Azam and Others v. Secretary of State for the Home Department and Another

Publisher	United Kingdom: House of Lords (Judicial Committee)
Author	House of Lords
Publication Date	11 June 1973
Citation / Document Symbol	[1974] AC 18, [1973] 2 All ER 765, [1973] 2 WLR 1058, 137 JP 626
Cite as	Azam and Others v. Secretary of State for the Home Department and Another, [1974] AC 18, [1973] 2 All ER 765, [1973] 2 WLR 1058, 137 JP 626, United Kingdom: House of Lords (Judicial Committee), 11 June 1973, available at: https://www.refworld.org/cases,GBR_HL,3ae6b6861c.html [accessed 27 May 2023]
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.

Azam and others v Secretary of State for the Home Department and another

HOUSE OF LORDS

[1974] AC 18, [1973] 2 All ER 765, [1973] 2 WLR 1058, 137 JP 626

Hearing Date: 16, 17, 18, 21, 22 MAY, 11 JUNE 1973

11 JUNE 1973

Index Terms:

Immigration - Detention - Illegal entrant - Illegal entrant not given leave to enter or remain in United Kingdom - Detention pending directions for removal - Persons entering United Kingdom and present there in breach of immigration laws - Commonwealth immigrant - Immigrant entering United Kingdom clandestinely in breach of laws relating to Commonwealth immigrants previously in force - Immigrant no longer liable to prosecution under previous laws - Whether immigrant 'settled' in United Kingdom and deemed to have indefinite leave to remain - Whether immigrant 'illegal entrant' liable to detention and removal - Commonwealth Immigrants Act 1962, ss 4, 4A (as added by the Commonwealth Immigrants Act, 1968, s 3) - Immigration Act 1971, ss 1 (2), 4 (2), 33 (1), (2), 34 (1) (a), Sch 2, paras 9, 16 (2).

Held:

S was born in India. He arrived at Dover on 17th December 1967 and reported to the immigration authorities. He was refused admission. He returned on 9th January 1968 and was again refused admission. A few days later he returned in a small boat and, unknown to the authorities, landed somewhere on the coast. By entering after the refusal of admission he committed an offence under s 4 (1) a of the Commonwealth Immigrants Act 1962. Thereafter he lived and worked in he United Kingdom. In March 1968 the Commonwealth Immigrants Act 1968 came into force and, by s 3, added a new section, s 4A b, to the 1962 Act which made it an offence for a Commonwealth citizen to land in the United Kingdom without submitting to an examination by the Immigration authorities. In December 1968 K, an Indian, was brought to England by boat and entered the country clandestinely without reporting to the immigration authorites. In January 1970 A, a Pakistani, arrived in England by similar means. Thereafter both A and K lived in the United Kingdom and obtained employment. On 1st January 1973 the Immigration Act 1971 came into force. That Act repealed the 1962 and 1968 Acts and, by s 4 (2) c and Sch 2 d, conferred new powers on immigration authorities with respect to 'the removal from the United Kingdom of persons... entering or remaining unlawfully'. By s 34 (1) (a) the 1971 Act applied to entrants arriving in the United Kingdom before the Act came into force. In January 1973 A was detained under an order issued by the chief immigration officer under para 16 (2) of Sch 2 to the 1971 Act 'pending the completion of arrangements for dealing with him under the Act'. In February 1973 K and S were detained under similar orders. All three applied for writs of habeas corpus on the ground that their detention was unlawful.

a Section 4 (1), so far as material, provides: 'If any person being a Commonwealth citizen to whom section one of this Act applies -- (a) enters or remains within the United Kingdom, otherwise than in accordance with the directions or under the authority of an immigration officer, while a refusal of admission under section two of this Act is in force in relation to him... he shall be guilty of an offence; and any offence under this subsection, being an offence committed by entering or remaining in the United Kingdom, shall be deemed to continue throughout any period during which the offender is in the United Kingdom thereafter.'

b Section 4A, so far as material, is set out at p 769 h and j, post c Section 4 (2), so far as material, provides:

'The provisions of Schedule 2 to this Act shall have effect with respect to...(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully; and (d) the detention of persons pending examination or pending removal from the United Kingdom; and for other purposes supplementary to the foregoing provisions of this Act.'

d Schedule 2, so far as material, provides:

'8. -- (1) where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may [make directions for his removal from the United Kingdom]...

'9. 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 9 above are authorised by paragraph 8 (1)...

'16.... (2) A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given...'

Held - (i) S was an 'illegal entrant' within s 33 (1) e of the 1971 Act because the offence which he had committed under s 4 (1) of the 1962 Act by entering the country after being refused admission was expressly stated to be a continuing offence and was therefore continuing on the date when the 1971 Act came into force (see p 769 g, p 773 j, p 776 b to e and p 781 f and g, post). Furthermore S was, for the same reason, in the United Kingdom 'in breach of the immigration laws' when the 1971 Act came into force. By virtue of s 33 (2) he could not therefore be treated as being 'ordinarily resident' in the United Kingdom. In consequence he was not 'settled' there, within ss 1 (2) f, 2 (3) (d) g and 33 (1), and could not be treated under s 1 (2) as having been given indefinite leave to remain. It followed that, as an illegal entrant who had not been given leave to remain in the United Kingdom, S had been lawfully detained under paras 9 and 16 (2) of Sch 2 to the 1971 Act (see p 771 f, p 773 f, p 776 b to e and p 781 f and g, post).

e Section 33, so far as material, provides:

'(1) For purposes of this Act, except in so far as the context otherwise requies... "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... "immigration laws" means this Act and any law for purposes similar to this Act which is for the time being or has (before or after the passing of this Act) been in force in any part of the United Kingdom... "limited leave" and "indefinite leave" mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration; "settled" shall be construed in accordance with section 2 (3) (d)...

'(2) It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom... at a time when he is there in breach of the immigration laws...'

f Section 1 (2), so far as material, is set out at p 771 b, post g Section 2 (3), so far as material, is set out at p 771 d, post

(ii) A and K were 'illegal entrants' within s 33 (1) of the 1971 Act because they had landed in the United Kingdom in breach of s 4A of the 1962 Act.For that purpose no distinction could be drawn between the word 'landing', used in s 4A, and the word 'entering'; a person landing in the United Kingdom in breach of s 4A was a person 'entering... in breach of the immigration laws' within s 33 (1) (see p 770 d to f, p 773 j, p 776 b to e and p 779 a to c, post).

