R v. Secretary of State for the Home Department, Ex parte Hussain
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 26 May 1977 |
| Citation / Document Symbol | [1978] 2 All ER 423, 142 JP 372 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Hussain, [1978] 2 All ER 423, 142 JP 372, United Kingdom: Court of Appeal (England and Wales), 26 May 1977, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6c61c.html [accessed 5 November 2019] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v Secretary of State for the Home Department, ex parte Hussain
QUEEN'S BENCH DIVISION COURT OF APPEAL, CIVIL DIVISION [1978] 2 All ER 423, 142 JP 372HEARING-DATES: 4 MAY 1977
25, 26 MAY 197726 MAY 1977
Index Terms:
Immigration - Detention - Illegal entrant - Burden of proof that entry illegal - Entrant obtaining indefinite leave to enter and remain in United Kingdom - Leave obtained in consequence of fraud - Illegal entrant returning to United Kingdom with new passport after short visit abroad - Immigration officer accepting false explanation for passport - Officer granting indefinite leave to stay and stamping passport accordingly - Entrant subsequently detained as illegal entrant - Whether grant of indefinite leave on face of passport proof that entrant in United Kingdom legally - Whether sufficient for Secretary of State to show that on evidence as a whole he had reasonable grounds for concluding entry illegal - Immigration Act 1971, Sch 2, para 16(2).
Held:
Until 1970 the applicant lived in Lahore. In November 1970 he came to the United Kingdom and obtained leave to enter for the limited period of two months under the name of Ijaz Ahmed Lodhi on a passport which had been issued in that name in Lahore. The photograph on the application form for the passport was that of the applicant. The applicant remained in the United Kingdom illegally after the expiration of the two months and set up in business in Leeds. In 1972 he applied to the Pakistani consulate in Bradford for a new passport in the name of Safder Hussain and a passport in that name was issued to him. The Pakistan authorities certified that the passport was genuine. The passport did not refer to any previous passport. On 26th May 1974 the applicant went to Germany for a short visit. When he returned to the United Kingdom on 29th May he was interviewed by an immigration officer who enquired why his passport did not contain any entry or endorsement explaining his previous residence in the United Kingdom. The applicant told the immigration officer that initially he had entered the United Kingdom as an adopted child and, being a child, had not required a passort and had entered, legally, without one. The officer accepted that statement, which was consistent with the passport being the first passport of a person who had come to the United Kingdom as a child, and gave the applicant indefinite leave to enter and endorsed the passport accordingly. In November 1976 the applicant was detained in prison as an illegal entrant, pursuant to para 16(2) a of Sch 2 to the Immigration Act 1971, prior to being returned to Pakistan. He applied to the Divisional Court for a writ of habeas corpus contending that he had established a prima facie case that his detention was illegal because he had shown that his passport had been stamped with indenfinite leave to enter on his return from Germany. The Secretary of State asserted that the applicant's true name was Lodhi and that he had falsely assumed the identity of another person, i e Safder Hussain, in order to obtain indenfinite leave to enter. The Divisional Court refused the application on the ground that there was evidence on which the Secretary of State could properly concluded that there had been fraudulent use of the passport by the applicant to gain indefinite leave to enter and that once that had been shown it followed that his detention was valid. The applicant appealed. At the hearing of the appeal further evidence came to light which indicated that there was a possibility that the applicant really was Sadfer Hussain. In those circumstances the applicant contended that he had discharged such burden of proof as rested on him and that the Secretary of State had failed to show that the grant of indefinite leave was other than a proper exercise of the immigration officer's discretion and binding on the Secretary of State. a Paragraph 16(2) provides: 'A person in respect of whom directions may be given under any of paragraphs 8 to 14 [of Sch 2] may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given.' Held - Where on the evidence taken as a whole the Secretary of State had reasonable grounds for concluding that an entrant to the United Kingdom was there illegally in contravention of the 1971 Act, the court would not interfere with his detention as