R v. Governor of Pentonville Prison, Ex parte Azam; R v. Secretary of State for the Home Department, Ex parte Khera; R v. Secretary of State for the Home Department, Ex parte Sidhu
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 3 May 1973 |
| Citation / Document Symbol | [1973] 2 All ER 741, [1973] 2 WLR 949 |
| Cite as | R v. Governor of Pentonville Prison, Ex parte Azam; R v. Secretary of State for the Home Department, Ex parte Khera; R v. Secretary of State for the Home Department, Ex parte Sidhu, [1973] 2 All ER 741, [1973] 2 WLR 949, United Kingdom: Court of Appeal (England and Wales), 3 May 1973, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6770.html [accessed 3 June 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. |
COURT OF APPEAL, CIVIL DIVISION
[1973] 2 All ER 741, [1973] 2 WLR 949
Hearing Date: 9, 10, 11 APRIL, 3 MAY 1973
3 MAY 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 enering 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).
Immigration - Detention - Unlawful detention - Remedy - Habeas corpus - Appeal - Detainee making out a prima facie case that he is not an illegal entrant - Whether entitled as of right to writ of habeas corpus - Whether bound to rely on statutory appeal procedure - Immigration Act 1971, s 16.
Held:
S was born in India. In 1967 he obtained an Indian passport. He arrived at Dover on 17th December 1967 and reported to the immigration authorities. He was refused admission.He retuned 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 doing so he committed an offence under s 4 (1) a of the Commonwealth Immigrants Act 1962. Thereafter he had lived and worked in the United Kingdom. a Section 4 (1) is set out at p 756 d and e, post 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 authorities. In January 1970 A, a pakistani, arrived in England by similar means. Thereafter both K and A lived in the United Kingdom and obtained employment. In December 1971 the police visited K and he admitted to them that he had entered the country illegally. He was informed that further enquiries would be made and his passport was taken. However, he was told subsequently that no police action would be taken and his passport was returned to him.In September 1972 the police visited A who admitted to them that he had entered the country illegally. The police told him that he would not be prosecuted but that the facts would be reported to the immigration authorities. b Section 4A, so far as material, is set out at p 75 b and c, post 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. 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 Kindgom, 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) When a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below [make directions for his removal from the United Kingdom].
'(2) No directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date of which he was refused leave to enter 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 8 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...'
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. Held - (i) S had entered the United Kingdom 'in breach of... the immigration laws', within s 33 (1) e of the 1971 Act, because his clandestine entry into the country, after having been refused admission, was an offence which, by virtue of s 4 (1) of the 1962 Act, was deemed to continue throughout the period that he was in the United Kingdom. Accordingly, to the date when the 1971 Act came into force, S was in the United Kingdom 'in breach of the immigration laws' within s 33 (2) of the 1971 Act (see p 748 b, p 752 c, p 758 c and g and p 761 b and d, post). e Section 33, so far as material, provides:'(1) For purposes of this Act, except in so far as the context otherwise requires... "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...'
(ii) (Buckley LJ dissenting) A and K had both 'entered' and, on the date when the 1971 Act came into force, were present in the United Kingdom 'in breach of the immigration laws' within s 33 (1) and (2) of the 1971 Act, because they had committed an offence under s 4A (1) of the 1962 Act by 'landing' in the United Kingdom without submitting to examination by immigration officers. For that purpose no distinction was to be drawn between the words 'landing' or 'entering' and therefore a person who had landed in breach of s 4A of the 1962 Act had entered 'in breach of the immigration laws'. Furthermore it was immaterial that, after the lapse of six months from the date of their entry, A and K could no longer be prosecuted for an offence under s 4A (1); their presence in the United Kingdom was unlawful and remained so all the time they were there (see p 749 b c and g to j, p 751 f and h, p 761 c, p 762 d and g and p 763 a and b, post). (iii) (Buckley LJ dissenting in part) It followed that, since the applicants were in the United Kingdom 'in breach of the immigration laws', they could not, by virtue of s 33 (2) of the 1971 Act, be treated as being 'ordinarily resident' there; consequently they were not 'settled', within ss 2 (1), (3) (d) f, and 33 (1), at the date when the 1971 Act came into force and could not, therefore, be treated as having been given indefinite leave to enter or remain in the United Kingdom under s 1 (2) g of the 1971 Act (see p 749 h, p 750 c, p 758 h, p 760 j to p 761 a and p 762 h, post). f Section 2, so far as material, provides:'(1) A person is under this Act to have the right of abode in the United Kingdom if... (c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom... and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more...
'(3) ... for the purposes of [sub-s (1)]... (d)... 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...'
g Section 1 (2) provides: 'Those not having [the right of abode in the United Kingdom] may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and 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).'
(iv) Under paras 9 and 16 of Sch 2 to the 1971 Act, a person who had entered the country unlawfully and who had not thereafter been given leave to remain could be detained under the authority of an immigration officer pending his removal or the giving of appropriate directions; the words 'is not given leave' in para 9 were to be construed as meaning 'has not been given leave' or (per Stephenson LJ) as meaning 'is a person not given leave'. The statement made by the police to A that he would not be prosecuted did not amount to the giving of leave to remain in the United Kingdom. Since all the applicants were illegal entrants and none of them had been given leave to remain in the United Kingdom they were, by virtue of paras 9 and 16 of Sch 2, liable to detention if directions for their removal from the country were contemplated (see p 750 d to f, p 751 g and j, p 752 b, p 759 c and d, p 763 j, p 764 a c and h to p 765 a, post). (v) There were no grounds for contending that, by virtue of s 34 (4) (b) h, the 1971 Act did not apply to S because his removal was 'in pursuance of a decision taken before the coming into force' of the Act, i e the decision to refuse him entry. The word 'decision' in s 34 (4) (b) referred to decisions to remove and no decision to remove S had been made before the coming into force of the Act (see p 752 e, p 758 a and p 764 f, post). h Section 34 (4), so far as material, is set out at p 752 d, post (vi) It followed therefore (Buckley LJ dissenting in part) that all three applicants as illegal entrants who had not been given leave to remain in the United Kingdom, had been lawfully detained under the power conferred by para 16 (2) of Sch 2 to the 1971 Act, and they were not entitled to writs of habeas corpus (see p 751, p 753 d, p 758 j, p 763 j and p 765 a, post). Per Curiam. Under Sch 2 of the 1971 Act the powers of detention and removal only apply in respect of a person who is in truth an illegal entrant. If a person can make out a primea facie case that he is not an illegal entrant he is entitled to a writ of habeas corpus as of right and is not obliged to rely on the less convenient remedy of appeal under s 16 of the 1971 Act (see p 751 d to f, p 758 h and j and p 759 h to p 760 a, post).Notes:
On 11th June 1973 the Decision of the Court of Appeal was affirmed by the House of Lords; see p 765, post. For the power to detain illegal entrants, see Supplement to 1 Halsbury's Laws (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 Immigrations 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:
Abdul Manan, Re [1971] 2 All ER 1016, [1971] 1 WLR 859, CA. Corke, ex parte [1954] 2 All ER 440, [1954] 1 WLR 899, DC, 16 Digest (Repl) 279, 488. 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. 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 (Repl) 422, 28. K (H) (infant), Re [1967] 1 All ER 226, sub nom Re H K (infant) [1967] 2 QB 617, [1967] 2 WLR 962, DC, Digest (Cont Vol C) 18, 157qa. R v Brixton Prison (Governor), ex parte Soblen [1962] 3 All ER 641, [1963] 2 QB 243, [1962] 3 WLR 1154, CA, Digest (Cont Vol A) 24, 149a. R v Home Secretary, ex parte Budd [1942] 1 All ER 373, [1942] 2 KB 14, 111 LJKB 475, 166 LT 293, CA, 17 Digest (Repl) 422, 29. R v Secretary of State for Home Affairs, ex parte Soblen [1962] 3 All ER 373, [1963] 1 QB 829, [1962] 3 WLR 1145, DC and CA, Digest (Cont Vol A) 22, 99a. Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904, [1969] 2 Ch 149, [1969] 2 WLR 337, 133 JP 274, CA, Digest (Cont Vol C) 17, 129a.Introduction:
Appeal. Mohammed Azam appealed against a decision of the Queen's Bench Divisional Court dated 23rd February 1973 whereby the court refused to order that a writ of habeas corpus ad subjiciendum should issue to the governor of Pentonville Prison. Gurbax Singh Khera appealed against a decision of the Divisional Court dated 21st March 1973 whereby the court refused to order that a writ of habeas corpus ad subjiciendum issue to Her Majesty's Secretary of State for the Home Department and the governor of Winson Green Prison, Birmingham. Malkiat Singh Sidhu appealed against a decision of the Divisional Court dated 21st March 1973 whereby the court refused to order that a writ of habeas corpus ad subjiciendum should issue to the Secretary of State and the governor of Pentonville Prison. The appeals were heard together. The facts are set out in the judgment of Lord Denning MR.Counsel:
T O Kellock QC and S Kadri for the appellant Azam. L J Blom-Cooper QC and C Allan for the appellant Khera. David Turner-Samuels QC and Stephen Sedley for the appellant Sidhu.Gordon Slynn for the respondents.Judgment-READ:
Cur adv vult. 3rd May. The following judgments were read.PANEL:
LORD DENNING MR, BUCKLEY AND STEPHENSON LJJJudgment One:
