan [1971] 1 W.L.R. 859, C.A. applied.

Cases referred to in the Judgment:

Abdul Manan, In re [1971] 1 W.L.R. 859; [1971] 2 All E.R. 1016, C.A.

Cases cited 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. Chief Immigration Officer at London Heathrow Airport, Ex parte Momji (unreported), January 25, 1973, D.C. Reg. v. Governor of Brixton Prison, Ex parte Hussain, The Times, September 12, 1968.

Introduction:

APPLICATION for a writ of habeas corpus. The applicant, Mohammed Azam, a Pakistani, landed in the United Kingdom in January 1970, in contravention of section 4A of the Commonwealth Immigrants Act 1962 (as amended by the Commonwealth Immigrants Act 1968), and was not examined by an immigration officer in pursuance of paragraph 1 of Schedule 1 to that Act. No action was taken at that stage, and the applicant lived and worked here until he was arrested on January 25, 1973, and detained in H.M. Prison at Pentonville pursuant to paragraph 16 of Schedule 2 to the Immigration Act 1971 pending the completion of arrangements for dealing with him under that Act. The applicant sought a writ of habeas corpus directed to the governor of the prison on the grounds that his detention was unlawful because he was not a person who could be removed or in whose respect directions could lawfully be given by the immigration officer or the Secretary of State, and that he should be treated as having been given leave to enter or remain here, either because leave had not been refused, or by virtue of section 1 (2) of the Immigration Act 1971 as being a person who was settled in the United Kingdom when that Act came into force.

Counsel:

S. Kadri for the applicant. Gordon Slynn for the prison governor and the Home Secretary. PANEL: Lord Widgery C.J., Cusack and Croom-Johnson JJ.

Judgment One:

LORD WIDGERY C.J. In these proceedings Mr. Kadri moves on behalf of one Mohammed Azam, presently detained in Pentonville Prison, for an order of habeas corpus. According to the affidavit of the applicant, he is a Commonwealth citizen within the meaning of the Commonwealth Immigrants Acts and came to this country in 1970. He described his arrival as being by boat from Holland, and admits that he landed in contravention of section 4A of the Commonwealth Immigrants Act 1962, as amended, and that he was not examined by an [1973]1 WLR 528 immigration officer in pursuance of paragraph 1 of Schedule 1 to that Act. He then describes how he took various forms of employment during 1970 and 1971; he describes how, in September 1972, he was interviewed by police about his status in this country, although no action was taken in consequence of that. Then he describes how on January 25, 1973, he was arrested at his factory, went to the police station and was eventually transferred to Pentonville Prison, and he asks for an order of habeas corpus on the footing that his detention is illegal. When the applicant came to this country in 1970, the position in regard to illegal immigrants can be summarised in this way. By entering the country without being examined by an immigration officer, the entrant, if I may use that term, committed an offence against section 4A of the Act of 1962. That was by virtue of an amendment to the Act of 1962 introduced by the Commonwealth Immigrants Act 1968. The Act contemplated that entrants should be examined by an immigration officer, and that if the immigration officer refused admission, an order might be given to the captain of the appropriate ship or aircraft to return the would-be entrant to his country of origin. But the right to deport in those circumstances hinged on a refusal of permission to enter; a refusal of permission to enter itself hinged on a prior examination by an immigration officer. There was an important provision in paragraph 1 (2) of Schedule 1 to the Act of 1962 which read as follows:

"A person shall not be required to submit to examination under this paragraph after the expiration of the period of 28 days from the date on which he lands in the United Kingdom..."

