R v. Secretary of State for the Home Department, Ex parte Abdul Razak
- Author: High Court (Queen's Bench Division)
- Document source:
-
Date:
27 January 1986
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte ABDUL RAZAK
Queen's Bench Division
[1986] Imm AR 4
Hearing Date: 27 January 1986
27 January 1986
Index Terms:
Illegal entrant -- whether a person who entered the United Kingdom by means of deception and in breach of the Commonwealth Immigration Act 1962 acquired leave to remain by virtue of s 34 of the Immigration Act 1971 on the coming into force of that Act, Commonwealth Immigrants Act 1961, s 4(3)8a) Immigration Act 1971 ss 26(1)(c), 33(1), 34 Schedule 2 para 8, 9.
Held:
The applicant sought judicial review of the decisions of 20 November 1985 by the Home Secretary, to treat him as an illegal entrant. He was a citizen of Bangladesh. He arrived in the United Kingdom on 28 April 1969 with a forged passport using a false name. On arrival be resumed his true identity. In that name he obtained a new passport. He went to Bangladesh in 1973. He returned to the United Kingdom in 1975. He told falsehoods to the immigration authorities. He was given indefinite leave to enter. In 1978 he went again to Bangladesh. He returned in 1979 and repeated the falsehoods he had uttered in 1975. He was again given indefinite leave. In 1980, his wife, whom he had married in Balgahdesh in 1973-5, sought admission. He then admitted his previous deception but then disappeared and was not detained until 1985. He was treated as an illegal entrant and was to be removed to Bangladesh. On application for judicial review it was contended that by virtue of the transitional provisions of the Immigration Act 1971 his position was regularised. He was, it was asserted, a person within the ambit of s 34(2) of that Act. Held: 1. On the proper construction of s 34 of the Immigration Act 1971, a person who was an illegal entrant before 1 January 1973 remained an illegal entrant thereafter. 2. There is no waiver in the 1971 Act to enable such a person to claim successfully that his position was regularised by that Act.Cases referred to in the Judgment:
R v Governor of Pentonville Prison ex parte Azam [1970] AC 18: 2 All ER 765 R v Immigration Appeal Tribunal ex parte Khawaja [1984] 1 AC 74: [1982] Imm AR 139. R v Secretary of State for the Home Department ex parte Zeb and Parveen (unreported, QBD 7 December 1983) R v Secretary of State for the Home Department ex parte Lapinid [1984] Imm AR 101, [1984] 1 WLR 1269Counsel:
N Blake for the applicant R Griffiths for the respondent PANEL: Kennedy JJudgment One:
KENNEDY J. This is an application for judicial review of a decision of the Home Secretary dated 20 Novemebr 1985 by which he confirmed an earlier decision of an immigration officer to treat the applicant as an illegal entrant and to order his removal to Bangladesh. The applicant is currently detained in Ashford Remand Centre. He also moves for habeas corpus to determine whether his detention is lawful, but the grounds upon which relief is sought are the same in relation to each application. The applicant was born in 1984 in what is now Bangladesh. On 28 April 1969 he arrived in the United Kingdom on a forged pasport and purporting to be Abdul Bari, the 15 year old son of Saleem Ullah. He was in fact about 21 years of age. Having gained entry to the United Kingdom, he discarded his forged passport and resumed his true identity. In 1970, whilst still living in England, he applied for and obtained a Pakistani Passport and in 1973 a Bagladeshi one. On 7 August 1973 he returned to Bangladesh and stayed there for 21 months. It seems that it was whilst there he had married and when he returned to the United Kingdom on 8 May 1979 -- without his wife -- he told the immigration officer that he was a returning resident who had originally come to the United Kingdom with his father. That lie was accepted and he was given indefinite leave to enter. Three years later, on 2 July 1978, he again went to Bangladesh. On this occasion he stayed therefore 14 months, returning on 5 September 1979. On his return he repeated the lie which he had told on his return in 1975, with the same result. In 1980 his wife applied to join him in the United Kingdom. That resulted in the applicant being interviewed. He then admitted the true circumstances of his original entry and of his two subsequent entries, which led to him being declared an illegal immigrant. Before notice