LORD DENNING MR. These three cases raise questions of the first importance to many Commonwealth citizens now in this country. Each of the three men is an 'illegal entrant'. Each entered this country clandestinely without any permission to do so. Each has worked here for more than three years. Each has now been arrested and detained in prison. In each case without trial. Each is about to be removed under the directions of the Home Secretary from this country. Each has brought a writ of habeas corpus claiming that his detention is unlawful. Other cases await our decision. There must be many 'illegal entrants' wondering whether it will be their turn next. No one can tell the number. They came in secretly. They went to ground for a time. Afterwards they mingled with others. They got lost in the crowd. Frequently they have managed to get passports of some kind. They go to their High Commissioners and say that they did have passports which have been lost or damaged. On that plea they have been issued with new ones. There is no easy way of telling a legal from an illegal entrant. They have obtained work.They have been issued with national insurance cards. Now, under the new Act n1, which came into force on 1st January 1973, they are faced with arrest and removal. The situation is shown by the facts in these three cases. n1 I e the Immigration Act 1971 Mmohammed Azam Mohammed Azam is a young man whose home was in Campbellpur, Pakistan. His father is dead, but his mother and two sisters, aged 12 and nine, still live in Pakistan. He has been here since January 1970. An agent in Pakistan arranged for him to get here. The fee was 15,000 rupees (something over @ 500). He travelled by air from Pakistan to Paris. He stayed two days in Paris, and eight days in Rotterdam. Then at night he joined a small boat with four or five other Pakistanis. He disembarked at night in England. He went to Birmingham for three weeks. Then to Derby with friends for some four months. He got casual employment. But he afterwards went to South Wales, where he has been in regular work, with a national insurance card. He has worked long hours, and sometimes seven days a week, so as to earn money. He has sent @ 30 to @ 40 a month home to his family. After he had been here 18 months, he took steps to get a passport. He got a Pakistani passport issued by the Pakistani authorities at Bradford on 19th August 1971. It was a genuine passport for him with his true name and photograph on. It bore an endorsement to the effect that it was issued so as to replace a passport issued a week earlier in Karachi; but this previous passport was not his or was not genuine. He had paid @ 20 for the endorsement. On 5th September 1972 some police officers went to the factory where he worked. At first he denied that he had come into this country illegally. But afterwards he admitted that he had come in January 1970 by boat from Rotterdam. They went with him to his lodgings and examined his national insurance card and his passport. At the end of the interview the police told him that the facts would be reported to the immigration authorities. They also told him that he would not be prosecuted by the police. On 1st January 1973 the Immigation Act 1971 came into force. Three or four weeks later, on 26th Januay 1973, a chief immigration officer, together with two police officers, went to the factory where he worked. They took him to his lodgins, and then to the police station. He could not speak much English. So they got an interpreter. He gave his story substantially as I have told it.At the end the chie immigration officer told him that, as he had entered the country illegally, he was liable to be removed to Pakistan, and that any decision about it would be taken by the Home Office. The chief immigration officer gave the police officers a detention order on these terms:'Mohammed Azam
'The above-named is a person whose detention I have authorised under Paragraph 16 of Schedule 2 to the Immigation Act 1971. I accordingly request you to receive the said person pending the completion of arrangements for dealing with him under the Act.'
In pursuance of that order, Mr Azam was transferred to the prison at Swansea. Afterwards he was transferred to the prison at Pentonville on 3rd February 1973. On 9th February 1973 he applied to the Divisional Court for a writ of habeas corpus. This was refused. He now appeals to this court. Gurbax Singh Khera Gurbax Singh Khera is now 33 years of age. He is married, with a wife and small daughter in India. He was born in a village in the Punjab. He lived there all his life until December 1968.His father was then already in England, Living in Wolverhampton. His uncle still lives in the same village in the Punjab. The uncle arranged with agents in India to get him to England. The uncle paid the agents about 15,000 rupees (some @ 500). The son got a valid Indian passport issued by the Government of India in New Delhi. He travelled by air fron New Delhi to Paris. Then by car to a port on the French coast. When it was dark he embarked on a small motor-boat with three other Asians. The boat was manned by two white men. He was frightened because it was his first time at sea. They crossed to England. They got out on a sandy shore. The white men led them to hard ground. The Asians were put into the back of a van. They were driven for five or six hours until they arrived at Wolverhampton. Mr Khera was dropped at his father's house. The others went on elsewhere. Mr Khera soon obtained work and has continued at work ever since. Eighteen months later, in August 1970, he got a new passport issued to him by the Indian High Commission in London. The High Commission noted that his former passport was damaged and had been cancelled and retained. In November 1970 he purchased a house, 243 Willenhall Road, Wolverhampton, for @ 1,200. He lived there with his father. On 30th December 1971 -- when he had been here three years, -- a police officer called at his home. At first he gave a wrong name, but afterwards he admitted that he had come illegally by boat three or four years ago. The officer took him to the police station and called an interpreter to his aid. At the end the police officer told him that further enquiries would be made. He was bailed to appear at the police station six days later on 5th January 1972. The police officer kept his passport. But the day before Mr Khera was due to appear, a police officer came to his house. He gave him back his passport and told him there was no need for him to report on the next day. He said: 'There will be no further police action. The full circumstances have been reported to the Home Office.' Soon afterwards Mr Khera's father returned to India. He thought that in the circumstances he could lawfully remain in England. So he made enquiries with a view to bringing his wife and daughter over to England. On 1st January 1973 the 1971 Act came into operation. Five or six weeks later, on 5th February 1973, a police officer called at his house and took him to the police station. An immigration officer was waiting there for him, Together with an interpreter. Mr Khera told him all that had happened. The immigration officer told him that he had entered and remained in this country in breach of the immigration laws. He made out a detention order requesting the police to detain Mr Khera. He wsa then taken to Winson Green prison and detained there. His employers were much disturbed by his arrest. They wrote on 12th February 1973 this letter:'This man has been employed by Ductile Planetary Mill Limited since 17th June, 1969 and has always been a good, cheerful and honest worker. He has responded to training in a way that has allowed us to make him a skilled operative on a finishing process, and at the moment production is affected by his absence...'
On 22nd February 1973 his solicitor applied to the Divisional Court for a writ of habeas corpus. This was refused. He now appeals to this court. Malkiat Singh Sidhu Mlkiat Singh Sidhu is a man of 43. He was born at Jullunder in India. He has a wife and eight children there. On 24th March 1967 he was issued at New Delhi by the Government of India with a passport. He arrived at Dover on 17th December 1967 and reported to the immigration authorities. He was refused admission. He came again on 9th January 1968 and was again refused admission. A few days later he came in a small boat and landed somewhere on the coast. He travelled by bus to Birmingham. He has lived in Solihull and has been in work here. On 8th October 1970 he went to the Indian High Commission in London, and reported to them that he had lost his passport of 24th March 1967. Thereupon the High Commission issued him with a fresh passport. In 1971 he got into touch with the Joint Council for the Welfare of Immigrants. They wrote on his behalf to the Home Office, asking that he should be given 'residential status' in accordance with Director of Public Prosecutions v Bhagwan n1. But the Home Office did not grant it, as the date of his arrival in the United Kingdom could not be confirmed. On 30th October 1972 his wife and eight children applied in New Delhi for an entry certificate. Their application was sent to London. On 26th February 1973 the immigration officers asked Malkiat Singh Sidhu to come and see them. He could not speak English or understand it, so they got an interpreter. It was discovered that he had come on 17th December 1967 and 9th January 1968 and had been refused admission of both occasions. He admitted that he had come back a few days later in a little boat. n1 [1970] 3 All ER 97, [1972] AC 60 On that information the immigration officers made a detention order against him. He was detained first at Heathrow and afterwards at Pentonville. On 7th March 1973 he applied for a writ of habeas corpus. This was refused, but he wa granted bail pending an appeal. He now appeals to this court. The three cases affect so many others that I will endeavour to summarise the history of the law on the matter. Before 1962 Before 1962 any commonwealth citizen could come as of right into this country without the leave of anyone. He could stay here as long as he liked: see Director of Public prosecutions v Bhagwan n2. He had the same rights as any native-born Englishman. He could not be detained by the executive without a trial. If he committed a crime, he was liable to be arrested and tried like anyone else. But he could not be deported, not even if he was an habitual criminal, nor even if his presence here was very obnoxious to the rest of the people. n2 [1970] 3 All ER at 99, [1972] AC at 74 In all those respects he was very different from an alien. At common law no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason: see Schmidt v Secretary of State for Home Affairs n3. If he comes by leave, the Crown can impose such conditions as it thinks fit, as to his length of stay, or otherwise. He has no right whatever to remain here. He is liable to be sent home to his own counry at any time if, in the opinion of the Crown, his presence here is not conducive to the public good; and for this purpose, the executive may arrest him and put him on board a ship or aircraft bound for his own country: see R v Brixton Prison (Gvernor), ex parte Soblen n4. The position of aliens at common law has since been covered by various regulations; but the principles remain the same. n3 [1969] 1 All ER 904 at 907, [1969] 2 Ch 149 at 168 n4 [1962] 3 All ER 641 at 660, [1963] 2 QB 243 at 300, 301 From 1962 to 1968 In 1962 Parliament put up some obstacles in the way of Commonwealth citizens who wished to come here, or to remain here -- but they left a big gap, as I will show. The obstacles were these. (i) If a man came to a port of entry, he could be required to submit to examination within 24 hours. If he had a work permit or other sufficient reason, he would be admitted. If not, he could be refused admission. If he was refused admission, he could be sent back straight away, or at any time within two months. If he afterwards slipped in clandestinely and stayed here (as Mr Sidhu did), then he was guilty of the offence of entering or remaining here, and that offence was deemed to continue throughout any period that he was here: see s 4 (1) (a) of the Commonwealth Immigrants Act 1962. If he was admitted for a limited period, and overstayed that period, then again he was guilty of a continuing offence for the whole period that he was here: see s 4 (1) (b) of the 1962 Act. (ii) If a man came here in a ship as a seaman or one of the crew of a ship, and did not return to the ship but stayed here after she had left -- or if he came as a stowaway -- he was treated just as if he had been refused pernission. He could be sent off again by the executive without any time limit -- whenever he was picked up and found as a deserting seaman: see para 8 (4) of Sch 1 to the 1962 Act and Re Abdul Manan n1. He was also guilty of a continuing offence for the whole