Ali v. Secretary of State for the Home Department and Another
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 31 August 1993 |
| Citation / Document Symbol | [1994] Imm AR 69 |
| Cite as | Ali v. Secretary of State for the Home Department and Another, [1994] Imm AR 69, United Kingdom: Court of Appeal (England and Wales), 31 August 1993, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b65914.html [accessed 23 October 2022] |
| 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. |
ALI v SECRETARY OF STATE FOR THE HOME DEPARTMENT and another
Court of Appeal (Civil Division)
[1994] Imm AR 69
Hearing Date: 31 August 1993
31 August 1993
Index Terms:
Illegal entrant -- application for habeas corpus -- appellant entered United Kingdom using passport in name of another person, a British citizen -- permitted accordingly to enter without grant of leave whether Secretary of State obliged to prove that appellant knowingly entered the United Kingdom in breach of the immigration laws -- whether Bouzagou rightly decided and binding on the court. Immigration Act 1971 ss 3(1)(a), 24(1)(a), 24(1)(c), 33(1).
Illegal entrant -- whether the consequences of "unlawfully entering . . . in breach . . . of the immigration laws" were restricted to those who, so acting, committed a criminal offence by knowingly so entering. Immigration Act 1971 ss 24, 33(1).
Held:
The appellant was a citizen of Pakistan and subject to immigration control. He entered the United Kingdom using the passport of another person who was a British citizen. He was accordingly permitted to enter the United Kingdom without being granted leave to enter. When the deception was discovered the Secretary of State concluded the applicant was an illegal entrant: he was detained pending removal to Pakistan. A challenge to the Secretary of State's decision was mounted by way of an application for habeas corpus. Counsel argued that the Secretary of State was obliged to show that the appellant had knowingly entered the United Kingdom in breach of the immigration laws. Those entering "unlawfully" were only, he argued, those who committed an offence under section 24 of the 1971 Act. Counsel submitted Bouzagou had been wrongly decided and should not bind the court. Held 1. Bouzagou was correctly decided and was binding on the court. A person who entered the United Kingdom with no leave at all but who under the 1971 Act required leave, was an illegal entrant. 2. The proposition put forward by counsel was unarguable: per Scott LJ "it is a matter of regret and ought to be a matter of some public concern that public money in the form of legal aid has been obtained in support of an appeal of the hopeless character of this appeal": per Glidewell LJ, "if this argument is ever sought to be resurrected in any other court, then that court might well consider making a wasted costs order". 3. The phrase "unlawfully entering . . . in breach . . . of the immigration laws" was not restricted in meaning to those who entered knowingly in breach of the immigration laws, thus committing an offence under section 24 of the 1971 Act.Cases referred to in the Judgment:
re Amand [1941] 2 KB 239: [1942] 1 All ER 236. R v Secretary of State for the Home Department ex parte Khan [1977] 1 WLR 1466: [1977] 3 All ER 538. R v Governor of Ashford Remand Centre ex parte Bouzagou [1983] Imm AR 69. Khawaja 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.Counsel:
M Shrimpton for the appellant; S Kovats for the respondent PANEL: Glidewell, Scott, Evans LJJJudgment One:
GLIDEWELL LJ: This is an appeal against the decision of Jowitt J given on 25 February 1993 refusing the order that a writ of habeas corpus be issued relating to this appellant Ifzal Ali. The undisputed facts are as follows. The appellant's name is Ifzal Ali, the son Iqbal Ali. He was born in Pakistan and is a citizen of that country. He is not a British citizen. The appellant's date of birth is uncertain, save that it was in 1972, 1973 or 1974. There is some reason to believe that it was on 4 December 1972. He first came to the United Kingdom as a child in or about 1980, but returned to Pakistan soon afterwards. On 2 May 1988 the appellant arrived at Heathrow Airport from Pakistan with a passport in the name Ifthaychar Ali Asghar, a British citizen. The real Ifthaychar Ali Asghar is a British citizen by birth and is aged 21. The appellant entered the United Kingdom as if he were a British citizen not requiring leave and therefore no leave was granted. On 25 June 1989 the appellant was interviewed by an immigration officer with an interpreter, without a solicitor being present. The accuracy of the record of that interview is challenged, but the admission he made during it, that he had entered the United Kingdom in 1988 using the passport of a British citizen to which he was not entitled, is not challenged. On the same day, following the interview, he was served with notice that the immigration officer was satisfied that this appellant was an illegal entrant and he was detained. Two days later on 27 June 1989, solicitors on his behalf sought temporary leave to remain in the United Kingdom. On 12 July 1989 those solicitors made a claim that he was entitled to political asylum. On 27 July he was interviewed whilst still detained, in the presence of his solicitor and through an interpreter, about the claim to asylum. On the following day following that interview temporary