R v. Secretary of State for the Home Department, Ex parte Khan

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	13 February 1980
Citation / Document Symbol	[1980] 2 All ER 337, [1980] 1 WLR 569
Cite as	R v. Secretary of State for the Home Department, Ex parte Khan, [1980] 2 All ER 337, [1980] 1 WLR 569, United Kingdom: Court of Appeal (England and Wales), 13 February 1980, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6ca0.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 Khan

COURT OF APPEAL, CIVIL DIVISION

[1980] 2 All ER 337, [1980] 1 WLR 569

Hearing Date: 15, 16 January, 13 February 1980

13 February 1980

Index Terms:

Immigration - Leave to enter - Non-Patrial - Right of entry - Change of circumstances since entry certificate granted - Applicant born in Pakistan and applying for entry certificate - Applicant eligible for entry certificate at time of application - Entry certificate granted six years later by which time applicant ineligible - Applicant granted indefinite leave to enter and not asked about change of circumstances - Whether officer who granted entry certificate or immigration officer who granted leave to enter waiving requirements of immigration rules - Whether basis of original application still continuing at time of grant of entry certificate - Whether applicant under obligation when entering to disclose change of circumstances affecting his right to enter - Immigration Rules for Control on Entry: EEC and Other Non-Commonwealth Nationals (1972-73), para 39.

Held:

In 1961 the applicant's father left Pakistan to settle in the United Kingdom. In 1972 the father's wife and four children, including the applicant, who was then aged 14 and was unmarried, applied to the British Embassy in Islamabad for entry certificates to join the father. In June 1978, after numerous inquiries and appeals, the wife and children were granted entry certificates, the applicant being qulified for admission under para 39 a of the Statement of Immigration Rules for Control on Entry: EEC and Other Non-Commonwealth Nationals as 'an unmarried and fully dependent son under 21'. In fact by the time the entry certificates were granted the applicant was a month over 21. The applicant's entry certificate was indorsed 'Settlement -- accompanying mother to join father'. Four weeks after the grant of the certificates the applicant was married, but when, two weeks later, he and his mother, brothers and sister left for the United Kingdom he did not take his wife with him because she did not have an entry certificate. On arrival in the United Kingdom the immigration officer looked at the applicant's passport and entry certificate and asked him if he was coming to join his father. The applicant replied that he was, and the immigration officer stamped his passport with 'Indefinite leave to enter'. In December 1978 the applicant sought to have his wife join him. She was granted an entry certificate indorsed 'Settlement to join husband'. She arrived in the United Kingdom in July 1979, and was met at the airport by the applicant. The immigration officer asked the applicant and his wife some questions and learnt that they had been married after the applicant had been granted an entry certificate. The wife was granted temporary admission. Three weeks later the immigration authorities refused admission to the applicant's wife and the applicant was arrested and detained as a person who had obtained entry by deception. The applicant applied for a writ of habeas corpus. The Secretary of State contended that the applicant had entered the United Kingdom on a false basis as the dependent unmarried son of a person settled in the United Kingdom, and that accordingly the permission given to him in June 1978 to enter the

United Kingdom had been nullified.

a Paragraph 39, so far as material, is set out at p 345 e, post

Held - A writ of habeas corpus would issue for the following reasons

(i) The requirements of para 39 of the immigration rules that the applicant be under 21, be fully dependent on his father and be ummarried had been waived (per Lawton and Ackner LJJ) by the embassy official in Islamabad when the applicant was granted an entry certificate or (per Lord Denning MR) by the immigration officer when the applicant was granted 'indefinite leave to enter'. It should have been clear to the embassy official from the applicant's file or to the immigration officer from the applicant's passport that the applicant was over 21, and it was unlikely that at that stage he would still be fully dependent on his father. Furthermore (per Lawton and Ackner LJJ) because of the time which had elapsed between the application for, and the grant of, the entry certificate the basis of the original application had gone and any representation by the applicant that he was still unmarried could not reasonably be said to have continued (see p 340 f, p 342 b, p 344 e to g and j and 345 g to p 346 a and e, post); With v O'Flanagan [1936] 1 All ER 727 applied; R v Secretary of State for the Home Department, ex parte Zamir [1980] 1 All ER 1041 distinguished.

