in re SAIDUR RAHMAN

CO/2307/93 28 June 1996 Queen's Bench Division: Collins J Habeas corpus - illegal entrant - obligation of court to determine precedent facts - Secretary of State had taken into account hearsay evidence whether hearsay evidence admissible before the court - weight to be attached to it - whether on the facts the Secretary of State had established that the applicant was an illegal entrant. Immigration Act 1971 sch. 2 para. 16. The applicant for a writ of habeas corpus was a citizen of Bangladesh who had secured a certificate of entitlement to a right of abode in the United Kingdom on the basis of a claim that he was the son of Abdus Somed. After enquiries following information received by the Home Office, the Secretary of State concluded that the applicant was not the son of Abdus Somed: he had secured entry to the United Kingdom by deception and he was an illegal entrant. The applicant was briefly detained. To challenge the decision of the Secretary of State he applied for habeas corpus, electing to pursue his challenge by that route rather than by way of an application for judicial review. In coming to his conclusion that the applicant was not the son of Abdus Somed the Secretary of State had relied on two village visits by entry clearance officers in Bangladesh. Counsel argued that the records of those two visits and the interviews with villagers contained in them were hearsay evidence and not admissible before the court in proceedings for habeas corpus.

Held:

1. All the evidence, including hearsay evidence, which was before the Secretary of State, was admissible before the court.

2. It then became a matter for the court to give that evidence the weight it considered appropriate.

3. In the instant case the learned judge proceeded on the basis that where there was any reasonable doubt, matters would be decided in favour of the applicant.

4. Reviewing the evidence on that basis the Secretary of State had established that the applicant was an illegal entrant as the result of deception.

M Shrimpton for the applicant

M Shaw for the respondent

Cases referred to in the judgment:

re Guerin [1889] 60 LT 538: [1907] 51 SJ 571. R v Brixton Prison Governor ex parte Ahsan [1969] 2 QB 222: [1968] 2 All ER 347. R v Secretary of State for the Home Department ex parte Hussain [1978] 1 WLR 700: [1978] 2 All ER 423. Ejaz v Secretary of State for Home Affairs and the Governor of HM Remand Centre, Brockhill, Redditch (unreported, CA, 21 December 1978). R v Secretary of State for the Home Department ex parte Zamir [1980] AC 930: [1979-80] Imm. AR 203. Khawaja (and Khera) v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139. R v Secretary of State for the Home Department ex parte Muboyayi [1992] QB 244: [1991] 4 All ER 72. R v Secretary of State for the Home Department ex parte Isap Muse (of 7 December 1987) [1992] Imm AR 282. R v Oldham Justices ex parte Cawley [1996] 2 WLR 681: [1996] 1 All ER 4.

COLLINS J:

This is an application for a writ of habeas corpus on behalf of Mr. Saidur Rahman. The reason for the proceedings is that Mr. Rahman obtained in 1989 a certificate of entitlement to a right of abode in the United Kingdom in order to join his father, Abdus Somed (who was a British citizen by registration) who was living, here at the time. Having arrived in this country, he was the subject of two denunciatory letters which asserted that he was not the son of Abdus Somed. The first of those letters also asserted that the son whom he brought back with him, together with his wife, in 1991, was not his. So far as that allegation is concerned, which relates to one of the two sons called Rone, it is admittedly true because DNA tests were carried out which established that Rone was not the son of the applicant and his wife. The Secretary of State made inquiries through entry clearance officers in Bangladesh. The result of those inquiries satisfied him, together with an interview of the applicant, that he was not the son of Abdus Somed and, therefore, had obtained the certificate of entitlement by deception. Accordingly, on 3 August 1993 he was served with a notice that he was an illegal entrant and was detained under paragraph 16 of schedule 2 to the Immigration Act pending his removal from this country. On 11 August 1993 he applied to the vacation judge, Clarke J. for judicial review in the form of certiorari and for a writ of habeas corpus. On 16 August Clarke J refused bail and adjourned the case. At that stage it seems to have been accepted that judicial review was not an appropriate remedy and that the matter should proceed as an application for habeas corpus. Clarke J gave various directions as to the service of evidence. Those directions were not complied with. For some reason neither side progressed the matter. This was, no doubt, partly because by then the applicant had been released on bail. I am not sure whether he has been granted a form of temporary admission or whether he is still on bail, but the net result is that he is at liberty and has been able to remain in this country pending the outcome of these proceedings. That, as I say, may explain to some extent the rather lengthy delay that has occurred before this matter has come before me. In the meantime there has been the gathering, of some further evidence on the part of the Secretary of State and a body of evidence on behalf of the applicant, the applicant seeking to put forward material in support of his contention that he is, indeed, the son of Abdus Somed and is properly entitled, and was at all times properly entitled, to the certificate of entitlement. Before I go into the facts in greater detail, I should deal with a preliminary point, a very important point, which has been raised by Mr. Shrimpton on behalf of the applicant. The point relates to the nature of the evidence that the Secretary of State can put before the court. As I have said, the Secretary of State, through entry clearance officers, made inquiries in Bangladesh. Those inquiries included, and much of the Secretary of State's conclusions were based on, two visits that were made to the villages where the applicant lived, where his wife lived and where his alleged father lived. The first such visit took place on 15 February 1993. That was by two entry clearance officers to the village of Holdarpur, which is the village in which the applicant said he and his wife and two sons lived in the house of his father, Abdus Somed. In fact his wife, Rina, if the relationship was correct, is his first cousin. The second village visit took place on I December 1993 and that was to the village of Nittarchok. It is a village, I believe, some 10 miles or so away from Holdarpur. It was the village alleged to be his true home village where his true father had lived. I said "had" because his true father, if the Home Office is right, had died some time before. Abdus Somed himself had died in April 1994 but was still alive when the visit was made in 1993. He was one of those seen by the entry clearance officers and there is an issue about what he is alleged to have said to them. In the course of the visits the entry clearance officers interviewed, through interpreters, a number of villagers. They were interviewed in the sense that they showed them photographs of the applicant, his wife, his children and his alleged father, and they sought the reaction of various villagers to those photographs. According to them, the reaction was that he was not, in the case of the villagers at Holdarpur, the son of Abdus, and, in the case of the villagers at Nittarchok, that he was indeed an inhabitant of that village, that his father was a man called Suraj All and that he was really called Surab Ali. The evidence of all this is contained in affidavits from two of the entry clearance officers who made the visits in question and who reported what they discovered in the course of those visits. That evidence, Mr. Shrimpton submits (clearly correctly) is hearsay. Indeed, it is not only single hearsay but double hearsay because it is evidence that was given through interpreters. It his not suggested that the entry clearance officers themselves understood the relevant dialect that was being used and would have been able to understand what was being said unless the matter was interpreted. Accordingly, says Mr. Shrimpton, that would have been clearly inadmissible in any legal proceedings in this country and the same principle must apply to the factual decision that I have to reach in this case, the factual decision being whether the Secretary of State has proved that the deceptions were made so that the applicant is an illegal entrant. That, of course, results from R v Secretary of State ex parte Khawaja [1984] AC 74. That case established that on an application to the court (in that case for judicial review) of an immigration officer's order detaining any person as an illegal entrant, it was the court's duty to inquire whether there had been sufficient evidence to justify the immigration officer's belief that the entry had been illegal, and that the court was not limited merely to inquiring whether the decision of the immigration officer was a reasonable one. The court, therefore, has a fact-finding role and, says Mr. Shrimpton, whatever may be the position theoretically in judicial review, it is quite plain in habeas corpus, (hence the importance of going by way of habeas corpus in this case), that the court's role is one which must be carried out on proper, by which I mean admissible, evidence. He obtained some support for that submission from R v Governor of Brixton Prison ex parte Ahsan and others [1969] 2 QB 222. That was a case involving the detention of a number of Pakistanis, who were found wandering the countryside with wet clothing and it was alleged (with some plausibility) that they had come illegally into the country within the previous 24 hours. The significance of "within 24 hours" was that under the law, as it then stood, applicants could only be removed or refused admission if they were apprehended within 24 hours of having entered the country. It is perhaps to be noted that counsel then appearing for the Home Office put the facts in this way:

"These 11 men were found wandering on a sunny morning, with their shoes and trousers wet, stained and, in some cases, sandy, hopelessly lost and facing in the opposite direction to which they insisted they were going. Duly authorised immigration officers were satisfied that the men had come in clandestinely, and that they had arrived within the preceding 24 hours,"

He went on to submit that that was the only realistic inference which could be drawn from the facts. The court, by a majority, were not prepared to accept that. They applied the criminal standard and indicated that they did not find it proved that the men had come in within the previous 24 hours. The matter that is of importance for our purposes relates to a statement that had been obtained from one of the men who, apparently, was not before the court and was not one of the applicants, no doubt, because in that statement he had admitted that he, and indeed all of them, had come in within the previous 24 hours. Mr. Quintin Hogg QC, as he then was, for the applicants submitted (page 224 just above letter G) that:

"The statements attributed to [this particular individual] are hearsay and should not be admitted into consideration for he has not sworn an affidavit nor has he given evidence."

Unfortunately the basis upon which that material was treated is not entirely clear from the judgments that were given, there being three judgments in the case, because Ashworth J dissented. He said (and this appears at 238C) in relation to this particular point:

"In giving this answer [ie the answer to the question whether he could be e they had been in the country for less than 24 hours] I have disregarded entirely the statements attributed to [the individual that I have referred to] which were placed before the court de bene esse, but which in my judgment are inadmissible."

That is clear support, on the face of it, for Mr. Shrimpton's contention. Blain J dealt with the matter at page 241H. He says this:

"…in particular the evidence what the [relevant gentleman] said, either as a go-between or as interpreter or otherwise, I find no more convincing than that of the immigration officers, particularly as there is no affidavit from that person before the court, and for that matter it is by no means clear how much of what he said would be understood by the applicants when they were present to hear it."

It seems from that (and Mr. Shrimpton, I think, accepts) that Blain J appears to be approving the matter on the basis of weight rather than on the basis of admissibility of the statement of the gentleman concerned. That leaves Lord Parker CJ, who dealt with the matter at page 230A. He says:

"Further, according to the police, the Indian to whom I referred admitted that he had been with the 11 Pakistanis, and that they had all landed that morning, However, it is only right to say that the evidence in regard to that is pure hearsay, because the Indian concerned has not sworn an affidavit and has not given evidence before this court, and accordingly I disregard anything which it is said that he the Indian said."

