R v. Immigration Officer, Heathrow Airport, Ex parte Thakrar

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	23 October 1973
Citation / Document Symbol	[1974] 1 All ER 415, [1974] 2 WLR 34
Cite as	R v. Immigration Officer, Heathrow Airport, Ex parte Thakrar, [1974] 1 All ER 415, [1974] 2 WLR 34, United Kingdom: High Court (England and Wales), 23 October 1973, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6c334.html [accessed 4 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 An Immigration Officer at Heathrow Airport, ex parte Thakrar

QUEEN'S BENCH DIVISION

[1974] 1 All ER 415, [1974] 2 WLR 34

Hearing Date: 9, 23 OCTOBER 1973

23 OCTOBER 1973

Index Terms:

Immigration - Leave - Non-patrial - Right of entry - Expellee - Obligation of country to receive back its nationals expelled from other countries - Non-patrial expelled from normal country of residence - Expellee claiming to be British protected person - Expellee refused leave to enter United Kingdom - Whether expellee entitled to enter United Kingdom as of right for purpose of settling there permanently - Whether right abrogated by statute - Immigration Act 1971, s 3(1)(2).

Held:

T, who was of Asian origin, was born in Uganda in 1939. Uganda was then a British protectorate and T a British protected person within the meaning of the British Nationality Act 1948. In 1962 Uganda ceased to be a protectorate and became an independent country. Individuals who were formerly British protected persons within the meaning of the 1948 Act retained that status unless they secured Agugust 1972 the government of Uganda ordered the removal from that country of all non-Ugandan Asians. T left Uganda and came to England in September 1973. He did not have an entry certificate and on his arrival at Heathrow airport he was refused leave to enter the United Kingdom by an immigration officer. T sought to have the decision quashed, claiming that, as a British protected person who had been expelled from his normal country of residence, he was entitled as of right to come to the United Kingdom for the purpose of settling there permanently, and that that right was not affected (i) by the provisions of the Immigration Act 1971 and in particular by the obligation to obtain leave to enter which s 3(1) a imposed on a non-patrial, and (ii) by the rules made by the Secretary of State under s 3(2) of the 1971 Act and applied by immigration officers in determining whether a particular person should be granted leave to enter the United Kingdom.

a Section 3, so far as material, is set out at p 418 j and p 419 a, post

Held - (i) The rule of international law that a country was bound to receive back its nationals if they were expelled from other countries should be applied unless it had been abrogated by the 1971 Act (see p 418 c, post).

(ii) The right claimed by T had been abrogated by the 1971 Act, which was a comprehensive provision and laid down an all-embracing set of rules governing immigration. Under the Act a person who was a patrial had an unrestricted right of entry but a non-patrial was obliged to obtain leave to enter; although an expellee, T was a non-patrial and, therefore, he could not enter the United Kingdom unless given leave to do so in accordance with the provisions of the Act and the rules made under s 3(2) (see p 419 g to j, post).

Notes:

For the rules governing the entry to the United Kingdom of persons born outside the United Kingdom, see Supplement to 1 Halsbury's Laws (3rd Edn) para 987A, 1-4.

For the Immigration Act 1971, s 3, see 41 Halsbury's Statutes (3rd Edn) 20.

Introduction:

Motions. The applicant, Pravinlal Amarshi Thakrar, applied to the Divisional Court of the Queen's Bench Division (i) for an order of certiorari to remove into the court with a view to its being quashed a refusal of leave to enter the United Kingdom, which refusal was made by an immigration officer to the applicant at Heathrow airport on 5th September 1973, (ii) for an order of mandamus directed to the immigration officer and to the Secretary of State for Home Affairs to give the applicant leave to enter the United Kingdom, or otherwise to admit him into the United Kingdom, and (iii) for an order that a writ of habeas corpus be issued directed to the Secretary of State for Home Affairs and the chief immigration officer to have the applicant brought before the court immediately after the receipt of the writ to undergo and receive all and singluar such matters and things as the court should then consider concerning him. The facts are set out in the judgment of Lord Widgery CJ.

Counsel:

Sir Dingle Foot QC and Eugene Cotran for the applicant. J W Priest for the respondent.

PANEL: LORD WIDGERY CJ, BRIDGE AND MAY JJ

Judgment One:

LORD WIDGERY CJ. In these proceedings counsel moves on behalf of Pravinlal Amarshi Thakrar for an order of certiorari to remove into this court with a view to its being quashed a refusal of leave to enter the United Kingdom, which refusal was made by an immigration officer to the applicant at Heathrow airport on 5th September 1973.