(2) (Per Lord Denning MR) The applicant was lawfully in the United Kingdom and had lawfully been granted 'Indefinite leave to enter', and so long as that leave stood unrevoked he had a right to remain in the United Kingdom.In obtaining leave to enter the applicant had not been guilty of any fraud or misrepresentation, and although his marriage consitituted a change of circumstances, he was under no duty to disclose that change to the immigration officer unless he was asked; in failing to make any inquiries the immigration officer had waived any objections in relation to a change of circumstances. At most the change of circumstances could render the grant of leave to enter voidable, but until set aside the leave remained good. In the absence of any deceit on the part of the applicant the leave could not be regarded as void; it was valid at the time it was granted and accordingly the applicant was not an 'illegal entrant' within the Immigration Act 1971 since an 'illegal entrant' was, by s 33(1) b of that Act, one who had entered in brach of 'the immigration laws' and did not include a person who had entered merely in breach of the immigration rules (see p 340 f g and p 341 f to p 342 c and e f and h j, post).

b Section 33(1), so far as material, is set out at p 341 e, post

Notes:

For illegal entry into the United Kingdom, see 4 Halsbury's Laws (4th Edn) paras 976, 1027.

For detention of persons liable to removal from the United Kingdom, see ibid para 1009.

For the Immigration Act 1971, s 33, see 41 Halsbury's Statutes (3rd Edn) 52.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department, ex parte Choudhary [1978] 3 All ER 790, [1978] 1 WLR 1177, CA.

R v Secretary of State for the Home Department, ex parte Hussain [1978] 2 All ER 423, [1978] 1 WLR 700, DC and CA.

R v Secretary of State for the Home Department, ex parte Ram [1979] 1 All ER 687, [1979) 1 WLR 148, DC.

R v Secretary of State for the Home Department, ex parte Zamir [1980] 1 All ER 1041, [1980] 2 WLR 357, CA; affg [1979] 2 All ER 849, [1979] QB 688, [1979] 3 WLR 89, DC.

With v O'Flanagan [1936] 1 All ER 727, [1936] Ch 575, 105 LJ Ch 247, 154 LT 634, CA, 35 Digest (Repl) 32, 233.

Cases cited in the Judgment:

Fazal Mahmood v Visa Officer, Islamabad (1st May 1979, unreported; Appeal No TH/10604/75 (1506)), Immigration Appeal Tribunal.

Khan v Secretary of State for the Home Department [1977] 3 All ER 538, [1977] 1 WLR 1466, CA.

R v Governor of Brixton Prison, ex parte Ahsan [1969] 2 All ER 347, [1969] 2 QB 222, DC.

R v Governor of Pentonville Prison, ex parte Azam [1973] 2 All ER 741, [1974] AC 18, CA; affd [1973] 2 All ER 765, [1974] AC 18 at 49, HL. R v Immigration Appeal Tribunal, ex parte Manek [1978] 3 All ER 641, [1978] 1 WLR 1190, CA.

R v Immigration Appeal Tribunal, ex parte Mehmet [1977] 2 All ER 602, [1977] 1 WLR 795, DC.

R v Immigration Appeal Tribunal, ex parte Nathwani (23rd February 1979, unreported), DC.

R v Preston Supplementary Benefits Appeal Tribunal, ex parte Moore [1975] 2 All ER 807, [1975] 1 WLR 624, CA.

R v Secretary of State for the Home Department and Secretary of State for Employment, ex parte Suruk Miah [1976] Court of Appeal Transcript 32. R v Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All ER 452, [1977] 1 WLR 766, CA.

R v Secretary of State for the Home Department, ex parte Mughal [1973] 3 All ER 796, [1974] QB 313, CA.

Robertson v Minister of Pensions [1948] 2 All ER 767, [1949] 1 KB 227.

Introduction:

Appeal. The applicant, Mangoo Khan, appealed against the judgment of the Divisional Court (Waller LJ and Park J) on 13th November 1979 refusing his application for a writ of habeas corpus ad subjiciendum directed to the Secretary of State for the Home Department to instruct the Governor of HM Prison, Pentonville, to release him from detention where he had been detained pursuant to an order of an immigration officer under para 16 of Sch 2 to the Immigration Act 1971. The facts are set out in the judgment of Lord Denning MR.

