Zamir v. Secretary of State for the Home Department

Publisher	United Kingdom: House of Lords (Judicial Committee)
Author	House of Lords
Publication Date	17 July 1980
Citation / Document Symbol	[1980] AC 930, [1980] 2 All ER 768, [1980] 3 WLR 249, [1979-1980] Imm AR 203
Cite as	Zamir v. Secretary of State for the Home Department, [1980] AC 930, [1980] 2 All ER 768, [1980] 3 WLR 249, [1979-1980] Imm AR 203, United Kingdom: House of Lords (Judicial Committee), 17 July 1980, available at: https://www.refworld.org/cases,GBR_HL,3ae6b6cf8.html [accessed 26 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.

Zamir v Secretary of State for the Home Department

HOUSE OF LORDS

[1980] AC 930, [1980] 2 All ER 768, [1980] 3 WLR 249, [1979-1980] Imm AR 203

Hearing Date: 9, 10, 11 JUNE, 17 JULY 1980

17 JULY 1980

Index Terms:

Immigration - Leave to enter - Non-patrial - Right of entry - Change of circumstances removing basis on which entry certificate granted - Applicant born in Pakistan and applying for entry certificate - Applicant eligible for entry certificate at time of application - Entry certificate granted two years later by which time applicant ineligible - 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), paras 10, 39.

Held:

The applicant was born in Pakistan in 1957. In 1962 his parents came to the United Kingdom to settle, leaving the applicant in Pakistan. In 1973, when the applicant was 15, application was made on his behalf for an entry certificate, to which he was at that time entitled under para 39 a of the immigration rules b because he was then 'an unmarried and fully dependent son under 21... who formed part of the family overseas' and whose family had settled in the United Kingdom. There was a delay in the grant of the entry certificate and it was not issued until November 1975 by which time the applicant was 18. At the time the entry certificate was issued his passport was stamped with a visa which stated 'settlement to join father'. In February 1976 the applicant married and in March he arrived in the United Kingdom alone. He presented his passport and visa and was granted leave to enter for an indefinite period. He was not asked any questions by the immigration officer and volunteered no information regarding his circumstances. In particular he did not disclose that he was married. Later, when it was discovered that he was married at the time of entry, he was detained as an illegal immigrant pending his removal from the United Kingdom. He applied for a writ of habeas corpus contending that he was given indefinite leave to enter on the basis of a valid entry certificate and that his failure when entering to disclose his change of status did not affect the lawfulness of his entry or make him an illegal entrant. Both the Divisional Court of the Queen's Bench Division ([1979] 2 All ER 849) and the Court of Appeal ([1980] 1 All ER 1041) dismissed his application. The applicant appealed to the House of Lords, contending (i) that the Secretary of State, or an immigration officer acting on his behalf, when deciding to remove an alien on the ground that his leave to enter had been vitiated were exercising a power or jurisdiction which depended on objective facts being established as a condition precedent to the exercise of that power or jurisdiction and it was for the court to decide whether the condition precedent had been satisfied, and (ii) that the applicant's only duty in regard to a change of circumstances was to answer truthfully if he was asked and that he was under no duty to volunteer information. The Secretary of State contended that the applicant was under a duty to disclose a change of circumstances which he knew or ought to have known affect his qualification for entry, and his marriage was such a change of circumstances which had removed the basis of his claim to admission.

a Paragraph 39, so far as material, provides: 'Generally, children aged 18 or over must qualify for admission in their own right; but... an unmarried and fully dependent son under 21 or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement.'

b Statement of Immigration Rules for Control on Entry: EEC and Other Non-Commonwealth Nationals (HC Paper (1972-73) no 81)

Held - The appeal would be dismissed for the following reasons

(1) An immigration officer when deciding that a person should be removed from the United Kingdom on the ground that his leave to enter had been vitiated was not exercising a power or jurisdiction dependent on establishing as a condition precedent to the exercise of that power or jurisdiction objective facts whose existence the court could verify, but was performing an administrative duty and his performance of that duty could only be called in question by the courts if there were no grounds on which he could have acted or if no reasonable person could have decided as the immigration officer did (see p 771 h j, p 772 c d g to j and p 774 d to g, post).

(2) An alien seeking entry into the United Kingdom was not merely under a duty to provide information about a change in his circumstances if asked to do so, but was under a positive duty of candour on all material facts, including those which denoted a change of circumstances since the issue of an entry certificate. The applicant was therefore under a duty to volunteer the fact of his marriage since it was a material change of circumstance. There were, therefore, ample grounds for deciding that there had been a deception by the applicant which vitiated his leave to enter and the Secretary of State had been entitled to detain the applicant as an illegal entrant (see p 773 a to h and p 774 d to g, post); R v Secretary of State for the Home Department, ex parte Khan p 337, ante, disapproved.