It is not, I confess, clear to me whether Lord Parker in that passage was saying that he disregarded it because it was hearsay and therefore carried no weight or he disregarded it because it was hearsay and was inadmissible. He certainly does not say, in terms, that it was inadmissible and he does not appear to have refused to consider it. Accordingly, as it seems to me, the likely approach that he was taking was weight. However, I do not think that this case will turn on whether I am correct in my construction of what Lord Parker, or indeed Blain J, said in 1968 because it seems to me that the matter is covered, at least inferentially, by what their lordships said in the case of Khawaja. Before we reach Khawaja, Mr. Shaw, on behalf of the Home Office, has relied particularly on an unreported decision of the Court of Appeal in a case called Ejaz v Secretary of State for Home Affairs and the Governor of Her Majesty's Remand Centre, Brockhill, Redditch (unreported), decided in December 1978. In that case, in which the leading judgment was given by Roskill LJ, the court was approaching the matter on the basis of the review jurisdiction which prevailed between the decision in Hussain and the decision of Khawaja which swept it away. In those circumstances the indications by the court that material was admissible, or could be considered by the court, which could have been considered by the Secretary of State, albeit not strictly admissible, is entirely understandable. Indeed, it would have been extraordinary if the decision had gone any other way. The approach is made clear by what Roskill U said at page 4F:

"I accept Mr. Woolf's argument that the part which the evidence of the informers played was probably no more than to ‘trigger off' the enquiries, and that the real basis of the Secretary of State's decision that this applicant was an illegal entrant was that which is set out in those two passages in the affidavits to which I have referred-after a carefully reasoned and considered assessment and appraisal of the evidence before the Secretary of State. The appraisal of such evidence, whatever its source, whether it be direct evidence or hearsay, is a matter for the Secretary of State, as has often been said before in these cases."

As I said, that clearly reflects the then approach of the courts to illegal entrants, an approach which culminated in the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Zamir [1980] AC 930. It is a decision which, as we all know, was held to be wrong in Khawaja, Khawaja indicating that the correct approach was the precedent fact approach. It seems to me that there is great force, when one looks at the matter overall, in the submissions made by Mr. Shaw. The court, albeit the court in this particular sort of case has a fact-finding role, is in reality still reviewing the decision of the Secretary of State. Mr. Shrimpton accepts that if this were judicial review, then the court could take account of the material which was properly taken into account by the Secretary of State, albeit not strictly admissible. Indeed, that is one of the reasons he advances for the need to preserve the remedy of habeas corpus in these cases because, he says, the role of the court in habeas corpus is truly fact-finding and is not truly a review jurisdiction. It would be strange, it may be thought, if the Secretary of State were entitled to reach a decision whether a person was an illegal entrant based upon material, which was not admissible in a court of law, and were to decide properly on that material that a person was an illegal entrant. If that were challenged and the court then itself independently carried out the fact-finding exercise, if Mr. Shrimpton is correct, the court would be precluded from relying upon some of the material that the Secretary of State relied upon, simply because it was not admissible in a court of law. In the context of an administrative decision and, more particularly, in the context of a decision which has to be taken where material is obtained from far-flung places and in forms which might not easily be translated into admissible evidence in an English court, it is somewhat strange that the Secretary of State could reach a decision which may be overturned simply because material he can properly rely upon cannot be put before the English court. That would, effectively, create something of a lottery and it would be a matter of chance whether someone chose to challenge the finding by the Secretary of State. If he did choose to challenge it, he might well persuade a court, if limited to admissible evidence, that there was insufficient evidence to establish that he was an illegal entrant. That suggests to me that the material that can be put before the court ought to include all material which can properly be taken into account by the Secretary of State whether it be hearsay or not. Of course, both the Secretary of State and the court will give such weight as they consider proper to that evidence. If that were not so, then there would be a distinction, and an artificial distinction, between the remedies available on judicial review and habeas corpus. One of the things that Khawaja makes clear is that the distinction is not one of substance and merely one of form. I have said that there are indications in Khawaja that the approach I have suggested is the correct one. It is to be noted that the facts of the other case which was considered with Khawaja, which was called Khera, included material in an affidavit by the immigration officer that Mr. Khera had said something or had not said something of materiality to a medical officer who had examined him in India. There was no evidence before the court from the medical examiner or indeed from anyone who had been present at a medical examination. Nonetheless, it does not seem to have occurred to any of their lordships to question the admissibility of that material. They certainly questioned the weight of it, deciding that it did not amount to sufficient proof together with such other evidence as there was, and on that ground they allowed Khera's appeal. Lord Templeman, at page 128D of the report said:

"In habeas corpus and judicial review proceedings evidence will be by affidavit, subject to cross-examination at the discretion of the court. It may be necessary for the court to reach a conclusion on the available information and without the benefit of oral evidence or of a prolonged investigation in the country of origin of the entrant. If fraud has been concealed for a number of years, witnesses of recorded statements may not be available to provide affidavits as to the circumstances in which those statements were prepared, composed and signed. Those statements may appear before the court as exhibits to affidavits from persons in whose custody the statements have been preserved. It will be for the court to determine what weight to attach to any of the information provided. It will be for the court to consider any explanations furnished by the entrant and his witnesses and to judge the reliability of the entrant under cross-examination.

