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

R v Secretary of State for the Home Department, ex parte Zamir

QUEEN'S BENCH DIVISION

[1979] 2 All ER 849, [1979] 3 WLR 89

Hearing Date: 14th MARCH 1979

14 MARCH 1979

Index Terms:

Immigration - Leave to enter - Non-patrial - Right of entry - Date at which applicant's eligibility for entry certificate to be determined - Change of circumstances removing basis on which entry certificate granted - Applicant born in Pakistan and applying for entry certificate - Applicant eligible for entry certificate at time of application - Entry certificate granted two years later by which time applicant ineligible - Whether applicant's eligibility for entry certificate to be determined at date of application or date of grant of certificate - Whether applicant under obligation when entering to disclose change of circumstances affecting his right to enter - Immigration Rules for Control on Entry: EEC and Other Nationals (1972-73), paras 10, 39.

Held:

The applicant was born in Pakistan in 1957. His parents subsequently came to the United Kingdom and in 1973, when the applicant was 15, application was made on his behalf for an entry certificate, to which at that time he was entitled, under para 39 a of the Immigration Rules b, because he was then 'an unmarried and fully dependent son under 21... who formed part of the family unit overseas' and whose family had settled in the United Kingdom. There was a delay in the grant of the entry certificate which was not issued until November 1975, when the applicant was 18. In February 1976 the applicant married and in March he arrived in the United Kingdom alone and was given authority to enter for an indefinite period. He was later detained as an illegal entrant, and applied for a writ of habeas corpus, contending that at the date when he applied for an entry certificate he had been eligible to obtain one and that it was irrelevant that he may later have become ineligible. It was contended on behalf of the Secretary of State (i) that the relevant date for determining an applicant's eligibility was the date of the grant of the certificate and (ii) that the applicant's marriage was a 'change of circumstances' since the issue of the certificate which had 'removed the basis of the holder's claim to admission' and therefore the applicant could have been refused entry under para 10 of the rules on his arrival in the United Kingdom. a Paragraph 39 is set out at p 850 f g, post b Statement of Immigration Rules for Control on Entry: EEC and Other Nationals (H of C Paper (1972-73) No 81) Held - The relevant date for determining the applicant's eligibility for entry was the date of the grant of the certificate and not the date of the application for it, and on the date his certificate of entry was granted the applicant was not eligible for entry under para 39 of the rules because he was no longer a fully dependent son. Furthermore, the applicant could have been refused entry under para 10 of the rules on his arrival in the United Kingdom because his marriage was a 'change of circumstances' since the issue of his certificate which had removed the basis of his claim to admission. The applicant was under an obligation to disclose such a change of circumstance since he ought to have known that it was material to whether he would be permitted to enter. The application would accordingly be refused (see p 851 e and g h and p 852 e to h, post). R v Secretary of State for the Home Department, ex parte Ram [1979] 1 All ER 687 distinguished.

Notes:

For illegal entry into the United Kingdom, see Halsbury's Laws (4th Edn) paras 976, 1027.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department, ex parte Ram [1979] 1 All ER 687, [1979] 1 WLR 148, DC.

Introduction:

Motion. Mohammed Zamir applied for an order of habeas corpus directed to the Secretary of State for the Home Department to instruct the Governor of HM Prison, Winson Green, Birmingham, to release the applicant from detention where he had been detained pursuant to an order of an immigration officer issued under para 16 of Sch 2 to the Immigration Act 1971. The facts are set out in the judgment of Lord Widgery CJ.

Counsel:

Aydin Turkan for the applicant. Harry Woolf for the Secretary of State.