(iii) (Lord Salmon dissenting) At the date when the 1971 Act came into force A and K were in the United Kingdom 'in breach of the immigration laws' within s 33 (2) because they had entered in breach of s 4A of the 1962 Act. It was immaterial that, because the offence under s 4A was a summary offence which was not a continuing offence, they could no longer be prosecuted for the offence when the 1971 Act came into force; in consequence of their illegal entry their presence in the United Kingdom continued to be 'in breach of the immigration laws' even though they could no longer be prosecuted. Accordingly, for the same reasons as S, A and K could not be treated as having been given indefinite leave to remain in the United Kingdom. They had, therefore, been lawfully detained (see p 772 a to c and f, p 773 j and p 776 b to e, post).

Decision of the Court of Appeal sub nom R v Governor of Pentonville Prison, ex parte Azam [1973] 2 All ER 741, affirmed.

Notes:

For the power to detain illegal entrants, see Supplement to 1 Halsbury's Lasw (3rd Edn) para 987B, 7.

For the Commonwealth Immigrants Act 1962, ss 4, 4A, see 4 Halsbury's Statutes (3rd Edn) 32, 33.

For the Immigration Act 1971, ss 1, 2, 4, 33, 34, Sch 2, paras 9, 16, see 41 Halsbury's Statutes (3rd Edn) 16, 17, 22, 52, 54, 64, 67.

Cases referred to in the Judgment:

Director of Public Prosecutions v Bhagwan [1970] 3 All ER 97, [1972] AC 60, [1970] 3 WLR 501, 134 JP 622, 54 Cr App Rep 460, HL, Digest (Cont Vol C) 20, 157y.

Ingle v Farrand [1927] AC 417, 96 LJKB 523, 136 LT 770, 91 JP 75, 25 LGR 123,

11 Tax Cas 446, HL, 44 Digest (Repl) 288, 1175.

Phillips v Eyre [1870] LR 6 QB 1, 10 B & S 1004, 40 LJQB 28, 22 LT 869, Ex Ch, 44 Digest (Repl) 287, 1159.

Introduction:

Appeals. By notice of motion dated 16th February 1973 the applicant, Mohammed Azam, applied to the Divisional Court of the Queen's Bench Division for an order that a writ of habeas corpus should issue to the governor of Pentonville Prison. On 23rd February 1973 the court (Lord Widgery CJ, Cusack and Croom-Johnson JJ) ordered that the application be dismissed. By notice of motion dated 27th February 1973 the appellant, Gurbax Singh Khera, applied to the Divisional Court for an order that a writ of habeas corpus should issue to the Secretary of State for the Home Department and to the governor of Winson Green Prison, Birmingham. On 21st March 1973 the court (Lord Widgery CJ, James and Nield JJ) ordered that the application be dismissed. By notice of motion dated 12th March the appellant, Malkit Singh Sidhu, applied for an order that a writ of habeas corpus should issue to the Secretary of State for the Home Department and to the governor of Pentonville Prison. On 21st March 1973 the court (Lord Widgery CJ, James and Nield JJ) ordered that the application be dismissed. The appellants appealed to the Court of Appeal against the respective orders of the Divisional Court. The appeals were heard together and, on 3rd May 1973, the Court of Appeal n1 (Lord Denning MR and Stephenson LJ, Buckley LJ dissenting in relation to the appeals of the appellants Azam and Khera) dismissed the appeals. The appellants appealed to the House of Lords. The facts are set out in the opinion of Lord Wilberforce.

n1 [1973] 2 All ER 741, [1973] 2 WLR 949

Counsel:

T O Kellock QC and S Kadri for the appellant Azam. L J Blom-Cooper QC and Preetam Singh for the appellant Khera. David Turner-Samuels QC and Stephen Sedley for the appellant Sidhu. The Attorney-General (Sir Peter Rawlinson QC) and Gordon Slynn for the respondents.

Judgment-READ:

Their Lordships took time for consideration. 11th June.The following opinions were delivered.

PANEL: LORD WILBERFORCE, LORD HODSON, LORD PEARSON, LORD KILBRANDON AND LORD SALMON

Judgment One:

LORD WILBERFORCE. My Lords, the appellants in these three appeals have been detained by authority of an immigration officer acting under provisions in the Immigration Act 1971 to which I shall later refer. Their detention may be followed by their removal from the United Kingdom, if the Secretary of State makes an order to that effect. They have applied unsuccessfully for writs of habeas corpus and the present appeals are against the refusal of their applications.

Each of the appellants came into the United Kingdom clandestinely before the coming into force, on 1st January 1973, of the Immigration Act 1971. The bare facts and dates relevant for the present purpose are as follows:

Mohammed Azam, who came from Pakistan, arrived clandestinely in January 1970 in a small boat. He has been here ever since. He was seen by police officers in September 1972 but no action followed. On 26th January 1973, after the Immigration Act 1971 had come into force, he was seen by a chief immigration officer and some officers of police, and a detention order was made against him. He was put in prison and is still there.

Gurbax Singh Khera, who came from India, arrived clandestinely in December 1968 in a small boat. He was seen by police officers in December 1971 but early in January 1972 he was told by a police officer that there would be no further police action and that the full circumstances had been reported to the Home Office. A detention order was made against him on 5th February 1973: he was taken to prison and is still there.

Malkit Singth Sidhu was born at Jullundur, India. He arrived at Dover on 17th December 1967 and reported to the immigration authorities. He was refused admission. He arrived again on 9th January 1968 and was again refused admission. Soon after, he arrived in the United Kingdom clandestinely in a small boat and has been here ever since. In 1971 the Joint Council for the Welfare of Immigrants wrote on his behalf to the Home Office asking that he be given residential status, but this was refused. On 26th February 1973 he was seen by immigration officers and a detention order was made. He was put in prison, but later was granted bail pending the hearing of this appeal.

To these bare facts I would add that there lie behind each case human stories of hardship and struggle of which the learned judges who have heard these applications have been fully aware. They are not directly relevant to these appeals so I do not state them -- they are vividly presented in the judgment of Lord Denning MR. But it is right, I think, to bear in mind that the legal provisions, which we have to interpret and apply, operate in their nature on the way of life and basic rights of individuals and their families. We were told that there are a number of other persons in a similar situation, some of whose cases are reaching the courts. Most of these would concern persons clandestinely coming to the United Kingdom between the coming into effect of the 1968 Act and that of 1971.

The three cases have in common one thing: all three appellants came to the United Kingdom and were resident in the United Kingdom well before the Immigration Act 1971 came into force, so that to apply the provisions of that Act to them involves a measure of retroactivity. But (it is necessary to be clear as to this at the outset) this is not one of those cases where the courts are able to refuse to attribute retroactive effect to legislation. Parliament can, if it uses sufficiently clear words, give legislation retroactive effect and there is no doubt that it has done so here. The definition of 'illegal entrant' (s 33 (1)), is expressed to include a person who has entered the United Kingdom in breach of the immigration laws: and if there is any doubt whether the words 'has [so] entered' relate to entry before the coming into force of the Act (and not merely to entry before a question as to his entry arises), that is removed by the definition of 'immigration laws' which includes any law which 'has (before or after the passing of this Act) been in force'. So if the appellants are otherwise within the description 'illegal entrant' the Act must apply to them notwithstanding that they entered illegally before the 1971 Act came into force. The contrary (i e that the Act has not retroactive force) was not argued in this House and has not been held by any court.