In Khera's case, for example, it is said that there was available a record of Khera's medical examination bearing the thumb-print or signature of Khera himself and the signature of the medical officer. The record is said to have contained the statement that Khera was unmarried. The medical officer might or might not have been available, and might or might not have recollected the interview. Faced with any such record Khera himself could have given evidence and been cross-examined as to the recorded statement that he was unmarried. It would have been open to the court on consideration of the record and other circumstances, and on consideration of the cross-examination of Khera, to have decided that fraud was not made out. "

It is perfectly plain, in my judgement, from those passages that Lord Templeman was not suggesting (indeed quite the contrary) that the material was not admissible. What he was indicating was that it was for the court to decide its weight. At page 124F Lord Bridge referred to this matter briefly, saying:

"I would add that the inherent difficulties of discovering and proving the true facts in many immigration cases can afford no valid ground for lowering or relaxing the standard of proof required. If unlimited leave to enter was granted perhaps years before and the essential facts relied on to establish the fraud alleged can only be proved by documentary and affidavit evidence of past events which occurred in some remote part of the Indian sub-continent the courts should be less, rather than more, ready to accept anything short of convincing proof."

That merely reflects that the court should be very careful not to attach great weight to material which has been untested and which cannot be put into a form which would render it admissible in a court of law. I do not think it is necessary to refer to any other passages of the speeches, save to note that at page 111B Lord Scarman, in dealing with the relationship between habeas corpus and judicial review, said this:

"There are, of course, procedural differences between habeas corpus and the modem statutory judicial review.... Zamir... was a case of habeas corpus: in the instant cases the effective relief sought is certiorari to quash the immigration officer's decision but the nature of the remedy sought cannot affect the principle of the law. In both cases liberty is in issue. ‘Judicial review' under RSC Ord. 53... is available only by leave of the court. The writ of habeas corpus issues as of right. But the difference arises not in the law's substance but from the nature of the remedy appropriate to the case. The writ issues as of right summoning into court the person in whose custody the subject is. It gets the custodian into court: but discharge from custody is not possible unless ‘the party hath a probable cause to be delivered,' as Vaughan CJ put it (in Bushells Case (1670) TJ 13, p. 132) in words quoted by Blackstone, BK III. This remains the law today and effectually puts habeas corpus in like case with the other form of judicial review."

Mr. Shrimpton is singularly unhappy with that passage, indeed with the whole approach in Khawaja, which seeks, as it were, to amalgamate the remedies of habeas corpus and judicial review. He is anxious that nothing that I say should do anything to diminish the importance of habeas corpus as an independent remedy, it is certainly the case that historically, and indeed still today, habeas corpus is a very important weapon in the hands of the court against any attempts to restrict the liberty of the individual in an unauthorised fashion. However, in reality, in my judgment, as Lord Scarman indicated, one has to look at the context in which the remedy has been sought. Here the context is a decision of the Secretary of State that the individual in question was an illegal entrant. That is an administrative decision which he has to form by virtue of the responsibilities placed upon him by the Immigration Act 1971. If that decision is challenged, the court has to decide for itself on looking at the material which was available to the Secretary of State or which is available to the court, if there is further material before the court, because it is perfectly clear from the authorities, which I do not need to go into in any detail, which include R v Secretary of State for the Home Office ex parte Muse [1992] Imm AR 282, that the court is entitled to look at any fresh material that exists. It seems to me that it is wholly right, sensible and proper that the court should be able to look at any such material. Of course, it is a matter for the Secretary of State to decide how he chooses to present that material. If he chooses to present it in such a way as is hearsay or hearsay upon hearsay then he runs the risk that the court will attach that much less weight to it. In certain circumstances it may obviously be impossible for him to produce the material in any other way. This case provides an example because it was clearly impractical for him to produce the villagers as witnesses and impractical, too, to go further than the entry clearance officers who made the visits. It is, therefore, for me to decide what weight should be attached to that material. It seems to me that any other approach would perpetuate the distinction between judicial review and habeas corpus which Khaiyaja expressly indicated should not exist. Furthermore, it seems to me that what I have suggested should be the correct approach is supported, at least inferentially, by the recent decision of the Divisional Court in R v Oldham Justices ex parte Cawley [1996] 2 WLR page 681. That was a case involving the alleged unlawful committal to prison of fine defaulters. The court in that case was concerned to decide whether judicial review or habeas corpus was the appropriate remedy. At page 694B of the report Simon Brown U said this:

"This approach recognises the applicants' need to establish an error of law in the underlying decisions committing them to custody, but contends that this can properly be done by habeas corpus application, particularly where, as here, the applicants start by producing a defective warrant.