Per Curiam. 'Illegal entrants' within the meaning of the Immigration Act 1971 were not limited to clandestine entrants (e g through beaches) but included persons coming in through ports of entry (see p 774 a to g, post).

Decision of the Court of Appeal sub nom R v Secretary of State for the Home Department, ex parte Zamir [1980] 1 All ER 1041 affirmed.

Notes:

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

Cases referred to in the Judgment:

Eshugbayi Eleko v Government of Nigeria (Officer Administering) [1931] AC 662, [1931] All ER Rep 44, 100 LJPC 152, 145 LT 297, PC, 8(2) Digest (Reissue) 767, 417.

R v Home Secretary, ex parte Greene [1941] 3 All ER 104, [1942] 1 KB 87, CA; affd sub nom Greene v Secretary of State for Home Affairs [1941] 3 All ER 388, [1942] AC 284, 111 LJKB 24, 166 LT 24, HL, 17 Digest (Reissue) 467, 29. R v Secretary of State for Home Department, ex parte Hussain [1978] 2 All ER

423, [1978] 1 WLR 700, CA.

R v Secretary of State for the Home Department, ex parte Khan [1980] 2 All ER 337, [1980] 1 WLR 569, CA.

Introduction:

Appeal. The applicant Mohammed Zamir, appealed against the judgment of the Court of Appeal (Stephenson, Eveleigh and Brandon LJJ) dated 21st December 1979 ([1980] 1 All ER 1041, [1980] 2 WLR 357) dismissing the applicant's appeal from the judgment of the Divisional Court of the Queen's Bench Division (Lord Widgery CJ, Cumming-Bruce LJ and Neill J) dated 14th March 1979 ([1979] 2 All ER 849, [1979] QB 688) 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, Winson Green, Birmingham, to release the applicant from detention where he had been detained pursuant to an order of an immigration officer issued under para 16 of Sch 2 to the Immigration Act 1971. The facts are set out in the opinion of Lord Wilberforce.

Counsel:

Louis Blom-Cooper QC and Aydin Turkan for the applicant. Simon D Brown and David Latham for the Secretary of State.

Judgment-READ:

Their Lordships took time for consideration. 17th July. The following opinions were delivered.

PANEL: LORD WILBERFORCE, VISCOUNT DILHORNE, LORD SALMON, LORD FRASER OF TULLYBELTON AND LORD RUSSELL OF KILLOWEN

Judgment One:

LORD WILBERFORCE. This is an appeal from a unanimous decision of the Court of Appeal affirming a unanimous decision of the Queen's Bench Divisional Court refusing the applicant's application for a writ of habeas corpus.

The applicant, an alien of Pakistan nationality, is under detention pending his removal from the United Kingdom as an illegal entrant. The history of events leading up to this is as follows (most of this is undisputed, but there are some points on which there is conflicting evidence).

On 11th December 1972 an application was made by or on behalf of the applicant, then aged 15 and resident in Pakistan, for an entry certificate in order to join his father who had been settled in England since 1962. The printed form of application was headed by notes which applicants were enjoined to read carefully. One of these, note D, stated that 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 representations 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. The form described the applicant as unmarried. The reason for going to the United Kingdom was stated as accompanying mother to join father; and, in reply to the question how much money he would have available to support himself in the United Kingdom, it was stated 'father [sic] income'. It is stated on affidavit by a Home Office immigration officer in charge of the case that on lodging his application the applicant would have been given a copy of a handout setting out the basis on which children were admitted to the United Kingdom and containing the following statement (in fact para 39 of the Statement of Immigration Rules for Control on Entry: EEC and Other Non-Commonwealth Nationals (HC Paper (1972-73) no 81)). This is as follows:

'Generally, children aged 18 or over must qualify for admission in their own right; but an unmarried and fully dependent son under 21 or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement, and adequate support and accommodation is available for them in the United Kingdom.'

The appellant denies that he was given this.

The application, at first refused, was ultimately granted on 25th November 1975. On that date there was stamped on his passport a 'visa' with the words 'settlement to join father'.

On 10th February 1976 the applicant was married. He had not informed the United Kingdom authorities in Islamabad of his forthcoming marriage because, he says, the marriage was only arranged some weeks after the issue of his entry certificate.