period he was here: see s 4 (1) (a) of the 1962 Act. n1 [1971] 2 All ER 1016 1017, [1971] 1 WLR 859 at 861 The big gap in the 1962 Act was this. If a man did not enter through a recognised port of entry (where there were immigration officers), but came in clandestinely -- such as landing on a lonely beach - then, by the decision of the House of Lords, he was guilty of no offence whatever. He was not bound to seek out an immigration officer or to submit himself for examination. If he was not examined within 24 hours -- as he rarely was -- then he was free to go where he pleased and to remain here as long as he liked: see Director of Public Prosecutions v Bhagwan n2. He was as free as any Commonwealth citizen who had come before 1962. He could not be sent away. Nor could he be deported unless he committed a criminal offence here and was recommended for deportation. n2 [1970] 3 All ER 97, [1972] AC 60 This gap, declared legal by the House of Lords, was so large, and so many people entered through it, that it may appropriately be called the 'Bhagwan Gap'. It lasted from 1962 to 9th March 1968. From 968 to 1973 In 1968 Parliament made an attempt to stop the Bhagwan Gap, but it did not succeed very well. This is what was done. It was enacted n3 that, if a Commonwealth citizen landed clandestinely (not going through a regular port of entry) he was bound to submit himself to an immigration officer for examination within 28 days; and, if admitted, get his passport stamped accordingly. If he did not submit himself for examination within 28 days, then his clandestine landing was itself an offence: see s 4A of the 1962 Act (which was inserted by s 3 of the Commonwealth Immigrants Act 1968). The important thing to notice is, however, that it was only the landing here which was made an offence. The Act did not make his remaining here an offence. The landing was a summary offence which was to be tried by justices: see s 14 (1) of the 1962 Act. If a prosecution was to be taken against him, it had to be taken within six months of his landing: see s 104 of the Magistrates' Courts Act 1952. n3 See the Commonwealth Immigrants Act 1968 Although he could not, after six months, be prosecuted under the section, nevertheless, he was liable to be prosecuted for conspiracy. In most cases the illegal landing would be made in pursuance of an agreement between him and the agents who brought him in. The agreement would be indictable, at common law, as a conspiracy; and there would be no time-limit for it. Nevertheless, although the agents, who arranged and conducted the illegal landings, were sometimes prosecuted and convicted, I believe that the illegal entrants were not often prosecuted. Once they were here, they went to ground. Even if found, it would be difficult to prove that they were parties to a conspiracy. So, in practice, it meant that, between 1968 and 1973, if a Commonwealth immigrant landed clandestinely, he was after six months virtually untouchable. He could not be prosecuted for the unlawful landing. He could not be removed. He could not be deported, unles he committed a fresh criminal offence and was recommended for deportation. But this does not mean that after six months he was here as of right; or that his presence here was lawful. His presence here was unlawful in its inception. It continued to be unlawful during the six months that he could be prosecuted for it. After the six months, it continued to be unlawful. It is a general rule of law that the expiry of a time-limit does not make that lawful which was previously unlawful. It only bars the remedy in respect of it. From 1st January 1973 onwards The Immigration Act 1971 was passed on 28th October 1971 but it did not come into force for the most part until 1st January 1973. Thenceforward, any Commonwealth citizen who enters without leave is guilty of an offence and may be prosecuted, not only within six months, but also within three years of it so long as the prosecution is started within two months of evidence coming to hand; see ss 24 (1) (a) and 28 (1) (a) of the 1971 Act. This applies also to Commonwealth citizens who landed unlawfully since 28th April 1971: see s 35 (3) of the 1971 Act. But those who landed unlwfully before 28th April 1971 cannot be prosecuted for the offence of unauthorised landing, because more than six months have elapsed since they landed. Nevertheless, their presence here remains unlawful. Now comes the important point. Under the new Act an 'illegal entrant' can be removed, no matter how long it wa since he entered. By contrast, a person who was 'settled' here on 1st January 1973 is treated as having indefinite leave to stay here. It is, therefore, of the first importance to ascertain whether a person is 'settled' here or is an 'illegal entrant'. It would be tedious to go through all the sections in this regard, but I will state the result. (i) A person is an 'illegal entrant' if he 'entered in breach of the immigration laws': see the definition in s 33 (1). Those who entered before 9th March 1968 through the 'Bhagwan Gap' did not enter in breach of the immigration laws. So they are not 'illegal entrants'. But those who landed clandestinely after 9th March 1968 are 'illegal entrants'. They 'landed' in breach of s 4A of the 1962 Act (which was introduced as from 9th March 1968). It follows, I think, that they 'entered' 'in breach of the immigration laws'. Counsel for Mr Azam sought to say that they made only an unauthorised 'landing' and not an unlawful 'entry'. The landing, he submitted, was unlawful but the entry was not. I cannot accept this distinction. It is too fine for words. When a man 'lands' illegally and immediately thereafter 'enter', he makes an unlawful entry. Section 34 (2) proceeds on that footing. (ii) A person is only to be treated as 'settled' here on 1st January 1973 if he was 'ordinarily resident' here at that time: see s 2 (3) (d) and the definition in s 33. That means that he must have been lawfully resident here without being at that time in breach of the immigration laws: see s 33 (2) and Re Abdul Manan n1. Those who were refused entry and afterwards landed clandestinely were clearly 'in breach of the immigration laws'; because they were guilty of a continuing offence (s 4 of the 1962 Act). Those who landed clandestinely (without being previously refused) were also 'in breach of the immigration laws'. True they could not be prosecuted after six months, but their residence was unlawful and remained so all the time they were here. n1 [1971] 2 All ER 1016, [1971] 1 WLR 859 (iii) Special provision was made for people who entered lawfully on a permit for a limited period and overstayed their time. They were not 'illegal entrants' within s 33 (1). Having entered lawfully, their subsequent 'remaining' here did not convert them into 'illegal entrants'. But they were not 'settled' here: see ss 2 (3) (d) and 33. Such a person was put into a better position than an illegal entrant. He was specially catered for. He was regarded as ordinarily resident here, even though he had remained here in breach of the immigration laws: see s 7 (2). He could not be deported on the ground that his presence was not conducive to the public good: see ss 7 (1) (a) and 3 (5) (b). But he could be deported on the ground that he had overstayed his time (see s 3 (5) (a)), unless he had been here for five years or more: see s 7 (1) (b). Applying these considerations, it is plain that the three men here were all 'illegal entrants'. They were not 'settled' here on 1st Januar 1973; nor did they come on a permit for a limited period. So they are liable to be removed. The removal of illegal entrants The 1971 Act clearly contemplates that an illegal entrant can be removed on the direction of the Home Secretary: see ss 4 (2) (c) and 16 (1) (a). It is specifically made retrospective so as to apply to entrants arriving in the United Kingdom before the Act came into force: see s 34 (1) (a) and (b). It follows that a man who entered unlawfully before the Act came into force is liable to be removed after it. The procedure is contained in Sch 2. Summarised, it comes to this: 'Where an illegal entrant is not given leave to enter or remain in the United Kingdom' (para 9), he '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' (para 16). The words 'is not given' must, I think, include 'has not been given'. Otherwise it would mean that no one who entered unlawfully before 1st January 1973 could be detained or removed under this procedure. That cannot have been intended. When you remember that an 'illegal entrant' includes one who has entered unlawfully, para 9 must be read as if it said in full: 'when a person who has entered unlawfully is not thereafter given leave to remain.' After an immigration officer has given authority for the man's detention, it is for for Secretary of State to consider whether he should be given leave to remain or should be removed. He must give the man notice in writing of his decision: see s 4 (1). If the man is to be removed, the Secretary of State may order any shipping or air line to make arrangements accordingly: see para 10 (1) of Sch 2. The power to remove an illegal entrant seems to be entirely a matter for the discretion of the Secretary of State. The statute places no limit on his discretion. If he exercises it honestly, I do not think that the court can intefere with his discretion. An illegal entrant in this repect is like an alien. He has no right to be here. He can be removed without reasons given and without a hearing: see Schmidt v Secretary of State for Home Affairs n1. We were assured, however, that the Home Secretary does exercise his discretion with the greatest care. He is ready to consider any representations that may be made to him. n1 [1969] 1 All ER 904, [1969] 2 Ch 149 Appeal Once the Secretary of State gives directions that a man is to to be removed on the ground that he is an illegal entrant, the man is given a right of appeal to an adjudicator on the ground that, on the facts of the case, he was not in law an illegal entrant: see s 16 (1) of the 1971 Act. He has no right of appeal on any other ground: cf s 13 (4). But there is a very significant provision in the Act. He cannot appeal so long as he is in the United Kingdom: see s 16 (2). He can only appeal after he has been removed, that is, presumably when he has got back to his homeland. Such an appeal would not seem to be a very beneficial remedy if a mistake has been made. These provisions as to appeal give rise to a question of the first importance. Do they take away a person's right to come to the High Court and seek a writ of habeas corpus? I do not think so. If Parliament is to suspend habeas corpus, it must do so expressly or by clear implication. Even in the days of the war, when the enemy were at the gate, habeas corpus was not suspended or taken away. When a man was detained under reg 18 B n1, he was entitled to apply for a writ of habeas corpus if he could show a prima facie case that he was unlawfully detained. During the war, a man called Budd made an application which was successful, because the prerequisites of a lawful detention had not been complied with. But, in his next application he failed, because the Home Secretary had made a return which could not be faulted: see R v Home Secretary, ex parte Budd n2. Lord Greene MR put an illustration which is appropriate here n3: n1 Of the Defence (General) Regulations 1939 (SR & O 1939 No 927) n2 [1942] 1 All ER 373, [1942] 2 KB 14 n3 [1942] 1 All ER at 376, [1942] 2 KB at 22, 23'... if, for example, a regulation empowered the Home Secretary to detain any person who was in fact an alien, the court could inquire into the nationality of the applicant, since, if it transpired that he was not in fact an alien, his detention would be ultra vires.'