I have to say that although the jurisdictional difficulties confronting the applicants in this regard may well be fewer than those which in my judgement defeat their first argument, so too are the attractions fewer. The reality is that as judicial review has developed into an ever more flexible and responsive jurisdiction, the need for a parallel, blunter remedy by way of habeas corpus has diminished. That said, this ancient writ plainly remains part of our constitutional heritage and it is certainly not for this court to deny a jurisdiction which in law it enjoys. The question is: in what circumstances is it available?

The interrelation between habeas corpus and judicial review was recently considered by the Law Commission in their October 1994 Report (Law Commission No 226)... Although the Commission noted that ‘the case law is riddled with contradictions', it nevertheless concluded against subsuming habeas corpus into the judicial review procedure, albeit at the same time suggesting that the scope of review in both should be essentially the same."

He then goes on to refer to the immigration cases, recognising, as indeed do I, that the habeas corpus is clearly available as an alternative remedy and there is no suggestion that these proceedings are in improper form. They clearly are proper, although judicial review would equally clearly have been an alternative remedy. He cites a passage of Taylor LJ's judgment in R v Secretary of State for he Home Department ex parte Muboyayi [1992] QB 244 at 269:

"The great writ of habeas corpus has over the centuries been a flexible remedy adaptable to changing circumstances. Time was when it was used in conjunction with certiorari in a manner characterised as certiorari-in-aid of habeas corpus. I see no reason why, in the changed circumstances of the 1990s and especially in immigration cases involving applicants entering and being removed from the jurisdiction, the roles of these two remedies should not be reversed so as to provide habeas corpus-in-aid of certiorari."

That was an observation made in the context of the then law when bail could not be granted to applicants unless they applied for habeas corpus. That anomaly has now disappeared. It seems to me that the whole tenor of the cases following on from ex parte Khawaja established that there should be no difference in the approach of the court to judicial review and to habeas corpus. Of course, the safeguards that are applicable to habeas corpus must be reflected in judicial review. In my judgment they are, but it is not a necessary safeguard in the context of immigration cases and in the context of the issues which have to be determined, that the court should be limited to evidence which is admissible in a court of law. It seems to me, as I have said, that the court is indeed entitled to have regard to all the material to which the Secretary of State could properly have had regard. I should mention one argument raised by Mr. Shrimpton in support of his contention, which was that historically it was clear that it was open to an applicant for habeas corpus to seek and to receive a trial by jury of any factual issue which was raised. He refers me in that regard to an authority where that precisely happened: re Guerin [1889160 LT 538 and [1907] 51 SJ 571. Guerin was an unfortunate gentleman who was accused of theft in France. They said that he was a Frenchman and required his extradition. He said that he was an Englishman and could not be extradited. The issue whether he was an Englishman was ordered to be tried by a jury. He unfortunately received a judge who gave a misdirection, namely that the onus was on him to establish that he was an Englishman, whereas it ought to have been the other way around. As a result of that, the jury found that he was not an Englishman and he was duly extradited and found himself on Devil's Island. 20 years later or so he escaped. He came back to this country and there was a further attempt to extradite him. He raised the same point. On this occasion, in 1907, the matter was tried in the more usual fashion that one recognises with habeas corpus and the court, perhaps feeling that enough was enough, decided on the correct application of the burden of proof that it had not been established that he was not an Englishman. Accordingly, he was not further extradited. He has referred also to a Privy Council case in 1901, which I need not specify, in which the Privy Council recognised in New Zealand the right to trial by jury. Mr. Shrimpton is not aware of any case since Guerin or the New Zealand case where there ever has been a trial by jury in a habeas corpus matter. In my judgment any application, if made now, would fall on singularly stony ground. However, he makes the point in the context of his submission that if there was a right to trial by jury then it is improbable, in those circumstances, that the court would have countenanced the admission of any evidence other than evidence that was strictly admissible. That may or may not be so, but the position in the 1890s and the early 1900s really cannot dictate the present day position, as was made clear by Simon Brown LJ in the Cawley case. Indeed, following the dictum of Taylor LJ the application of these remedies has developed over the years and what may have been right for 1900 is not necessarily right for 1996. Accordingly, in my judgment, the material which the Secretary of State wishes to rely upon, in particular the village visits, is admissible before me. I too am entitled to take it into account in deciding whether I am satisfied that the Secretary of State has proved that the applicant is an illegal entrant. The standard of proof, again, is quite clearly established by ex parte Khawaja as being the civil standard but the gravity of the matter will dictate the standard which must be applied. In this case what is being alleged is that the applicant was guilty of fraud, told lies in order to obtain the certificate, and that accordingly the certificate should be removed, he himself should be removed from the country and is liable to be put into custody pending such removal. It seems to me, in those circumstances, that I ought to approach the matter (and I do) on the basis that if I have any reasonable doubt as to whether the matter is proved, I should resolve that in favour of the applicant. That is the standard which I propose to apply. Mr. Shaw was concerned that I should not, as a matter of language, apply the criminal standard of proof, because that is what ex parte Khawaja says does not apply. That is, of course, technically right, but in reality where one is dealing with a case such as this nothing less than that sort of an approach seems to me to be appropriate. Therefore, it is necessary to look at the circumstances in slightly more detail. I have already referred to the denunciatory letters. The first such letter came in October 1991. It asserted that the applicant's true name was not Saidur Rahman but was Mohammed Surab Ali Talukder and, secondly, that the child Rone, in respect of whom the applicant was seeking entry clearance as his son, was not his son nor his wife's son but the son of his sister-in-law. As a result of that allegation being made, the applicant's wife was interviewed. In the course of that interview she asserted still that both children were hers and her husband's. She was asked whether her husband had any enemies in the village and she said no. That was an interview that took place on 14 January 1992. There was then a DNA examination and the result of that, which was sent to the Home Office in-April 1992, indicated that Rone could not be the true son of the parents. That has since, inevitably, been admitted by the applicant and his wife. Accordingly, it is perfectly clear that he was a person who was prepared to tell lies in order to obtain an immigration advantage on this occasion for Rone, whom he pretended was his son. Furthermore there was produced a birth certificate which purported to show that Rone was the true son of the applicant and his wife. The significance of that is the applicant has himself produced a birth certificate purporting to show that he was the son of Abdus Somed. The point is also made that the applicant is someone who has been prepared to produce a false birth certificate and thus one does not apply to the birth certificate that he has produced the weight that one would otherwise apply to it. Mr. Shrimpton, on the other hand, says, rightly, that the mere fact that there is one false document does not mean that the other document must be false. He says that the birth certificate is important evidence and that, on the face of it, the Home Office has had the opportunity of making inquiries, of inspecting the original register and of undertaking scientific tests to see whether the certificate is bogus. I do not think the scientific tests would necessarily have achieved much but the investigations of the original register in Bangladesh perhaps might. One knows not. The fact is, again, that the applicant has clearly not helped himself (to put it no higher) by producing the false birth certificate in relation to his alleged son and in telling the lies to the authorities in order to try to get him into the country. He seeks to explain that in an affidavit sworn by him in May 1996 (very recently) saying:

"My wife's eldest sister... and her husband... (who are very poor) begged me and my wife to take their son Rone... with us to England by falsely claiming that he was my son. I did not want to do this. I was emotionally pressurised by all my family to go through it. Due to constant mental pressure from everyone, and their persistent crying, followed by threats by the [parents] to take their own lives. I eventually relented, with great reluctance, and agreed to take Rone as my own son. At that time my wife and I did not have any children of our own."

That, in my judgment, is not a satisfactory answer, particularly since, as far as I am aware, it has been put forward for the first time in an affidavit sworn as recently as last month. The second denunciatory letter came in April 1992. That also referred to Rone and went on to say that Rina's husband's name was Mr. Surab Ali Talukder, the son of Sonai Ali Talukder, and that the village he lived in was a village called Nitarchok, therefore, effectively, giving the same information as had been given in the previous letter. That led to the village visit, in the course of which, on the material before me, the entry clearance officers established (they thought) that the applicant was not the son of an Abdus Somed of that village but came from a village some distance away. Mr. Shrimpton advises caution and points out that the interviews were carried on through interpreters and warns of the dangers of misunderstandings. As I have said, what in fact the entry clearance officers did was to go with photographs and put the photographs to the individuals. They received answers from those that they saw which identified, or not, the people in question. One recognises the dangers of misunderstandings through interpreters but, equally, when people have been shown photographs and asked about names, it is usually fairly easy to tell whether they are saying yes or no when asked to recognise someone, even without an interpreter being present, and also experienced entry clearance officers would, one expects, be able to recognise names when names were stated, even if they could not understand the language otherwise. Accordingly, as it seems to me, the scope for misunderstandings in the sort of exercise that the entry clearance officers were carrying out is perhaps somewhat less than it might be in certain other situations. It is not an overwhelming point but is a factor which one is entitled to take into account. In the course of that visit they not only saw various villagers but they also saw the alleged father, Abdus Somed and Rina, the wife. The record of questions and answers is this. I say the "record". It was the practice of the entry clearance officers to take a tape recorder and to record the conversations. They would then get, through the interpreters' translation, the questions and answers and would then note those down. The tapes, unfortunately were not retained (and understandably, because otherwise there would, no doubt, be shelves and shelves of these tapes) but were used again for the same purpose. Hence it has not been possible to obtain the originals of that first visit, although the originals of the second visit have been obtained. Sadly they do not help because they are, apparently, too indistinct to give any possibility of understanding the original questions and answers. In any event, the relevant questions are these. First of all, she was asked about Rone and she was asked about her children:

"Q: That's your only child, isn't it?
A: No, I've got one called Rone.

Q: But, the blood test has shown that Rone's not your child.
A: Yes, that's right. I've only got one son.

Q: Why did you try to take your sister's child to UK?
A: Well, it's a poor country. Everybody wants to help one another.

Q: Now, can you tell me what your husband's real name is because I know it's not Saidur Rahman.
A: It's Saidur Rahman."

The entry clearance officer then said that he had turned to the alleged father, Abdus Somed, and asked him:

"You've not been truthful with us, Mr. Somed. You have taken a boy to UK who's not your son. Your niece's husband is not your son, is he?
A: I brought him up.

Q: The whole village has told us that he's not your son, he's not even from this village. Now please tell me the truth.
A: He's a poor child. I brought him up, so I took him to UK.

Q: Who is he really?
A: Well, I'm a sick man, I can't really remember everything.