Accordingly, if an illegal entrant at that time succeeded in avoiding the eye of the authorities for 28 days, it became impossible to require him to submit himself to examination by an immigration officer. It therefore became impossible for any immigration officer to refuse him permission, and consequently the provisions for deportation did not apply to him. There are no doubt a great many illegal immigrants in this country who had achieved some status of irremovability by virtue of those provisions. It is perfectly clear that up to the passing of the Immigration Act 1971, the applicant's status in this country was secure to this extent, that he could not be sent home under the provisions of the Act of 1962 unless he committed a criminal offence and caused other considerations to apply. Furthermore, the offence under section 4A of the Act was a summary offence which had to be prosecuted, if at all, within six months of its commission. Accordingly, after the applicant had been in this country for six months there was no prospect of his being prosecuted for the unquestioned offence which he had committed of entering the country without being examined by an immigration officer. Hence, at the end of 1972, when the Act of 1971 was still not in force, he was immune from prosecution, and as long as he stayed in this country he could not be required to leave. It is submitted by Mr. Slynn on behalf of the respondents in this case that that situation has been radically changed by virtue of the Act of 1971, an Act which came into force on January 1, 1973. Under section 4 (2) of the Act of 1971:

"The provisions of Schedule 2 to this Act shall have effect with respect to --... (c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully;..."

[1973]1 WLR 528 When we go to Schedule 2, we find in paragraph 9 the following: "Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8 (1)." It is unnecessary to read paragraph 8 in detail; it contains the familiar provision whereby an immigration officer can order the captain of the appropriate ship or aircraft to remove the immigrant. Accordingly, by virtue of paragraph 9 which I have read, an illegal entrant who is not given leave to enter or remain is liable to be sent home under the terms of paragraph 8. Then one must discover what is meant by an illegal entrant and for this purpose reference is made to section 33 (1) of the Act of 1971, which is the definition section:

"'entrant' means a person entering or seeking to enter the United Kingdom, and 'illegal entrant' means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered;..."

It seems to me to be beyond argument that this applicant is an illegal entrant within that definition. He certainly entered in breach of the immigration laws, there can be no argument about that, and although that happened in the past, the definition of "illegal entrant" is in terms extended to include a person who has entered in breach of those laws. It seems to me, therefore, he is an illegal entrant, and one goes back to paragraph 9 of Schedule 2 to see what exemptions there may be for this applicant, having regard to the fact that in my opinion he is an illegal entrant. Mr. Kadri has concentrated his argument on this point on the opening phrase of paragraph 9, which refers to an illegal entrant who is not given leave to enter or remain in the United Kingdom. He argues that in the circumstances of this case we should regard the applicant as someone who has been given leave to enter or remain in the United Kingdom. Clearly he was not given express leave in the form of an express authority from any immigration or other officer, but it is argued that since he was not refused leave, he ought to be deemed to have received leave. I find it impossible to accept that argument, because I do not think that the mere fact that this man was never refused leave does produce the necessary inference that he was given leave. The fact of the matter is that he was neither refused leave nor given leave, because he kept out of the way at the relevant time. So I do not find it possible to follow Mr. Kadri's argument on the footing that there was some implied leave given in the facts of this case sufficient to exempt the applicant from the provisions in paragraph 9 of Schedule 2. One must, however, look elsewhere because there are other provisions in the Act of 1971 which may in effect give leave to a man to enter or remain, and I go back now to 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. (2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such [1973]1 WLR 528 regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain)." So one has there the granting of leave, a deemed granting of leave to the persons described in the last sentence of that subsection. The qualification necessary to entitle an individual to that deemed grant of leave is that he shall be settled there, which means settled in the United Kingdom on the coming into force of this Act, which was January 1, 1973. Having got to that point, the next step in the investigation is to find out what "settled" means, and by virtue of section 33 (1) "settled" has the meaning given to it in section 2 (3) (d) of the Act which reads: "subject to section 8 (5) below, 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." So one seeks to apply that to the circumstances of this applicant: can he show that at the material time, which was January 1, 1973, he was ordinarily resident in the United Kingdom without being subject to any restrictions on the period for which he might remain? I think Mr. Slynn is right in saying that that last sentence refers to the possibility of the immigrant being given leave to enter subject to his leaving after a specific time; such a person would normally be someone who was subject to restriction of the period for which he might remain and no such feature appears in the present applicant's case, so the test seems to be whether he was ordinarily resident in the United Kingdom on January 1, 1973. That is not the end of the trail because one has now got to try and find out what "ordinarily resident" means for this purpose, and for that I go back to section 33 (2):

"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."