admission was granted under schedule 2 paragraph 21(1) of the Immigration Act 1971. The appellant has remained in the United Kingdom since that time. The Home Secretary on 11 July 1990 sent a letter to the appellant saying that he was "minded to conclude that you do not qualify" for political asylum. On 27 July 1990 there was a further interview about that matter, but it was not until 4 September 1992 that the Home Office's investigation of the claim to asylum was finally concluded. On that day there was a formal refusal of the application for asylum and he was again detained pending his removal from the United Kingdom. On 24 September 1992 applications were made on his behalf for, firstly, the writ of habeas corpus, the subject of the appeal to this court, and secondly, judicial review to quash the decision about the refusal of political asylum. The application for judicial review and the challenge to the Home Office decision about political asylum were not pursued before the judge and are therefore not in issue before us. The decision to detain the appellant and subsequently to remove him as an illegal entrant are challenged by way of application for habeas corpus. To end the history, on 29 September 1992 pending the determination of the application for judicial review the appellant was again granted a further temporary admission to the United Kingdom. No doubt the decision to detain the appellant and remove him could have been challenged by an application for judicial review. Although now, of course, and indeed in September 1992 when the application for habeas corpus was made, such an application would have been well out of time. However, this court in ex parte Muboyayi [1992] QB 244 held that an application for a writ of habeas corpus would also be an appropriate way of challenging a decision to detain and to remove from the United Kingdom where such a decision itself depended upon the proof of antecedent facts which were in issue. In his judgment in that case Lord Donaldson, the Master of the Rolls, said at page 254 at H: "Mr Jay (who in that case acted for the Home Office) accepts, and it is clear law, that where the power to detain is dependent upon the existence of a particular state of affairs ('a precedent fact') and the existence of that fact is challenged by or on behalf of the person detained, a challenge to the detention may be mounted by means of an application for a writ of habeas corpus under RSC, Ord 54, even if there are alternative procedures available. If authority is required for this proposition, it is to be found in the decision of the House of Lords in ex parte Khawaja [1984] AC 74 . . ." And then his Lordship gave a number of references to the speeches in that case. "In the present case the right to detain does indeed depend upon a precedent fact or series of facts. They are that (a) the applicant was a person who might be required to submit to examination under paragraph 2 of Schedule 2 to the Act of 1971 and he was detained pending a decision to give or refuse him leave to enter and/or (b) he was a person in respect of whom directions might be given under paragraphs 8 to 14 and he was detained pending the giving of directions and his removal in pursuance of any directions given. However, and this is what distinguishes it from Khawaja's case, the existence of this precedent fact is not challenged. What the applicant alleges is something quite different, namely that, although he was liable to be examined and was examined and although upon the conclusion of that examination he was refused leave to enter and directions were given for his removal, he should not have been refused leave to enter and no question of his removal should have arisen. In other words there was no challenge to jurisdiction, but only to a prior underlying administrative decision. This is a quite different challenge and, unless and until it succeeds, there are no grounds for impugning the legality of his detention. Put in another way, in the first category an applicant alleges that the detention is and always was unlawful. In the second category he alleges that it will become unlawful, if and when a court of competent jurisdiction destroys the precedent fact, as contrasted with finding that it never existed. The issue in this appeal is whether a writ of habeas corpus is an appropriate remedy in the latter type of case." In my judgment in Muboyayi I said at page 266B: "What, then, distinguishes the cases in which, on a refusal of leave to enter the United Kingdom which is challenged by an application for a writ of habeas corpus, it is a sufficient answer for the immigration officer to say that he was acting under the powers given him by paragraphs 8 and 16(2) of Schedule 2 from those in which the officer must go further and show that he had sound reasons for his refusal to grant leave to enter? In my view the answer to the question is that in the first category, the immigration officer need not be satisfied of any facts other than those which are admitted, in the second category the officer must have evidence which establishes, to the required standard, the existence of some precedent facts. Thus, if a foreign national, who neither has nor claims to have a right of abode in the United Kingdom, seeks leave to enter, the immigration officer is entitled on those facts to refuse leave, to order his removal and to detain him pending removal. There is no