On 2nd March 1976 the applicant, then aged 18 arrived at London, Heathrow airport. He presented his passport with the visa; he was apparently asked no questions, and he volunteered no information. In particular he did not disclose his marriage. The immigration officer granted leave to enter the United Kingdom for an indefinite period and stamped the passport to this effect.

On 31st July 1978, by which time a son had been born to the applicant in Pakistan, the entry clearance officer in Islamabad informed the Home Office that an application had been made by Mrs Zamir, the applicant's wife, for her and her son to join the applicant in the United Kingdom. He queried the lawfulness of the applicant's entry of 2nd March 1976.

The applicant was then interviewed, on 30th August 1978. He was asked if he had mentioned his forthcoming marriage to the entry clearance officer and said that he had not because the marriage had not been arranged until about four or five weeks after he had been given his visa. He also said that he had not informed the entry clearance officer when he actually married because he did not think it was necessary. He was asked whether on his arrival in the United Kingdom he had told the immigration officer of his marriage and replied that he had not been asked any questions regarding this. The applicant was also asked how, at the time of his entry into the United Kingdom, he could regard himself as a dependant of his father when he himself had undertaken marriage. He was apparently unable to offer any explanation but did admit that he had come to the United Kingdom purely for work for himself and his wife. He did, in fact, it appears, obtain employment in August 1976, until when he was probably maintained by his father.

After consideration by the authorities, the appellant was detained on 2nd October 1978 with a view to removal from the United Kingdom.

It is I think unavoidable to mention that since the applicant's detention further inquiries have been made which show that, in the opinion of the Home

Office immigration officer in charge of the case, the appellant obtained entry clearance on the basis of a forged birth certificate. The applicant denies any knowledge of this. This inquiry arose out of an attempt, also in 1972, to obtain entry clearance for a man claimed to be but in fact shown not to be, the applicant's brother. These matters have not been adjudicated on but I mention them to show the kind of problems which arise, and, as the law reports show, with considerable frequency in connection with applications for entry clearance.

In these circumstances the applicant applied for a writ of habeas corpus and it is for him to show that his detention is unlawful. The power of detention arises under para 16(2) of Sch 2 to the Immigration Act 1971 and is dependent on whether the detainee is a person in respect of whom an order for removal may be made.

The basis on which the Secretary of State seeks to justify the detention and removal of the applicant is that the leave to enter the United Kingdom was vitiated by deception and there is ample authority that an apparent leave to enter which had been obtained by deception is vitiated, as not being 'leave given in accordance with this Act' (s 3(1)): see R v Secretary of State for the Home Department, ex parte Hussain [1978] 2 All ER 423, [1978] 1 WLR 700 and numerous cases following.

Two questions of law arise in relation to this.

The first is what is the basis for any judicial review if the Secretary of State, or an immigration officer acting on his behalf, concludes that there has been deception. For that it is necessary to look at the scheme of the Act.

The power to give or refuse leave to enter the United Kingdom is vested in immigration officers (see s 4(1)), and is to be exercised in accordance with the provisions of Sch 2. It is also provided that Sch 2 shall apply with respect to the exercise by immigration officers of their powers in relation to the removal of persons refused leave or remaining unlawfully (see s 4(2)(c) ). Apart from the statutory provisions in Sch 2 (to some of which I shall return), immigration officers are guided by immigration rules (contained in HC Paper (1972-73) no 81), which have no statutory force. It is those rules which contain para 39 above quoted and also para 10 which I quote:

'A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter, unless the Immigration Officer is satisfied that: (a) false representations were employed or material facts were concealed, whether or not to the holder's knowledge, for the purpose of obtaining the clearance, or (b) a change of circumstances since it was issued has removed the basis of the holder's claim to admission...'

It appears from this, in my opinion, that the immigration officer in deciding whether or not to grant leave to enter is performing as administrative duty, in a statutory and parastatutory framework. It follows that the decision can only be reviewed by the courts on the normal principles applicable to such decisions, of which those capable of being invoked in the present case are that there was no evidence on which he could reach his decision, or that no reasonable person in this position could have reached it.

If, as I think it clearly is, this is the position as regards decisions to grant leave to enter, it must also be the position as regards decisions to remove or at the very least as regards decisions to remove on the ground that the leave to enter has been vitiated. This must follow both from logic and from the terms of the legislation. It would be absurd to apply different principles as regards, on the one hand, a decision to allow entry, and on the other hand a decision that the permission to enter was vitiated. Moreover, and consistently with this, paras 8 to 14 of Sch 2 deal with both kinds of decision within a single framework, and para 16 enables detention to be ordered in any case governed by those paragraphs.