There is a further application for an order of mandamus directed to the immigration officer, and to the Secretary of State for Home Affairs, to give this applicant leave to enter the United Kingdom, or otherwise to admit him into the United Kingdom. There is on the papers a still further application for habeas corpus, but it is I think agreed on all sides now that the matter can be properly ventilated, and any appropriate relief given on the two applications to which I have referred.

The applicant was born in Uganda in 1939 and he lived there until November 1972. He is of Asian origin, his parents having been born in India, and on the face of those facts alone he would be entitled to describe himself as a British protected person within the meaning of that phrase in the British Nationality Act 1948. But, of course, many things have happened in Uganda in the course of the applicant's life, and the first material one is that Uganda has ceased to be a protectorate, and has instead become an independent nation; that happened in 1962, pursuant to the Uganda Independence Act of that year. Accordingly, Uganda ceased to be a protectorate, but individuals who were formerly British protected persons within the meaning of the earlier legislation, retained that status unless they secured Ugandan nationality by one of the methods open to them at that time.

The applicant remained in Uganda, and he was still there on 8th August 1972 when, as is generally known, General Amin ordered the removal of all non-Ugandan Asians from the country. There is no doubt on the affidavits that this put the applicant in a position of some considerable difficulty. He had had previously a protectorate passport, that is to say one issued within the protectorate, but that had expired, and worse than that, the actual passport itself, according to the applicant, had been taken forcibly from him by one of the Ugandan soldiers in the course of the troubled times which ensued in the autumn of 1972; one can well understand it was not easy for him to arm himself with evidence of the negative, namely that he had not acquired Ugandan nationality. Accordingly, whilst he maintained that he was still a British protected person, the proof of that fact, if it had to be proved, was clearly not going to be easy.

What in fact happened was that on 7th November 1972 he left Uganda for Austria. He travelled on some kind of Red Cross permit, which was being issued at that time to assist refugees to get away. He got himself to Austria, and remained there for a time until on 4th September 1973 he came to Heathrow from a point of departure in Austria and sought admission to this country.

Unfortunately for him, because it has given rise to a good deal of confusion, and it cannot have assisted in establishing whatever rights he had, he elected on arrival at Heathrow on 4th September to tell what he now says is an entirely lying story as to his intentions. He told the immigration officer that he had come for ten days only to see his brother, and eventually to leave again after that time. He told this story in terms which clearly did not convince the immigration officer, and no one can be surprised that on the evening of 4th September, the day of his arrival, he was refused admission to this country, and he was refused because the immigration officer was not satisfied with the truth of the story told or that the applicant intended to remain in this country for only ten days.

After this refusal had been given, and when the applicant had been put in suitable detention quarters to await his despatch back to Austria on the following day, he sent for the immigration officer and told him an entirely different story. Indeed he put forward a wholly different account of his background and of his true desire to come into this country. What he told the immigration authorities at that time was that he did not intend to come for ten days only, he intended to come to this country to settle permanently, and that he claimed the right to come to this country for that purpose because he was a British protected person who had been expelled from his normal country of residence. He said that as a matter of law he was entitled to come to this country and settle permanently on the basis of that reason.

This resulted in the Home Office being contacted, and they gave what in the circumstances were entirely proper instructions, that no action was to be taken to remove the applicant from this country until this new feature had been examined. After these proceedings had been taken, indeed as recently as yesterday, an affidavit of Mr Corben of the Home Office was made and put before us to explain why on further consideration of the matter the Home Office adhered to the original decision to refuse this applicant leave to remain. What Mr Corben says in his affidavit is that despite the representations which had been made, he is not satisfied that the applicant is a British protected person. I

pause there to observe that the applicant's status as a British protected person was fundamental to the way in which he was basing his argument of a right to enter. Mr Corben says he was not satisfied that the applicant was a British protected person, but even on the assumption that he was, his application for leave to enter this country must fail pursuant to s 3(2) of the Immigration Act 1971, and r 38 of the rules recently published by the Home Office in regard to the control of entry of Commonwealth citizens n1.

n1 Statement of Immigration Rules for Control on Entry: Commonwealth Citizens, laid before Parliament on 25th January 1973 (HC 79)

That affidavit was sworn only yesterday, and I seek to make no word of criticism of the delay, because this is an unusual case, and much of the trouble has been due to the applicant having failed to give a true story in the first instance; but that is how it presents itself to us.

When the argument began, it was agreed with counsel that it would be convenient to consider two points first before embarking on the perhaps vexed question of what the real status of this applicant was. Counsel for the applicant made it clear in his submission that he would argue before us first that the applicant was a British protected person; secondly that as a British protected person he had the same right to enter this country as would a British person who was a subject of the United Kingdom and colonies. Thirdly he submits that a British subject expelled from Uganda in the circumstances which affected the present applicant, would have had a right to enter this country on a basis of international law, namely that a citizen expelled from a foreign country has the right to return to his country of nationality, and that that country has a duty to receive him, and fourthly he proposed to argue that that being the position in law before 1971, the Immigration Act 1971 and the rules made thereunder had no effect on the position.