obligation on the officer to be able to prove any other facts. If the would-be entrant has himself sought to prove particular facts which he claims justify him being granted leave to enter, for example, that he is a refugee, and argues that the officer failed to take them into account, his remedy is judicial review, not habeas corpus. But if, as in R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 and similar cases, a person has earlier been granted leave to enter the United Kingdom, and the Home Office receives information that he is an illegal entrant because he obtained that leave by deception, the Home Office must be in a position to prove that precedent fact to the required standard." The Home Office in the present case do not argue that the fact that after the application was made for a writ of habeas corpus the applicant was granted a further temporary admission, of itself disentitles him from challenging the decision to detain and remove him by means of such an application. The correctness of such a procedure was established long ago in the case of re Amand, a Divisional Court decision reported at [1941] 2 KB 239. The issue in the present case in essence is this. Must any antecedent facts, other than those admitted, be proved in order to justify the detention and later the removal as an illegal entrant of the appellant? Mr Kovats for the Home Secretary argues that no other facts need be proved or admitted. His case is this. First, the appellant not being a British citizen required leave to enter the United Kingdom. Section 3(1)(a) of the Immigration Act 1971 provides in clear words: ". . . where a person is not [a British citizen] -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act." Secondly, when the appellant entered on 2 May 1988, since he purported to be a British citizen he was not given such leave. Thirdly, he therefore comes within the definition of an illegal entrant in section 33(1) of the 1971 Act, which is: ". . . a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered." This is not a case of a deportation order, but Mr Kovats submits, it is the case of a person who unlawfully entered in breach of the immigration laws. Fourthly, it follows therefore, that directions for his removal were given lawfully under schedule 2 paragraph 8(c) of the Act and his detention pending removal was lawful under paragraph 16(2) of that schedule. Therefore a writ of habeas corpus should not be issued. All the antecedent facts upon which that argument is based are admitted and agreed. Mr Shrimpton for the appellant argues that the Home Secretary, in a case such as this, must go further and prove that the applicant has committed an offence against immigration law. Such an offence would come about if he knowingly entered the United Kingdom without leave, contrary to section 24(1)(a), or he knowingly deceived the immigration officer when he entered contrary to section 26(1)(c) of the Act. Both would depend upon proof of his knowledge at the time when he entered and that, in turn in the present case, would depend upon the accuracy of the note of his first interview which, as I have said is, in some respects challenged. Mr Kovats is, if necessary, willing to argue as to his second argument that indeed he can prove the necessary knowledge. But we have not called upon him to do so because we are satisfied that he succeeds on the first argument. On that it is unnecessary to prove what the state of the appellant's knowledge was when he entered the United Kingdom in May 1988. Mr Kovats' argument was the basis of Jowitt J's decision. If it were necessary to seek authority for the accuracy of Mr Kovats submission and the judge's decision it is to be found in the decision of this court in R v Governor of Ashford Remand Centre ex parte Bouzagou [1983] Imm AR 69. The applicant in that case was a citizen of Morocco. When he first came to the United Kingdom, he was admitted for a month as a visitor. He applied, after the month had expired, for an extension. That was refused, and later he left for the Republic of Ireland. Thus, the fact that he was an overstayer on his leave to remain ceased to be relevant. When in Ireland he married an Irish citizen. After a time his marriage broke down and he then took a ship to Liverpool. Perhaps, because there are not many Moroccan citizens entering the country upon the boat from Dublin arriving at Liverpool, there was no immigration officer to deal with his situation. There was a dispute as to what happened, as to whether he was interviewed or not, but he entered the United Kingdom again without any leave. He came to the attention of the authorities when he was convicted for attempted theft. At that stage his immigration status was challenged. Giving the first judgment in this court, Lawton LJ summarised the argument of counsel for Mr Bouzagou in this way: "Mr Blake supported his submissions by inviting our attention to the definition of 'illegal entrant' which is contained in section 33(1) of the Immigration Act 1971. The relevant parts of that section read as follows . . ." Then Lawton LJ read that section. "Mr Blake had to accept, of course, that his client was a person who had entered the United Kingdom, but he went on to submit that he had not entered unlawfully, because on the facts the inference was -- and it was an inference accepted by Woolf J -- that he had not known that he was entering in breach of