an illegal entrant. In the instant case, if the applicant's name was Lohdi, the passport he presented to the immigration officer in 1974 was not a valid passport in relation to him since it was in another name. If on the other hand the applicant's name was Hussain, then, although on the face of the passport he had obtained permission to stay indefinitely in the United Kingdom, the evidence as to what he had told the immigration officer regarding his initial entry to the United Kingdom indicated that the permission to stay indefinitely had been obtained by Fraud or misrepresentation and was therefore of no effect. Accordingly, the Secretary of State was entitled to conclude that the applicant was an illegal entrant. The appeal would therefore be dismissed (see p 429 e f, p 430 a to d, p 431 b c and f to h and 432 a, post). Per Orr and Geoffrey Lane LJJ. Where a person is being detained under para 16 of Sch 2 to the 1971 Act it is for him to set up a prima facie case that his detention is illegal. The obligation of the court is to be satisfied that the Secretary of State has approached the case in good faith and that there is adequate evidence to justify the conclusion which the Secretary of State reached (see p 429 b to e and p 430 d, post).Notes:
For illegal entry, see 4 Halsbury's Laws (4th Edn) para 1027, and for detention of persons liable to removal from the United Kingdom, see ibid, para 1009. For the Immigration Act 1971, Sch 2, para 16, see 41 Halsbury's Statutes (3rd Edn) 67.Cases referred to in the Judgment:
R v Secretary of State for Home Affairs, ex parte Badaiki [1977] The Times, 4th May, DC.Cases cited in the Judgment:
Hassen (Wajid), Re [1976] 2 All ER 123, [1976] 1 WLR 971, DC. Joyce v Director of Public Prosecutions [1946] AC 347, [1946] 1 All ER 186,HL.
Khan v Secretary of State for the Home Department [1977] 3 All ER 538, [1977] 1 WLR 1466, CA. R v Brailsford [1905] 2 KB 730, DC. R v Secretary of State for the Home Department, ex parte Mughal [1973] 3 All ER 796, [1974] QB 313, CA.Introduction:
Motion. This was an application by Sadfer Hussain for a writ of habeas corpus directed to the Secretary of State for the Home Department to procure the applicant's release from Armley Prison where he was detained pursuant to an order of an immigration officer made under para 16(2) of Sch 2 to the Immigration Act 1971. The facts are set out in the judgment of Lord Widgery CJ. Appeal. The applicant appealed.Counsel:
Mukhtar Hussain for the applicant. Harry Woolf for the Secretary of State. Benet Hytner QC and Mukhtar Hussain for the applicant. T Scott Baker for the Secretary of State. PANEL: LORD WIDGERY CJ, PARK AND PETER PAIN JJ MEGAW, ORR AND GEOFFREY LANE LJJJudgment One:
LORD WIDGERY CJ. In these proceedings counsel moves on behalf of an applicant now known as Safder Hussain for a writ of habeas corpus. The applicant is at present detained in Armley Prison under the order of an immigration officer acting under the Immigration Act 1971, whereby under para 16 of Sch 2 to that Act the immigration officer has ordered the detention of the applicant as a preliminary to his being returned to his native country. There is a very sharp conflict between the parties here as to what the past history of this man is, and the most convenient way of expressing the problem is to take the two stories, the one relied on by the Home Office and the one relied on by the applicant, to see how they compare and to see how far they are supported by external documents. The Home Office case is that in about 1970 there came to this country a Commonwealth citizen who was armed with a passport issued in Lahore, and which named him as Ijaz Ahmed Lodhi. The passport application, which is of course retained in the file at Lahore and which is available for inspection by representatives of the Home Office, has attached to it a photograph and the photograph is unquestionably a photograph of the present applicant who, as I have already said, passes under the name of Safder Hussain. The Home Office case is that, having acquired himself a passport in the name of Lodhi, the applicant came to this country and was permitted to stay for a limited period of two months. Enquiries have shown that there was no record of Lodhi ever having left this country, either within the two months or at all. But, according to the Home Office case, the reason why we hear no more of Lodhi is because the applicant has abandoned that name and that personality, and has taken over a new one. Indeed it is quite clear that a new passport has been issued by the Pakistani authorities in Bradford to the applicant and that that passport was issued in 1972. The Home Office say that this is all part of the same plan. Having arrived here under the Lodhi passport, and having found that his period for