could be served on him he disappeared and was not seen again by the immigration authorities until 13 October 1985 when he was detained by the Brighton Police. The Immigration officer who saw him then concluded that there had been no relevant charge of circumstances since 1980 and served him with notice that he was an illegal entrant and with a detention notice. That resulted in his transfer to Ashford Remand Centre, where he was re-interviewed. He made a statement which is at page 14 in the respondent's bundle. Representations were then made on his behalf to the Secretary of State and those representations resulted in a reply from the Secretary of State on 20 November 1985 containing the decision which it now sought to be reviewed. The applicant's case in a nutshell is that his position was regularised as a result of the operation of the transitional provisions of the Immigration Act 1971 which came into force on 1 January 1973. In order to understand that submission, it is necessary to look at the relevant statutory provisions in some detail and also at four authorities. When the applicant first came to the United Kingdom in 1969, the entry of Commonwealth citizens was controlled by the Commonwealth Immigrants Act 1962. By virtue of section 4(3)(a) of that Act, it was an offence to make misrepresentations to an immigration officer or cause them to be made. Clearly, as Mr Blake concedes, this applicant committed that offence, but no proceedings were taken against him. Because of the time limit in relation to such proceedings, none can be taken now. The general scheme of the Immigration Act 1971 is that all non-patrials require leave to enter or to remain. In Section 26(1)(c) of that Act, there is a provision which again makes it an offence deliberately to mislead an immigration officer. Mr Blake concedes that this applicant committed that offence in May 1975 and again in September 1979. So the indefinite leave to enter which be obtained on each of those occasions was obtained by deception and cannot avail him unless he can show that he ought in law to have obtained it if the truth had been told. If authority be needed for that proposition, it can be found in the speech of Lord Bridge in R v Secretary of State for the Home Department, ex parte Khawaja [1984] 1 AC 74, the particular passages being at page 118 E-F. Paragraphs 8 and 9 of Schedule 2 to the immigration Act 1971 set out the powers of an immigration officer to order the removal of an illegal entrant who is refused leave to enter or remain in the United Kingdom. Those paragraphs do not expressly cover the position of an illegal entrant who has obtained leave by deception, but since the decisions in Khawaja it is clear that such a person has not obtained a leave upon which he can rely. So if the present applicant had come to the United Kingdom for the first time in 1973, and had done in 1973 what he did in 1969, it is common ground before me that he would not have obtained a leave to enter upon which he could rely. He would be an illegal entrant and liable to deportation. Prior to 1973 the applicant had been admitted on conditionally to the United Kingdom at a time when the Commonwealth Immigrants Act 1962 was in force. But that unconditional admission was tainted because it had been obtained by deception. That brings me to sections 33 and 34 of the 1971 Act and to Mr Blake's argument as to the effect of the transitional provisions which section 34 contains. The 1971 Act provides for the removal of an illegal entrant whenever he may hae entered. By virtue of the definition in section 33(1), a person is an illegal entrant if he enters in breach of the immigration laws. So for the purposes of the 1971 Act, this applicant was clearly an illegal entrant when he entered in 1969. So far as material, section 34 of the 1971 Act provides: "(1) Subject to the following provisions of this section, the enactments mentioned in Schedule 6" -- which include the Commonwealth Immigrants Act 1961 --"are hereby repealed, as from the coming into force of this Act . . . and (a) this Act, as from its coming into force, shall apply in relation to entrants . . . arriving in the United Kingdom at whatever date before or after it comes into force; and (b) after this Act comes into force anything done under or for the purposes of the former immigration laws shall have effect, in so far as any corresponding action could be taken under or for the purpose of this Act, as if done by