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

R v Secretary of State for the Home Office, ex parte Akhtar

QUEEN'S BENCH DIVISION

[1975] 3 All ER 1087, [1975] 1 WLR 1717, 62 Cr App Rep 167

Hearing Date: 27 OCTOBER 1975

27 OCTOBER 1975

Index Terms:

Immigration-Patrial-Right of abode-Wife of patrial-Wife an alien-Wife entitled to be registered as United Kingdom citizen-Husband a patrial having a right of abode in United Kingdom-Wife arriving in United Kingdom-Whether wife having a right to enter-British Nationality Act 1948, s 6(2).

Held:

The applicant arrived at Heathrow Airport from Pakistan.She produced a valid Pakistani passport and a marriage document. Her husband was resident and settled in the United Kingdom and registered as a patrial. However, as the applicant was an alien and had no visa or entry clearance, she was refused leave to enter the United Kingdom. She applied for an order of mandamus directing the Secretary of State to grant her leave to enter to join her husband, contending that, as the wife of a patrial, she had a right for that reason alone to come into the United Kingdom at will, on the basis that having married a patrial she had the right to register under s 6(2) a of the British Nationality Act 1948 and that, having so registered, she would also be a patrial with the right of abode in the United Kingdom. a Section 6(2), as far as material, provides: '... a woman who has been married to a citizen of the United Kingdom and Colonies shall be entitled, on making application therefor to the Secretary of State in the prescribed manner,... to be registered as a citizen of the United Kingdom and Colonies...' Held - Since the applicant was an alien the immigration officer was entitled to refuse her leave to enter. Until she had changed her status to that of a United Kingdom citizen by registration under s 6(2) of the 1948 Act she was not entitled to claim a right of abode in the United Kingdom as the wife of a patrial (see p 1088 c to h, post). R v Secretary of State for the Home Department, ex parte Phansopkar p 497, ante, distinguished.

Notes:

For persons having the right of abode in the United Kingdom, see 4 Halsbury's Laws (4th Edn) paras 974, 975. For the British Nationality Act 1948, s 6, see 1 Halsbury's Statutes (3rd Edn) 868.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department, ex parte Phansopkar [1975] 3 All ER 497 [1975] 3 WLR 322, CA.

Introduction:

Motion for mandamus. This was an application by way of motion by Nasim Akhtar for an order of mandamus directing the Secretary of State for the Home Department to grant the applicant leave to enter the United Kingdom. The facts are set out in the judgment of O'Connor J.

Counsel:

Yarin Suri and Lyndell G M Davis for the applicant. Harry Woolf for the Secretary of State. PANEL: LORD WIDGERY CJ, O'CONNOR AND LAWSON JJ Judgment By-1: O'CONNOR J

Judgment One:

O'CONNOR J delivered the first judgment at the invitation of Lord Widgery CJ. In this case the applicant arrived at Heathrow Airport on 1st September 1975. She came from Pakistan. She produced a valid Pakistani passport and a marriage document to her husband who is, by reason of registration and residence, a patrial of this country and settled here. She was refused leave to enter by the immigration officer, who gave as his reason: 'You have asked for leave to enter the United Kingdom for settlement but you have no claim to admission under the immigration rules.' The fact of the matter is that she had no visa and no entry clearance, and those are prerequisites for a person arriving here to claim a right of admission. She was entitled to apply for leave to come into the country as an alien, and the immigration officer was entitled to use his discretion to admit her or to refuse her admission. It has been submitted on her behalf that as the alien wife of a patrial she has a right for that reason alone to come into this country at will. The basis of that submission is that having married a patrial she has the right to register under s 6(2) of the British Nationality Act 1948, and if she so registers she also becomes a patrial with the right of abode in this country and the right to come and go at her will freely as often as she likes. But it must be made clear that until an alien has converted his or her nationality into that of a British patrial, she does not enjoy those rights, and the scheme of things enables her to apply for registration to the Home Office. It can be done in her country of origin; it can be done in this country; it can be done from anywhere; but until she has converted her status into that of a British patrial, she does not have the right of entry into this country. As was pointed out in argument, some wives of British patrials prefer for a variety of reasons not to become British citizens and they have no right to come and go as they please. Their admission is a matter which is subject to the discretion of the immigration authorities. That is the position as far as this lady is concerned. She has not asked for leave to register under s 6 of the 1948 Act. She is an alien. Her condition is quite different from that of the applicant in R v Secretary of State for the Home Department, ex parte Phansopkar n1, which was decided in the Court of Appeal where the applicant was a Commonwealth citizen. n1 [1975] 3 All ER 497 It was submitted that it was unfortunate that this application had come at a time after Pakistan had left the Commonwealth, but the court has to deal with it on the strict facts. There are different categories -- patrials, aliens, Commonwealth citizens. This woman at the moment has the status of alien. She has not asked leave to change it to that of British patrial, and in the circumstances there are no grounds for ordering the writ of mandamus to go to the Home Secretary to admit her into this country. I would refuse the application.

Judgment Two:

LAWSON J. I agree.

Judgment Three:

LORD WIDGERY CJ. I agree also.

DISPOSITION:

Application refused.

SOLICITORS:

Maurice Nadeem & Co (for the applicant); Treasury Solicitor.

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