remaining in the country was limited, he now seeks to set up the alternative identity and procures for himself in Bradford that Pakistani passport in the name of Safder Hussain. Of course nothing immediately followed the issue of that passport until the time came for the applicant to want to use it. The Home Office account of the matter, which counsel for the Secretary of State invites us to accept, is that this passport was used once and briefly only by the present applicant who went to Germany for three days in 1974. He undoubtedly did go to Germany for three days in 1974, and it is quite evidence that he used the passport to which I have referred because the appropriate immigration stamps are on it. Also on the new passport are words of great significance, because immediately under the stamp which records the applicant's return through Dover from his visit to Germany are these words: 'Give leave to enter the United Kingdom for an indefinite period. To those who seek to enter this country and make new lives here those words on the passport are gold-dust, and the contention of the Home Office is that this is again all part and parcel of a clever fraud and this was a way of getting the applicant's passport which would contain the endorsements necessary to set his mind at rest for ever on any question whether he could remain in this country or not. The account which we are invited to accept by the Home Office is that this visit to Germany may have been deliberately for this purpose only, it matters not, but that coming back the applicant must have been recognised in the Home Office files under the name of Safder Hussain as a person who was entitled to reside here, and it is on that account that the magic words have been added to the stamp as I have described. If that story is correct, if that is a proper way of Looking at it, then the applicant used a false passport fraudulently in order to obtain a right to remain in this country indefinitely. If that is the right interpretation, then I personally have no doubt that the immigration officer was entitled to make an order under para 16 of Sch 2 to the 1971 Act justifying the present detention and thus resulting in a repudiation of the application for habeas corpus. That is one side of the story. The other side of the story as told by the applicant is this. He says that he was brought to this country and came in about 1970 (the date is not very important) by an Uncle Shafi. He says that Uncle Shafi made all the arrangements and that he, the applicant, had nothing to do with them at all. He was brought over by Uncle Shafi without a passport. This is a strange story because of course mistakes do happen, and we see a great many of them in this court. Even so, it would have been very unusual for this young man, then about 20, to come in with Uncle Shafi and to have been permitted to enter if he had not come armed with a passport. However, that is what he says. Having arrived here without a passport, feeling embarrassed by not having one he says he applied for one, as we have seen, in Bradford in 1972, and he says that the passport which was then issued to him is a perfectly genuine passport. When he came back from Germany he presented it to the immigration officer and the immigration officer stamped it with the words which I have indicated, thus giving him the right to remain in this country indefinitely and completely nullifying any power which the Secretary of State might have to detain him under para 16 of Sch 2. Where do we stand in regard to those matters? First of all, it must be borne in mind that the governor having returned that he was holding this person under para 16, it is for the applicant to set up a prima facie case to discharge that burden. Counsel on his behalf says that the prima facie case is set up when it is shown that the applicant came back through Dover, presented his passport and had it stamped with the words, as I have referred to them, sanctioning his continued living in this country. In my judgment all that goes to nought if it can be shown that there is evidence on which the Secretary of State could properly conclude that there was here a fraud on the lines which I have indicated. Questions of fact in these matters are ultimately questions of fact for the Secretary of State. There are limits to the extent to which this court can go and, as I see it, our obligation at the moment is to be satisfied that the Home Office approach to the problem is one taken in good faith. Further, we have to decide whether there is or is not adequate evidence here to justify the sort of conclusion which the Secretary of State has reached. In my judgment there is such evidence. I take no time to consider whether the approach is in good faith because there is no suggestion that it was