The machinery which has been used in order to effect the detention of the appellants is set out in a complicated series of provisions in the 1971 Act. I regret that in a matter which affects directly so many individuals, so labyrinthine a path requires to be followed. I shall not attempt to trace its windings, for to do so would obscure the relatively compact points on which the appeals depend. It is sufficient to state that under paras 9 and 16 (2) of Sch 2 -- which is introduced through s 4 (2) of the Act -- immigration officers have power to authorise detention, pending the giving of directions and pending removal in pursuance of any directions, of 'an illegal entrant'. The first question therefore is whether these appellants are 'illegal entrants'. Even if they are, however, this is not the end of the matter: for, by virtue of s 1 (2) of the Act, a person is treated as having indefinite leave to remain in the United Kingdom if, at the date of the Act coming into force, he is settled there. The second question, therefore, is whether these appellants were 'settled' in the United Kingdom on 1st January 1973. In addition to these main points, there are certain subsidiary points separately invoked on behalf of individual appellants which I will state and deal with later.

In my opinion all three appellants were, on 1st January 1973, and are, illegal entrants. I have already referred to the definition of this expression: the question depends on whether they entered in breach of the immigration laws. The laws in question include the Commonwealth Immigrants Acts of 1962 and 1968.

In considering these Acts it is necessary to distinguish between the appellant Sidhu, on the one hand, and the appellants Azam and Khera, on the other. The appellant Sidhu entered clandestinely after being refused entry. By so doing he committed an offence of unlawfully entering and remaining in the United Kingdom under s 4 of the 1962 Act. This offence is expressly stated to be a continuing offence. It was continuing on 31st December 1972. So there is no doubt that he was an illegal entrant: the contrary was not contended in this House.

The position of the appellants Azam and Khera is different.They committed no offence under s 4 of the 1962 Act because they never sought permission to enter. In fact nothing in the 1962 Act affected them until the 1968 Act (s 3) amended it by introducing into the former a new s 4A. The relevant portions of s 4A are as follows:

'(1) Subject to the following provisions of this section, if any person being a Commonwealth citizen to whom section 1 of this Act applies lands in the United Kingdom and does not fulfil either of the conditions specified in the next following subsection, he shall be guilty of an offence.

'(2) The conditions referred to in subsection (1) of this section are -- (a) that, while on board the ship or aircraft from which he lands in the United Kingdom, he has been examined by an immigration officer; (b) that he lands in accordance with arrangements approved by an immigration officer, and on landing, submits to examination in accordance with those arrangements...

'(7) In this section "land" means land from a ship or aircraft...' The section fixed a period of 28 days from the date of landing within which the person concerned was obliged to submit to examination, so that, after the expiry of the 28 days, an offence would be committed if he did not so submit. Any prosecution for this offence must be brought within six months under the general law applicable to summary offences (Magistrates' Courts Act 1952, s 104).

It will be seen that this section did not, as did s 4 of the 1962 Act, create a continuing offence: after the expiry of six months or, it may be, six months and 28 days after an unlawful landing no prosecution could be brought. Nor, it should be added, could any administrative action be taken to remove them. They had acquired, as Lord Widgery CJ has said, some status of irremovability. But the fact that they were irremovable does not mean that their entry was legal.

The question is whether Mr Azam and Mr Khera were illegal entrants as having entered the United Kingdom in breach of the immigration laws. The argument that they were not, rests on a distinction sought to be drawn between 'entering' and 'landing'. The new s 4A, it was said, was a provision of an administrative and limited character whose purpose was to regulate merely the initial step of landing in this country. Once that was accomplished (lawfully or unlawfully), entry into the United Kingdom and remaining there was by virtue of the entrants' constitutional rights as British subjects to enter and remain. This right was not affected by the Act of 1962 or that of 1968. (See Director of Public Prosecutions v Bhagwan n1.)

n1 [1970] 3 All ER 97, [1972] AC 60

My Lords, I am unable to accept this distinction. In my opinion, s 4A is not merely an administrative provision if that expression means something without substantive effect on a person's rights. It subjects, as from its coming into effect, the pre-existing right of Commonwealth citizens freely to enter by providing that they must thenceforth do so in a particular manner, failing which their landing is unlawful. In this context there is no distinction between landing and entry, the landing is the entry, and the entry is the landing. I can see no warrant for splitting the process carried out by these appellants into an initial physical act of touching British soil and a later social act of joining the community: any such supposed division would surely astonish the newly arrived as much as it perplexes the lawyer. To suppose that, if a boat arrived clandestinely on a beach conveying these three appellants, Mr Sidhu, who made an attempt to comply with the law, would be an illegal entrant but Mr Azam and Mr Khera, who simply disregarded it or defied it, would not, would attribute a truly arbitrary character to this legislation. In my opinion, all three are 'illegal entrants'.

Then comes the question whether the appellants, or any of them, are to be treated as having indefinite leave to remain. In order to understand this question some more detailed reference to the legislation is required.

Before the 1962 Act, Commonwealth citizens were free to enter and to remain in the United Kingdom as of right. By the 1962 Act, if they arrived at a port of entry, they were required to submit to examination, and entry could be refused. If a man came in clandestinely, without having been refused entry, he committed no offence until the amendment introduced by s 3 of the 1968 Act. Subject to these controls, Commonwealth citizens retained the basis right, as British subjects, to enter and remain in and to leave and re-enter the United Kingdom.

The Immigration Act 1971 introduced as from 1st January 1973 a redical change. British subjects were divided into two categories 'patrials' and others. Patrials, defined in detail in s 2, are free to live in and to come and go into and from the United Kingdom without let or hindrance. Others, which includes, generally, Commonwealth citizens, may 'live, work and settle in the

United Kingdom by permission...', subject to regulation and control of their entry, stay in and departure.

There were, as Parlimament well knew, a large rumber of Commonwealth citizens in the United Kingdom at the date when the Act came into force. Parliament must have known that many of these persons had entered illegally. It must have known that many of these illegal entrants had been here for a number of years, and had established themselves in the community by taking employment, acquiring houses, paying taxes and social security contributions.So these cases had to be dealt with. Broadly what Parliament did was to provide that those lawfully here were to be treated as having received indefinite leave to remain, Others, if they did not get permission to remain, and the Act made provision for their doing so, were liable to be removed. The critical question relates to the definition of these categories.

The relevant provisions (omitting immaterialities) must be set out: s 1 (2) states:

'... indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).'