Under Sch 2 the power to detain and remove applies in respect to a person who is in truth an illegal entrant. If a man can make a prima facie case that he is not an illegal entrant, he is entitled to a writ of habeas corpus as of right: see Green v Secretary of State for Home Affairs n4 per Lord Wright. The court has no discretion to refuse it. Unlike certiorari or mandamus, a writ of habeas corpus is of right to every man who is unlawfully detained. If a prima facie case is shown that a man is unlawfully detained, it is for the one who detains him to make a return justifying it. n4 [1941] 3 All ER 388 at 400, [1942] AC 284 at 302 In my opinion, therefore, if any of these men can raise a prima facie case that he is not an illegal entrant, he is entitled to have a writ of habeas corpus to have the matter determined. He is not to be deprived of it by the process of removing him out of the jurisdiction. That expedient was condemned by s 12 of the Habeas Corpus Act 1679 with severe penalties; and we should not let it be resorted to now. These three cases Mohammed Azam This young man came in clandestinely to England in January 1970. He was an illegal entrant. He remained here unlawfully in breach of the immigration laws. It was suggested that he was given leave to remain, but the statement made by the police cannot be so construed. In this respect his case is like the case of Khera which I will consider in a moment. He has shown no ground for saying that his detention was unlawful; or that his removal would be. There is no ground for habeas corpus in his case. Gurbax Singh Khera This man came in clandestinely to England in December 1968. He was an illegal entrant. Counsel submitted that Mr Khera was impliedly given leave to remain here or that his illegal entry was waived, or that the Home Office had acquiesced in his remaining here. He made this submission because of the visit of the police officer on 30th December 1971 and what happened afterwards, which I have recounted. I cannot, however, read into this any implied leave or waiver. The police officer only told the man that there would be no police action and that the full circumstances had been reported to the Home Office. That is in no sense a representation that he had leave to stay. I can understand, of course, that Mr Khera thought that when the police officer returned his passport to him, he was out of trouble. So he would have been but for the new Act. But the new Act was expressly made retrospective. Section 34 (1) (a) and (b) said that the Act, as from its coming into force, shall apply in relation to entrants or others arriving in England, at whatever date before or after it came into force. It is clear to my mind that Mr Khera was never given leave to be here. The representation made by the police officer could not be so construed. Malkiat Singh Sidhu This man entered the country clandestinely in January 1968; but, unfortunately for him, he cannot avail himself of the Bhagwan Gap. He had previously come in to Dover and to Folkestone and had been refused. When he came in afterwards clandestinely, he was guilty of an offence against s 4 of the 1962 Act; and so long as he remained here he was continually guilty of an offence. He entered unlawfully in breach of the immigration laws and was, therefore, an 'illegal entrant' within s 33 (1). Counsel for Mr Sidhu sought to escape removal in this way. He said that, by s 34 (4) (b) of the 1971 Act, the Act did not apply --'In relation to removal from the United Kingdom and matters connected therewith... in any case where a person is to be removed in pursuance of a decision taken before the coming into force of this Act...' Counsel said that this removal was 'in pursuance of' the decisions taken in December 1967 and January 1968 when he was refused entry at Dover and Folkestone.
I am afraid I cannot accept this argument. Section 34 (4) (b) is dealing with decisions to remove taken before the carrying into force of the Act. These decisions to refuse entry were not decisions to remove. The removal was in consequence of it, but not in pursuance of them. Conclusion In setting out the facts relating to these three men, I have done so with some sympathy for them. Coming from a Commonwealth country, where there is desperate poverty, they sought refuge in this country -- a country where they can obtain work at good wages; where there are social services beyond compare; and where, above all, the law still protects the freedom of the individual. No doubt they had heard of friends and relatives who had come and settled here, and done well. No doubt there were grasping agents ready to take their money to arrange a passage. Yet, they must have known that their entry was unlawful. No one enters a country by night in a small boat if he is coming in lawfully. They must have known that there was a queue of people waiting to come in lawfully; and that they were jumping the queue. They must have known, too, that their stay here was precarious. So they did all they could to get passports of seeming validity. No doubt they hoped all the time that they would not be found out. To be fair to them, they seem to have behaved well and worked well. After three years, some might think that their wrongdoings could be forgiven, and that there should be an amnesty. But, Parliament has decided otherwise. I think I can see why. These men, if once here by leave, will seek to bring their wives and children over. Two of them have already applied to do so. If the men are allowed to remain, it will be difficult to refuse the wives and children. If this were allowed, the number of immigrants would be increased so greatly that there would not be room for everybody. Again, if an amnesty were granted, it would be an encouragement to others to follow their example; and that simply cannot be permitted. By sending back illegal entrants, it will help to deter others from trying to do the same. In the circumstances Parliament, as I read the 1971 Act, has decided that illegal entrants can be sent back. It has entrusted this decision to the Home Secretary, and not to the courts. It has left it to his discretion. It is better left there because, after all, the matter is one of policy which the courts cannot handle. The Home Secretary can take into account all the circumstances.He has to weigh in the balance on the one hand the length of time the man has been here, and his conduct while here; and, on the other hand, the effect on our society if he and others like him are allowed to stay. This is not a justiciable matter for the courts. It is an administrative matter for the Secretary of State. It is very like his discretion to remove aliens, which has never been questioned in all our long history. Illegal entrants cannot expect to be treated better than aliens. Even though they are Commonwealth citizens, they have come into this country in flagrant defiance of our laws. They cannot pray in aid those very laws so as to enable them to remain here The invasion by them has reached such a scale that Parliament has said: 'This must be stopped. The Home Secretary can send them back.' If he orders their removal, the courts cannot interfere with his decision. But I would emphasise that this power of the Home Secretary can only be exercised when the man is in truth an illegal entrant. It is very different from the power given in wartime under reg 18B n1. Under that regulation a man could be detained on suspicion -- suspicion that he was of hostile association. Here he can only be removed if he was in truth guilty -- guilty of have unlawfully entered. Under reg 18B it was dependent on the opinion of the Home Secretary -- if he had reasonable cause to believe. Here it is dependent on matter of fact -- whether he was an illegal entrant. Under reg 18B the decision could hardly ever be challenged by habeas corpus. Here it can be. The Home Secretary can, if called on, be required to show that the man was an illegal entrant. With these safeguards, none of these men can justly complain if the Home Secretary should decide that he shall be removed. I would, therefore, dismiss these appeals. n1 See the Defence (General) Regulations 1939 (SR & O 1939 No 927)Judgment Two:
BUCKLEY LJ. Each of the three appellants has been detained by the authority of an immigration officer pursuant to the Immigration Act 1971, Sch 2, para 16 (2). That paragraph empowers an immigration officer to authorise detention of a person in respect of whom directions might be given under any of paras 8 to 14 of the same schedule. The relevant paragraphs are paras 9 and 10, which are applicable to the appellants only if each of them is an 'illegal entrant' within the meaning of the statute. Section 33 (1) defines 'illegal entrant' as meaning a person unlawfully entering or seeking to enter the United Kingdom in breach of a deportation order or of the immigration laws, including a person who has so entered. None of the appellants has been ordered to be deported. In respect of each of the appellants the question is whether he is a person who has entered the United Kingdom unlawfully in breach of the immigration laws. By the same section the expression 'immigration laws' is defined as meaning the 1971 Act and any law for purposes similar to that Act which is for the time being or has (before or after the passing of that Act) been in force in any part of the United Kingdom. Each of the appellants entered the United Kingdom clandestinely without submitting to examination by the immigration authorities. Mr Azam came here in January 1970; Mr Khera came in December 1968; Mr Sidhu came in January 1968. It is consequently necessary to consider what the law was