not. I look at the second question and ask myself whether the Secretary of State had before him the sort of material on which a conclusion of fraud could be justified. I am satisfied that there was such material. One begins in the first place with the very odd situation that the applicant undoubtedly came over to this country initially in the name of Lodhi. I do not see how one can doubt that now in view of the fact his photograph appears on the passport application in the name of Lodhi. One asks why ideed should have done that unless Lodhi was his proper name. Everything points to the fact that Lodhi was his proper name, and he wished to get rid of it because it had become an encumbrance as soon as he realised that in the name of Lodhi he could only get permission to stay in this country for such a short term as about two months. Then there is the strange situation that the passport should contain an endorsement authorising a stay for an indefinite time. Those of us sitting in this court must not make the mistake of becoming experts in immigration law, but we cannot fail to realise that the immigration authorities do not stamp a Commonwealth citizen's passport with permission for him to stay in this country for the rest of his life unless there is some reason for it, and it is quite beyond belief that he should have appeared in Dover in the ordinary way, and, instead of just being allowed to come back into this country for a limited period, should have been given the right to remain here for ever. It does not make sense, if one may use the vernacular in that way. When one looks at those matters against the general background of this case and the strange pointers which have been unearthed in the enquiries which have been made, I am satisfied that the Secretary of State had before him material on which, if he thought right, he could form the view which he did that this was a fraudulent use of the passport. Once one gets to that stage, it follows that the Secretary of State's power is valid, the detention is valid, and the application is unfounded and must in my judgment be refused.Judgment Two:
PARK J. I agree.Judgment Three:
PETER PAIN J. I agree.Judgment Four:
GEOFFREY LANE LJ delivered the first judgment at the invitation of Megaw LJ. This is an appeal from an order of the Divisional Court of 4th May 1977 whereby they refused a motion by the applicant for a writ of habeas corpus. The facts are somewhat unusual, even in this context. The applicant, in an affidavit sworn on 17th December 1976, deposes that he was born on 8th December 1953; that he lived in Lahore until about Autumn 1971, and has always been known as Safder Hussain. It is, however, not disputed that on 14th November 1970 (that is, a year earlier than his sworn statement suggests) he came to this country from Pakistan under the name of Ijaz Ahmed Lodhi. It is likewise not disputed that there was produced to the immigration officer on that occasion a passport in that name of Lodhi and that under that name the applicant was given leave to enter the United Kingdom and to stay for two months. There is before us the application form in respect of the Lodhi passport. Suffice it to say that the age, address and other particulars of Lodhi do not tally with the information about himself appearing in the applicant's affidavit. There is no doubt that Lodhi and the applicant are one and the same person. This is established by the photograph on the application form for the passport and also by admissions made to this court. The applicant seeks in his affidavit to explain these matters by saying that he was only 18 when he first came to England in 1970 and that he was brought here by a friend of the family called Uncle Shafi; that Uncle Shafi made all the arrangements about the visit to this country; that he, the applicant, knew nothing of any application for a passport, indeed he went so far as to swear that he was not the holder of a passport at all at that time; that he was not interviewed when he arrived at Heathrow; and that as far as he knew no conditions were imposed on his entry. In a later affidavit he seeks to qualify those statements by saying that he did not physically have a passport in his possession, although a passport had been issued to him: it was in Uncle Shafi's physical possession. Despite the limit on his stay, he remained here, and did so, therefore, illegally. We are dependent on his own account of events for what happened thereafter. According to that account he moved to Leeds in 1972 and has remained there, at various addresses, ever since, and has set himself up in business there and is in the process of buying a house. In 1972 he applied to the Pakistani consulate in Bradford for a fresh passport. This was issued to him on 3rd February 1972. It is certified