The critical word here is 'settled'. And it is to be noticed that this section in terms relates to persons already in the United Kingdom when the section came into force.

Section 33 (1) provides that 'settled' shall be construed in accordance with s 2 (3) (d), and the latter states that:

'... references to a person being settled in the United Kingdom... are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.' 'Ordinarily resident' is not defined in the Act, so it must be given its normally understood meaning. I think it is clear that, parat from the next provision to be mentioned, all three appellants would be regarded as 'ordinarily resident' in the United Kingdom on 1st January 1973. But s 33 (2) declares that:

'... except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom... at a time when he is there in breach of the immigration laws.' It is on the last 13 words that this point depends.

There can be no doubt that they prevent the appellant Sidhu from being regarded as ordinarily resident and so from having indefinite leave to remain. As already explained, he was at that date guilty of a continuing offence against s 4 of the 1962 Act. His counsel could not argue that this was not the case. But, again, it was contended that the other two cases (Azam and Khera) were different for the reason already stated -- that they were not guilty of any continuing offence. They had, it was true, committed offences against s 4A, but the time limit for prosecution for these offences had expired: the illegality had 'dropped away'; they were no longer here in breach of the immigration laws. My Lords, however arbitrary a distinction between the case of Sidhu, on the one hand, and those of Azam and Khera, on the other, might appear to be, your

Lordships would, I apprehend, give effect to it if the language of Parliament so directed. For myself, I would be prepared to go further and if there was real doubt to give the two appellants the benefit of it. On 31st December 1972 there were no administrative means of removing them from the United Kingdom; to apply s 33 (2) against them affects that status, and to some extent affects their liberty. These circumstances call for care in interpretation. But, in my opinion, s 33 (2) admits of no doubt.

First, as a matter of language. The words 'at a time when...' are at first sight puzzling. But I accept the explanation that they take this form because they had to cover both the case of a continuing breach, and also the case where a person has entered on a condition, or for a limited period, and has broken the condition or outstayed the permission. For these purposes they are appropriate: they do not naturally extend to the case when an admitted breach has ceased to be capable of prosecution; and since they carry a natural and explicable meaning, there is no call to strain them to a meaning they naturally do not bear. So everything depends on the words which follow 'when he is there in breach of the immigration laws'.These do not, in my opinion, require that there should be subsisting a breach in respect of which sanctions may be imposed. The words are not 'when he is committing a breach': the emphasis is on 'there'. They are apt, if not ideal, to cover the case of a person whose presence there arises from a breach -- indeed to cover any case of an illegal entrant. They apply just as much to an illegal entrant as to a person whose presence originally lawful has come to be unlawful. To say, as the appellants must, that a man may be an illegal entrant, because he entered the United Kingdom in breach of the immigration laws, and yet may not be there in breach of the immigration laws is too subtle an argument for me to accept.

But I would not wish to decide this point on a dry interpretation of the words alone. It is necessary to try to understand the Parliamentary intention. In search of this I can find no warrant for introducing a class of persons whose presence was once illegal, but whose illegality has 'dropped away'. If Parliament had intended to confer an indirect amnesty of this kind, it would surely have done so by express words. If the presence here was once 'in breach of the immigration laws' I find difficulty in seeing how, unless Parliament so states, it could change its quality by the mere expiry of a time fixed for summary prosecution.

I would further test the present cases by considering the groups of persons present in the United Kingdom on 1st January 1973, with whom Parliament must have intended to deal. These included (there may be other cases) (i) Commonwealth citizens who arrived before the period of control -- i e before the 1962 Act; (ii) Commonwealth citizens who arrived after the 1962 Act and before the 1968 Act but otherwise than through ports of entry: until the 1968 amendment these persons were not in breach of any immigration laws; (iii) Commonwealth citizens admitted unconditionally under the pre-1973 control procedure. All of these persons were clearly intended to benefit from s 1 (2) and to be treated as having indefinite leave to remain.

On the other side, there are (i) persons who entered unlawfully after a refusal (such as the appellant Sidhu), (ii) persons whose original entry was lawful but who have remained unlawfully, because the conditions in which they entered have not been complied with. Such persons, however long they have been in the United Kingdom, are evidently excluded from those deemed to have leave to remain. If one asks into which category the Parliamentary scheme places persons in the position of the appellants Azam and Khera, there can be only one answer. They must come within the second.

The argument was used, understandably enough, that a construction of the Act ough not to be accepted which would expose persons who had established themselves long ago in this country to the hardship of uprooting and removal elsewhere. I sympathise with this argument (though I note that if it is valid it applies however short the period of unlawful residence once the six months period has elapsed) but there are answers to it. In the first place, the 1971 Act provides (s 3) for leave to remain being applied for and granted. In the second place, although the procedure of detention can be applied -- and I do not wish to minimise the unpleasantness of this -- the decision whether to remove or not is made by the Secretary of State. I have no doubt that in exercising his discretion he will give full weight to the record of each case and to human factors. It must not be overlooked what the character of this legislation is. It is concerned with the control of immigration into an overcrowded island: persons who have slipped in outside the controls may well make it more difficult for others to come in. So it is not unreasonable that persons who came in illegally in this way should be denied an automatic right to remain indefinitelv and should have the opportunity of applying for leave to remain, and in the final resort should have to have their cases considered on a balance of merits and in relation to other cases by the Secretary of State.

For all these reasons I would hold that the appellants are not able to make good either of their two main points.

It remains to refer to some special contentions put forward by learned counsel, in discharge of their duty, for individual appellants. I deal with these briefly since they have not found favour with any of the learned judges below.

(1) For the appellant Azam it was contended that he must be presumed to have been granted leave to remain under s 34 (2) of the 1971 Act. This subsection, as I understand it, means that a Commonwealth citizen given leave to enter by virtue of the 1962 or 1968 Acts is treated as having been given leave to enter under the 1971 Act. Such a person (by s 34 (3)) is treated as having indefinite leave. However, the appellant Azam (and the same is true of the appellant Khera) had nothing 'by virtue of' either previous Act, so that this subsection does not avail him.

(2) For the appellant Khera, two points were argued. The first can be stated in this way. It was admitted (contrary to the contention put forward on behalf of the appellant Azam) that presence in the United Kingdom originally established in breach of s 4A of the 1962 Act remained unlawful notwithstanding expiry of the period of prosecution. But this character of unlawfulness could be waived so as to permit a person to be treated as ordinarily resident otherwise than in breach of the immigration laws. It was said to have been waived in the appellant Khera's case. Whether or not this argument is soundly based in law, I am of opinion that it wholly fails on the facts. The fact said to give rise to the waiver was the statement by a police officer in January 1972 (to which I have referred) that there would be no further police action and that the full circumstances had been reported to the Home Office. I can interpret this as doing no more than referring to the indisputable fact that no prosecution could be brought against the appellant. It had nothing to do with the quality of his residence: the statements itself, by reference to the Home

Office, signifies the contrary.