Counsel:

K S Nathan for the applicant. David Latham for the Secretary of State.

Judgment-READ:

Cur adv vult. 13th February. The following judgments were read.

PANEL: LORD DENNING MR, LAWTON AND ACKNER LJJ

Judgment One:

LORD DENNING MR. Farman Ali was born in a village in Pakistan. He came here as long ago as 1962. He has lived and worked at Hemel Hempstead in Hertfordshire. He has a right of abode here. He went back to Pakistan on visits a couple of times.

Ten years afterwards in 1972 he asserted that he had a wife and four children in that same village in Pakistan. He wanted them to come over and join him here in England. She was Rashid Begum, and the children were three boys and one daughter. Farman Ali said he wanted to sponsor them and pay for them here. They applied to the British authorities in Islamabad for entry certificates. The British authorities were very sceptical about their claims. They doubted whether Rashid Begum was really his wife, and they more than doubted whether the children were his children. So they turned down their applications. There were inquiries and appeals. All were turned down until 1978. Until on a final appeal on 23rd May 1978 the Immigration Appeal Tribunal allowed their appeal. In their ruling they said:

'We have considered all the relevant matters with care and, notwithstanding the inexplicable discrepancies, are satisfied on the balance of probabilities that the appellants are related to the sponsor as claimed. The appeal is accordingly allowed and we direct that the appellants be granted entry certificates to join the sponsor.'

The Home Office obeyed that ruling. On 2nd June 1978 they sent this telex to the British Embassy in Islamabad:

'Rashid Begun, Mangoo Khan, Khalid Khan, Zafar Iqbal, Parveen, Appeals allowed by Tribunal. Please issue settlement [documents] joining husband/father (appeal)...'

On 11th June 1978 the British Embassy in Islamabad wrote to them:

'Rashid Begum and children...

'Dear Applicants,

'With reference to your application for entry clearance, please call at this office... You should bring with you this letter and your passport.'

The were overjoyed. Now after six years they were to get their entry certificates. Of course by this time they were all six years older. In particular the eldest boy, Mangoo Khan (who had been 14 when the application was made in 1972) was now 21. At any rate, mother and children went to the embassy in Islamabad and were granted entry certificate visas on 26th June 1978. Mangoo Khan's was indorsed 'Settlement -- accompanying mother to join father (appeal)'.

Armed with the entry certificates, they made arrangements to come to England in two months' time, to settle here. But in the interval Mangoo Khan got married.It was a family arrangement. On 28th July 1978 he was married to Meniza Begum from the same village in Pakistan. He was 21. She was 20. He says that it was only a betrothal and was not followed by cohabitation or consummation. But that point was not pressed before us. It is pretty plain that it was a marriage, and he cannot escape the effect of it by calling it a betrothal.

He did not bring her to England with him. He could not do so. She had no entry certificate. So Mangoo Khan went to England with his mother and the other three children. It was on 13th August 1978 that they arrived at Heathrow. They went before an immigraion officer, Wendy Boden. She looked at his visa. She saw that it was all in order. She asked him: 'You are coming to join your father?' He said: 'Yes'. She granted him 'Indefinite leave to enter' and stamped his passport accordingly.

Now, here is the important point. Wendy Boden did not ask him his age.She did not ask him if he was married. She did not ask him if he was fully dependent on his father. If she had asked him, and he had told her that he was a married man, she would have refused him entry. In order to be eligible under the immigration rules (ie the Statement of Immigration Rules for Control on Entry: EEC and Other Non-Commonwealth Nationals (HC Paper (1972-73) no 81)), coming as part of a family unit, he had to be 'an unmarried and fully dependent son under 21': see para 39 of the rules. Those requisites must be satisfied at the time of entry. Now by looking at his passport, Wendy Boden could see that he was born on 20th May 1957. So she could have seen that he was over 21. He was three months over 21 on 13th August 1978 when he presented himself.By admitting him, Wendy Boden certainly waived the requirement that he should be 'under 21'. By not asking him whether he was married, did she waive the requirement that he should be 'unmarried'? To this I will return later. The point to notice at the moment is that here he was in the United Kingdom, a person lawfully here who had been granted perfectly lawfully 'Indefinite leave to enter'. So long as that leave stood unrevoked, he had a perfect right to stay here.