PANEL: LORD WIDGERY CJ. CUMMING-BRUCE LJ AND NEILL J

Judgment One:

LORD WIDGERY CJ. In these proceedings counsel moves on behalf of the applicant, at present detained in HM Prison, Winson Green, for a writ of habeas corpus. The background to the case is simply this. The applicant came into this country on 2nd March 1976. His previous history, so far as relevant, was this. First of all, he was born on 3rd March 1957, and he at first applied for an entry certificate to come to this country in 1973. We all know a lot about the inevitable delay in the production of entry certificates, and in this case, although the application was made early in 1973, the certificate did not make its appearance until 25th November 1975. Following the receipt of the certificate, on 10th February 1976 the applicant got himself married, and on 2nd March 1976 arrived in the United Kingdom and was granted leave to stay for an indefinite period. One must examine for a moment the background to the entry certificlate. When the application was made the young man was only 15. By the time the application was granted and he became a married man, he had become 18, and a significant difference arises according to the immigration rules between a child of a family who is under 18 and one who is over 18. It is expressed in para 39 of the Rules for Control on Entry n1, and, dealing with children aged 18 and over, it says this: n1 Statement of Immigration Rules for Control on Entry: EEC and Other Nationals (H of C Paper (1972-73) No 81)

'Generally, children aged 18 or over must qualify for admission in their own right; but, subject to the requirements of paragraphs 34 and 35, an unmarried and fully dependent son under 21 or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement.'

Children under 18, in the main, go with their parents; children over 1, are, in the main, regarded as free agents, able to look after themselves, but there is this special provision which I have read dealing with a child between 18 and 21, who is unmarried in the case of a male and fully dependent. In this case one has the odd situation that when the application for the entry certificate was made the applicant was only 15 and did not require to show that he was unmarried or that he was fully dependent. Those points did not arise at the tender age of 15. But by the time the authorities got around to dealing with the application he was 18, and, as a child of 18, if that is the material date to judge these matters, he was not entitled to enter the United Kingdom under para 39 without showing he was unmarried and wholly ependent. Of course he was not unmarried because he had got himself married, as I indicated, about a month before he presented himself in this country. The attitude of the authorities was simply this, and one cannot in any way criticise it. Having got an entry certificate authorising him to come in, he presented himself at Heathrow and was given authority to enter for an unlimited period. There was at that time no reason to question whether he was still unmarried and a dependant, and nobody raised the matter. Of course at that date he was married and, therefore, would not have been able to enter without complying with para 39; but the matter went over everybody's head and no specific mention of it was made. However, quite shortly afterwards, in fact two years afterwards, after he settled down in this country, and after his wife had had a child, he made enquiries about bringing his wife into the United Kingdom, and as a result of those enquiries the authorities became suspicious. They investigated his situation and took the view that he was an illegal entrant. The view that he was an illegal entrant was based on the fact that, although he had a proper entry in his passport, that had been derived from an entry certificate which suffered from the defect to which I have already referred. Accordingly, although there are other matters raised in this case, the fundamental question is whether in those circumstances the applicant could retain the benefit of entry which his entry certificate had originally given him. Three points arise in this case, and I find it convenient to deal with them separately. The first one concerns what is the relevant date to judge the factual situation which must apply to a particular entry certificate. It is contended by counsel for the applicant, if I understand her argument, that the relevant date for judging the eligibility of a person who seeks an entry certificate is the date when he applies for the certificate. Counsel for the Secretary of State, on the other hand, contends that the relevant date is not the date of application but the date of grant of the certificate. It is important here to decide which is right, because, if counsel's argument for the applicant is right, the young man was eligible for entry without further tests when the application was made, and the fact that he has since married and become ineligible, on her argument, would make no difference. For my part, I have no difficulty at all in accepting the approach of counsel for the Secretary of State to this quelstion. It seems to me that the most ridiculous results would follow if one dated back the certificate of entry to the date when it was actually applied for. I can see no reason why, in justice or common sense, it should be so. I get some support for that view from para 10 of the rules, which is in these terms:

'... A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the Immigration Officer is satisfied that: (a) false representations were employed or material facts were concealed, whether or not to the holder's knowledge, for the purpose of obtaining the clearance, or (b) a change of circumstances since it was issued has removed the basis of the holder's claim to admission...' That exactly fits the circumstances of this case. The change of circumstances, namely the marriage, has taken place since the certificate was issued and has removed the basis on which the certificate was granted, namely that the son was unmarried and fully dependent. I think the proper way to view this question of the relevant date is to say that, prima facie, the date on which the facts must be assessed for the purposes of an entry certificate is the date when the certificate is granted, but that is subject to the overall provision contained in para 10 that, in so far as there are changes of circumstances after the certificate was issued, those changes, if material, should be taken into account.

