In Re Bamgbose

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	14 November 1989
Citation / Document Symbol	[1990] Imm AR 135
Cite as	In Re Bamgbose, [1990] Imm AR 135, United Kingdom: Court of Appeal (England and Wales), 14 November 1989, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6294.html [accessed 5 November 2019]
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Re Bamgbose

Court of Appeal (Civil Division)

[1990] Imm AR 135

Hearing Date: 14 November 1989

14 November 1989

Index Terms:

British citizenship -- burden of proof -- effect of s 3(8) of the 1971 Act -- whether production of a birth certificate is prima facie evidence of citizenship so as to shift the burden of proof of showing illegal entry on to the Secretary of State. Immigration Act 1971 ss 3(1)(a), 3(8), 4(1), 33(1), sch 2 para 9.

Held:

Appeal from Schiemann J. Application for habeas corpus by a Nigerian citizen who had been detained as an illegal entrant. The applicant asserted that he had been in the United Kingdom since 1973, when he had been admitted on his mother's passport. He contended that he had been born in the United Kingdom and, in consequence, did not require leave to enter. He had produced a birth certificate showing the birth of a person of his name in a London hospital. The Secretary of State had not accepted that he was the person named in the certificate and had concluded he was an illegal entrant. Before the Court it was argued that the production of the birth certificate was prima facie evidence of citizenship so as to satisfy s 3(8) of the 1971 Act, to the extent that, following Khawaja the burden of showing that the appellant was an illegal entrant then shifted to the Secretary of State. The Secretary of State had not discharged that burden.

Held

1. Section 3(8) of the 1971 Act contained a specific statutory direction that it was for a person who claimed British citizenship to satisfy the immigration officer or a court that he had that status. It followed that if the appellant failed to satisfy the authorities or the Court that he was the person named in the birth certificate he had not discharged the burden of proof that was laid on him by the Act.

2. The proposition advanced by counsel was untenable. Despite the different facts, the case of Mokuolu could not be distinguished, and the law as there stated was not dependent on the concessions then made.

3. The case of Khawaja did not relate to a claim to British citizenship and the specific requirement of s 3(8) had not there been in issue.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] 1 AC 74: [1982] Imm AR 139.

Catherine Mokuolo and anr v Secretary of State for the Home Department [1989] Imm AR 51.

in re Adeniji Olatukunbo Bamgbose (unreported, QBD, 16 October 1989).

Counsel:

E Cotran for the appellant; R Jay for the respondent

PANEL: Parker, Stuart-Smith LJJ, Sir John Megaw

Judgment One:

PARKER LJ: This is an appeal from a judgment of Schiemann J given on the hearing of an application of 16 October for habeas corpus by the applicant, Mr Adeniji Olatukunbo Bamgbose. The applicant was arrested on 30 June of this year on suspicion of travelling without a ticket. He was taken to Marylebone Police Station and he was there interviewed by an immigration officer who happened to be there. He had with him, apparently, a birth certificate and as a result of a long interview which then took place he was served with a notice, which appears at page 100 of the bundle, in which the immigration officer said, as is usually the case: "I have considered all the information available to me and I am satisfied that you are an illegal entrant as defined in section 33(1) of the Immigration Act 1971." He thereby authorised the detention of the applicant. There was a further interview on 30 July. On 4 August the affidavit of the applicant was filed with a full statement annexed to it. Enquiries were made in Nigeria. On 9 August 1989 Jowitt J, having adjourned the application pending investigation by the British High Commission in Nigeria, granted bail to the applicant. On 11 August an affidavit of a person who is said to be the applicant's mother was filed, and on 17 August Jowitt J revoked bail and further adjourned the matter at the request of the respondent for the completion of investigations in Nigeria. Thereafter a long telex arrived from the High Commission in Nigeria containing a considerable amount of information alleged to have been given by one Fogo, together with a photocopy of a photograph which he had produced and was said to be a photograph of the applicant. The original of the photograph arrived somewhat later by diplomatic bag and is before the Court, as is also a photograph of the applicant taken recently. For my part I find little or no assistance for those two photographs or from a further photograph which was put in by Mr Cotran with the consent of Mr Jay at the end of the hearing.

The matter turns very largely on certain provisions of the Immigration Act 1971 as amended. Section 3(1)(a) of that Act provides as follows:

"Except as otherwise provided by or under this Act, 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".

Section 4(1) provides:

"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers," and goes on to provide that "those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument."

It therefore follows that anybody who is not a British citizen cannot enter this country without having been given written leave. The definition of

"entrant" in section 33(1) says as follows:

"'entrant' means a person entering or seeking to enter the United Kingdom, and 'illegal entrant' means 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".

The provisions of paragraph 9 of the second schedule to the Act are as follows:

"Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)",

and the powers that thereafter arise are set out in paragraph 16 of the schedule which deals with the detention of persons liable to examination or removal.

The applicant's case has throughout been that he is the person referred to in the birth certificate which he produced at the very outset of the history of this case. That birth certificate was obtained -- or a copy of that birth certificate which is not said to be in any way a false birth certificate or a false copy was obtained -- on behalf of the applicant and is with the papers before the Court. It records, which is the applicant's story as told at his interview, that he was born at Whittington Hospital, Islington, London. It gives his name which is the name under which he applies to this court. It records that his father was Nathaniel Bamgbose and his mother one Abigail Bamgbose, formerly Onifade of 54 Ashley Road, Islington. He says that he was taken to Nigeria at a very early age in early 1964 and there attended a Methodist primary school. In 1970 his father and mother, he says, went to Nigeria and his mother brought him back to the United Kingdom in 1973 to stay with his mother's sister, Mrs Meadows of 54 Ashley Road, and he then entered on his mother's Nigerian passport not requiring leave owing to the fact that, as he says, he was a British citizen. The mother returned, so he says, to Nigeria in 1975, but from his return here in 1973 he has been in London all the time. He has never left the country at all.

