R v. Secretary of State for the Home Department, Ex parte Malkiat Singh Raju

R v Secretary of State for the Home Department ex parte Malkiat Singh Raju

Queen's Bench Division

[1986] Imm AR 348

Hearing Date: 25 June 1986

25 June 1986

Index Terms:

Visitor -- refusal of leave to enter -- passport date stamped with cross to indicate refusal -- whether the immigration officer was empowered so to mark a passport. Immigration Act 1971, Schedule 2, paras 1, 3, 4(4).

Held:

The applicant sought a declaration that the stamping of his passport by an immigration officer at Heathrow in such a manner as to record that he had been refused leave to enter the United Kingdom, was unlawful. The applicant had arrived at Heathrow without entry clearance and had sought admission as a visitor. He had been refused admission because the immigration officer was not satisfied that only a short visit was intended. When admission was refused the applicant's passport was date stamped and a cross superimposed: that indicated that the applicant had been refused admission on that date. It was a pattern well known to immigration control in other countries. The applicant asserted that its appearance in his passport had led to difficulties when he had sought entry to other countries. Counsel submitted that under Schedule 2, paragraph 4(4) of the Immigration Act 1971, the immigration officer had no power so to mark a passport. For the respondent it was argued that the immigration officer acted lawfully in accordance with instructions issued by the Secretary of State under Schedule 2 paragraphs 1 and 3. It was further submitted that the passport was the property of the Indian government, not of the applicant: one function of a passport was to provide a document in which duly authorised officers were able to make entries relating to immigration control. Held: 1. The applicant had no direct right to object to the practice. If he were to object at all, it would have to be through the medium of the Indian government, the owners of the document in question. 2. The Secretary of State was acting within his powers in instructing immigration officers to mark passports. In that regard it was one of the functions of a passport to provide a medium for recording information relating to immigration control.

Counsel:

KS Nathan for the applicant N Pleming for the respondent PANEL: Nolan J

Judgment One:

NOLAN J: The object of this motion is to obtain a declaration that a date stamp placed on the applicant's passport by an immigration officer and marked with a cross, was something which the immigration officer had no power to place there. In terms, the grounds on which relief is sought state that the immigration officer had no powers conferred upon him to mark the passport as he did under Schedule 2, paragraph 4(4) to the Immigration Act 1971. The affidavit filed on behalf of the respondent states, in paragraph 3, the following: "I" -- that is the immigration officer concerned -- "placed a stamp with a cross through it on page 7 of the applicant's passport, a true copy of which is exhibited to the affidavit sworn by the applicant herein on 25 March 1986. There are Home Office instructions in cases, where entry is refused, to endorse the passenger's passport with a date stamp crossed through. The purpose of this is to alert future immigration officers or entry clearance officers to the refusal of leave to enter and to give the date and place of refusal." Mr Nathan now, as the case is called on for hearing, asks for discovery of the Home Office instructions referred to in that paragraph. He does so in order that he may see the basis upon which the instructions have been given and in the interests of fairness and full disclosure. Mr Pleming opposes this application, not on the grounds of tardiness or want of form, nor on the grounds of privilege, but because, he submits, the existence of instructions to that effect is not challenged. That is correct. Mr Pleming says that there is no relevance therefore in the instructions for the purposes of the issue which I have to resolve. The Secretary of State is, perhaps understandably, not anxious to release the instructions unless he is compelled to do so. Having regard to the basis on which the application is put, namely that there was no power statutory or otherwise in the immigration officer to make the mark, I think that Mr Pleming's submission must be right. The fact that this, as it is said, unlawful and ultra vires act was performed on instructions is neither here nor there if there was no power to do it. What I have to determine was whether it was an unlawful act and that I would now propose to do. Mr Nathan, I suppose my having refused this application, it would be open to you to consider appealing at this stage. I do not know whether you wish to do so or whether you would wish to proceed with the substantive argument and reserve the whole matter for consideration of an appeal at a later stage? (After discussion, the judgment continued as follows. This motion, brought before the court with leave by Mr Malkiat Singh Raju, raises a short, novel and interesting point. Mr Raju is a citizen of India. He is aged 17. He holds an Indian passport. He came to the United Kingdom on 27 February 1986. The purpose of his visit, according to his affidavit, was to investigate the possibilities of starting a business for importing sports goods. He did not hold an entrance clearance certificate. He had been advised correctly that it was not essential for him to obtain prior entry clearance. He would have the opportunity to present himself as a visitor and ask for leave to enter at Heathrow. This he did. His request was refused. The reason for the refusal was as follows: "I am not satisfied that you are genuinely seeking entry for the period of the visit as stated by you." Mr Raju had hoped to come here for two months. He was admitted temporarily, notwithstanding the notice of refusal, but has duly returned to India as he always said he would. The question whether he was rightly refused entry is one which he intends to raise on appeal under section 13 of the Immigration Act 1971. The object of these proceedings is to obtain a declaration that a stamp marked with a cross and placed on his passport by the immigration officer at Heathrow was something which the immigration officer had no right to place there. The adverse effects of such a stamp are a matter of common knowledge but, in addition, are the subject of evidence in the applicant's affidavit. He has already encountered difficulties with the French authorities because of its existence on his passport. Mr Nathan, on behalf of the applicant, points out that there is no reference in paragraph 4(4) of the second Schedule of the 1971 Act to the marking of a passport. That sub-paragraph simply entitles the immigration officer to examine documents such as passports and, in certain circumstances, to detain those documents. The respondent, represented by Mr Pleming, submits that no power is required, that is statutory or legally conferred power, under the law of this country, to place a stamp on an Indian passport. Mr Pleming has drawn my attention to the terms of the passport which broadly resemble those of a British passport. It starts off as a request in these words:

"These are to request and require in the Name of the President of the Republic of India all those whom it may concern to allow the bearer to pass freely without let or hindrance, and to afford him or her every assistance and protection of which he or she may stand in need."

At the back of the passport there is a colume headed "Regulations". In that colume there appear under the word "Caution", these statements: "(1) This passport is a valuable document. It is the property of the Government of India . . . (2) This passport must not be altered or mutilated in any way nor any endorsement made on it by any person other than a duly authorized official. (3) This passport may be impounded or revoked at the discretion of the Government of India under the provisions of the Passports Act 1967, in which event the holder must surrender the passport to the nearest passport authority." In the body of the passport there are a number of blank pages with the word "Visas" printed on them. Thus, says Mr Pleming, this is a document belonging to the Indian Government, held by the applicant for the purpose of enabling him to identify himself to the officials of other countries and for the purpose of enabling them to make entries on it such as the granting of visas. Such entries need not be favourable to the holder of the passport. They may be adverse as in this case. If any objection is to be taken to an adverse entry, it would have to come from the Indian Government. Alternatively, submits Mr Pleming, if a power is needed to make a mark on the passport, it is conferred by the provisions of paragraph 1 and paragraph 3 of the second Schedule under which the immigration officer is to act in accordance with instructions given by the Secretary of State. There is such an instruction which applies to this case, namely an instruction to endorse the passport with a date stamp crossed through where entry is refused. That, says Mr Pleming, is a perfectly proper instruction because it helps to control the entry of the person subject to immigration control. As I see it, the immigration officer was clearly acting on instruction. The real question is whether the Secretary of State should instruct him to mark passports, and whether he has that power. In my judgment, he has, for the first reason submitted by Mr Pleming. This is not a matter to which the applicant has any direct right to object. If he is to object at all, it must be through the medium of the Indian Government whose passport it is. For these reasons I would reject this motion.

DISPOSITION:

Declaration refused

SOLICITORS:

Montague & Co, London: Treasury Solicitor

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