Months passed. Then Mangoo Khan wanted to get his wife, Meniza Begum, over here to join him. He made the requisite declaration here. She applied in Islamabad. She was given an entry clearance on 14th May 1979 indorsed 'Settlement to join husband'. She then arranged her flight to England and arrived at Heathrow on 2nd July 1979. Her husband, Mangoo Khan, was there to meet her. The immigration officer was Mrs Sutton. She asked some questions through an interpreter. Meniza Begum said she had married mangoo Khan on 28th July 1978.He admitted that they had got married after he got his entry certificate. He said:

'My mother told me that now I had the entry clearance I should get married. I had a say in the arrangements for the marriage. I did not bring my wife with me when I came to the United Kingdom in August 1978. I decided to leave her behind and call her later. I was not asked at Heathrow whether I was married. I arrived with my mother, two brothers and my sister.'

The immigration authorities felt that, on these answers, they ought to look further into the matter. They gave the wife temporary admission and allowed the husband to go free.

Three weeks later the immigration authorities made up their minds. They regarded Mangoo Khan as a person who had obtained entry by deception. On 22nd July 1979 he was arrested, taken into custody and detained in Pentonville Prison. The immigration authorities claimed authority to do so under para 16(2) of Sch 2 to the Immigration Act 1971. At the same time his wife was refused leave to enter. She lodged an appeal under s 13(2) of the Act.

After being taken to prison, Mangoo Khan applied for habeas corpus. In an affidavit of 14th August 1979 he said: 'I am not an illegal entrant. I was given leave to enter the United Kingdom for an indefinite period on 18.8.1978. I submit that my detention is unlawful.'

He was given leave to apply for habeas corpus. On 13th November 1979 it was refused by a Divisional Court consisting of Waller LJ and Park J. He appeals by leave to this court.

The relevant provisions

On the return to hebeas corpus made by the governor of the prison, the detention is justified as being 'authorised under paragraph 16 of Schedule 2 of the Immigration Act 1971'. That refers back to para 9, which says that 'Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give... directions' and so forth.

In order to justify the detention, therefore, the immigration officer must show that Mangoo Khan was an 'illegal entrant'. That carries us back to s 33 of the 1971 Act, which says that

'"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...

'"immigration laws" means this Act...' (not the rules). The only relevant immigration law is s 24(1)(a), which makes it a criminal offence 'if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave'.

It seems to me, therefore, that, in order to justify the detention of Mangoo Khan, the immigration officer must show that he entered the United Kingdom without leave.

Did he enter without leave?

On the face of it, Mangoo Khan entered with leave. He had an entry clearance with a visa endorsed 'Settlement -- accompanying mother to join father (appeal)'. On producing it, the immigration officer granted him 'Indefinite leave to enter'. Then how can the immigration authorities say that he entered without leave?

Looking at the matter in principle, it seems to me that everything depends on whether on 13th August 1978 the grant of 'Indefinite leave to enter' was void or voidable, or valid. If it was void, it would in law be a nullity, from the very beginning. It would be automatically null and void without more ado. There would in law be no grant of leave at all. But, if it was voidable, it would have legal effect up to the time at which it was set aside. It would, therefore, operate so as to be a grant of leave at the time he entered. If it was valid, clearly he had leave.

Now I can understand that, if the immigration officer granted leave under a fundamental mistake (as, for instance, if the applicant was guilty of fraud or misrepresentation of such character as to vitiate the consent) then the grant of leave is void altogether. Such were the cases of R v Secretary of State for the Home Department, ex parte Hussain [1978] 2 All ER 423, [1978] 1 WLR 700 and R v Secretary of State for the Home Department, ex parte Choudhary [1978] 3 All ER 790, [1978] 1 WLR 117. But if he has been guilty of no fraud or misrepresentation at all, and the mistake is that of the immigration officer alone, then the leave is validly granted, as in R v Secretary of State for the Home Department, ex parte Ram [1979] 1 All ER 687, (1979) 1 WLR 148.