It was as I say agreed that argument should first be addressed to the court on the supposition that the applicant could make out his first point, namely that he was in fact a British protected person. When we came to hear the argument of counsel for the Home Office, it became apparent that we should not be asked, in this case at any rate, to decide whether there was any distinction in the rights of an expelled British subject. For the purposes of this case, and for those purposes alone, counsel for the Home Office is prepared to accept that there is no practical distinction between a man in the one status or the other, so that really of the points put before us by ocounsel for the applicant, only one is left immediately for consideration, and that is whether assuming that there was a special right in a British subject to enter this country following expulsion before 1973, that right had survived the coming into force of the Immigration Act 1971 on 1st January 1973, and could still be relied on by the applicant in the present case.

I find in those circumstances that it is not necessary to consider in any detail the argument which has been put to us on the earlier points. I think it suffices to say that there clearly is authority that in international law an obligation on a country exists to receive back its nationals if those nationals are expelled from other countries in the world. I do not question the proposition which he put forward that that rule of international law should be treated as a rule of English national law, and unless abrogated by some statute, would still apply at the present time.

Therefore one comes at the end of the present argument to what can be stated as a very short point, namely has the 1971 Act and the rules made under it affected any rights which otherwise the applicant would have had, to insist on being allowed to enter this country as a British protected person expelled from a foreign state?

One must remind oneself that the 1971 Act is the third of a series. Before 1962 a British subject could enter this country without hindrance, not because any Act of Parliament had said so, because it was regarded as his right, and no one was concerned to stop him. The first restriction on the entry of Commonwealth citizens, as they are now called, appears in what now seems to be a rather limited form in the 1962 Act. That was followed by the Commonwealth Immigrants Act 1968, which was intended to stop certain gaps in the earlier law, and also to extend the effective control over the entry into this country of Commonwealth citizens. Now one comes to the 1971 Act, an Act which as I shall endeavour to demonstrate in a moment is in my judgment intended to increase the degree of control which can be exercised over entrants to this country, be they from the Commonwealth or elsewhere.

The 1971 Act makes a complete departure from those which preceded it by setting out in ss 1 and 3 a new distinction which has to be applied to those seeking to enter the United Kingdom between those who are patrial and those who are not. The rights of those who are patrial, according to s 1(1) are thus defined:

'All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person'.

One finds that the persons who enjoy that unrestricted right of abode in the United Kingdom are set out in s 2. I will not go into them in detail, but s 2 contains a number of precisely limited and defined categories of persons who have this unrestricted right to go and come into this country as they please. It is not suggested that the applicant falls into any of those categories, and he is clearly not a patrial for the purposes of the 1971 Act.

When one comes to see what happens to those who are not patrial, one finds the answer in s 3:

'(1) Except as otherwise provided by or under this Act, where a person is not patrial -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period...'

Then there is a proviso to impose conditions when entry is permitted for a limited period. Section 3(2) is important:

'The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter...'

So we have first the proposition that any one who is not patrial must have leave to enter, and secondly power in the Secretary of State to make rules which shall be applied in deciding whether an individual is to be granted leave to enter or not. Those rules have a particular significance in practice because they are the rules by which the immigration officers at the various airports and ports operate. Section 4 (1) of the Act, so far as material, provides: 'The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers...'

Those officers, being supplied with the rules prescribed by the Secretary of State, are then in a position to carry out the policy of the Act with, however, of course, the right, and indeed in difficult cases I would say the duty, to refer to higher authority any matters which are not clearly dealt with in the Act or the rules.

It would be otiose to go on and quote other sections of this Act in support of my view that it is intended to be comprehensive. It is argued by counsel for the applicant that an expellee, if one may use the word, who had as he would submit an unquestioned right to come into this country if he was a national of this country before 1973, has not lost that right because the Act, as it were, had passed him by. I find that a very difficult proposition to accept; the more one looks at the Immigration Act 1971 the more it seems to me that Parliament was intending in one piece of legislation to have a comprehensive set of rules to govern this matter of immigration which has been of such concern in recent years.

I do not think it really feasible to take the view that Parliament, when passing that Act in comprehensive terms, was content to let the expellee go unnoticed, and unmentioned, whilst still retaining for him any rights he had before the Act was passed. We have been reminded of the necessity for plain words in a statute to take away rights, and we recognise the importance of that rule.

It has also been submitted by counsel for the applicant that even if the expellee requires leave to enter, yet the fact he is an expellee in some way prevents the Home Secretary from deciding the application for leave in a sense unfavourable to the applicant.