This is the principle which has been consistently followed by the courts, including the Court of Appeal in Hussain's case and in the present case.

It has been challenged by counsel for the applicant. The present, and similar cases under the Immigration Act 1971, is, he submitted, not a case of an administrative decision reviewable on grounds applicable to such decisions, but is a case where the exercise of power, or jurisdiction, depends on the precedent establishment of an objective fact. In such a case it is for the court to decide whether that precedent requirement has been satisfied. That this distinction exists is clear enough; it is vouched by such well-known authorities as Eshugbayi Eleko v Government of Nigeria (Officer Administering) [1931] AC 662, [1931] All ER Rep 44, and R v Home Secretary, ex parte Greene [1941] 3 All ER 104 at 116, [1942] 1 KB 87 at 108 (see particularly per MacKinnon LJ). The case of Hussain, he claimed, marked a departure from this principle which should now be reinstated.

My Lords, for the reasons I have given I am of opinion that the whole scheme of the Act is against this argument. It is true that it does not, in relation to the decisions in question, use such words as 'in the opinion of the Secretary of State' or 'the Secretary of State must be satisfied', but it is not necessary for such a formula to be used in order to take the case out of the 'precedent fact' category. The nature and process of decisions conferred on immigration officers by existing legislation is incompatible with any requirement for the establishment of precedent objective facts whose existence the court may verify.

The immigration officer, whether at the stage of entry or at that of removal, has to consider a complex of statutory rules and non-statutory guidelines. He has to act on documentary evidence and such other evidence as inquiries may provide. Often there will be documents whose genuineness is doubtful, statements which cannot be verified, misunderstandings as to what was said, practices and attitude in a foreign state which have to be estimated. There is room for appreciation, even for discretion.

The Divisional Court, on the other hand, on judicial review of a decision to remove and detain, is very differently situated. It considers the case on affidavit evidence, as to which cross-examination, though allowable, does not take place in practice. It is, as this case well exemplifies, not in a position to find out the truth between conflicting statements: did the applicant receives notes, did he read them, was he capable of understanding them, what exactly took place at the point of entry. Nor is it in a position to weigh the materiality of personal or other factors present, or not present, or partially present, to the mind of the immigration authorities. It cannot possibly act as, in effect, a court of appeal as to the facts on which the immigration officer decided. What it is able to do, and this is the limit of its powers, is to see whether there was evidence on which the immigration officer, acting reasonably, could decide as he did. It is to be noted that the Act does in fact create procedure of appeal against directives for a person's removal; but this is to an adjudicator and cannot ordinarily be invoked so long as the person concerned is in the United Kingdom (see s 16).

I conclude therefore that the decision to remove the applicant, and his consequent detention, can only be attacked if it can be shown that there were no grounds on which the Secretary of State, through his officers, could have acted, or that no reasonable person could have decided as he did.

I approach then the second legal question: what is the standard of the duty owed by persons arriving in the United Kingdom and seeking leave to enter?The Act itself sets no standard, but does provide that the Secretary of State should lay before Parliament statements of his rules as to the practice to be followed in the administration of the Act for regulating the entry of persons (see s 3(2)). The relevant rule, para 10, has already been quoted.

The Act does provide for questioning of intending entrants. In Sch 2, para 2(1), there is conferred power on immigration officers to examine such persons, and para 4 states that it is the duty of any person examined under para 2 to furnish all such information in his possession as the immigration officer may require for the purpose of his functions.

The applicant's first contention is based on this paragraph: the immigration officer, he says, could have asked him if he was married, or if his circumstances had changed, but he did not. The applicant's only duty was to answer, if asked; he was under no duty to volunteer information. I do not accept this contention: indeed, it cannot be too strongly repudiated. At the very lowest, an intending entrant must not practice a deception: it has over and over again been decided, and the correctness of these decisions is incontestable, that deception vitiates the permission to enter. It is clear on general principles of law that deception may arise from conduct, or from conduct accompanied by silence as to a material fact. It can be no answer to a claim that such deception has occurred to say that no question was asked; para 4 above merely confers a power, which carries a sanction if not complied with, and in no way derogates from a general duty not to deceive. I would, indeed go further than this, a point so far left open in the Court of Appeal. In my opinion an alien seeking entry to the United Kingdom owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance. He is seeking a privilege; he alone is, as to most such matters, aware of the facts: the decision to allow him to enter, and he knows this, is based on a broad appreciation by immigration officers of a complex of considerations, and this appreciation can only be made fairly and humanely if, on his side, the entrant acts with openness and frankness. It is insufficient, in my opinion, to set as the standard of disclosure that which applies in the law of contract; the relation of an intending entrant and the authorities is quite different in nature from that of persons negotiating in business. The former requires a higher and more exacting standard. To set it any lower than as I have described is to invite, as unhappily so many of the reported cases show, a bureaucratic and anti-bureaucratic contest with increasing astuteness, manoeuvring and ingenuity on one side, and increasingly cautious technicality and procrastination on the other. This cannot be in the interest of sensitive administration.