In the present case, I cannot see that Mangoo Khan was guilty of any fraud or misrepresentation at all. There had, it is true, been a change of circumstances. In 1972, at the age of 14, he was 'an unmarried and fully dependent son under 21 years'; but in 1978 he was married and independent and over 21 years. That change of circumstances wa such that the immigration officer might, under the immigration rules, have refused him leave to enter. But I do not know that he was under any duty to disclose this change of circumstances to the immigration officer, unless she asked him. She could see, by his passport, that he was over 21. Yet she did not refuse him on that account. By failing to ask any questions, she seems to have ignored any change of circumstances, or, indeed, to have waived any objection on that score. In any case, I do not see that this change of circumstances would render the grant of leave void. At most it would render it voidable. The leave would be good at the time it was given. He would not be an illegal entrant at that time. It would remain good until set aside.

Test it by assuming that in July 1979 he had gone back to Pakistan and returned to England bringing his wife with him. He would be fully entitled to enter by virtue of his original leave; and he could have brought her with him. How then can it be said that the original leave was void?

Zamir's case

R v Secretary of State for the Home Department, ex parte Zamir [1978] 1 All ER 1041, [1980] 2 WLR 357 presents us with a problem. It was decided on 21st December 1979. It appears at first sight to be indistinguishable from the present case. It is under appeal to the House of Lords.

It seems to me, however, that Stephenson and Brandon LJJ inferred that Zamir obtained leave to enter deceit. That was the basis of their decision. On the facts of the present case, I would not draw that inference. In the absence of deceit, I do not think that this leave should be regarded as void. It was valid at the time it was granted. That means he was not an 'illegal entrant'. Under the 1971 Act, an 'illegal entrant' is one who has entered in breach of the immigration laws. Mangoo Khan did not so enter. He may have entered in breach of the immigration rules (because of the change of circumstances). But that is not enough. The definition in s 33 makes him only an illegal entrant if he is in breach of the laws, not if he is in breach only of the rules.

Conclusion

This case has raised an important point of principle. It is this: if a man arrives at Heathrow with a valid entry clearance honestly obtained, is he to do more than produce it? Is he to volunteer more about himself? Or can he wait until he is asked questions by the immigration officer?

The White Paper 'Proposals for revision of the Immigration Rules' (Cmnd 7750) issued in November 1979 seems to suggest that it is for the immigration officer to examine him. Paragraph 14 says this:

'An Immigration Officer may examine the holder of an entry clearance so far as is necessary to determine whether any of the exceptions mentioned in paragraph 13 applies, and in determining this question may act on reasonable inferences from the results of that examination and any other information available to him. But the examination should not be carried further than is necessary for this purpose...'

This suggests to my mind that, in a case such as the present, when the holder of an entry clearance presents himself, the immigration officer should examine him to see whether there has been a change of circumstances. It should not rest on the man to disclose it. I would hold that there is no duty of disclosure; and that, in the absence of deception, if the man is granted leave to enter, that leave is good. I would, therefore, allow this appeal and grant the habeas corpus.

Judgment Two:

LAWTON LJ. On 22nd July 1979 the applicant was arrested and on 25th July 1979 he was lodged in Pentonville Prison. He had not been charged with a criminal offence nor had he been sent to prison under any order of a court. The authority for detaining him purported to be a detention order issued by an immigration officer under para 16 of Sch 2 to the Immigration Act 1971. The immigration officer had no power to order his detention unless he was an illegal immigrant. The question then is whether he was an illegal immigrant. He came into the United Kingdom on 13th August 1978 under an entry certificate which had been granted to him on 26th June 1978. It was indorsed 'Settlement -- accompanying mother to join father'. He was then just over 21, as the British Embassy officials in Islamabad, Pakistan, would have appreciated had they looked at his dat of brith as set out in his application for an entry certificate. He did come with his mother and he intended to, and did, join his father. He was interviewed by an immigration officer who did not ask him any questions about either his marital status or his dependency on his father. He was given indefinite leave to stay in the United Kingdom. At that date there was no reason why anyone in the United Kingdom should have thought that he was an illegal immigrant. The Secretary of State, however, alleges that he was.