The second points is even less substantial. It was said that the action of the immigration officer, in authorising the detention of the appellant, was invalid, because he had failed to consider, or enquire into, the essential question whether the appellant had been given leave to remain.

In the first place, I do not accept that the immigration officer had any duty to enquire whether the appellant, an illegal entrant, had been given such leave. But whether he had or not, the evidence of the immigration officer makes it clear that the appellant had every opportunity, which he did not take, of asserting that he had leave to remain. The contention fails in fact and in law.

(3) For the appellant Sidhu, reliance was placed on s 34 (4) of the 1971 Act which states that the Act shall not apply (b) in relation to removal from the United Kingdm and matters connected therewith (including detention pending removal) in any case where a person is to be removed in pursuance of a decision taken before the coming into force of the Act. The refusal to admit this appellant was said to have been such a decision. The validity or otherwise of this contention does not depend on a distinction, sought to be drawn, between 'in pursuance of' and 'in consequence of' but on the nature of the 'decision' there referred to. It is quite clear from a reference back to s 34 (4) (a) that the decision in question is an unimplemented decision, made before the Act, to deport or remove. No such decision had been made against this appellant before the Act came into force: he was detained in pursuance of a decision made after that date.

I would dismiss each of the appeals.

Judgment Two:

LORD HODSON. My Lords, I have had the opportunity of reading the speech prepared by my noble and learned friend, Lord Wilberforce. I agree that these appeals should be dismissed for the reasons given by him.

Judgment Three:

LORD PEARSON. My Lords, before the passing of the Commonwealth Immigrants Act 1962 every Commonwealth citizen had the right at common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain as long as he liked: see Director of Public Prosecutions v Bhagwan n1. But as there was a continuing flow of immigrants from Commonwealth countries into the United Kingdom, which was already densely populated, steps to control the immigration were taken by that Act. As appears from its long title and s 5 (1) it was intended originally as a temporary Act to make 'temporary provision' for controlling such immigration and, though in fact its duration was prolonged by Parliament, its original temporary character helps to account for the incompleteness of the control which it introduced. As Lord Diplock said in Director of Public Prosecutions v Bhagwan n2:

n1 [1970] 3 All ER 97 at 99, [1972] AC 60 at 74

n2 [1970] 3 All ER at 103, [1972] AC at 78

'The inference from this is that the method of control enacted was intended to be experimental. Parliament was to have an opportunity of seeing how it worked.'

The gap in the control arrangements, which has been called 'the Bhagwan gap' because its existence was affirmed in Director of Public Prosecutions v Bhagwan n3 arose in this way. Under s 3 of the Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a 'ship' (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration officer to submit to examination. Under ss 2 and 3 (1) (b) of the Act and para 2 of Sch 1, the immigration officer then had power, within 12 hours after the examination, to give notice refusing the Commonwealth citizen admission into the United Kingdom or admitting him subject to conditions. If the immigration officer refused admission, he could under s 3 (1) (c) of the Act and para 3 of Sch 1 give directions for the removal of the Commonwealth citizen from the United Kingdom. Also if the Commonwealth citizen, having been refused admission, entered the United Kingdom, he was under s 4 of the Act guilty of an offence which continued while he was in the United Kingdom and under s 14 he was liable on summary conviction to be fined, or imprisoned.The six months limitation under s 104 of the Magistrates' Courts Act 1952 would not operate to bar a prosecution because the offence was continuing. He could, therefore, be prosecuted at any time while he remained in the United Kingdom, and, if he was convicted and recommended by the court for deportation under s 7 of the 1962 Act, a deportation order could be made by the Secretary of State unders 9. Thus, in the case of a person who had been refused admission, even if the time for giving directions for removal had passed by, there might still be a prosecution and conviction leading to deportation. In the case of a person admitted subject to conditions, if he remained in the United Kingdom in breach of a condition, there was (apart from the special provisions of Part II of Sch 1 relative to seamen and stowaways) no power for the immigration officer to give directions for removal of such a person, but he could be prosecuted at any time under ss 4 and 14 for the continuing offence, and if he was convicted and recommended by the court for deportation under s 7 a deportation order could be made by the Secretary of State under s 9.

n3 [1970] 3 All ER 97, [1972] AC 60

The immigration control under the 1962 Act seems to have been reasonably effective in any case where the necessary first step was taken, that is to say where the Commonwealth citizen was within 24 hours after landing required by the immigration officer to submit to examination. If that necessary first step was not taken, no other steps could follow. Thus, if a Commonwealth citizen landed on a deserted beach and kept out of the way of immigration officers for 24 hours after landing he could not thereafter be required to submit to examination, and therefore, as that essential first step could not be taken, none of the subsequent steps could be taken, and he was not liable to be removed or deported from the United Kingdom (unless he committed and was convicted of some other criminal offence for which he might be imprisoned). That was the gap in the control arrangements.

The gap was narrowed but not fully closed by the Commonwealth Immigrants Act 1968, and s 16 of the Immigration Appeals Act 1969. The 1968 Act made a number of amendments in the 1962 Act and in particular by s 3 it inserted a new s 4A, of which the first two subsections provided:

'(2) The conditions referred to in subsection (1) of this section are -- (a) that, while on board the ship, or aircraft from which he lands in the United Kingdom, he has been examined by an immigration officer; (b) that he lands in accordance with arrangements approved by an immigration officer, and on landing, submits to examination in accordance with those arrangements.' Section 4 of the 1968 Act amended para 1 (2) of Sch 1 to the 1962 Act by increasing from 24 hours to 28 days the time after landing within which a Commonwealth citizen could be required to submit to examination.

These provisions did not make the control arrangements complete. It was under s 4A now an offence for a Commonwealth citizen to land in the United Kingdom and not to submit to examination, and there was now a period of 28 days within which he could be required by the immigration officer to submit to examination. But if in fact he did not submit to examination, then (a) as there was no refusal of admission, there was no power for the immigration officer to give directions for removal, and (b) when the six months period for prosecution had expired, as the offence under s 4A had not been made a continuing offence there was no possibility of a prosecution for this offence leading to conviction and a recommendation and order for deportation. Those Commonwealth citizens who landed clandestinely on deserted beaches and were able to escape detection until the 28 days for requiring examination and the six months for prosecution under s 4A had expired, could not be removed or deported unless convicted of some other offences.

Section 16 of the 1969 Act empowered the Secretary of State to make a deportation order, not based on a conviction and court recommendation, against a Commonwealth citizen who had been conditionally admitted and had failed to comply with the conditions -- subject to an exception if the Commonwealth citizen had been ordinarily resident in the United Kingdom for at least five years. This simplified the procedure but did not radically alter the position.