wayof action so taken, and in relation to anything so done this Act shall apply. "(2) Without prejudice to the generality of subsection (1)(a) and (b) above, a person refused leave to land and by virtue of the Aliens Restriction Act 1914, shall be treated as having been refused leave to enter under this Act, and a person given leave to land by virtue of that Act shall be treated as having been given leave to enter under this Act: and similarly with the Commonwealth Immigrants Act 1962 and 1968. "(3) A person treated in accordance with subsection (2) above as having leave to enter the United Kingdom (a) shall be treated as having an indefinite leave, if he is not at the coming into force of this Act subject to a condition limiting his stay in the United Kingdom . . . This application was never subject to such a condition. The applicant's argument is really quite simple. Mr Blake submits that in 1969 the applicant was admitted unconditionally, although pursuant to the Commonwealth Immigrants Act 1962 he could have been refused. Granted he obtained his admission by deception, but he obtained it nonetheless. When the 1971 Act was passed, the applicant was a person within the ambit of section 34(2). The phrase "given leave to land" is not really apposite in relation to the 1962 Act because under that Act a Commonwealth citizen did not require leave, but the applicant had been admited unconditionally. So by virtue of section 34(2) of the 1971 Act, he must be treated as having been given leave to enter under the 1971 Act. By virtue of section 34(3) he must be treated as having an indefinite leave and that, submits Mr Blake, amounts to a new statutory grant of leave which is untainted by the original deceptive method of entry. There would, be no power to remove the applicant from the United Kingdom under Schedule 2 of the 1971 Act, and on returning from Balgadesh in May 1975 (and again in September 1979) he would, if he told the truth, have been entitled to re-enter the United Kingdom as a returning resident pursuant to paragraph 51 of HC 79. I need not go further into provisions which govern the re-entry of returning residents because I understand it to be conceded by Mr Griffiths for the Secretary of State that if Mr Blake is right in his principle submission that on 1 January 1973 the applicant, by operation of law, obtained an indefinite and untainted leave to enter, then the lies he which he told to the immigration officers in May 1975 and in September 1979 are immaterial in the sense that if he had told the truth the outcome on each occasion ought to have been the same, namely, indefinite leave to enter. So everything does turn on whether it can rightly be said that by virtue of section 34, the applicant ceased to be in breach of the immigration laws when the 1971 Act came into force on 1 January 1973. There are four authorities to which my attention has been invited and I deal with them in chronological order. R v Governor Pentonville, ex parte Azam [1974] AC 18 concerned three Commonwealth citizens who landed in secret and never presented themselves to the immigration authorities. They had therefore entered in breach of the Commonwealth Immigrants Act 1962 and were held to be still illegal entrants when, early in 1973, detention orders were made against them under the provisions of the Immigration Act 1971. The next authority is the case of Khawaja to which I have already referred. For present purposes, the facts do not mater save to say that Khawaja obtained entry to the United Kingdom by fraud in 1980, long after the 1971 Act came into force, so the question of the effect of the transitional provisions of that Act did not arise. At page 118D Lord Bridge said:"My Lords, in my opinion, whether a person who has obtained leave to enter by fraud "has entered in breach of the Act" is purely one of construction. If the fraud was a contravention of section 26(1)(c) of the Act, the provisions of which I have already quoted, and if that fraud was the effective means of obtaining leave to enter -- in other words, if but for the fraud, leave to enter would not have been granted -- then the contravention of the Act and the obtaining of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry itself was "in breach of the act". It is on that simple ground and subject to the limitations that it implies that I would rest my conclusion that those who obtain leave to enter fraudulenty have rightly been treated as illegal entrants."