The affidavit on which the Secretary of State relies, that of Mr K V Osborne, a senior executive officer in the Immigration and Nationality Department of the Home Office, gives the reason:

'... it appeared to the Home Office that the applicant had obtained entry to the United Kingdom in August 1978 on a false basis -- that is as the dependent unmarried son of a person settled here when in fact he was already married. Indeed he had stated that his marriage had been deliberately delayed until his visa had been granted. Accordingly he was regarded as a person who had obtained entry by deception in that he had employed for that purpose a visa which he knew related to circumstances which no longer existed and the basis for which had disappeared.'

If this allegation was well founded, the applicant was an illegal immigrant and his arrest and detention were lawful: see R v Secretary of State for the Home Department, ex parte Hussain [1978] 2 All ER 423, [1978] 1 WLR 700.

This way of putting the Secretary of State's case was different from that in which it had been put before the Divisional Court. There it was submitted by counsel (who was not counsel appearing before us) that it had been the duty of the applicant to disclose to the immigration officer at Heathrow that there had been a change of circumstances. In this court counsel for the Secretary of State thought it right to rely on the ground set out in Mr Osborne's affidavit. I do not think it necessary or advisable to make any comments about immigrants having a duty to disclose changes in their circumstances save in so far as failure to disclose has a bearing on deception.

Whether leave to enter the United Kingdom was obtained by deception is a matter of evidence; and the evidence will vary with each case. If deception there was, it was practised at Heathrow when the applicant arrived there on 13th August 1978.It could have been by words of conduct. He said nothing which could have misled the immigration officer. Beyond presenting his Pakistani passport which was indorsed in the terms set out in Osborne's affidavit he did nothing. The only possible basis for alleging deception is first that on 16th January 1974, when he was 16, he had declared by putting his thumb mark on an application form for a United Kingdom entry certificate, written in English, that the information given on it was true and correct and secondly that he had shown, by getting married when he did, knowledge of the immigration rules and had arranged his journey to the United Kingdom so as to evade them.

The Secretary of State has failed to satisfy me that there was anything in the application form which was untrue or incorrect. At the top of this form there are some notes. One, note D, is in these terms:

'The holders of entry certificates will be presumed by the immigration officer in the United Kingdom to be qualified for admission unless he discovers: -- (a) that the entry certificate was obtained by fraudulent misrepresentation or by concealment of facts which the applicant knew to be material; or (b) that a change of circumstances after issue has removed the basis of the holder's claim to admission...'

In my judgment there is no evidence in this case of fraudulent misrepresentation. There is some evidence that he knew his marriage was a material fact which he concealed. He married after he got his entry certificate. That marriage had probably been contemplated for some time before he got it. He did not bring his wife to the United Kingdom in August 1978 and when the immigration authorities found out about his marriage he claimed untruthfully that he had only gone through a betrothal ceremony, and not a valid marriage. This evidence must be weighed, however, against the other evidence in the case, which relates to the way the embassy staff in Pakistan behaved. When the official in Islamabad gave the applicant an entry certificate indorsed 'Settlement -- accompanying mother to join father' he would have had the applicant's file in front of him. Had he looked through it, he would have appreciated that the applicant was over 21 and had he thought about what he was doing he would have realised that he was issuing an entry certificate to a young man who was probably no longer dependent on his father but was coming here to find work. Because of the long delays which had occurred between the making of the application for an entry certificate and its grant, the circumstances on which it had been made had changed before it was granted and the likelihood of that change should have been appreciated by the embassy official, but he still granted an entry certificate. He was not granting it under para 39 of the immigration rules because the applicant was over 21 and unlikely still to be fully dependent on his father. What he was doing was waiving the rules and granting the applicant an entry certificate as if he were an adult coming here to work. The basis of the original application had gone because of the passing of time and the embassy official should have appreciated that it had. In my judgment, it would be unreasonable for the Secretary of State to deal with the applicant's case as if he had been someone who had entered the United Kingdom under the rules and in brach of them. He had entered the United Kingdom because an embassy official in Islamabad had said he could and he had not deceived the immigration officer at Heathrow by anything he had said or done. There was no continuing representation that the circumstances set out in the application for an entry certificate made in 1974 were still continuing so as to impose a duty on the applicant to disclose to the immigration officer that they had changed: see With v O'Flanagan [1936] 1 All ER 727, [1936] Ch 575. It was obvious that they had. A duty to disclose not arising out of a representation, if there he any, is far removed in my judgment from the alleged deception on which the Secretary of State relies.