the immigration law, and the use of the word 'unlawfully' in the definition of 'illegal entrant' meant that the applicant had done something which amounted to a criminal offence under the Act. In those circumstances, it was necessary for the respondent to this application to show that the applicant at all times had intended to do the prohibited act of knowingly entering without leave, and the evidence just did not establish that he had entered the United Kingdom with that intent." After rehearsing that argument the court rejected it. In my view that argument is precisely the argument which Mr Shrimpton has sought to advance to us here and indeed he was candid enough so to admit. In his judgment in Bouzagou Dillon LJ put the matter in the following short form: "The immigration authorities seek to apply to him (that is the appellant) certain powers of removal under the second schedule to the Act, which they can only apply in respect of illegal entrants. The question is then, whether the applicant is an illegal entrant. That term is defined in section 33 as meaning . . . And he quoted the section. It seems to me that quite plainly covers the applicant's case. The point is a short one, it was dealt with very clearly by Woolf J in his judgment. His answer to the case was very shortly: "If you enter in breach of the immigration laws then you are entering unlawfully." A little further down he said: "It seems to me that it is wholly inconsistent with the general approach of the Act to regard a person who has entered in breach of the immigration laws as a person who has entered otherwise than unlawfully." Dillon LJ said: "I entirely agree and I would dismiss this appeal." Mr Shrimpton argues that the decision of this court in Bouzagou is not binding upon us for two reasons. The first, it is distinguishable upon its facts. I can only say, quite shortly, that I disagree. All the relevant facts are exactly the same. Secondly, this is a case involving the liberty of the subject. In this instance, the rule of precedent in the civil division of the Court of Appeal is the same as in the criminal division of this court, that is to say, while a precedent should normally be followed if the court is satisfied that a previous decision is wrong and intends to work injustice, the court in the present case need not follow it. Mr Shrimpton argues that the decision in Bouzagou was based on an earlier decision of this court in R v Secretary of State for the Home Department ex parte Khan [1977] 1 WLR 1466, the correctness of which was doubted by Lord Bridge in his speech in Khawaja [1984] AC 74 at 119 F. But Khan and Khawaja were cases of alleged deception. They were not cases in which there had been no leave at all. They were both cases, as were the cases which followed Khan, in which an entrant had obtained leave to enter by deception. The issue in those cases was, could it be said that that leave to enter obtained by deception was of no effect and thus equivalent to no leave because of the deception? Then, secondly, as a gloss on that, suppose that there had indeed been a deception, practised not by the entrant himself but by somebody else on his or her behalf, which was said to be the situation in Khan where the entrant was an illiterate Pakistani lady who came in as the third wife of her husband bearing the second wife's passport. Should she be said to be an illegal entrant? Now those are interesting questions which have been much canvassed in this court, but we are not concerned with them. The cases upon deception vitiating a previous consent given are a totally separate line of cases from those which relate to the simple question: What is the position of somebody who has entered without leave at all? Such a case is governed by Bouzagou and in my judgment, the decision of this court in Bouzagou is quite clearly binding upon us. It is clear, in my view, upon the wording of the statute itself that the present appellant on the admitted facts is an illegal entrant within the meaning of the 1971 Act. But if there were any doubt about that, as I have already said, the previous decision of this court in Bouzagou is binding upon us so to find. Far from being satisfied that it is wrong, I am satisfied that it is right and it works no injustice. For those reasons I would dismiss this appeal. I say one last thing. If this argument is ever sought to be resurrected in any other court, then that court might well consider making a wasted costs order. It would not, I think, since this does involve the liberty of the subject, be appropriate to consider such a step in this case. But I do indicate that in my view the situation in law is entirely clear.Judgment Two:
SCOTT LJ: I agree. Illegal entrant is defined in section 33(1) of the Immigration Act 1971 as including "A person unlawfully entering" this country. Section 3(1)(a) of the Act provides that: ". . . where a person is not [a British citizen] -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act". In the present case it is common ground that the appellant, Mr Ali, is not a British citizen and did enter the country without leave. It is common ground that under section 3(1) he required leave. It ought to be apparent, therefore, to anyone who believes himself or herself to be conversant with the English language that Mr Ali entered this country unlawfully and that he is an illegal entrant within the meaning of the definition in section 33(1). That ought to be an end of this case. Mr Shrimpton has argued that the words "unlawfully entered" cannot be applied to Mr Ali because Mr Ali's entrance did not constitute a criminal offence. This is an argument which seeks to deny to the word "unlawfully" its ordinary meaning in the English language. An unlawful act is an act in breach of the law. It may or may not be a criminal act. It is simply unarguable that an entry without leave, by a person who requires leave is otherwise than an unlawful entry. Not only is that clear from the words of the statute, it has been so held by this court (see R v Governor of Ashford Remand Centre ex parte Bouzagou [1983] Imm AR 69). It is no part of the function of the Court of Appeal or indeed of any court to treat with respect an argument which deserves none. In the present appeal the argument that has been put before the court on behalf of the appellant is as hopeless as any argument can ever be. It is a matter of regret and ought to be a matter of some public concern that public money in the form of legal aid has been obtained in support of an appeal of the hopeless character of this appeal. I hope this will not be repeated. I agree that the appeal must be dismissed.Judgment Three:
EVANS LJ: I also agree and because this is an application for habeas corpus, I add my own reasons shortly, whilst expressing my entire agreement with what has fallen from my lords. The relevant statutory provisions in summary, all contained in the Immigration Act 1971, are these. Schedule 2 gives a power to detain and remove illegal entrants. Illegal entrant is defined in section 33(1) so far as it is material in the following terms: "Illegal entrant" means a person who has entered unlawfully in breach of the immigration laws. The same subsection defines immigration laws as meaning "this Act" etc. Section 3 of the Act entitled "General provisions for regulation and control" has as the first of those provisions subsection 3(1)(a) where a person who is not a British citizen: "shall not enter the United Kingdom unless given leave to do so in accordance with this Act." Section 24 of the Act makes it a criminal offence for a person: "(a) if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave . . .". I interpose that it is by no means uncommon for a statute to prescribe regulations and to proceed to make knowing disobedience but only knowing disobedience to the regulations a criminal offence. Mr Shrimpton submits that section 33(1) and in particular the words "in breach of this Act" applies only in the case of a breach which is also a criminal offence. For the reasons given by my lords, I would entirely agree that that submission is untenable. The contrary was expressly held by this court by Bouzagou in 1983, and with or without the doctrine of precedent I would have no hesitation in holding respectfully that their view was correct. Mr Shrimpton's submissions are based essentially upon the decision of the House of Lords in Khawaja [1984] AC 74 and in particular upon a passage in the speech of Lord Bridge at page 119. That was a case where leave to enter had been granted on the basis of a deception. The question was whether leave so given prevented the applicant from being held to be an illegal entrant. In the present case the appellant was permitted to enter but was not given leave to enter. Ultimately it seems to me that Mr Shrimpton's submission is this, that a case where the immigration officer is deceived into believing that leave is unnecessary, should necessarily be treated in the same way as a case where the officer is deceived into giving leave. My answer to that question would be clearly no, different considerations arise. But however that may be, the fact is that in the present case, leave admittedly was required and leave admittedly was not given. In those circumstances, this appeal to my mind can have no, nor did it ever have any, prospects of success. The fact that it is an application for habeas corpus led to two further submissions which were briefly as follows. First, that the doctrine of precedent should not apply with its full rigour in such a case by reason of the fact that the liberty of the subject is involved. That is a submission which, as a matter of principle, I would be entirely disposed to accept, whilst conscious of the need to ensure that the limits of the relaxation of the principle should be carefully considered in every case. No less than Mr Shrimpton, I am conscious of the importance, in a case such as this, of endeavouring to reach what this court regards as the right conclusion as a matter of law. Mr Shrimpton's second submission was that because this application concerns the liberty of the subject, the court should adopt a strict view of the construction of the statutory provision. That of course is right, but it does not remove the court's duty to give effect to the words of the statute if they are plain and if their meaning is clear. As I have already indicated, that is the situation here. I would add only that I entirely and expressly agree with what my lord, Glidewell LJ has said with regard to the possibility of a wasted costs order if this point or any similar point is pursued in any future proceedings.DISPOSITION:
Appeal dismissed; Leave to appeal to the House of Lords refusedSOLICITORS:
Ramsbottom & Co, Blackburn; Treasury SolicitorCopyright notice: Crown Copyright