In R v The Secretary of State for the Home Department ex parte Zeb and Parveen decided on 7 December 1983 by Woolf J (as he then was) of course was concerned with a challenge to directions for the removal as illegal entrants of a husband and wife. The husband Zeb had entered in 1972 (before the 1971 Act came into force) when he was aged 13 years and 10 months on a passport which really belonged to a man named Mohammed Rafiq. That passport had been altered to show a photograph of Zeb, and having represented himself to be Mohammed Rafiq, Seb was admitted unconditionally. He then registered in the United Kingdom in the name of Mohammed Rafiq as a citizen of the United Kingdom, and in 1976 went back to Pakistan where he married. On his return to the United Kingdom he was still using the name Mohammed Rafiq and the false passport, but it was argued that on this second occasion he was not an illegal entrant for two reasons: first, it was said that he was too young to have had the necessary means rea in 1972. That argument was rejected and I need not consider it further. Secondly, it was contended that because the applicant was admitted to the United Kingdom unconditionally prior to the 1 Janaury 1973 when the Immigration Act 1971 came into force, on that date he obtained a status of irremovability which prevents him being classified as an illegal entrant (See page 5G of the transcript). Broadly speaking that is the point which has been argued before me. Before Woolf J an argument was advanced as to the interpretation of section 1(2) of the 1971 Act. The argument has not been repeated to me and I need not say more about it. Then at page 11D of the transcript Woolf J in his judgment continued as follows:"However, Mr McDonald submits that quite apart from section 1(2) which would have given his client what he described as 'a statutory right' to remain in this country, the effect of the provisions of section 34 (to which I have referred) is that the leave which he was given under the 1962 and 1968 legislation was leave which thereafter continued under the provisions of the 1971 Act and in consequence his client, under the 1971 Act, could not be regarded as an illegal entrant."
That seems to me to be precisely what is now being said to me by Mr Blake. Woolf J was conscious, as I am, that the point is not covered by the decision in Azam's case because none of the appellants in that case had any form of permission to land. But, at page 12H of the transcript Woolf J concluded that the principle underlying the decision in Azam's case could and should be extended to cover the situation where an entrant obtained entry by deception. At page 13C he said:". . . if one asks oneself the simple question 'Was the present applicant an illegal entrant?' the answer must be 'Yes' he was an illegal entrant because he entered in breach of the earlier Commonwealth Immigrants Acts'. That entry is expressly defined by the Act of 1971 as being an entry which is an illegal entry, so it follows that under the provisions of paragraph 9 of Schedule 2 up until he left the country for the first time to go back to Pakistan in 1975 the present applicant could have been treated as an illegal entrant."
If for 1975 there is substituted 1973, those words are entirely appropriate to cover the facts of the present case. Of course it is true, as Mr Blake has pointed out, that the learned judge was not saying in terms at that point in his judgment that the applicant's situation was not improved with effect from 1 January 1973 as a result of the implementation of section 34 of the 1971 Act. But that must have been his conclusion because it is clear from the passage which I have already quoted that the section 34 argument -- if I may so describe it -- had been advanced, and if the argument had met with any success, the learned judge would not have said what he did at page 13D. He then goes on to deal with the applicant's visit to Pakistan in 1976 and at page 15F his judgment concludes:"As I see it, however the matter is approached, the position here is that the present applicant with whom I am dealing was guilty of deception both in 1972 and 1976: whether or not the matter is traced back to 1972 or whether the matter is apporached only on the basis of what happened when he returned to this country in 1976, the answer is the same, that he is an illegal entrant and it follows, therefore that the Secretary of State, if he considers it right to do so, is entitled to require his removal."