None of that I fear is argument which I find it possible to accept. Therefore I have come to the conclusion on what is the only point put before us for decision today, that the 1971 Act is a comprehensive provision, and that no rights such as those claimed for an expellee have survived that Act to exist independently.

Accordingly, the applicant, despite his status as expellee, must be considered under the terms of the Act itself. That, according to Mr Corben's affidavit, is what eventually was done. Assuming for the purposes of the argument that the applicant was a British protected person, Mr Corben says that when one looked at the rules to see whether he should be admitted or not, one could find no provision in the rules to authorise such admission, and indeed to the contrary, that r 38 provided in terms which would exclude this applicant from being admitted. Rule 38 says:

'Where the passenger is a citizen of the United Kingdom and Colonies holding a United Kingdom passport, and presents a specisl voucher issued to him by a

British Government representative overseas (or an entry certificate in lieu) he is to be admitted for settlement, as are his dependents if they have obtained entry certificates for that purpose and satisfied the requirements of paragraph 39; but such a passenger who comes for settlement without a special voucher or entry certificate is to be refused leave to enter.'

On Mr Corben's affidavit it seems to me that this applicant was refused on the merits, as it were, because not coming within any of the other paragraphs sanctioning his admission under the rules, he failed to come under para 38, which was his last hope.

However, this matter as I say has been dealt with in somewhat of a hurry, and counsel for the Home Office, on instructions, was able to tell us that the proposition that the applicant as an expellee was entitled to some special consideration when his case was considered was not really a matter which has been in the minds of anyone concerned in the matter in the Home Office, and speaking for myself I would be unwilling to allow this case to pass from the court without some further investigation being made to satisfy myself not that the Home Office are right on the technical legal view of the Act which they take, but that all the other factors relevant to whether this man should be sent away have been properly considered.

If in truth the Home Office is minded to refuse his application because of doubts whether the applicant is a British protected person or not, the Home Office case should be deployed before us in this court so we can consider the strength of it. If the Home Office in no way rely on doubts whether he is a British protected person, it would assist us greatly if they would say so, then it would be relevant for us to go on and consider whether the fact that he is an expellee has been adequately considered in regard to this decision, and to let us know after reflection and consideration of the matters which I have disclosed are troubling me, whether the Secretary of State still considers, that this is an order of refusal which should be maintained.

For my part I would adjourn this application for ten days in order that the Home Office may consider the observations which I have made, and give us such further assistance arising thereon as they can.

Judgment Two:

BRIDGE J. I entirely agree.

Judgment Three:

MAY J. I agree.

DISPOSITION:

Application for bail granted.

[During the adjournment the matter was considered by the Home Office. When the hearing was resumed on 23rd October the court had before it (i) a second affidavit, sworn by Mr Corben, containing the decision of the Secretary of State, which made it clear that he had not been satisfied by the applicant that the applicant was a British protected person and accordingly was required to treat the applicant as not being of that status; and (ii) a substantial affidavit, sworn by Mr Robert Calder a member of HM Diplomatic Service, who was serving as Uganda Desk Officer in the Nationality and Treaty Department of the Foreign and Commonwealth Office, which had been placed before the Secretary of State and had formed the basis of his decision; in the affidavit Mr Calder had given in detail all the factors which had been put before him on the question whether the applicant had applied for and obtained Uganda citizenship and which led to his own conclusion that the applicant had not retained British status. Much of that material had been supplied by the applicant. Counsel for the applicant argued (i) that the Secretary of State had not acted fairly when he decided that the applicant was not a British protected person; to act fairly for that purpose meant listening to the applicant, hearing what he had to say, placing before him so far as reasonable particular matters which would tend to influence the immigration officer's mind and which were not necessarily known to or in the forefront of the applicant's mind, and considering with an open and unprejudiced mind what the applicant had to say; affidavits on the applicant's side showed that there were factors which had not been properly considered by Mr Corben, and there were inferences drawn from the facts on which Mr Calder reached his decision that had not been put fairly to the applicant before the decision was taken; and (ii) in particular there had been an 'error of law' in that if the applicant had become a Ugandan, he would have renounced his British status in some document and no attempt had been made either to find it or to consider what the consequences of its absence were. The court concluded that there were no grounds for interfering with the Secretary of State's decision; the obligation to be fair in the sense of disclosing matters in the immigration officer's mind which might not have been in the applicant's did not go beyond indicating the broad areas in which the immigration officer would be interested to hear the applicant's case; further there was no requirement that consideration had to be given to the question of whether a formal document of renunciation of British status would have been created or disposed of. The applications were accordingly dismissed.]

Applications dismissed.

SOLICITORS:

Jaques & Co (for the applicant); Treasury Solicitor.