by the Pakistan authorities to be a genuine passport. There is no mention on that document of any earlier passport. It is issued in the name of Safder Hussain. On 26th May 1974 he went on a short visit to Germany. He returned on 29th May, three days later, and his passport was then stamped by the immigration officer 'Given leave to enter the United Kingdom for an indefinite period'. Nothing else happened until November 1976, when the applicant was arrested and detained in Armley Prison under the order of an immigration officer acting under the Immigration Act 1971, Sch 2, para 16, as a preliminary step to returning the applicant to Pakistan. The contentions put forward on behalf of the Secretary of State before the Divisional Court were (briefly) that the applicant assumed the identity of Safder Hussain and assumed it falsely in order to obtain the indefinite leave to stay on the strength of the new name which was not his but was that of another real person. Some support to the idea that Lodhi was the true name, and Hussain the false, was lent by the discovery amongst the possessions of the applicant of a woman's passport in the name of Lodhi. However, since the hearing before the Divisional Court two new pieces of evidence have emerged. The first is what purports to be a birth certificate of Safder Hussain, emanating from the municipal corporation of Multan, Pakistan, with a duly attested translation. This contains particulars which coincide with the particulars on the new passport. The applicant swears that that is his birth certificate. The second piece of evidence is an affidavit from a gentleman called Safder Hussain Malik, who was named Safder Hssain at birth. This man, it had been suggested by the immigration officer in his affidavit originally, was the person whom the applicant was seeking (so to speak) to impersonate. It is clear from Malik's affidavit that he did not hold a passport in 1974, having returned his to the Home Office in 1973 on his application for British citizenship. Thus there is doubt at this stage whether the earlier theory propounded by the Home Office now holds good. In other words there is a possibility that the applicant is in reality Safder Hussain. Counsel for the applicant, who has presented the arguments on his behalf with commendable clarity and force, submits that in these circumstances his client has discharged such burden of proof as rests on him and that the Secretary of State has failed to show that the permission to stay in the United Kingdom indefinitely, which appears on the passport, was other than a proper exercise of the immigration officer's discretion, uninfluenced by any misrepresentation on the part of the applicant. He relies to some extent on the judgment of Peter Pain J on 3rd May 1977 in R v Secretary of State for Home Affairs, ex parte Badaiki n1, the material part of which reads as follows: n1 [1977] The Times, 4th May'If the Secretary of State wishes to show that in fact he [that was the applicant in that case] was not given leave to enter within the meaning of the Immigration Act 1971 but was let in by virtue of some mistake, then I feel that the burden lies on the Secretary of State to establish that.'
Counsel for the applicant submits that the judgment of Lord Widgery CJ in the instant case is inconsistent with that passage and was wrong. What Lord Widgery CJ said in the Divisional Court in this case was as follows:'Where do we stand in regard to those matters? First of all, it must be borne in mind that the governor having returned that he was holding this person under para 16, it is for the applicant to set up a prima facie case to discharge that burden. Counsel on his behalf says that the prima facie case is set up when it is shown that the applicant came back through Dover, presented his passport and had it stamped with the words, as I have referred to them, sanctioning his continued living in this country. In my judgment all that goes to nought if it can be shown that there is evidence on which the Secretary of State could properly conclude that there was here a fraud on the lines which I have indicated. Questions of fact in these matters are ultimately questions of fact for the Secretary of State. There are limits to the extent to which this court can go, and, as I see it, our obligation at the moment is to be satisfied that the Home Office approach to the problem is one taken in good faith. Further, we have to decide whether there is or is not adequate evidence here to justify the sort of conclusion which the Secretary of State has reached.' That passage in my view represents the correct approach to this problem. If what Peter Pain J said in the earlier case is inconsistent with those views of Lord Widgery CJ then the judgment of Peter Pain J is to that extent in error.