at these dates respectively in order to determine whether they entered the United Kingdom unlawfully in breach of the immigration laws then in force. Each of the appellants is a Commonwealth citizen, that is, a British subject. Before the passing of the Commonwealth Immigrants Act 1962 every British subject had the right at common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain here as long as he wished; see Director of Public Prosecutions v Bhagwan n2. That state of affairs was modified by the 1962 Act. The appellants are persons to whom the 1962 Act applies. Section 3 of, and Sch 1 to, the 1962 Act empower immigration officers to examine any person who lands or seeks to land in the United Kingdom for the purpose of ascertaining whether he is or is not a Commonwealth citizen subject to control under the Act, and, if so, for the purpose of determining what action, if any, should be taken in his case under that Act. Section 2 of the Act empowers immigration officers on examination of any Commonwealth citizen to whom the Act applies, who enters or seeks to enter the United Kingdom, to refuse him admission or to admit him subject to conditions. Paragraph 1 (2) of Sch 1 provided that a person should not be required to submit to examination after the expiration of 24 hours from the time when he landed in the United Kingdom. In Director of Public Prosecutions v Bhagwan n1 the House of Lords pointed out that the only restrictions which the 1962 Act imposed on a British subject's right to enter the United Kingdom are those to be found in s 2, and that the powers of an immigration officer under that section were exercisable only on the examination of an immigrant under the Act. Bhagwan, who had not presented himself for examination nor been required to do so within 24 hours of his landing, was prosecuted for conspiring with others to evade examination under the Act. It was contended that by implication the Act imposed on citizens to whom it applied a duty to present themselves to an immigration officer for examination within 24 hours of landing in the United Kingdom. The House of Lords rejected this contention. Lord Diplock said n2: n2 [1970] 3 All ER 97 at 99, [1972] AC 60 at 74 n1 [1970] 3 All ER 97, [1972] AC 60 n2 [1970] 3 All ER at 103, [1972] AC at 79'My Lords, in the face of what the Act states and, even more significantly, what it omits to state, it would, in my view, be quite unjustifiable to attribute to Parliament so devious an intention to impose by implication on Commonwealth citizens a duty in derogation of their common law rights as British subjects which it did not put into express words.'
The House of Lords accordingly held that Bhagwan could not be found guilty of conspiracy. Accordingly from the commencement of the 1962 Act until the Commonwealth Immigrants Act 1968 came into operation the position was that a British subject who came into the United Kingdom without being examined by an immigration officer within 24 hours after he landed in the United Kingdom could not thereafter be refused entry to or removed from the United Kingdom, nor could conditions be imposed on his presence in the United Kingdom; he could not be prosecuted for any offence under the Act and so could not be deported consequent on conviction of such an offence. He was as much entitled to be in the United Kingdom as he would have been if the 1962 Act had never been enacted. In this state of the law an immigrant who submitted himself to examination under the Act and was permitted to enter the United Kingdom without any conditions being imposed could not, in my opinion, be properly said to have entered the United Kingdom by the leave of the immigration officer; he would have entered in the exercise of his common law right to do so. Under para 2 of Sch 1 to the 1962 Act the powers of an immigration officer to refuse admission to the United Kingdom or to admit to the United Kingdom subject to conditions had to be exercised in writing. There is no corresponding provision for leave to enter the United Kingdom being given in writing or at all. This was the state of the law when Mr Sidhu entered the United Kingdom. In December 1967 he had been refused admission at Dover. In January 1968 he was again refused admission. On 14th January 1968 he entered the country secretly without examination. By so doing, having already been refused admission, he committed an offence under s 4 of the 1962 Act. Such offence is by the terms of the section a continuing offence so long as he remains in the United Kingdom. He is accordingly still guilty of that offence today, and could be prosecuted for it, and could be recommended for deportation. Section 2 of the 1968 Act substituted for s 2 (1) and (2) of the 1962 Act new provisions which contain considerable amendments of the subsections in the earlier Act, but none of these amendments is, I think, relevant for present consideration. Section 3 of the 1968 Act introduced into the 1962 Act a new section, s 4A. Subsections (1) and (2) of that section are in the following terms:'(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.' These provisions in effect required an immigrant to whom the 1962 Act applied (other than one coming to the United Kingdom by land from the Irish Republic) to reach the United Kingdom either on an authorised ship or aircraft or through an authorised port or airfield. To do otherwise was made an offence. Section 4 substituted 28 days for the period of 24 hours mentioned in Sch 1, para 1 (2), to the 1962 Act. This was the position when Mr Azam and Mr Khera came to the United Kingdom. Each of them entered the country secretly without complying with the requirements of s 4A, but neither of them had been refused admission. They were consequently guilty of offences under s 4A, but not of offences under s 4. An offence under s 4A is not a continuing offence.Consequently an offender under that section cannot be prosecuted for the offence after the end of six months from the time when the offence was committed (Magistrates' Courts Act 1952, s 104). Neither Mr Azam nor Mr Khera was required to submit to examination within 28 days of landing and neither of them has been prosecuted. Consequently since about July 1970 in the case of Mr Azam, and since about June 1969 in the case of Mr Khera, neither of them has been liable to be prosecuted or, on conviction, to be recommended for deportation on account of his irregular entry to the United Kingdom. There was then no other power to remove them from the United Kingdom for any infraction of the immigration laws. True, they might perhaps have been prosecuted for conspiracy but that is a different offence. Accordingly as it seems to me, they were, at any rate so long as they remained in the United Kingdom, in the same position as they would have been if the 1968 Act had not been passed, that is, a similar position to Bhagwan's. They were legally entitled to be here and to remain here.
The 1971 Act created a new category of British subjects called 'patrials', being persons recognised by the Act as having the right of abode in the United Kingdom.Section 3 of the Act prohibits entry into the United Kingdom by any person who is not a patrial, without leave. Thus, for the first time non-patrial British subjects were deprived of any right to enter the United Kingdom without leave; leave to enter or remain became for them (as it had previously been for aliens) a condition precedent to the acquisition of any right to come or to be here. None of the appellants is a patrial. Under s 1 (2) any person who is not a patrial may live, work and settle in the United Kingdom by permission and anyone who, when the Act came into operation (which was on 1st January 1973), was settled in the United Kingdom is to be treated as having been given indefinite leave to enter or remain here. So if any of the appellants was 'settled' here on 1st January 1973 he is entitled to remain here. By virtue of ss 33 (1) and 2 (3) (d) of the 1971 Act a person is settled in the United Kingdom for the purposes of that Act if he is ordinarily resident here without being subject under the immigration laws to any restriction on the period for which he may remain. Section 33 (2) provides that a person is not to be treated for the purposes of the Act as ordinarily resident in the United Kingdom 'at any time when he is there in breach of the immigration laws'. So the question arises whether the appellants respectively were in this country on 1st January 1973 in breach of the immigration laws.It will be convenient to take first the case of Mr Azam. The Divisional Court expressed the view, with which I agree, that Mr Azam was ordinarily resident in this country on 1st January 1973 unless his residence here ceased to qualify for this purpose by reason of s 33 (2). The Divisional Court reached the conclusion on the facts of the case that Mr Azam was in this country in breach of the immigration laws. He came to this country, said Lord Widgery CJ, in flagrant breach of those laws, and the fact that some of the consequences of his illegal entry had spent themselves did not make it possible to say that he was otherwise than here in breach of those laws. With deference to those who think otherwise, I feel unable to agree with this view. It is, I think, instructive to compare the language of s 4A (1) of the 1962 Act with the language of s 4 (1) of the Act which is in the following terms:'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; or (b) contravenes or fails to comply with any condition imposed on him under that section or under Part II of the First Schedule to this Act, 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.'
