R v. Chief Immigration Officer of Manchester Airport, Ex parte Insah Begum

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	3 November 1972
Citation / Document Symbol	[1973] 1 All ER 594, [1973] 1 WLR 141, 137 JP 246
Cite as	R v. Chief Immigration Officer of Manchester Airport, Ex parte Insah Begum, [1973] 1 All ER 594, [1973] 1 WLR 141, 137 JP 246, United Kingdom: Court of Appeal (England and Wales), 3 November 1972, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b61a18.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 Chief Immigration Officer of Manchester airport, ex parte Insah Begum

COURT OF APPEAL, CIVIL DIVISION

[1973] 1 All ER 594, [1973] 1 WLR 141, 137 JP 246

Hearing Date: 3 NOVEMBER 1972

3 NOVEMBER 1972

Index Terms:

Commonwealth immigrant - Admission - Refusal of admission - Notice of refusal - Delivery of notice to immigrant - Notice delivered by immigration officer to immigrant's legal adviser at airport - Immigrant illiterate and having no knowledge of English - Whether necessary that notice should be delivered by hand to immigrant personally - Commonwealth Immigrants Act 1962, Sch 1, para 2 (1).

Commonwealth immigrant - Admission - Refusal of admission - Notice of refusal - Time within which notice to be given - Notice to be given not later than 12 hours after conclusion of immigrant's examination - Examination not concluded until all information to hand - Common-wealth Immigrants Act 1962, Sch 1, para 2 (3).

Held:

The applicant, a woman, who was illiterate and had no knowledge of English, arrived from Pakistan at Manchester airport at 2.00 p m on 14th September 1971, seeking admission into the United Kingdom. She produced a passport and entry certificate and said that she was the wife of a Commonwealth citizen resident in the United Kingdom. The immigration officer having examined the entry certificate thought that it was a forgery. He made enquiries; he interviewed the man said to be the applicant's husband, and a friend, and had a telex sent to Lahore about the entry certificate. At 9.00 p m on 14th September the immigration officer told the applicant, through an interpreter, that he thought the entry certificate was a forgery, he said that he was expecting a reply to the telex he had sent to Lahore, and that no decision would be taken to admit or refuse to admit the applicant until a reply to the telex had been received. Later that day the applicant got in touch with a solicitor. On the next day, 15th September, the solicitor's managing clerk went with the applicant to see the immigration officer at the airport. Whilst they were interviewing the officer he received a telex message from Lahore confirming his suspicion that the entry certificate was a forgery. The meassage was received at 1.30 p m on 15th September. Thereupon the officer told his assistant to make out a notice of refusal of admission into the United Kingdom and the notice was immediately given to the managing clerk who had lent across the table saying, 'I will take this: I am [the applicant's] legal representative'. The applicant applied for an order of certiorari to quash the decision of the immigration officer refusing to admit her to the United Kingdom contending (i) that the immigration officer had not complied with the procedure laid down by para 2 (1) a of Sch 1 to the Commonwealth Immigrants Act 1962, in that the notice refusing admission should have been given to the applicant herself and not to the managing clerk, and (ii) that under para 2 (3) b of Sch 1 to the 1962 Act the notice refusing admission was invalid because it was not givn until more than 12 hours after the conclusion of the applicant's examination, it being contended that the examination was concluded at 9.00 p m on 14th September.

a Paragraph 2 (1), so far as material, is set out at p 596 g, post b Paragraph 2 (3), so far as material, is set out at p 597 c, post

Held - The applicant was not entitled to the order sought because --

(i) para 2 (1) of Sch 1 to the 1962 Act did not require personal service on the person concerned of a notice refusing his admission to the United Kingdom; the giving of a notice complied with the Act if it was served on the person's legal adviser in circumstances from which it could be presumed that he had authority to accept it; since the applicant could not speak English, it was good service of the notice to give it to the managing clerk who was acting for the applicant and was present with her (see p 596 h and p 597 b f g and h, post); dictum of Lord Campbell CJ in R v Deputies of the Freeman of Leicester (1850) 15 QB at 675, and Burt v Kirkcaldy [1965] 1 All ER 741 applied;