My Lords, the present case is, in my opinion, disposals under any test. The applicant was not candid in not revealing the fact of his marriage, a clear change of circumstances which was most material to the immigration officer's decision, as para 39 itself makes clear. It is one thing to seek to enter as a child dependent on a resident father, quite another to enter as the head of a household and prospective family, even if there is to be a short period of dependence. It is clear that the immigration officer had ample grounds for deciding that there had been deception vitiating the permission to enter. Mr Clements, who handled the applicant's application on entry, deposed on affidavit that although he could not recall the actual facts he had no doubt that had the applicant revealed that he had married or that he was no longer dependent on his father, he could not have been satisfied that he fulfilled the requirement of para 39. The change of circumstances would have removed the basis of the applicant's claim to admission. And finally, if it were for the court to judge the matter for itself, it is to my mind plain that by presenting his passport with the visa on it stating 'settlement to join father', when, as the applicant himself does not deny that he admitted, he had come to the United Kingdom 'purely for work for himself and his wife', it could come to no conclusion other than that he was guilty of a deception. The analysis of the situation contained in the judgment of Stephenson LJ admits of no refutation.

It was submitted for the applicant that this case was indistinguishable from that of R v Secretary of State for the Home Department, ex parte Khan [1980] 2 All ER 337, decided by the Court of Appeal on 13th February 1980. The court then had before it the Court of Appeal's decision in the present case (Zamir), and Lawton and Ackner LJJ thought the latter to be distinguishable on the ground that Zamir was under 21 at the time of entry, so that para 39 applied to him, whereas Khan was over 21 so that para 39 did not apply. They concluded that there was no deception, but merely a waiver by the immigration officer of a requirement. My Lords, I have some doubt whether even on the basis of this distinction Ex parte Khan is acceptable, if the duty of entrants is such as I have suggested. But, as the Court of Appeal itself thought, it affords no basis on which Zamir, in the present case, can succeed.

One further point was taken, arising from the fertile mind of counsel for the applicant. It was not taken below, nor in the applicant's printed case, and has never before been suggested. This was that illegal entrants, within the meaning of the Immigration Act 1971, are limited to clandestine entrants, for example, through the beaches, and do not include persons coming in through ports of entry. My Lords, with all respect, I find this distinction illogical, and unsupported by the statutory language. An illegal entrant is defined as a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes a person who has so entered (see s 33(1)). Under s 3 a non-patrial may not enter the United Kingdom unless given leave to do so in accordance with the Act, so a person who has entered on a vitiated leave to enter is clearly within the definition. Counsel for the applicant's argument mainly rested on the reference in s 33(1) to breach of a deportation order; this he says would only be necessary if a restrictive meaning is placed on the words 'the immigration laws'. But far clearer words would be needed, in my opinion, if the reference to immigration laws were to be limited to a requirement to come in through a port of entry; it is preferable to regard them as possibly superfluous, and ex majore cautela.

I am of opinion that this appeal must be dismissed.

Judgment Two:

VISCOUNT DILHORNE. My Lords, I have had the advantage of reading the speech of my noble and learned friend Lord Wilberforce in draft. I agree with it and especially with his observations as to the duty of candour owed by aliens seeking entry to this country. For the reasons he gives, this appeal should in my opinion be dismissed.

Judgment Three:

LORD SALMON. My Lords, I entirely agree with the reasons stated by my noble and learned friend Lord Wilberforce and accordingly would dismiss the appeal.

Judgment Four:

LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Wilberforce. I agree with it and, for the reasons given by him, I would dismiss the appeal.

Judgment Five:

LORD RUSSELL OF KILLOWEN. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Wilberforce. I agree with it and with the conclusion that this appeal should be dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Sharpe Pritchard & Co. agents for Hall-Wrights, Birmingham (for the applicant); Treasury Solicitor.