The second point which arises in this case is concerned with a birth certificate in Pakistan, which is the native country of the applicant, in which his age was being assessed for the purposes of the entry certificate. It seems quite clear from the evidence which has come from Pakistan in the course of this case that a birth certificate which was used in connection with the application was a bogus certificate, bogus in the sense that it was forged. Whether or not this made a difference to the application is very hard to say, and I should question for myself whether we ought to allow this fact to influence us unduly in this case. It may be remembered that it has already been decided that certificates of this kind, if forged, can taint the result which they produce; in other words, a forged birth certificate may result in the issue of an entry certificate which would otherwise not have been allowed to go. But I do not propose to say more about this point myself because I do not think it carries enough weight to justify detailed consideration further. The third, and probably the most important, point raised by the whole case is what is to happen in practice if, there having been a change of circumstances between the issue of the entry certificate and the arrival of the applicant in this country, nobody has taken any notice of the fact and the proceedings have continued as though there had been no such change. This is not altogether an easy question, and this is a branch of the law which I described in an earlier case as very fast developing. So it is. We have already clearly established that, if an entrant is guilty of active fraud, if he is guilty o misrepresentation deliberately made with a view to obtaining an entry document, that entry document is vitiated by the fraud. It can be recalled by the Secretary of State and the entrant can be sent back by the appropriate procedure. That is where there is actual, deliberate fraud, culpability. What is the position where there is no deliberate fraud? Is there an obligation on the entrant to disclose matters of relevance which might otherwise pass unnoticed? Part of the answer to that question is contained in the most recent reported case in this court on this subject, which is R v Secretary of State for the Home Department, ex parte Ram n1. Here the court was of the opinion that mere error in the documents leading up to the grant of an entry certificate would not suffice to enable the certificate to be called in and treated as ineffective. Just as fraud clearly is sufficient, mere error on the part of the immigration officer is not enough. n1 [1979] 1 All ER 687, [1979] 1 WLR 148 But what do we do with the intermediate situation? What do we do with a case which, in my judgment, is very close to the present case where there has been no disclosure by the applicant in circumstances in which one would expect him, if he were honest, to make disclosure? What is to happen then? Is the resultant leave to enter obtained as a result of the entry certificate to be treated as a nullity, as though there had been fraud, or is it to be treated as a perfectly valid certificate, as it might have been in the absence of any conduct on the part of anyone which was open to reflection? I think we ought to make a modest increase, a modest step forward, in the law on this topic in this case, and I would do so by adopting the test of counsel for the Secretary of State for this intermediate situation. I think, with his submission, that there is an obligation on an entrant to disclose changes of circumstances if he knew, or ought to have known, that those changes were material to the immigration history. There is an obligation on the entrant. So it should be. After all, he is coming into the country and must take the terms of his entry as they are prescribed. At the same time it does not go so far as to relieve the immigration authorities of every situation in which they might otherwise have to make their own decision. I, therefore, would take the view that the obligation, limited in its scope as I have described, does apply here, and I should then go back and consider whether in this case on the evidence before us there was material which would justify the Secretary of State in taking the view which he did. I think there was such material. That being so, I would necessarily find that, in my judgment, there is no case for habeas corpus, and I would refuse the appliclation.

Judgment Two:

CUMMING-BRUCE LJ. I agree.

Judgment Three:

NEILL J. I also agree.

DISPOSITION:

Application refused.

SOLICITORS:

Sharpe, Pritchalrd & Co, agents for Taylor, Hall-Wright & Co, Birmingham (for the applicant); Treasury Solicitor.

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