The true view, as I see it, is this. If, on the evidence taken as a whole, the Secretary of State has grounds, and reasonable grounds, for coming to the conclusion that the applicant is here illegally, in contravention of the terms of the 1971 Act, this court will not interfere. Put into the terms of the present case, was the indefinite permission given by the immigration officer at Dover in May 1974 a proper exercise of discretion by which the Secretary of State is bound, or was it a decision brought about by deception, misrepresentation or fraud of the applicant? If it was, then the applicant cannot rely on it and the Secretary of State was entitled to act as he did and this appeal would fail. To find the answer to this question one must turn to the affidavit of Mr Hatch, the immigration officer who dealt with the re-entry of the applicant into this country on 29th May 1974 after the short visit to Germany. He cannot, of course, remember interviewing the applicant, but he is able to say what his practice would have been in the particular circumstances of this case. What he says in his affidavit is as follows:'I cannot remember the interview or the applicant but the description of the steps which I took contained in para 6 of the applicant's affidavit are typical of the steps which I would have taken when interviewing a returning Pakistani national. I would have asked the applicant several questions about his background and would have noticed that the passport was issued in Bradford and did not bear an endorsement that it succeeded a previous passport which had been lost. The applicant's statement that he had been adopted and brought to England would be consistent with the passport being the first passport of a child who had come to the United Kingdom as a child who did not need a passport because of his age. This was quite a common occurrence, particularly when the family had come to the United Kingdom in the 1960's.'
Taking that affidavit with the of the applicant to which I have already made reference, it is plain beyond doubt, to my mind, that Mr Hatch must have asked the applicant about his original entry into this country and that the applicant must have told him that he had come in without a passport because he was too young to require one: that is, that he was here legally. The truth, as the applicant knew, was the opposite. In those circumstances, what appears to have been on the face of it a permission to stay here indefinitely was a permission obtained by fraud or misrepresentation and was therefore of no effect. The decision of the Divisional Court, although based on different grounds, was correct; and this appeal accordingly, to my mind, fails. I should perhaps add this. If the applicant really is Ijaz Ahmed Lodhi, if his original entry into the United Kingdom was a genuine one, as may be the case, then the whole of his subsequent behaviour, the application for a passport in the name of Safder Hussain of Bradford and so on, is a fraud. On that basis, there is no doubt at all that the Secretary of State was entitled to take the steps he did; indeed the contrary is not argued by counsel for the applicant. Accordingly, I would dismiss this appeal.Judgment Five:
ORR LJ. I agree that this appeal should be dismissed for the reasons given by Geoffrey Lane LJ, and would only add that if there be an inconsistency between the statements of the law made by Peter Pain J in the Badaiki case n1 and by Lord Widgery CJ in the present case, I too would accept the statement of Lord Widgery CJ as correct. n1 [1977] The Times, 4th MayJudgment Six:
MEGAW LJ. Counsel for the applicant's main submission is that an important question of principle is involved in this appeal. With all respect to his clear and careful argument, I do not think that any doubtful question of principle arose in the decision of the Divisional Court on the material which was before it, or now arises on the material before us, including the further affidavits which we gave leave to be adduced in this appeal. In his judgment Lord Widgery CJ expressed his own conclusions of fact, with which the other members of the court agreed, on the evidence which the Divisional Court had before it. Those conclusions included the conclusion that the applicant was Ijaz Ahmed Lodhi. If that were right, it would be the end of the matter. For it would inevitably follow that the passport which the applicant produced, in the name of Safder Hussain, when he presented himself at Dover on 29th May 1974, after his three day visit to Germany, was not a valid passport in relation to the applicant. It was in a name which was not, on that hypothesis, the applicant's name. The applicant, of course, would have known his own name and the falsity of the passport. The leave to enter given by the immigration officer would unquestionably have been obtained by the applicant's fraud; and that, as I say, would be the end of the matter. On that premise, as I understand it, counsel for the applicant would not dispute that conclusion. In this court, the fresh evidence adduced on behalf of the applicant included an affidavit exhibiting what is said to be a certified copy of the applicant's birth certificate and which, it is said, shows that the applicant is Safder Hussain and is, and at all times was, properly so called. At any rate, it