Clandestine immigration was not difficult. The person concerned could be landed on a deserted beach and transported in the back of a van to an inland destination. It was common knowledge, or at any rate a widespread popular belief, that clandestine immigration had been and still was taking place on a substantial scale. There was a distinction between two classes of clandestine immigrants. Those who, not having been refused admission, made their secret entry before the coming into force of the 1968 Act (which was on 9th March 1968) had the benefit of the full 'Bhagwan gap': they lawfully avoided the control, committing no offence. Those who made their secret entry after the coming into force of 1968 Act committed an offence against the new s 4A. If they escaped detection for long enough they became immune from prosecution and deportation for that offence, but, as a matter of ordinary language without statutory definition, they were illegal entrants and they were present in the United Kingdom in breach of the immigration laws. The class of illegal entrants would also include a person such as the appellant Sidhu who made his secret entry before the coming into force of the 1968 Act but after having been refused admission.

Those were features of the situation with which Parliament had to deal in enacting the Immigration Act 1971. How, then, did Parliament in the 1971 Act deal with the two classes of clandestine immigrants? I do not think there is any real doubt as to the answer to this question. The most material provisions of the 1971 Act are ss 1 (1) and (2), 2 (1) and (3) (d), 4 (2), the definition of 'illegal entrant', 'immigration laws', and 'settled' in ss 33 (1), (2), 34 (1) (a) and paras 9 and 16 of Sch 2.

The first class, those who in the period before the coming into force of the 1968 Act entered clandestinely but without committing any offence, are protected. They are not 'illegal entrants' into the United Kingdom and also they are ordinarily resident in the United Kingdom and not 'there in breach of the immigration laws' and therefore 'settled' and entitled to the indefinite leave to remain under s 1 (2). The second class, those whose clandestine entry was in breach of s 4A of the 1962 Act as amended by the 1968 Act (or in breach of s 4 of the 1962 Act if they had previously been refused admission) are, in my opinion, 'illegal entrants' to the United Kingdom and 'there in breach of the immigration laws' within the meaning of s 33 (2) and, therefore, not 'settled' and not entitled to the indefinite leave to remain under s 1 (2). Those who when they landed failed to comply with s 4A were illegal entrants because the landing was or formed part of their entry into the United Kingdom. They have been from the beginning and still are in the United Kingdom in breach of the immigration laws: that is a continuing status, as no leave to remain has been given.

I have had the advantage of reading the opinion of my noble and learned friend, Lord Wilberforce, and I agree with it. For the reasons given by him and for those which I have indicated I would dismiss these appeals.

Judgment Four:

LORD KILBRANDON. My Lords, I also have had the opportunity of reading the speech prepared by my noble and learned friend, Lord Wilberforce. I agree that these appeals should be dismissed for the reasons given by him.

Judgment Five:

LORD SALMON. My Lords, it is generally considered unjust that a statute dealing with substantive rights should operate retrospectively. Hence the rule that such a statute will not be construed as having retrospective effect unless the language of the statute expressly or by necessary implication makes it clear that the legislation intended it to have such an effect: see Maxwell on the Interpretation of Statutes n1, Phillips v Eyre n2, Ingle v Farrand n3.

n1 12th Edn (1969), p 215

n2 (1870) LR 6 QB 1

n3 [1927] AC 417

Prior to the Commonwealth Immigrants Act 1962 Commonwealth citizens, like all other British subjects, had unrestricted rights under the common law to live and work and remain in the United Kingdom. They also had ancillary unrestricted rights to enter the United Kingdom. That Act was passed as a temporary experimental measure to control immigration. It had become necessary to control immigration because the number of Commonwealth immigrants coming to the United Kingdom was so large that serious social and economic difficulties arose in absorbing them into the community. Section 2 of the Act gave an immigration officer power, in certain circumstances, to refuse a Commonwealth immigrant admission into the United Kingdom or to admit him subject to conditions. Section 4 of the Act made it a continuing offence for a Commonwealth citizen to enter or remain in the United Kingdom otherwise than in accordance with the directions or under the authority of an immigration officer while a refusal of admission under s 2 of the Act was in force in relation to him or to contravene or fail to comply with any condition imposed on him by an immigration officer under the Act. Anyone, however, who entered this country otherwise than at a recognised port of entry could not be refused admission or have any condition imposed on him by an immigration officer because he would not meet one. Accordingly such a person would not be committing a breach of the Act by entering or remaining here. He could lawfully enter and remain by virtue of his ordinary common law rights. (See Director of Public Prosecutions v Bhagwan n4.)

n4 [1970] 3 All ER 97, [1972] AC 60

A large number of Commonwealth immigrants took advantage of this gap in the 1962 Act by avoiding recognised ports of entry. They usually came here in small boats, landing at night on lonely parts of the coast. They thus encountered no immigration officers. In order to deal with these cases, the Commonwealth Immigrants Act 1968 was passed, which by s 3 introduced a new section into the 1962 Act, namely, s 4A. This new section made it an offence, but not a continuing offence, for a Commonwealth citizen to land in the United Kingdom unless he submitted himself to examination by an immigration officer whilst on board the ship or aircraft from which he landed, and landed in accordance with arrangements approved by an immigration officer. That section, unlike s 4, did not take away the right to be or remain in the United Kingdom but only restricted the right to enter thus putting difficulties in the way of being and remaining in the United Kingdom. save insofar as the 1962 Act (as amended) restricted the common law rights of Commonwealth citizens to enter or took away the right to be or remain in the United Kingdom, those rights were preserved intact. If a Commonwealth citizen committed a breach of s 4A he was not subject to detention by the executive, nor to being deported otherwise than after conviction. If, however, he were convicted of an offence under that section or, with certain immaterial exceptions, of any other offence for which he was liable to imprisonment, the court convicting him had power to recommend him for deportation and the Home Secretary then, but only then, had power to order him to be deported.