That seems to me to be the last statutory extract which I am required to read, and it is on that material that the conclusion of this case must be arrived at. I think it is not really in question that the present applicant could describe himself as ordinarily resident in this country on January 1, 1973, unless his factual residence ceased to qualify for this purpose by virtue of section 33 (2). So the ultimate question upon which this decision seems to me to depend is whether the apparent ordinary residence which this man had achieved on January 1, 1973, is nullified by an argument that he was in the United Kingdom in breach of the immigration laws. Mr. Kadri has pointed out that when the applicant arrived in this country, he was of course liable to be prosecuted for an offence under section 4A of the Act of 1962, and he has pointed out for the reasons I have already stated that such a prosecution is now no longer possible. Accordingly, he says that this man is not here in breach of the immigration laws because in so far as he was once in breach, that breach has been spent. It is also pointed out that if the [1973]1 WLR 528 purpose of section 33 (2) was to prevent illegal entrants from qualifying for ordinary residence, that purpose could have been achieved much more simply than by the words used in section 33 (2). Mr. Slynn meets the second point by submitting that section 33 (2) is dealing with two quite different matters, one of a man who entered illegally and thus in breach of the immigration laws; and secondly of a man who, entering legally, outstayed his welcome or his permitted period and thus became in breach of the immigration laws. I think that that is the proper explanation of the language in section 33 (2), and I feel it really quite impossible to say that this man is not, on the facts of this case, in this country in breach of the immigration laws. He came to this country in flagrant breach of the immigration laws and the fact that some of the consequences of his illegality have now spent themselves does not seem to me to make it possible to say as a matter of English that he is otherwise than here in breach of the immigration laws. I am somewhat supported in that view because when the Act of 1971 was making its progress through Parliament, a point very similar to the one to which I am now alluding arose in this court in In re Abdul Manan [1971] 1 W.L.R. 859. This was a case of a Pakistani citizen who was a seaman on a ship, and when the ship was in a United Kingdom port he left the ship, deserted the ship, and the ship sailed without him. Without looking into the specific provisions dealing with seamen who so behave, it suffices, I think, to say that such a man is deemed to have been refused permission to enter the country. But in this case the question turned on whether the then applicant could contend that he was ordinarily resident in this country within the meaning of that phrase in the Act of 1962. Lord Denning M.R., giving the short leading judgment in the Court of Appeal, said, at p. 861:

"The point turns on the meaning of 'ordinarily resident' in these statutes. If this were an income tax case he would, I expect, be held to be ordinarily resident here. But it is not an income tax case. It is an immigration case. In these statutes 'ordinarily resident' means lawfully ordinarily resident here. The word 'lawfully' is often read into a statute: see, for instance, Adlam v. Law Society [1968] 1 W.L.R. 6. It should be read into these statutes. It is perfectly plain on the facts that Mr. Manan was not lawfully here at all. He was guilty of an offence when he deserted his ship. He continued to be guilty of an offence when he stayed here. He was continuously guilty of an offence under sections 4 and 4A of the Acts of 1962 and 1968. Paragraph 8 (2) (b) of Schedule 1 of the Act makes it plain that, as a deserting seaman who remains here after the ship has left port, he is to be treated as having been refused admission."

There is, of course, a distinction, as Mr. Kadri points out, between that case and the present, because in that case the man in question was deemed to have been refused admission. But in my judgment that is a distinction without a difference. I think that, independently of the terms of section 33 (2), it would be right and proper in the Act of 1971 as in the earlier Acts to regard "ordinarily resident" as meaning lawfully ordinarily resident, and I do not think that this applicant has been lawfully ordinarily resident in the United Kingdom at any material time at all. [1973]1 WLR 528 Accordingly as it seems to me the immigration authorities are now in a position to detain the applicant as they are detaining him, and in due course in a position to return him to his country of origin under paragraphs 8 and 9 of Schedule 2 to the Act of 1971 and I would refuse the application.

Judgment Two:

CUSACK J. I agree.

Judgment Three:

CROOM-JOHNSON J. I agree and have nothing to add.

DISPOSITION:

Application refused.

SOLICITORS:

Michael Sears & Co.; Treasury Solicitor.

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