Section 4 speaks of entering the United Kingdom whereas s 4A speaks of landing in the United Kingdom. Section 4 (1) (a) only applies to entering or remaining within the United Kingdom while a refusal of admission is in force. Section 4 (1) (b) relates to contraventions or breaches of conditions attached to entering the United Kingdom. If, on the other hand, an immigrant to whom the Act applies lands in the United Kingdom in contravention of s 4A but submits himself to examination within the prescribed time, he commits no offence under s 4 but remains guilty of an offence under s 4A, whether on examination he is permitted to enter the United Kingdom, or permitted to enter subject to conditions, or refused entry. Section 4 (1) makes an offence under that section a continuing offence throughout any period during which the offender is in the United Kingdom thereafter. Section 4A does not make an offence under that section a continuing offence. In my opinion the legislature has made a distinction between the act and the consequences of illegal entry and the act and the consequences of illegal landing. 'Landing' in these Acts, in my view, relates to the physical act of disembarking from a ship or aircraft (the 1962 Act, s 4A (7), Sch 1, paras 1 (1) and (2), 5 (1) 7 (1), 10 (1)). The 1971 Act uses the words 'disembark' and 'embark': see s 11. A would-be entrant may land without being treated as having entered the United Kingdom within the meaning of the Acts. (See for example s 11 of the 1971 Act. Although less clear, I think this is also implicit in the 1962 Act.) Entry is something which occurs, in the case of an entrant who requires leave to enter and comes into the United Kingdom by the authorised means, only after he has been examined and permitted to enter, whether unconditionally or subject to conditions, notwithstanding that he may have landed before he was examined. Conversely a would-be entrant who is refused admission and is removed from the United Kingdom cannot, I think, be said to have entered the United Kingdom notwithstanding that he may have landed for the purpose of examination and may even have spent some days ashore while his examination was proceeding or pending. Entry, in my opinion, involves some degree of participation in the life of the community in the United Kingdom, however temporary it may be. This distinction between landing in the United Kingdom and entering the United Kingdom may seem to be a fine and somewhat artificial one, but it is one which an analysis of the Acts seems to me to indicate as an intentional distinction on the part of the legislature. If Parliament had intended that a secretive entry into the United Kingdom in breach of s 4A but not of s 4 should have similar consequences to an illegal entry in spite of a refusal of admission, it would surely either have made an offence under s 4A a continuing offence, as is an offence under s 4, or it would have provided, as in the cases of seamen and stowaways (see the 1962 Act, Sch 1, paras 8 and 9), that the secretive entrant should be treated as if he had been refused admission. Bearing in mind that, as the House of Lords indicated in Bhagwan's case n1, the traditional and one might say basic freedom of every British subject to move at will about the Crown's dominions should not be withdrawn or abridged unless by clear language or necessary implication in a statute, I do not think that s 4A should be construed as affecting a Commonwealth citizen's right of entry to the United Kingdom but merely as regulating certain methods of exercising that right. So construed the section did not, in my judgment, render Mr Azam's entry into the United Kingdom illegal, although his method of entry rendered him liable to a penalty. Nor was his entry without prior examination unlawful on that account, for the 1962 Act, as amended by the 1968 Act, did not destory his common law right to enter the United Kingdom (contrast the language of s 3 (1) of the 1971 Ac) but merely rendered him liable to a discouraging penalty if that right were exercised in a particular manner. It might be suggested that s 4A imposed a duty on a would-be entrant to comply with the conditions laid down in that section and so to submit himself for examination, but it remained the law that no one should be required to submit to examination after 28 days from the time when he landed. In these circumstances, in my judgment, if s 4A imposed any duty, it was confined to landing and did not relate directly to submitting to examination. n1 [1970] 3 All ER 97, [1972] AC 60 This leads me to the conclusion that Mr Azam, notwithstanding his failure to comply with the conditions of s 4A (1), was not a person who 'entered' the United Kingdom unlawfully in breach of the immigration laws: in other words he was not an illegal entrant for the purposes of the 1971 Act. But if, as may be the case, I am wrong about that, is Mr Azam to be deemed to have received indefinite leave to remain here pursuant to s 1 (2) of the 1971 Act? This, as I have already indicated, depends on whether he was settled here on 1st January 1973, that is, ordinarily resident here without any restriction on the period for which he might remain (s 2 (3) (d)), which could not be the case if at that date Mr Azam was here in breach of the immigration laws. It is true that Mr Azam's presence here on 1st January 1973 was a consequence of his having earlier committed a breach of the immigration laws by landing without fulfilling the conditions of s 4A, but with the passage of time that breach had ceased to have any significance or substance. Mr Azam was no longer liable to any kind of penalty in respect of it. So far from his presence in the United Kingdom being in breach of any law it was, I think, an exercise of his common law right as a British subject to reside in this part of Her Majesty's dominions, of which right the statutes had not, for reasons which I have already endeavoured to make plain, deprived him. In my judgment, Mr Azam was not in the United Kingdom on 1st January 1973 in breach of the immigration laws, so that he must be taken to have then been settled here and must be treated under s 1 (2) of the 1971 Act as a person to whom indefinite leave to enter or remain in the United Kingdom (whch I take to mean leave which is unqualified in any way and unrestricted as to duration) had been given. It follows from this, in my judgment, that, even if contrary to my view Mr Azam should be regarded as having been an illegal entrant, he nevertheless is a person who is permitted under the terms of s 1 (2) of the 1971 Act to remain in the United Kingdom. This conclusion appears to me to be consistent with a common sense view of the policy of the 'general principle', as it is called in the marginal note to the section, enshrined in s 1 (2). The same considerations apply to the case of Mr Khera, and the same conclusions follow.It is consequently unnecessary for me to consider the point, which is peculiar to his case, relating to his communication with the police which, it is suggested, amounted to an implied grant of permission to remain in the United Kingdom or a waiver of any right to rely in relation to him on the irregularity in his arrival in this country. Nor need I deal with the other point raised by his counsel, that the immigration officer, at whose instance Mr Khera was detained, did not specifically consider the question whether Mr Khera had obtained leave to remain here. I would observe, however, that Mr Khera had an opportunity to raise this point, if it had any substance, which I doubt, and that, as he did not do so, the course taken by the immigration officer does not seem to me to be open to criticism on the ground suggested. Mr Sidhu, having entered the United Kingdom in spite of having been refused admission, was indisputably an illegal entrant. The first point taken in this court on his behalf is that since, as is contended, he is to be removed from the United Kingdom, if at all, pursuant to a decision taken before the 1971 Act came into force, he is not a person to whom the 1971 Act is applicable for any purpose connected with such removal (s 34 (4) (b)). In my judgment this premise is a false one. The decision to detain Mr Sidhu was taken after 1st January 1973. Any decision of the Secretary of State that he shall be removed from the United Kingdom will also have been made after that date. Mr Sidhu's removal, if he is removed, will be in pursuance of that decision of the Secretary of State, and not, as has been suggested, in pursuance of the decision in January 1968 to refuse him admission to the United Kingdom. So, in my judgment, the 1971 Act applies to Mr Sidhu for the present purposes. The second point taken on Mr Sidhu's behalf is that the powers under Sch 2, para 8, to the 1971 Act are not available in this case because of sub-para (2) thereof; that the powers under para 9 of the same schedule are inappropriate, because nothing is known about the ship or aircraft in which he arrived; and that the Secretary of State has not exercised or indicated any intention to exercise his powers under para 10. We are told that the Secretary of State intends to exercise those powers, if they are available to him. In my judgment, the fact that he has not yet exercised them is no bar to Mr Sidhu's detention under para 16 (2) of the schedule, which expressly provides for detention pending the giving of directions for the removal of the detained person. The reasons which, in my opinion, prevail in the cases of Mr Azam and Mr Khera do not apply to Mr Sidhu. Having entered the United Kingdom in spite of having been refused admission, he committed a breach of s 4 of the 1962 Act. That breach constituted a continuing offence which was still continuing at 1st January 1973. No common law right to enter the United Kingdom or to remain here was available to him. At 1st January 1973 he was an illegal entrant who was here in breach of the immigration laws. He is consequently not to be treated as having then been ordinarily resident here and s 1 (2) of the 1971 Act does not apply to him. Counsel for the respondents has contended that, disregarding the merits of the appellants' cases, none of them should be granted habeas corpus because the 1971 Act provides an appeal procedure which he suggests should be preferred to habeas corpus proceedings. In my judgment, this argument should not prevail. A litigant should not be refused the ancient remedy of habeas corpus on account of the availability of some less expeditious and advantageous alternative remedy. None of the appellants could appeal under the Act until his removal from the United Kingdom had taken place. In these circumstances not only is the appeal procedure manifestly less convenient and advantageous to the appellants than habeas corpus proceedings, but it is not adequate to maintain intact the right which the appellants assert, namely a right to remain undisturbed in the United Kingdom. For these reasons I would allow the appeals of Mr Azam and Mr Khera but dismiss the appeal of Mr Sidhu.Judgment Three:
STEPHENSON LJ. We are concerned with three Commonwealth immigrants who claim that they are unlawfully detained. An immigration officer has authorised the detention of each of them by detention orders dated 30th January, 5th February and 28th February 1973 respectively under para 16 of Sch 2 to the Immigration Act 1971 pending the completion of arrangements for dealing with them under the Act. They are therefore all persons deemed to be in legal custody by virtue of para 18(4) of the same schedule. The question is whether the immigration officer who made each of those detention orders was entitled to make it by virtue of para 16 of the schedule or whether he exceeded his statutory powers because for one reason or another the person whom he ordered to be detained was not 'a person in respect of whom directions may be given under any of paras 8 to 14' of the same schedule. Only if he is such a person may he be 'detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given'. Of those paragraphs, paras 8 to 11 provide for the removal of persons refused leave to enter and illegal entrants. The respondents allege that all these appellants are illegal entrants and para 9 therefore applies. That paragraph provides: 'Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give' directions of the kind referred to in para 16 (2). By s 33 (1) an 'illegal entrant' means --'a person unlawfully entering or seeking to enter [the United Kingdom] in breach of a deportation order or of the immigration laws, and includes also a person who has so entered'.