The respondent does not accept that story, the whole purpose of which is to establish that the applicant is a British citizen. Section 3(8) of the 1971 Act as amended provides:

"When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is."

It is, in my view, plain that in this case a question did and does arise whether the person before the court is indeed the person whose birth certificate is before the court, and prima facie on section 3(8) it is plainly for the applicant to prove that he is a British citizen. The only route by which he seeks to discharge that burden is by showing that he is the person referred to in the birth certificate.

It is submitted by Mr Cotran on his behalf that the provisions of section 3(8) are discharged so long as he can produce prima facie proof that he is a British citizen. Thereafter he says, relying on the decision of Khawaja case

[1984] 1 AC 74, that the burden shifts to the respondent to establish that he has an illegal entrant. He says that he has produced sufficient prima facie evidence for that burden to shift and that the respondent has failed to satisfy the burden.

The matter appears to me to be somewhat unreal for it appears that the applicant's submission is this: "I say I am a British citizen, namely the man referred to in the birth certificate. If I have failed to establish that under section 3(8), that is not by any means the end of the matter because it may be that I am some other person, not a British citizen, who may have entered from some country at some time in some place from somewhere, and it is for the respondent to negative all those matters."

With regard to the case of Khawaja I need say only that it did not concern at all the question of the establishment of British citizenship. The question of section 3(8) never figured at any time in the case, and in my judgment section 3(8) requires more than a prima facie proof. It is a specific statutory direction, and, if I may say so, a very sensible one, that if somebody asserts that he is a British citizen it is upon him to satisfy the court or the immigration officer, as the case may be, because it is common ground that the question of illegal entry is a jurisdictional fact or a precedent fact according to which phrase you wish to use.

Therefore, in my judgment, on this application if the applicant fails to satisfy the court that the applicant before it is the person referred to in the birth certificate before the court, this application must necessarily fail. The alternative advanced by Mr Cotran I regard as wholly untenable.

The matter has been considered recently in the case of Catherine Mokuola v Secretary of State for the Home Department [1989] Imm AR 51 where it arose in a different connection and under very different circumstances. The third finding in the headnote reads as follows:

"Where a person is entitled to enter the United Kingdom without leave as a British citizen, the onus of proving he is a British citizen, if the question arises, is on that person. It was common ground that the appellants could not prove that they were British citizens and it followed they needed leave to enter: in the events which had happened they were illegal entrants."

It was submitted by Mr Cotran that the case was not of any damage to him because it proceeded on the basis of concessions. I respectfully am unable to agree with that submission. If one refers to the judgment of Bingham LJ, he says as follows at the beginning of his judgment:

"The scheme of the immigration legislation so far as relevant to this case seems to me to be clear. If a person seeking entry into the country is a British citizen he does not need leave. He is entitled to enter and reamin pursuant to sections 1(1) and 2(1) of the 1971 Act. But the onus is on such a person claiming to be a British citizen, if any question should arise, to prove it pursuant to section 3(8). If a person seeking entry to the country is not a British citizen he is not entitled to enter unless he is given leave pursuant to section 3(1). If a person needs leave and enters without it then he is an illegal entrant because he has entered unlawfully even though he has not entered in any way dishonestly or fraudulently. An illegal entrant is liable to removal pursuant to schedule 2."

That passage does not depend at all upon concessions. That is a statement of the law, and that is made plain when one finds that Bingham LJ continues:

"In the present case it is acknowledged that the appellants cannot establish that they are British citizens. From that it follows that they needed leave to enter. It is accepted that they did not receive leave to enter pursuant to sections 3(1) and 4(1). There was on the facts as they appear no wilful deception. The immigration officer though that the appellants were British citizens, accepting at their face value statements in their Nigerian passports. The immigration officer was wrong but it is accepted by Mr Riza for the appellants that the effect of that error was not to confer leave and was not to make any binding determination that the appellants were British citizens. Therefore, on the face of it, they entered, even if innocently, contrary to the provisions of the immigration laws so as to become illegal entrants."

There was, therefore, in that case a considerable difference as to the facts, but I regard the statement of the law as being a statement which was in no way dependent on the concession which was made as to the facts. They are indeed very similar to this case, except that in this case there was an initial assertion of British citizenship which was not accepted; whereas in that case the passports appeared to show British citizenship, were accepted to show it, but were found not to do so. In this case, in my judgment, the learned judge, by reasons of the numerous discrepancies which are set out in the affidavits but which I fid it wholly unnecessary to rehearse, was well entitled to say that the applicant had not discharged the burden of proof which was cast upon him by section 3(8) and accordingly his application failed. I cannot fault the reasoning of the learned judge and I would dismiss the appeal.

Judgment Two:

STUART-SMITH LJ: I agree.

Judgment Three:

SIR JOHN MEGAW: I also agree.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused

SOLICITORS:

Bernard Oberman & Co; Treasury Solicitor