Q: I'm sure you can remember who that boy really is."

The old man made no reply, so the question was repeated to Rina and she then said:

"His name is Surab, and his real name is Saidur.

Q: Which village is Surab from?
A: He's from Nittarchok. It's near Hobiganj.

Q: And who is his real father?
A: Suruz Ali.

Q: And why did your uncle take that boy to the UK?
A: He brought him up and took him to UK. We are only three sisters, we've got no brothers so later on my uncle arranged the marriage."

If that is an accurate record of what the two were then saying, clearly each is accepting (the wife explicitly, the father less so) that there was no father/ son relationship between the two. Rina has subsequently sworn an affidavit, dated 28 December 1995, in which she rejects that account. She states that the questions were:

"Are you Mrs. Rina Akthar?
A: Yes, I am Rina Akthar.

Q: How many children have you got?
A: I have one child and his name is Jone Ahmed.

Q: What is your husband's name?
A: Saidur Rahman.

At which the people from the High Commission said that is not my husband's name. His name is Surab Ali, his father is Suruj Ali of village Nittarchok.

At which I said that is not true, but the people from the High Commission said that they have received information that my husband is not who he claims to be.

Q: Is Saidur Rahman related to you?
A: He is my first cousin. I have known him all my life and I am married to him.

After that, the people from the High Commission said that they are leaving and will see what the Home Office has to do about my husband and then notify me of what decision the Home Office makes. They also told me that they received a letter from someone who told them that my husband is living under a different identity."

If that be right the account given by the entry clearance officer is simply wrong. Either he is making it up or the interpreter has the matter hopelessly wrong. It is interesting to note that in his affidavit the applicant says about that this:

"I deny that this version of events is even remotely true, [ie the version I read out before, the version of the entry clearance officer]. My wife telephoned me that very same evening from Bangladesh and informed me of the visit by the immigration officers. She told me that pressure had been placed on her to admit that I was not Saidur Rahman. She informed me that she did not make these admissions despite the pressure exerted on her. "

Then he referred to the affidavit. The affidavit does not, on the face of it, refer to any pressure. It is a straightforward question-and-answer session and she gives the account which supports the applicant and does not suggest that the entry clearance officers put any pressure on her. Mr. Shaw submits that if she did say what was alleged against her in February 1993 that is of eat significance, because it was contrary to her interest to make those admissions at that time, since she was applying to join her husband in the United Kingdom. He says that the affidavit which was prepared much later for the purpose of these proceedings is clearly self-serving, as indeed it clearly is. As far as the father is concerned, he too has sworn an affidavit subsequently. That is dated 16 August 1991. He says this:

"I, Md Abdus Samad s/o Late Abdul Hashim of Vill Haldarpur... age about 70 years, by faith Muslim, by profession cultivation and by nationality Bangladeshi, do hereby solemnly affirm and declare as follows:

That Md Saidur Rahman is my son. He was born at the aforesaid address on 29 July, 1967. The name of his mother is Momjan Bibi.

The statement made above is explained to me in full and having understood that it is written according to my dictation I put my thumb impression below. Further to mention I cannot write anything on paper due to my physical condition."

There then is a thumb-print and an insertion of Mr. Ahmed describing himself as an advocate, confirms the identity. Also produced is a medical report, or what purports to be a medical report, dated 4 October. It certifies that Abdus Somed was seen by the doctor on 4 October 1993 for physical examination. It goes on:

"He is suffering, from senile dementia. He is in ill health and taking supportive medication."

What is said is, if he did say what the entry clearance officers alleged he said in February 1993, he was suffering from senile dementia: it is not possible to rely on anything that is there recorded. That argument is all very well but, as it seems to me, the applicant cannot have it all ways because he puts forward the affidavit of August 1993, sworn, I suppose, when the senile dementia still existed. I do not think it is suggested that senile dementia is a condition that comes and goes depending on the seasons. What weight does one attach to the affidavit" Either it is all weightless or none of it, as it seems to me. In reality, too, I have the evidence of the entry clearance officer that the old man did not appear to misunderstand or to be unable to comprehend or to be suffering in any way from any condition which meant that what he said appeared unreliable. Certainly no one said that and one would expect Rina, perhaps, to have said: "You cannot rely on everything he says. I am afraid he is not with us." Accordingly, my judgment, the gravest possible doubt is cast upon both the alleged medical report and the affidavit of August 1993. There then followed, as I have indicated, a visit to Nittarchok in December 1993. Similar confirmatory information is obtained according to the entry clearance officers. Mr. Simpson was the officer in question. I have before me an affidavit from him, together with his report that he made immediately following the visit. He describes showing photographs and getting immediate recognition of the photograph of Surab Ali. Again, I make the same point about interpretation. Recognition of that sort of photograph and the giving of a name is not something that one would have thought is easy to misunderstand. He then refers to two people who were apparently trying to stop the villagers talking to the entry clearance officers. They, according to what he was later told, were the applicant's brothers who were trying to, the inference is, stop the truth being told. Again, if that evidence is to be relied upon, there is further confirmation that the position is as the denunciatory letters indicated. Mr. Shrimpton says that it is all very well, but all that really does is to raise suspicions. We do not know because we are not able to test the reliability of the village visits. Furthermore, he says, that a number of those villagers have been traced, that their identities had been provided by the Home Office, and that most of them have been seen since and have produced affidavits in which they state, effectively, that the evidence put forward by the entry clearance officers is wrong, that they never identified the applicant as anyone other than Saidur Rahman, the son of Abdus Somed. So far as the first visit is concerned, that is to say the villagers from Holdarpur, there are a number of affidavits which are in identical terms. They say this (this is standard), having set out their names:

"In February 1993 in Holdarpur village, I was approached by some people who showed me some photographs of Saidur Rahman and Rina Akhtar. They asked me my name. I was asked if I knew them and I said yes. I do not remember saying anything else.