Of each appellant the question then has to be asked: is he illegal entrant? If not, he must be released and the writ must go. If he is, has he been given leave to enter or leave to remain? (I hope to justify the form of the last question without ignoring an argument addressed to us on the use of the present tense in para 9.) If he has, again he must go free. The appellant Sidhu admits that he is an illegal entrant but claims that the 1971 Act, including para 9 of Sch 2, does not apply to him. The appellant Khera, having conceded in the Divisional Court that he was an illegal entrant, would like this court to decide on the arguments of the appellant Azam's counsel that he is not, but also to imply from the facts of his case that he has been given leave and further to hold that the immigration officer failed to consider whether he had been given leave. The appellant Azam maintains that is not an illegal entrant, or if he is, he has become entitled to remain because he has been given leave. If any of the points taken on the appellant Azam's behalf were right we should be bound to decide that the appellant Khera's detention was unlawful. It therefore becomes necessary to consider the 1971 Act, what changes it has made in the law and whether and how it affects the appellants. We cannot get out of deciding whether the detention of any of these three appellants is lawful by finding in the appeals provisions of Part II of the Act an alternative remedy. Where a person is detained in custody pursuant to the sentence of a court of law I agree with counsel for the respondents that he must challenge the legality of his detention by the prescribed procedure for appealing to a higher court or higher courts and not by such an application for habeas corpus: see Ex parte Corke n1. But when he is detained in custody pursuant to an order of the executive I am far from satisfied by the authorities on which counsel relies that the principles applicable to the exercise of the court's discretion in granting writs of mandamus or certiorari apply also to habeas corpus or that the existence of an alternative remedy however coverient, beneficial and effectual prevents the issue of the writ. Certainly there is no such alternative remedy here and I agree with Lord Denning MR and Buckley LJ that we must examine the legality of the appellants' detention. n1 [1954] 2 All ER 440, [1954] 1 WLR 899 The Immigration Act 1971 is according to its preamble --'An Act to amend and replace the present immigration laws, to make certain related changes in the citizenship law and enable help to be given to those wishing to return abroad, and for purposes connected therewith.' By s 34 (1) it repeals the whole of the Aliens Restriction Act 1914, the whole of the Commonwealth Immigrants Act 1962 with a few exceptions, the whole of the Commonwealth Immigrants Act 1968 and the whole of the Immigration Appeals Act 1969 as well as parts of three British Nationality Acts: see Sch 6.
The 1962 Act was 'An Act to make temporary provision for controlling the immigration into the United Kingdom of Commonwealth citizens'; the 1968 Act an Act to amend ss 1 and 2 of the 1962 Act and its first schedule 'and to make further provision as to Commonwealth citizens landing in the United Kingdom'. By contrast the 1971 Act regulates the entry into and stay in the United Kingdom (Part 1) of all immigrants including aliens and, on its true construction as I think, whenever they 'immigrated'. The Act begins by dividing (s 1) persons into those who have a right of abode in the United Kingdom from those who have not. Section 2 defines those who have that right under the Act and calls them 'patrial' (sub-s (6)). If a person is not patrial 'he shall not enter the United Kingdom unless given leave to do so in accordance with this Act' (s 3 (1) (a)), but 'he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period' (sub-s (1) (b)), and the limited leave may be subject to conditions (sub-s (1) (c) ); and he is liable to deportation if he satisfies the provisions of sub-ss (5) or (6). The administration of that control on entry and stay is given by s 4 to immigration officers (the power to give or refuse leave to enter) and to the Secretary of State (the power to give leave to remain or to vary any leave), and sub-s (2) of that section introduces the provisions of Sch 2 with respect to among other things 'the detention of persons pending examination or pending removal from the United Kingdom'. The introductory words of s 2(1), 'A person is under this Act to have the right of abode in the United Kingdom', leave open the possibility that persons may have the same or an equivalent right other than under the Act. It may be that the immigrant Bhagwan would fall into that category: see Director of Public Prosecutions v Bhagwan n1. But I understand the Act to be limiting the right to be 'free to live in, and to come and go into and from, the United Kingdom without let or hindrance' to patrials (s 1 (1)), and to be regulating and controlling the entry into, stay in and deportation from the United Kingdom of all persons who are not patrial by s 1 (2). By that subsection they need permission but are treated as having been given indefinite leave to enter or remain in the United Kingdom if they are settled there at the coming into force of the Act, i e, on 1st January 1973. Those who are not patrial have now no right to live in the United Kingdom or to come and go without let or hindrance; they can have only permission to live, work and settle in the United Kingdom indefinitely, which may come to very much the same thing. n1 [1970] 3 All ER 97, [1972] AC 60 Who then are to be regarded as 'settled' in the United Kingdom on 1st January 1973? The answer is any 'non-patrial' who is 'ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain' (s 33 (1) and s 2 (3) (d)), but subject to this, that he is not to be treated as ordinarily resident there 'at a time when he is there in breach of the immigration laws' (s 33 (2)) and that means in breach of '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 and Islands': s 33 (1). That meaning of immigration laws must also be its meaning in the definition of illegal entrants. All the appellants entered the United Kingdom clandestinely without encountering an immigration officer. The appellant Sidhu entered on 1st January 1968 (two months before the 1968 Act came into force) after being refused leave by an immigration officer under s 2 of the 1962 Act on 9th January 1968. He indisputably entered in breach of s 4 (1) (a) of the 1962 Act which provided:'If... a Commonwealth citizen... (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... he shall be guilty of an offence...' And indeed he was still guilty of that offence in February 1973 because the offence was by s 4 (1) 'deemed to continue throughout any period during which the offender is in the United Kingdom thereafter'. He is therefore beyond doubt an illegal entrant and unless the 1971 Act or para 9 of Sch 2 does not apply to him for some other reason his detention is lawful.
The position of the appellants Azam and Khera is at first sight less clear, but I would have had no doubt that the Divisional Court was right in holding them both to be illegal entrants and counsel for the appellant Khera right in conceding them to be so were it not for the contrary opinion of Buckley LJ. They both entered clandestinely after the 1968 Act but before the 1971 Act came into force, the appellant Azam in January 1970 and the appellant Khera in December 1968. In my judgment they both entered in breach of s 4A which was added to the 1962 Act by s 3 of the 1968 Act. That section provided that 'if... a Commonwealth citizen... lands in the United Kingdom and does not fulfil either of [two] conditions', that he has been examined on board the ship or aircraft from which he lands, or that he lands in accordance with arrangements approved by an immigration officer and on landing submits to examination in accordance with those arrangements, he shall be guilty of an offence. Neither of these two appellants fulfilled either of these two conditions. Why has not each of them entered in breach of this section? The section imposed further restrictions on landing in the United Kingdom: see the sidenote. It plugged the gap left by s 4 of the 1962 Act and made clandestine entry illegal, as Lord Diplock pointed out in Bhagwan's case n1. It did not make such landing an offence which continued throughout the offender's stay in the United Kingdom, although it did (by s 4) extend the time after which he could not be removed for so entering from 24 hours to 28 days (1962 Act, Sch 1, para 1). But that merely had the effect of protecting the offencder from prosecution after the six months' time limit for summary offences prescribed by the Magistrates' Courts Act 1952, s 104. As Lord Diplock pointed out, the 1962 Act was an experiment in controlling the numbers of Commonwealth immigrants and I think that the 1968 Act merely tried a different method of achieving the same thing, with one hand making entry without encountering an immigration officer an offence and extending the period for discovering it, with the other reimposing the ban on prosecuting the offender who 'gets away with it' after six months. n1 [1970] 3 All ER at 104, [1972] AC at 80 The reasons for imposing the restrictions on persons landing and not on persons entering is not so clear. But it is to be noted that is is not only the Aliens Restriction Act 1914 and the Aliens Order 1953 n2 which treat of landing and impose restrictions on landing and embarkation. The 1962 Act, having provided in s 2 for the Commonwealth citizen who 'enters or seeks to enter the United Kingdom', provides by s 3 (1) that the provisions of Part 1 of Sch 1 to that Act shall have effect with respect to -- n2 SI 1953 No 1671'(a) the examination of persons landing or seeking to land in the United King dom from ships and aircraft; (b) the exercise by immigration officers of their powers of refusal of admission... under section two...' And in Sch 1 will be found in para 5 a provision for landing cards and embarkation cards and in para 10 (1) definitions by which '"immigrant" means a Commonwealth citizen... who lands or seeks to land in the United Kingdom' and '"land" means... land from a ship or aircraft'. The definition of 'land' is repeated in the new s 4A (7). You cannot enter the United Kingdom from a boat or aircraft without landing or disembarking, and you cannot enter the United Kingdom except from a boat or aircraft (unless you cross the border from Eire to Northern Ireland). It is said that you can land from a boat (or aircraft) without entering because to enter you must enter the community by living in the United Kingdom if only for a season. I doubt that, but even if it be right I do not see how a person who lands in breach of s 4A (1) or (2) (b) and stays on in the United Kingdom has not entered the United Kingdom in breach of that immigration law.