I have considered the decision of this court in R v Secretary of State for the Home Department, ex parte Zamir [1980] 1 All ER 1041, [1980] 2 WLR 357. In that case the applicant was 18 both when he was granted an entry certificate and when he entered the United Kingdom. He did not disclose on entry that he had married after being granted the entry certificate. He was adjudged to be an illegal immigrant. The difference between that case and this is that para 39 did apply to Zamir but not to this applicant. Zamir had been granted his entry certificate on the basis that he was a fully dependent son under 21. His marriage was strong evidence that he was no longer 'a fully dependent son'. This applicant was outside para 39. He had to qualify for entry in his own right. The probabilities are that the embassy official in Islamabad who dealt with him did not read the applicant's file as thoroughly as he should have done; but the applicant was not to know that. If there was slackness in Islamabad on the part of an official which led to the grant of an entry certificate the Secretary of State cannot take advantage of it: see R v Secretary of State for the Home Department, ex parte Ram [1979] 1 All ER 687, [1979] 1 WLR 148. In my judgment Zamir's case has no relevance to this one.

I would allow the appeal.

Judgment Three:

ACKNER LJ. Where a person enters the United Kingdom pursuant to leave to do so which he obtained by deceit, he enters in breach of the immigration laws and is therefore an illegal entrant (R v Secretary for the Home Department, ex parte Hussain [1978] 2 All ER 423 at 429-430, [1978] 1 WLR 700 at 707 per Geoffrey Lane LJ). The Secretary of State for the Home Department contends that he had reasonable grounds for concluding that the leave to enter obtained by the applicant on 13th August 1978 was obtained by deceit. Accordingly when this was discovered, a year later, on 22nd August 1979 he was detained under para 16(2) of Sch 2 to the Immigration Act 1971. It is therefore contended on behalf of the Secretary of State that this detention was and is lawful.

The applicant was born in Pakistan on 20th May 1957. He is thus now approaching his 23rd year. When he was 15 years of age his father, who had come and settled in this country in 1961, was anxious that his wife, and his children, that is, the applicant, his two brothers and his sister, should join him in this country. An application in writing was therefore made by all five, the wife and the four children, to join the father in England. The application was first made to the British Embassy in Islamabad, Pakistan, on 1st September 1972.However, it was not until after numerous further applications and appeals nearly six years later that the final appeal was heard and determined in favour of the wife and the four children, including the applicant. He was accordingly granted on 26th June 1978 a settledment visa issued by the British Embassy in Islamabad and indorsed 'Settlement -- accompanying mother to join father'.

Although the applicant was 15 years old at the time he made his application for an entry certificate to join his father, he was a month over 21 when it was granted. This passage of time is, in my view, of considerable relevance. Paragraph 38 of the immigration rules provides that if the requirements of paras 34 and 35 are satisfied (which have no special relevance here), children under 18 are to be admitted for settlement if, inter alia, one parent is settled in the United Kingdom and the other is on the same occasion admitted for settlement. Of course the applicant was within this age limit when his application was made, but well beyond it when the application was granted. Paragraph 39 of the rules provides as follows:

'Generally, children aged 18 or over must qualify for admission in their own right; but, subject, to the requirements of paragraphs 34 and 35 an unmarried and fully dependent son under 21... may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement.' But the applicant was over 21 and therefore the discretion referred to in this paragraph was not the discretion which was exercised. The visa was not nor could it have been granted on the basis that the applicant satisfied the requirements of this paragraph. Counsel for the Secretary of State concedes that this is so and says that a general overriding discretion was exercised.

