R v Bhagwan
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Guest,Lord Diplock |
| Judgment Date | 23 July 1970 |
| Judgment citation (vLex) | [1970] UKHL J0723-1 |
| Date | 23 July 1970 |
| Court | House of Lords |
[1970] UKHL J0723-1
House of Lords
Lord Reid
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Guest
Lord Diplock
After hearing Counsel, as well on Monday the 22d, as on Tuesday the 23rd and Wednesday the 24th, days of June last, upon the Petition and Appeal of the Director of Public Prosecutions, praying, That the matter of the Order set forth in the First Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 20th of February 1970, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of Dharam Singh Bhagwan, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 20th day of February 1970, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
For the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.
My Lords,
For the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.
My Lords,
For the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.
My Lords,
For the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.
My Lords,
The Respondent, Mr. Dharam Singh Bhagwan, was a Commonwealth citizen. This means that he was a British subject, but as he was a citizen of India and not a citizen of the United Kingdom and Colonies, and did not hold a United Kingdom passport the Commonwealth Immigrants Act, 1962, applied to him. As he did not hold an employment voucher issued for the purposes of the Act he was liable to be refused admission to the United Kingdom by an immigration officer, when he came here in 1967.
I am prepared to assume, for the purposes of this appeal, that there was a strong likelihood that, if he submitted himself to examination by an immigration officer, Mr. Bhagwan would be refused admission and that he was well aware of this. What he did was to arrange to be landed in this country (together with a number of compatriots) from a small vessel on a deserted beach and so avoided encountering an immigration officer within 24 hours of his arrival. Under the Act, as it then stood, he could not be refused admission unless, within 24 hours of landing, he had been required by an immigration officer to submit to examination. By avoiding such examination he has obtained the right to remain in this country permanently.
manner Mr. Bhagwan committed no statutory offence under the Act, as it stood in 1967. To do so did not become an offence until the passing of the Commonwealth Immigrants Act, 1968. It is not contended by the prosecution that the method of his entry, though clandestine, involved any deception, dishonesty or fraud. It must, however, have involved some anterior agreement between him and another person, if only with the master of the vessel which landed him. It was in respect of this agreement alone that he was charged.
On the 20th October, 1969, he was arraigned at the Central Criminal Court upon the following indictment: —
"DHARAM SINGH BHAGWAN is charged with the following offence:—
STATEMENT OF OFFENCE.
CONSPIRACY TO EVADE THE CONTROL ON IMMIGRATION IMPOSED UNDER THE COMMONWEALTH IMMIGRANTS ACT 1962COMMONWEALTH IMMIGRANTS ACT 1962.
PARTICULARS OF OFFENCE.
DHARAM SINGH BHAGWAN between the 1st day of January and the 23rd day of October 1967 within the jurisdiction of the Central Criminal Court conspired with other persons to evade the control on the immigration of Commonwealth citizens into the United Kingdom in order that he, being a Commonwealth citizen and subject to such control, might enter the United Kingdom without, upon landing, submitting himself for examination by an immigration officer and medical inspector and without holding an employment voucher."
At the trial, though not until the conclusion of the prosecution's evidence, Mr. Bhagwan's Counsel moved to quash the indictment on the ground that it did not disclose any offence known to the law. The presiding Judge dismissed the motion; whereupon Mr. Bhagwan pleaded "Guilty". He appealed to the Court of Appeal against the Judge's refusal to quash the indictment. On the 17th February, 1970, his appeal was allowed and the indictment quashed. Upon the application of the prosecution, the Court of Appeal certified that a point of law of general public importance was involved in their decision, namely: —
"Whether an indictment for conspiracy will lie against a Commonwealth immigrant who in combination with others entered the United Kingdom between 1962 and 1968 by evading examination by an Immigration Officer and a medical examination and without holding an employment voucher."
They refused leave to appeal, but this was later granted by your Lordships' House.
Prior to the passing of the Commonwealth Immigrants Act, 1962, Mr. Bhagwan as a 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 listed. That right he still retained in 1967 save in so far as it was restricted or qualified by the provisions of the Act.
The only restriction which that Act imposed upon his right to enter the United Kingdom is to be found in Section 2. Subsection (1) is as follows: —
"Subject to the following provisions of this section, an immigration officer may, on the examination under this Part of this Act of any Commonwealth citizen to whom section one of this Act applies who enters or seeks to enter the United Kingdom,—
( a) refuse him admission into the United Kingdom; or
( b) admit him into the United Kingdom subject to a condition restricting the period for which he may remain there, with or without conditions for restricting his employment or occupation there."
The subsequent subsections imposed limitations upon the powers of immigration officers to refuse admission to or to impose restrictive conditions to set them out, for it is not suggested that Mr. Bhagwan these categories.
It is to be observed that there is nothing in this section which expressly, limits the time or place at which a Commonwealth immigrant may enter the United Kingdom. This is in striking contrast with the only existing legislation which in 1962 was in pari materia with the Act. That was the Aliens Order, 1953. Article 1 of that Order read as follows: —
" Restrictions on landing and embarkation
1.—(1) Subject to the provisions of this Order, an alien shall not land or embark in the United Kingdom except with the leave of an immigration officer, and shall not so land or embark elsewhere than at an approved port or at such other place as an immigration officer may in any particular case allow.
(2) …
(3) The Secretary of State shall by order designate the ports which are to be approved ports for the purposes of this Order; and any such order may specify in respect of any port so designated the limits of that port as an approved port."
It is also to be observed that an immigration officer's power to refuse admission to a Commonwealth immigrant was exercisable only on the examination of the immigrant under this Part of the Act. Examination was therefore all important. It was a condition precedent to any refusal of admission.
Section 3 of the Act and the First Schedule dealt with examination. Subsection (1) of section 3 is as follows:
"3.—(1) The provisions of Part I of the First Schedule to this Act shall have effect with respect to—
( a) the examination of persons landing or seeking to land in the United Kingdom from ships and aircraft;
( b) the exercise by immigration officers of their powers of refusal of admission or admission subject to conditions under section two of this Act, and the cancellation, variation and duration of such refusals and conditions;
( c) the removal from the United Kinsdom of Commonwealth citizens to whom admission is refused under that section;
( d) the detention of any such persons or citizens as aforesaid pending further examination or pending removal from the united Kingdom,
and for other purposes supplementary to the foregoing provisions of this Act."
The relevant paragraphs of the First Schedule dealing with examination are:
"1.—(1) Subject to the provisions of this paragraph, an immigration officer may examine any person who lands or seeks to land in the United Kingdom for the purpose of ascertaining whether that person is or is not a Commonwealth citizen subject to control under Part I of this Act, and if so for the purpose of determining what action, if any, should be taken in his case under the said Part I; and it shall be the duty of every such person to furnish to an immigration officer such information in his possession as that officer may reasonably require for the purpose of his functions under this paragraph.
(2) A person shall not be required to submit to examination under this paragraph after the expiration of the period of twenty-four hours from the time when he lands in the United Kingdom unless, upon being examined within that period, he is required in writing by an immigration officer to submit to further examination."
It is to be observed, first,...
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