(ii) service of the notice was not out of time under para 2 (3) of Sch 1; examination of a person pursuant to para 1 of Sch 1 was not concluded until all information was to hand; accordingly the applicant's examination had not been concluded at 9.00 p m on 14th September but had merely been adjourned pending receipt of the telex from Lahore; it was concluded on receipt of the telex when the notice refusing admission was immediately given (see p 597 d e and h, post).

Decision of the Divisional Court [1972] 1 All ER 6 affirmed.

Notes:

For examination of Commonwealth immigrants, see Supplement to 5 Halsbury's Laws (3rd Edn) para 1514.

For the Commonwealth Immigrants Act 1962, Sch 1, para 2, see 4 Halsbury's Statutes (3rd Edn) 48.

Cases referred to in the Judgment:

Burt v Kirkcaldy [1965] 1 All ER 741, [1965] 1 WLR 474, 129 JP 190, DC, Digest (Cont Vol B) 677, 376a.

R v Deputies of the Freemen of Leicester (1850) 15 QB 671, 117 ER 613; sub nom R v Goodrich 19 LJQB 413, 15 LTOS 248, 14 JP 415, 33 Digest (Repl) 333, 1584.

Introduction:

Appeal. This was an appeal on behalf of the applicant, Insah Begum, against the judgment of the Divisional Court (Lord Widgery CJ, Bridge and Shaw JJ) given on 8th October 1971 and reported at [1972] 1 All ER 6, dismissing a motion on behalf of the applicant (i) for an order of certiorari to quash a decision made by the respondent, Her Majesty's immigration officer at Manchester airport, refusing the applicant admission into the United Kingdom and (ii) for an order of mandamus directed to the immigration officer requiring him to hear and determine fully, according to law and natural justice, the facts relevant to the applicant's admission into the United Kingdom and requiring him to admit the applicant into the United Kingdom. The facts are set out in the judgment of Lord Denning MR

Counsel:

Martin Collins QC and G S Khan for the applicant. Gordon Slynn for the respondent.

PANEL: LORD DENNING MR, MEGAW LJ AND SIR GORDON WILLMER

Judgment One:

LORD DENNING MR. Insah Begum, a woman, came from Pakistan to England. On 14th September 1971 about 2.00 p m she arrived at the airport at Manchester. She could not speak English at all. She produced a passport and an entry certificate. (The Commonwealth Immigrants Act 1962, s 2 (2), entitles a woman, a Commonwea lth citizen, to enter this country if she holds an entry certificate and is the wife of a Commonwealth citizen who is resident here at the time.) This woman said her husband was a Mr Hussain, who was here, and she produced an entry certificate. The immigration officer, Mr Fuller, examined the entry certificate and thought that it was a forgery. It appeared to him that some one had manufactured a rubber stamp purporting to be an entry certificate issued bythe British High Commission. This one was different from the genuine stamp. The lines were uneven and there was a difference in shape. The immigration officer made enquires.He interviewed a man who was said to be her husband and a friend. He also had further interviews. He had a telex sent to Lahore about the entry certificate. At about 9.00 p m he told the woman and her friends, through an interpreter,that he thought that the entry certificate was a forgery and that he was expecting a reply to the telex. He said that no decision would be taken to admit or to refuse her until this had been received.

Later that day the woman got in touch with a solicitor. He got in touch with counsel. On the next day, 15th September, the solicitor's managing clerk, with the woman, went along to see the immigration officer at Manchester airport. Whilst they were interviewing the immigration officers there, a telex message was received from Lahore. It confirmed the suspicions about the entry certificate. It was a forgery. The authorities there had previously refused to isue her with a certificate. So she had got a forged one. Thereupon the immigration officer told his assistant to make out a notice of refusal saying she could not be admitted. When the assistant produced it, the solicitors' managing clerk lent across the table and took it from him, saying: 'I will take this: I am [the applicant's] legal representative.' It was then 1.30 p m on 15th September.