The 1968 Act passes from 'entering' in s 2 to 'landing' in s 3 without, I think, intending to draw any distinction between landing and entering by boat or aircraft or perhaps to do more than follow in s 3 the language which the 1962 Act had put into a schedule and anticipate that there may be yet undiscovered or unpractised methods of reaching the United Kingdom -- such as by swimming or Channel tunnel. I find nothing in s 11 of the 1971 Act and its instances of what is not to be deemed to enter the United Kingdom which makes me regard the distinction between landing and entry as significant.'A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks'
implies that when he does disembark (or land) he will generally be considered to have entered. And I find no material difference between offences under s 4A which s 35 (3) of the 1971 Act describes as 'unauthorised landing', and offences under s 4, which the sidenote to s 24 of the 1971 Act describes as 'illegal entry'. The material difference between the two sections is that pointed out by Lord Diplock in Bhagwan's case n1 and it turns these two appellants into illegal entrants. On this question I agree with Lord Denning MR. n1 [1970] 3 All ER at 104, [1972] AC at 80 Next comes the question whether illegal entrants though all three are, they are nevertheless to be treated under s 1 (2) of the 1971 Act as having been given indefinite leave because ordinarily resident there at a time when they are not in breach of immigration laws past or present. Again I have come to the conclusion, in agreement with Lord Denning MR and in spite of Buckley LJ's dissent, that the Divisional Court was right in holding that they were here on 1st January 1973 in breach of s 4A and are therefore prevented by s 33 (2) of the 1971 Act from claiming to be settled and so to be treated as having been given indefinite leave. There is considerable force in the argument that a person is not in breach of a law at a time when he cannot be prosecuted for the offence of breaking it and that the omission from s 4A of words like those in s 4 of the 1962 Act making the offence of unauthorised landing continue points strongly to the appellants no longer being in breach after the expiry of the 28 days and six months from their landing. Suppose one of these appellants had been prosecuted before the time expired, convicted and not deported, could he be said to be in breach of s 4A years later? The answer is not, I think, to be found in analogies, though I do not see why a man may not be in breach of contract after the limitation period for suing him on it has run out. It is in the wording of s 33 (2) which makes the right question not 'is he in breach now?' but 'is he here in breach now?' Persons may be ordinarily resident here now, and since 1st January 1973 either in compliance with the immigration laws or not. There is no third class of persons who are here safe from prosecution or other action for breach of these laws. The appellants are here not in compliance with them but in contravention of them and they are therefore not entitled to be treated as here with indefinite permission to remain. This construction of s 33 (2) may take away from Commonwealth citizens who have been here for years the right to be heard by a court in opposition to a recommendation for deportation which they would have had if they had been prosecuted earlier. But they themselves will still be able to make representations to the Secretary of State in support of their pleas to remain. And if unlawful ordinary residence here is to turn them into persons here with indefinite leave, other 'non-patrials' will be prevented from coming and staying here lawfully. I find nothing in Part III of the 1971 Act which deals with criminal proceedings to throw doubt on this construction of s 33 (2). A breach of the immigration laws may be an illegal entry or a similar offence (s 24) or a general offence in connection with administration (s 26). Those and other offences, summary and indictable, are all subject now to prosecution for three years after being committed (provided that not more than two months elpase after the police have enough evidence to justify proceedings (s 28)). Indeed I find some support for my view that liability to prosecution does not affect the question whether an offender is here in breach of the immigration laws in s 28 (4) which provides:'Any powers exercisable under this Act in the case of any person may be exercised notwithstanding that proceedings for an offence under this Part of this Act have been taken against him.'
This would seem to be an unnecessary provision if it referred only to those who after being prosecuted for one offence committed another. It would seem to justify detaining as an illegal entrant a person who had become ordinarily resident here after being prosecuted. It was argued last on behalf of the appellant Azam that if he was not to be treated as having an indefinite leave under s 1 (2) of the 1971 Act he was to be treated as having it under s 34 (3) (a), as he was not at the coming into force of the Act subject to a condition limiting his stay in the United Kingdom. He can only be treated as having it thereunder if he is a person treated in accordance with s 34 (2) as having leave to enter the United Kingdom. Is he such a person? Section 34 (1) (a) applies the Act in relation to entrants or others arriving in the United Kingdom at whatever date before or after it comes into force, and sub-s (2) provides so far as relevant that a person given leave to land by virtue of the Aliens Restriction Act 1914 shall be treated as having been given leave to enter under this Act 'and similarly with the Commonwealth Immigrants Acts 1962 and 1968'. That means that a Commonwealth citizen given leave to enter under s 2 of the 1962 Act or leave to land under s 4A introduced by the 1968 Act shall be treated as having been given leave to enter under the 1971 Act. As the appellant Azam, like the appellant Khera, has not been given any such leave he cannot be treated as having it for an indefinite period and this point too fails. So this appellant's detention is lawful and his appeal fails. I agree that neither of the two points taken on behalf of the appellant Khera is good. 1. Leave to remain in the United Kingdom can be a matter of implication: see R v Secretary of State for Home Affairs, ex parte Soblen n1 per Lord Parker CJ n2 and Lord Denning MR n3. But it must be given by the Secretary of State or on his behalf and it is not given by a police officer informing an immigrant that he will not be prosecuted, that his passport is in order and that the Home Office have been informed, nor by the supervening months of inactivity on the part of the Home Office with knowledge of his entry in breach of s 4A. Nor do the facts amount to a waiver of the breach by the Secretary of State or any agent of his, or cause s 4A to 'drop away' as counsel for the appellant Khera picturesquely put it. n1 [1962] 3 All ER 373, [1963] 1 QB 829 n2 [1962] 3 All ER at 377, [1963] 1 QB at 834 n3 [1962] 3 All ER at 379, [1963] 1 QB at 842 2. An immigration officer must act fairly: see Re K (H) (infant) n4 per Lord Parker CJ. But the immigration officer who interviewed the appellant Khera was not bound to ask him whether he had been given leave to remain since his illegal entry. The appellant had had a solicitor acting for him, he was given an opportunity to tell the immigration officer about the police visit in January 1972 and if he had told him about it the immigration officer would not have been justified in considering that he was no longer here in breach of s 4A but here with leave actual or implied or presumed under s 1 (2) of the 1971 Act. I agree that his appeal also fails. n4 [1967] 1 All ER 226 at 231, [1967] 2 QB 617 at 630 Finally I find both points taken in this court by counsel on behalf of the appellant Sidhu wholly unconvincing. 1. His first point is that the removal of this appellant from the United Kingdom and his detention connected therewith are in pursuance of the decision taken in 1968 to refuse him admission to enter the United Kingdom in the sense that there would be no power to remove or detain him if he had been admitted when he was refused. But this far-fetched construction of s 34 (4) (b) ignores the context of this subsection. Subsection (4) is providing that 'Notwithstanding anything in the foregoing provisions of this Act, the former immigration laws shall continue to apply, and the Act shall not apply' to certain decisions already taken but not carried out. This subsection is dealing with cases where when the Act comes into force an unimplemented decision has already been made to deport or to remove, or where an appeal is actually pending; in these cases the transitional provisions apply the existing immigration law and not the new Act. No such decision had been taken against this appellant before 1st January 1973. The decision to set in motion the procedure for removal was a decision taken after that the under the powers given by the new Act, and it was in pursuance of the subsequent decision that he was and is detained. 2. Insofar as I understand counsel's second point it is or is connected with that which was rejected by the Divisional Court. It is that the directions which may be given in respect of this appellant are directions under para 10, not para 9, because para 9 only applies to an illegal entrant who is not given leave and the appellant is an illegal entrant who has not been given leave. As the Secretary of State has not given directions in respect of him under para 10 he may not be detained under para 16 (2). It is true that the Secretary of State has not given directions, although we are told that an order under para 10 has been drawn up for his signature which awaits the results of this appeal. But detention of this appellant is lawful under para 16 (2) if directions may be given in respect of him. Further I share the view of the Divisional Court that the language of para 9 is wide enough to cover the appellant, although I do not share their view that the paragraph must be altered to read 'where an illegal entrant is not given leave or has not been given leave'. Faced with illegal entrants who have entered the United Kingdom and remained here for differing periods, Parliament has used language which naturally and compendiously fits all such persons who have entered or remained without leave, without leave to enter given at the time or leave to remain given then or thereafter. The words 'is not given leave' do not necessarily mean 'is not given leave at the time when the immigration officer gives directions' but may equally well mean 'is a person not given leave'. So this appellant's detention is lawful and I agree that his appeal too fails.DISPOSITION:
Appeals dismissed. Leave to appeal to the House of Lords granted in all cases.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.Copyright notice: Crown Copyright