Such being the case, it is clear that the requirement that the applicant should be under 21 was waived and it seems to me equally to follow that the requirement that he be fully dependent on his father was also waived. Counsel for the Secretary of State did not really seem to argue the contrary. Given the waiver of those two important factors, it is nevertheless contended that there was no waiver of the third requirement, nemely that the applicant should be unmarried. I am bound to say I do not follow the logic of this. The Secretary of State was bound to concede that the requirement so far as age was concerned had been waived because of the length of time that had gone by. I take it that the waiver with regard to dependency was on the same basis. Although the representation was sufficiently made in the application form that the applicant, then a boy of 15, was fully dependent on his father, it would be quite unreal to view that as a continuing representation and to assume, without further inquiry, that six years later it was still the fact. The applicant had ceased to be a boy and had become an adult. There was every reason to assume that by 21 his total dependency had ceased. If reality requires that approach and accordingly it could not reasonably be said that six years after the applicant made his application he was still representing that the qualified for entry either on the grounds of age of dependence, could it reasonably be said that he was still continuing to represent that he was unmarried? I do not consider that after so long a delay between the application for and the grant of the visa any such representation could reasonably be said to have continued. If the applicant's matrimonial status was then thought to be so important, it should have been inquired into before the grant of the visa.

[1980] 2 All ER 337, [1980] 1 WLR 569

Some six weeks after he had been granted the visa, the applicant entered the United Kingdom. He came on his own account, although he had a fortnight earlier married Meniza Begum. As far as one can gather from the limited material, on arrival in this country he and his mother, brothers and sister went to his father's address at Hemel Hempstead, Herfordshire. Again as far as the material goes, there is no suggestion that he did not continue to live there until he was arrested on 22nd July 1979. When he entered the United Kingdom he was not asked whether he was married and he did not volunteer this information, but on the available material he was complying with the endorsement 'Settlement -- accompanying mother to join father'. On 28th December 1978 he applied in writing for permission for his wife to come to this country. She arrived on 2nd July 1979 but was refused admission on 22nd July, on which day, as previously stated, the applicant was arrested.

Counsel for the Secretary of State in this court has argued this appeal on a somewhat different basis to the way in which it was argued by counsel in the Divisional Court. In this court counsel has sought to support the contention put forward by Mr Osborne, a senior executive officer in the Immigration and Nationality Department of the Home Office, that the applicant obtained entry to the United Kingdom in August 1978 on a false basis, that is, as the dependent unmarried son of a person settled here, when in fact he was already married. He thus, it is contended, obtained entry by deception and this nullified the permission that had been granted to him the previous month on 26th June 1978. However, the whole foundation of this submission depends on the validity of the contention that the application made by the applicant, when he was 15, operated as a continuing representation that he was unmarried. For the reasons which I have already stated, I do not accept this. So far as the facts of this case are concerned, they are significantly different from Zamir's case [1980] 1 All ER 1041, [1980] 2 WLR 357. There, although the application was made when the boy was 15, it was granted when he was 18 and thus the visa was granted on the basis that he satisfied the requirements of para 39 of the immigration rules referred to above. Moreover, he admitted that he had come to the United Kingdom principally for work for himself and his wife.

In the Divisional Court the submission which was accepted as the basis of the refusal of the application for habeas corpus was that there were reasonable grounds for the Secretary of State coming to the conclusion that the applicant, when he came into this country in August 1978, concealed the fact that he was married and there was evidence on which the Secretary of State could properly come to the conclusion that he did so deliberately. Counsel for the Secretary of State in this court made it clear that he did not wish to support the decision on these grounds, but on the much more serious grounds referred to above, which I hold have failed.

Were I wrong in the decision I have reached, then, as I understand the position, if the appellant had entered this country in August 1978 unmarried, it is accepted that he could have then returned by the next plane to Pakistan, married, the lady who is his wife and then lawfully brought her back to this country. That he should destory both his and the lady's entitlement to live in this country by marrying her just before he arrived in England would seem to me, in the particular circumstances of this case, to be an anomaly that would have done the system no credit.

DISPOSITION:

Appeal allowed. Order accordingly. Leave to appeal to the House of Lords refused.

SOLICITORS:

Duckney & Co, Southall (for the applicant); Treasury Solicitor.