On that procedure two poinys are taken before us. The first point was that the officers had not complied with the procedure laid down by para 2(1) of Sch 1 to the Commonwealth Immigrants Act 1962, which says:

'The power of an immigration officer... to refuse admission into the United Kingdom... shall be exercised by notice in writing; and... any such notice shall be given by being delivered by the immigration officer to the person to whom it relates.'

The argument was based on the words 'to the person to whom it relates'. It is said that the notice ought to have been given to the woman herselfandnot to the solicitor's clerk. I do not agree. I think the notice is sufficient to comply with the statute if it is given to the person herself or to her agent, in this sense, that is he authorised to receive it on her behalf or may from his position be presumed to have such authority. Thus, when husband and wife are living together, the wife may be presumed to have authority to receive service of a document for her husband. It was so held in R v Deputies of the Freemen of Leicester n1. Lord Campbel CJ said n2:

n1 (1850) 15 QB 671

n2 (1850) 15 QB at 675

'In general, when personal service is required by an Act, it is so said in express words; but here the words used are "give or deliver notice in writing unto such deputy," which have no such force.'

Similarly in Burt v Kirkcaldy n1 a police constable served a notice of intended prosecution on a husband by leaving it with the wife or at the house. It was held to be sufficient. Likewise I think a notice is sufficiently served if it is served on a person's solicitor or on his solicitor's clerk in such circumstances that he may be presumed to have authority to accept it. In this case, when you remember that the women could not speak English, it was perfectly good service -- indeed the best service -- to deliver it to the solicitors who was acting for her and present with her.

n1 [1965] 1 All ER 741, [1965] 1 WLR 474

The second point is this: para 2 (3) of Sch 1 says that a notice --

'under this paragraph shall not be given to any person unless he has been examined... and shall not be given to any person later than twelve hours after the conclusion of his examination (including any further examination)...' It was said that the examination of Insah Begum was concluded at 9.00 pm on 14th September, and that the notice was not given until 1.30 pm on the next day, 15th September; and that it was therefore more than 12 hours, and was invalid. The answer is however that the examination was not 'concluded' at 9.00 pm on the 14th. It was then adjourned pending the telex communication from Lahore. Very often an examination may have to be adjourned pending further enquiries, and then resumed after the replies are received. It is not 'concluded' until all information is to hand. In this case it was not concluded until the telex reply was receive at 1.30 pm on the 15th. It was there and then said: 'Here and now the examination is concluded and this notice is given refusing entry.' It was well in time.

I do not think that either of these points is good. I think the decision of the Divisional Court n2 was right and I would dismiss this appeal.

n2 [1972] 1 All ER 6

Judgment Two:

MEGAW LJ. I agree. As to the first point, I agree with the proposition put forward by counsel for the respondent, that it is not a case in which service is required to be personal service on the particular individual concerned. Of course, it must be shown that if it is service on someone else, that other person is an authorised agent for that purpose.I agree entirely with the view which Lord Denning MR has expressed that nobody could bemore properly regarded as the authorised agent for that purpose than the solicitor's managing clerk who was dealing with the matter in this case and to whom the notice was given.

With regard to the second point, as to the period of time which had elapsed after the conclusion of this examination, I regard the view expressed by Lord Widgery CJ in the Divisional Court n3 as being, if I may say so with respect,

completely apposite. The irresistible conclusion is that the examination had not been concluded on the previous evening -- that is 14th September. Accordingly I agree that both points fail and that the appeal should be dismissed.

n3 [1972] 1 All ER at 9

Judgment Three:

SIR GORDON WILLMER. I agree with both the judgments that have been delivered. I have nothing further of my own to add.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Amelan & Roth, Manchester (for the applicant); Treasury Solicitor.