I have dealt with the decision in Zeb's case at some length because it seems to me that despite the best endeavours of Mr Blake, it really cannot be distinguished. I am not bound by it, but it is highly persuasive. I turn now to the last of the authorities to which I need refer, R v Secretary of State for the Home Department, ex parte Lapinid [1984] 1 WLR 1269. There the applicant obtained limited leave to enter by deceit. He then applied to vary the terms of his leave, which was extended so that his application could be considered. It was held that the extension was irrelevant because when it was granted it was not known that he was an illegal entrant, and that such an entrant could not insist on the determination of any application to vary the terms of his fraudulently obtained leave. The judgment of the court was given by Browne-Wilkinson LJ and after citing from the speech of Lord Bridge in Khawaja, he said at page 1273E: "These passages are consistent only with the view that, if it is shown that he leave to enter has been obtained by fraud, there is power under paragraph 9 of Schedule 2 to direct removal of the applicant notwithstanding that in one sense he has 'leave to enter'. In our judgment, the Order of 1976 can make no difference: it does not provide that here shall be a new and different leave to enter but merely extends the period of permitted stay granted by the original leave. Any such extension will be infected with the same vice as the original leave, the period of which had been extended."Although it is established by Ex parte Khawaja . . . that an illegal entrant who has obtained leave to enter by fraud can be summarily removed under paragraph 9, the words of paragraph 9 itself do not readily fit with the conclusion once it is established that the original leave to enter is not invalid. The only explanation is adopted by the judge in this case, viz that the words of paragraph 9, 'Where an illegal entrant is not given leave to enter . . . ' are to be read as, meaning 'When a person known to be an illegal entrant is not given leave to enter . . . ' This construction produces the result that leave to enter given at a time when it is not known that an entrant is illegal is irrelevant for the purposes of paragraph 9."
Mr Blake submits that the words which I have just quoted were obiter, and that they amount to an inappropriate gloss on the words of the statute which should be narrowly construed because it has retrospective provisions and affects individual liberty. If there is to be a gloss, he prefers the words used by Lord Denning, MR in the Court of Appeal in the case of Azam when he said (at page 31H) that in summary, the procedure contained in Schedule 2 of the 1971 Act comes to this: that 'where an illegal entrant is not given leave to enter or remain in the United Kingdom" -- and he cites paragraph 9 -- "he may be detained" etc Mr Blake of course prefers those words because they leave it open to him to argue that this applicant was given leave to remain. Mr Griffiths for the Secretary of State relies upon the decision of Woolf J in Zeb and also upon the ohter authorities to which I have referred. In addition he submits that it is important to have regard to the structure of section 34 of the 1971 Act. Subsection (1) deals with repeals, and with the extent to which the Act is to have retroactive effect. Subsection (2) then opens with the words: "Without prejudice to the generality of subsection (1)(a) and (b) above . . . " so there is expressly incorporated into subsection (2) a reference to the retroactive provisions of the Act. Thus, the applicant's entry in breach of the Commonwealth Immigrants Act 1962 is not waived. It is expressly preserved and treated as a breach of section 26(1)(c) of the 1971 Act. The applicant is an illegal entrant. He has not been given any leave to enter or remain in the United Kingdom and he can be removed in accordance with the provisions of paragraph 9 of Schedule 2 to the 1971 Act. I can find nothing in section 34 of the 1971 Act which leads me to conclude that an applicant who entered by means of deception and in breach of the Commonwealth Immigrants Act 1962 before 1 January 1973 must be treated thereafter not as an illegal entrant but as a person having been given leave to enter under the 1971 Act. On the contrary, from the way that section 34 is drafted, it seems clear to me that this applicant was illegal entrant before I January 1973 and remained an illegal entrant thereafter. Accordingly, I accept the submissions made to me by Mr Griffiths and I also adopt the reasoning of Woolf J in the case of Zeb. So I reach the conclusion that section 34 of the 1971 Act did not operate in such a way as to make this applicant not an illegal entrant who had obtained entry by deceit, but a person who by operation of law must be treated as having been given indefinite leave to enter. Like the Court of Appeal in Lapinid, I accept that it is established by Khawaja that an illegal entrant who has obtained leave to enter by fraud can be summarily removed under paragraph 9 of Schedule 2. In so far as it is necessary for me to do so, I adopt the interpretation of the words of that paragraph which commended itself to Browne-Wilkinson LJ and the other members of the Court of Appeal in La Pinid's case. Accordingly, this application fails and the applicant will not be granted any form of relief.DISPOSITION:
Application dismissed.SOLICITORS:
Manchester Law Centre, Treasury Solicitor.Disclaimer: Crown Copyright
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