All the appellants are Commonwealth citizens. The appellants Azam and Khera came to this country in small boats and landed at a lonely part of the coast in January 1970 and December 1968, respectively. They have remained here ever since without ever submitting themselves for examination by an immigration officer. The appellant Sidhu arrived here in a similar fashion in January 1968 after having twice previously been refused admission by an immigration officer at a recognised port of entry. The appellants Azam and Khera accordingly committed offences only under s 4A, which were not continuing offences and affected only the right to enter, whilst the appellant Sidhu (with whose case I shall later deal separately) committed an offence under s 4 which was a continuing offence and affected his right to be in the United Kingdom as well as his right to enter. The appellants Azam and Khera could not be prosecuted for their offences under s 4A (being summary offences) after the end of six months from the time when those offences were committed (Magistrates' Courts Act 1952, s 104). Accordingly, from about the middle of 1970 the appellant Azam was immune from prosecution and deportation under the 1962 Act and the appellant Khera was likewise immune from about the middle of 1969. Ever since those dates they have been resident in this country. The have behaved and worked well and have been highly commended by their employers. Soon after 1st January 1973 when the Immigration Act 1971 came into force, they were thrown into prison on the authority of the chief immigration officer and have remained there ever since awaiting the decision of the Home Secretary whether or not they are to be deported. They applied for writs of habeas corpus, claiming that their detention was unlawful. It is argued on behalf of the Crown that their detention in prison is justified by the provisions of the Immigration Act 1971. The Divisional Court refused the applications for habeas corpus and the Court of Appeal n1, Buckley LJ dissenting, dismissed appeals from those decisions. They now appeal to this House. I should add that the decision of the Home Secretary has very naturally been deferred pending the final outcome of the appellants' applications.

n1 [1973] 2 All ER 741, [1973] 2 WLR 949

For some years prior to January 1973 the appellants Azam and Khera had been residing here without any risk of being prosecuted in the courts or interfered with by the executive under the law as it then was. It is true that the breaches of s 4A which they had committed on landing in this country had rendered them liable to prosecution which might have resulted in a recommendation for deportation but, as already indicated, the time during which they might have been prosecuted had long since expired.

I agree that the 1971 Act may have been retrospective in its effect and that subject to the appellants Azam and Khera being 'settled' here on 1st January 1973 within the meaning of s 1 (2) of the Act, their present detention is lawful and the Home Secretary may make an order and all necessary arrangements for them being sent back from whence they came. There are, of course, many others in the same position as the appellants Azam and Khera. Indeed, we have been told that this is a test case. There can be no doubt that the 1971 Act may give the executive power to deprive many of these of their liberty because of an offence long past which at the time it was committed conferred no such power on the executive. Whether or not an Act should be retrospective in its effect is a matter for the decision of Parliament alone. It depends essentially on legislative policy -- something with which neither the courts nor this House, sitting in its judicial capacity, are in any way concerned. I feel bound, however, to express concern that the draftsmen of this Act should have chosen to achieve its retrospective effect through a labyrinth of verbiage which may well have been as perplexing to many of those who had to consider it in Parliament as it undoubtedly was to those whom it may have deprived of their constitutional rights.

It is not until you turn to paras 8 to 16 of Sch 2 to the Act that you find the first clue that the Act may give a new power to the Home Secretary to give directions for the removal of persons who have in the past entered the United Kingdom in breach of s 4A of the 1962 Act and a new power to an immigration officer to authorise the detention of such persons pending the giving of such directions by the Home Secretary. Paragraph 9 is the critical paragraph and reads 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). At first sight anyone might be forgiven for thinking that this paragraph is referring to persons entering illegally after the Act comes into force. If, however, you refer to s 33 (1) which is the interpretation section you find:

'... "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...'

Again, it would be natural to assume that the words I have emphasised refer to a person who has entered after the Act came into force and 'the immigration laws' mean those laws contained in the Act. If, however, you pursue your study of s 33 you will find:

'... "immigration laws" means this Act and any law for purposes similar to this Act which is for the time being or has (before or after the passing of this Act) been in force in any part of the United Kingdom...' Accordingly, I am driven to the conclusion that subject to s 1 (2) of the Act, by necessary implication the powers conferred in paras 8 to 16 of Sch 2 may be exercised retrospectively in respect of Commonwealth immigrants who before the 1971 Act came into operation entered the United Kingdom in breach of s 4A of the 1962 Act, but had been lawfully residing there for years, without let or hindrance and free from fear of removal. It would surely have been easier, far more satisfactory and fairer to have made this plain by express language in one of the main sections of the Act. It is impossible to ignore the danger that the unnecessarily circuitous and complicated fashion in which the power to act retrospectively was conferred (if it was conferred by the Act) may have concealed the very existence of that power.

My Lords, notwithstanding the interesting argument to the contrary, in my opinion, the appellants Azam and Khera were clearly 'illegal entrants' within the meaning of those words in the 1971 Act. It seems to me that the distinction which counsel for the appellant Azam seeks to draw between (a) the word 'entered' in s 4 of the 1962 Act and 'entrant' in s 33 of the 1971 Act and (b) the word 'lands' in s 4A of the 1962 Act is a distinction without a difference for present purposes. I recognise that anyone who disembarks at a recognised port of entry, is refused admission by an immigration officer and is then sent back from whence he came would undoubtedly have landed but may well be said not to have entered the United Kingdom. When, however, a man steps ashore from a small boat on a lonely part of the coast and proceeds inland he has surely entered the United Kingdom and his landing on the shore is necessarily an integral part of his entry.

I agree, therefore, that the appellants Azam and Khera are now lawfully detained and may be deported unless indefinite leave to remain in the United Kingdom is to be treated as having been given to them under s 1 (2) of the 1971 Act at the time of its coming into force. This depends on whether they were then 'settled' in the United Kingdom within the meaning of that word in s 1 (2). The word 'settled' means ordinarily resident in the United Kingdom: see s 2 (3) (d) of the 1971 Act. Whether a person is ordinarily resident in a country is a question of fact. No one suggests that, according to the natural meaning of those words, the undisputed evidence shows that both the appellants Azam and Khera were ordinarily resident here on 1st January 1973 and had been so resident for some years. This would seem to resolve the appeal in favour of the appellants Azam and Khera. And so it clearly would but for s 33 (2) which, so far as material, reads:

'It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom... at a time when he is there in breach of the immigration laws.'

The result of this appeal can, therefore, be seem to turn on whether during the years in which the appellants Azam and Khera were residing and working in the United kingdom they were there 'in breach of the immigration laws'. I agree with Buckley LJ that they were not. In my view, in spite of having committed a breach of s 4A of the 1962 Act they were here in pursuance of their common law rights, untouched by that Act, to be here as Commonwealth citizens -- rights which they enjoyed as British subjects up to 1st January 1973. It is true that as from that date their common law rights were taken away. From then on, a man was either a patrial or a non-patrial. Commonwealth citizens were non-patrials and in much the same position as aliens. They had no right to enter or remain in the United Kingdom without leave (see ss 1 (2) and 3 (1) of the 1971 Act). Even after leave was given, or treated as having been given, they could still be deported under s 3 (5) and (6), subject to the provisions of s 7 of the 1971 Act. Sections 1 (2) and 3 (1) are not, however, retrospective. Those sections do not affect what is vital to this appeal, namely, the status or constitutional rights which Commonwealth citizens had enjoyed prior to 1st January 1973. Those rights included the right to enter and remain here save insofar as any of those rights were taken away by the 1962 Act.