Saidur Rahman, s/o Late Abdus Somed is married to his cousin, Rina Akhter d/o Abdul Johur. They married in 1988. They have one child Jone Ahmed. Abdus Somed passed away in April 1994. Saidur Rahman lives in UK.

The statements made above are true to the best of my knowledge and belief. I put my signature below."

Then there is a thumb-print which again is certified by someone describing himself as an advocate. The slightly curious thing about these standard form affidavits is that they say, each of them:

"I do not remember saying anything else."

One might have expected them to say in slightly different forms that "I confirmed" that they were who they alleged they were. But no. It seems to me that the weight to be attached to those affidavits is very small indeed. I am afraid the same must be said of all the other virtually standard form affidavits which have been collected from Holdarpur and from the other villagers seeking to assert that the entry clearance officers' accounts are incorrect. Similarly there has been produced an extract from the voting register which is said to show that the applicant was on the register in the village as the son of Abdus Somed. The entry clearance officer (Mr. Simpson), in his affidavit, says this:

"I have one final and general comment on the material relied upon by the Applicant. I understand that the Applicant has admitted that he is not the father of Rone Ahmed. This inevitably means that the birth certificate... put forward... is false. In my experience in Bangladesh (based upon real cases I have worked on and upon information given to me by local people) it is not difficult to obtain forged official documents such as birth certificates. False official and non-official documents are easily available on the payment of a small bribe. In paragraph 10 of his affidavit the Applicant exhibits a copy of the 1990 voting list for Holdarpur which contains his name. No proof of identity was required in 1990 in order to appear on this voting list. It was compiled for the 1991 elections but the accuracy of the lists was criticised and discredited by all the opposition parties. For the May 1996 elections the opposition parties campaigned for fresh voting lists, claiming that the ruling party had rigged those previous in circulation. In addition, I am aware that is a common practice to take a voting list to a private printer and have it renumbered and reprinted to include extra names. The normal price is about... (£2.50) [the equivalent]. There are also standard prices for falsifying other documents from birth certificates to full British passports (£5,000). It is impossible for me to tell from photocopies whether any of the documents relied upon by the Applicant are false. Often false documents are very difficult to detect because they are constructed from ‘official' rubber stamps easily available from the bazaars.

It seems to me that I am perfectly entitled to have regard to that evidence from an experienced entry clearance officer who has worked in Bangladesh. I fully recognise that lies may be told and false documents put forward in order to bolster a case which is, in fact, a true case which the individual believes he may have difficulty in establishing. I fully recognise that lies in themselves do not necessarily prove the deception in the material particular that is alleged in any individual case. However, notwithstanding that and notwithstanding the fact I recognise that the material has not been tested and there are always the possibilities for error when one is dealing through interpreters, I am quite satisfied on the material before me that it has been proved to the requisite standard that this applicant was not the son of Abdus Somed and did obtain the certificate of entitlement by deception. The matters that I have gone through persuade me that that is the only decision which I can reasonably come to on the material that is before me. In those circumstances this application for habeas corpus must be rejected. I would only add this: as I said at the introduction to this in dealing with the preliminary point, it seems to me that now there is no practical difference between the approach the court has to adopt to a judicial review and to a habeas corpus. True it is that habeas issues have a right, in a sense that the matter is investigated by the court without the need for any leave to be obtained. However, in a case where there is a factual issue as to whether a person is properly to be regarded as an illegal entrant it would be a very rare case in which a court would refuse leave. Effectively, it could only say that it was unarguable if the evidence produced was so overwhelming that there was no chance that the applicant could, effectively, get around it. But where any factual issue is raised and, particularly having regard to the burden and standard of proof required as a result of khawaja, it seems to me, as I say, that leave is bound to be granted. Mr. Shrimpton recognises in this case that Clarke J would almost certainly have granted leave if judicial review were being pursued. It seems to me that the remedies available in judicial review are much more appropriate in cases such as this and, for my part, I would consider that prima facie challenges such as this ought to be brought by way of judicial review. However, having said that I cannot, of course, prevent, nor would I wish anything that I say to tend to prevent, anyone who wishes to do so to bring proceedings by habeas corpus, because quite clearly there is jurisdiction so to do. It seems to me that there should be an encouragement (to put it no higher) to proceed by way of judicial review in these cases rather than by way of habeas corpus. Further than that I do not think it would be proper for me to go on.

DISPOSITION

Application dismissed

Solicitors:

Safac Awan, Luton. Treasury Solicitor
 

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