is said, the new evidence makes it probable that that is so. Let it be assumed that it is so. On that assumption, we have different evidence before us from the evidence on which the Divisional Court reached its conclusions of fact: materially different, I am prepared to assume, in respect of the true identity of the applicant. An inevitable consequence of the making of that assumption is that the applicant's original entry into this country on 14th November 1970 was obtained by the production of a passport which gave a name which was not the applicant's true name. He, Safder Hussain, entered the United Kingdom as the result of the production of a passport describing him as Ijaz Ahmed Lodhi. I am afraid that the applicant's original assertion in his first affidavit in these proceedings, stating that he entered on that occasion without having a passport at all, is a falsehood, and that his subsequent assertion that, although there was a passport, he did not himself have it or know of its falsity in relation to his true identity, is simply not acceptable. If the true conclusion were that the whole sequence of events, the original entry under the false name of Lodhi, the obtaining thereafter, with the assistance of 'Uncle Shafi', of a passport in the name of Safder Hussain, and the journey to Germany and the return to England on the new passport, was a connected plan, then so far as the May 1974 leave to enter and remain is concerned, it would, in my judgment, plainly be vitiated as a result of its being the intended end-product of a fraudulent scheme. The initial entry on the false passport could not be divorced from, or treated as irrelevant to, the subsequent obtaining of the leave on a different passport in May 1974. But I am prepared to assume, for the purposes of this appeal, that it would not, on the evidence, by right to conclude that there was, from the outset, this fraudulent scheme. However, what the evidence, including the fresh evidence now before the court, shows beyond any real doubt is that when the applicant was seeking entry at Dover in May 1974 he made a materially false statement; he gave some false explanation, which (so far as that is relevant) he must have known to be false, as to how it came about that his Pakistani passport did not contain any entry or endorsement explaining his previous residence in the United Kingdom. He knew that he had entered the United Kingdom some three and a half years earlier on a false passport. It is plain on the applicant's own evidence (para 6 of his first affidavit) that the immigration officer did in fact question him about the present passport. I read from para 6 of the original affidavit, where the applicant deposes: 'I was asked when I had originally come to England and I told him and I described to the officer how I had been "adopted" by Mohammed Shafi and brought to England by him.' It is plain from the immigration officer's affidavit that there was such a questioning of the applicant. It would seem most probable that the applicant's answer was to say, or to use words intended to convey the impression that, he had originally entered the United Kingdom without a passport, as an adopted child. It is plain that the applicant's answer, whatever its precise terms to the question which he was undoubtedly asked, was a statement which was deliberately, and knowingly, intended to make the immigration officer believe that something was true which was in fact false and, to the knowledge of the applicant, materially false. This is not a case of a mere negative failure to tell the truth. There was a positive untruth, and a material one, in the sense that it was because the immigration officer believed that untrue statement that he gave the leave which he did give. That being so, making the assumption as to the applicant's identity which we are asked to make on the fresh evidence, the applicant's leave to enter in May 1974 was obtained by fraud, and the leave then given and stamped on his passport cannot avail him. Whether or not the result would have been the same on different facts, we do not have to consider. In these circumstances, I do not find it necessary to discuss the suggested question of principle as to burden of proof, which was so ably and strenuously argued by counsel for the applicant. If indeed (as I very much doubt) there is a difference of principle in the decision of the Divisional Court in the present case, decided on 4th May 1977, as contrasted with the decision of the same court given on the previous day in R v Secretary of State for Home Affairs, ex parte Badaiki n1, that may have to be considered hereafter. But it does not fall to be decided for the purposes of the decision of the present appeal. I have been prepared to consider this appeal on the basis which counsel for the applicant submits should have been, but as he says was not, followed by the Divisional Court: that is, on the basis of the court itself assessing the evidence. I agree that the appeal should be dismissed. n1 [1977] The Times, 4th MayDISPOSITION:
Application refused. Appeal dismissed.SOLICITORS:
Clintons, agents for Kuit Steinart Levy & Co, Manchester (for the applicant); Treasury Solicitor. Clintons, agents for Kuit Steinart Levy & Co, Manchester (for the applicant); Treasury Solicitor.Copyright notice: Crown Copyright