The only section of that Act affecting the appellants Azam and Khera was s 4A. That section regulated the manner in which they should exercise their common law rights of entry. It did not purport to take away those rights or the right to be or remain here. If they entered in breach of the section (as they undoubtedly did) then, as Buckley LJ has so aptly said, all the section did was to impose a discouraging penalty. Their method of landing and entering constituted an offence but it was not a continuing offence. It was complete at the time of landing or entry. It was then that they committed the breach. They were not committing a breach of s 4A at any time thereafter.

I cannot, with respect, agree that they had only acquired a 'de facto status of irremovability'. Indeed, I find some difficulty in understanding the concept of such a status. Either you have a legal right to remain or you are under a legal liability to be removed. Their status of irremovability was, in my view, clearly de jure. They could not lawfully have been detained or removed by the executive. After the lapse of six months they could not have been prosecuted or recommended for deportation unless they had committed some other offence which was punishable by imprisonment. They had the legal right to live here and go free; and that right would have been vindicated by the courts. Had they been detained in prison pending deportation, they could have applied to the courts for habeas corpus as they have done now. There would then have been no answer to such an application. All this may be considered by some to constitute another gap in the 1962 Act. But if so, it is not a gap which can now be filled by considering into which category of person the appellants Azam and Khera ought to be placed, whether they ought to be placed in that category of persons which includes amongst others those who came here clandestinely prior to 1968 and who are treated as having indefinite leave to remain here under s 1 (2) of the 1971 Act or whether they ought to be placed in that category of persons such as those who came here in breach of s 4 of the 1962 Act and are clearly excluded from those deemed to have leave to remain. The question is not into which category ought they to be placed -- a question about which there may be differing views -- but whether the legislature by express words or necessary implication has placed them in the second category. I read the words in s 33 (2) of the 1971 Act, 'at a time when he is there in breach of the immigration laws' as only meaning whilst committing a breach and not as also meaning after having committed a breach or in consequence of having committed a breach of the immigration laws. If the legislature had intended it to have the latter meanings as well as the former it would surely have said so in plain English. The language of s 33 (2) is at least as consistent with the restricted meaning which I attribute to it as with the extended meaning for which the Crown contends. It is because this subsection affects the liberty of the subject by cutting down his basic constitutional rights, that I consider that it should be confined to the restricted meaning. So construed, the appellants Azam and Khera, were clearly 'settled' in the United Kingdom and must be treated as having been given indefinite leave to remain there at the time when the Act came into force.

I do not consider that the fact that the 1971 legislation is not criminal in character affords any reason for giving s 33 (2) an extended meaning. If that legislation had created criminal offences, it would, at any rate, have given the appellants Azam and Khera the protection that they could not have been deported except on the recommendation of a court of law. As far as they are concerned, if s 33 (2) is given an extended meaning, the Act did something far worse than creating a criminal offence. It imposed on them the liability to be imprisoned and deported by the executive in place of the right which they had previously enjoyed to live here and go free.

To give s 33 (2) an extended meaning would enable the executive, in the future, to seize and imprison a Commonwealth citizen, long resident in this country and leading a blameless life, because of a summary offence which he had committed in the distant past and for which he had for years been immune from prosection or for which he may long ago have been tried, convicted and punished. It seems incongruous to describe such a man as being here in breach of the immigration laws. If such a man can properly be so described then he could be kept in prison pending consideration of whether or not he should be deported. He might then have his whole life and that of his family uprooted by being in fact deported. At best, he would be detained in prison for as long as it might take the Home Office to reach a decision. It is not unreasonable to suppose that this might take weeks or even longer. The construction of the subsection which I favour would make this interference with individual liberty impossible. I certainly do not share the view that there is no harm in construing a statute so widely that it gives the executive such a power because the executive can be relied on not to use it or, if they do, to use it fairly.

If s 33 (2) is confined to its restricted meaning, the 1971 Act confers no power on the executive now to imprison or deport anyone in the position of the appellants Azam and Khera. It is not for us to speculate why Parliament should have distinguished between the consequences of a breach of s 4 and the consequence of a breach of s 4A. Parliament undoubtedly did so in 1968 and, as I think, did so again in 1971.

To give s 33 (2) its restricted meaning certainly curtails the retrospective effect of the statute. It could not then be applied retrospectively in derogation of the liberty enjoyed by those in the position of the appellants Azam and Khera. Its language is certainly not ideal nor, in my view, apt, expressly or by necessary implication, to include such persons within its ambit.

I, of course, recognise the importance in the public interest of giving the executive the widest powers effectively to control immigration.Whatever may have been the shortcomings of the previous legislation, the 1971 Act undoubtedly does confer those powers on the executive for the future. By s 3 (5) and (6) it also gives the executive power, in appropriate circumstances, to deport any non-patrial, including, of course, persons who have committed a breach of s 4A of the 1962 Act. No question, however, arises in the present case under that section of the Act.

The following illustration may be of some assistance in considering the true construction of s 33 (2). A has recently become a member of the House of Lords and has been duly introduced. As a result he has a constitutional right to enter the Chamber and to vote. For security reasons, a regulation having the force of law is promulgated making it an offence to enter the Chamber without first producing a pass to the attendant on duty. It does not, however, take away his constitutional right to be there or to vote. A, who has mislaid his pass, pushes past the attendant who does not recognise him and enters the House. He takes his seat and votes. Surely he is not in the Chamber and does not vote in breach of the law. He is there lawfully and lawfully records his vote in accordance with his constitutional rights although in entering he committed a breach of the law for which he is no doubt answerable. The constitutional right to reside in this country which the appellants Azam and Khera, as British subjects, enjoyed up to 1st January 1973 were surely no less than the constitutional rights which any member of this House enjoys to sit and vote here.

The appellant Sidhu was not, however, settled here when the 1971 Act came into force because he had committed the continuing offence under s 4 of entering and remaining in the United Kingdom while a refusal of admission under s 2 of the 1962 Act was in force in relation to him. That offence was deemed under the section to be an offence which continued throughout the period during which he was in the United Kingdom. Accordingly, for the whole time during which he resided in the United Kingdom he was 'there in breach of the immigration laws' on any reading of s 33 (2).

I agree with my noble and learned friend, Lord Wilberforce, that for the reasons which he gives none of the other points argued on behalf of any of the appellants can succeed.

My Lords, I would therefore dismiss the appeal of the appellant Sidhu, but for the reasons I have already indicated, I would allow the appeal of the appellants Azam and Khera.

DISPOSITION:

Appeals dismissed.

SOLICITORS:

Michael Sears & Co (for the appellant Azam); Sharpe, Pritchard & Co, agents for Cookseys, Wolverhampton (for the appellant Khera); Simons, Muirhead (for the appellant Sidhu); Treasury Solicitor.