R v Secretary of State for the Home Department, ex parte Khawaja

JurisdictionUK Non-devolved
JudgeLord Fraser of Tullybelton,Lord Wilberforce,Lord Scarman,Lord Bridge of Harwich,Lord Templeman
Judgment Date10 February 1983
Judgment citation (vLex)[1983] UKHL J0210-2
Date10 February 1983
CourtHouse of Lords
In re Khawaja (A.P.)
In re Khera (A.P.)

[1983] UKHL J0210-2

Lord Fraser of Tullybelton

Lord Wilberforce

Lord Scarman

Lord Bridge of Harwich

Lord Templeman

House of Lords

Lord Fraser of Tullybelton

My Lords,


These two appeals were heard together. The appellants are immigrants into the United Kingdom. After they had obtained leave to enter, and had entered the United Kingdom, further information about them came to the knowledge of the Home Office, in consequence of which immigration officers decided that both appellants had obtained leave to enter by practising fraud or deception on the immigration officers at their respective ports of entry, and that they were therefore "illegal entrants" within the meaning of the Immigration Act 1971. The officers who considered the further information ordered, in each case, that the appellant should be detained pending his summary removal as an illegal entrant. The appellants both applied to the courts for judicial review of these decisions, and for orders of certiorari to quash the detention orders. The practical question now before your Lordships' House is whether either, or both, of the applications for judicial review should be granted, with the result that certiorari would be issued to quash the detention order or orders.


Khera: the facts


The cases differ widely in their facts, which I must now summarise. The appellant Khera was born in India on 21st August 1956. He is a citizen of India and is subject to immigration control under the Immigration Act 1971. His father was employed by the (British) Ministry of Defence as a police officer in Singapore from 1951 to 1971, and he was registered in Singapore as a citizen of the United Kingdom and Colonies in February 1961. In May 1972 the appellant's father applied for an entry certificate to the United Kingdom for the appellant's mother and the appellant as his dependants, and in June 1972 the father himself entered the United Kingdom for settlement. In January 1973 the appellant, then aged 16½ years, married in India. The fact of his marriage became of importance as will appear later. Thereafter, the appellant and his mother were at first refused entry certificates to the United Kingdom, on the ground that they were not related to his father. But on 4th October 1974 their appeal to an adjudicator was allowed, and on 12th January 1975 they were given indefinite leave to enter the United Kingdom, and they entered. In November 1978, in consequence of an application from the appellant's wife to enter the United Kingdom with the children of her marriage to the appellant, the marriage came to light, and after enquiries had been made, an immigration officer ordered that the appellant be detained as an illegal entrant, pending summary removal under paragraph 16(2) of Schedule 2 to the 1971 Act. The detention order against the appellant Khera was made on 22nd November 1978. He was only actually detained for about a fortnight, and on 8th December 1978 he was temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act, subject to certain restrictions as to his place of residence and other matters. But the appeal has been dealt with all along as if the appellant were still detained, and I think that is right because his personal liberty is undoubtedly restricted.


The appellant applied for judicial review of the decision of 22nd November 1978. The history of the application is a little unusual. It was dismissed by the Divisional Court, and then by the Court of Appeal. On 6th May 1982 his petition for leave to appeal to this House was dismissed by the Appeal Committee of this House, but on 9th July 1982 the Appeal Committee (which had by that time granted leave to the appellant Khawaja to appeal) discharged its order of 6th May applicable to the case of the appellant Khera, and granted leave to him also to appeal.


It was at one time contended on behalf of the Secretary of State that there had been four separate occasions between the refusal of the clearance certificate to the appellant and the eventual grant of leave to enter, on which the appellant, or his father, ought to have disclosed to the immigration authorities that the appellant had been married, but on which one or other of them had failed to do so. But at the hearing in this House counsel for the Secretary of State conceded that, for reasons which I need not particularise, failure to disclose the marriage on the first three of these occasions could not be founded on as amounting to deception. Counsel relied eventually only on the fourth occasion, which was on 16th December 1974, when the applicant underwent a medical examination in India after the successful appeal to the adjudicator. The Home Office, in correspondence, asserted that on that occasion the appellant had falsely, told the medical officer that he was not married, and that this lie had been a material factor in the grant of a clearance certificate to him. If the lie were established, it undoubtedly would be material because the appellant was by then (15th December 1974) aged more than eighteen, and under the Immigration Rules then in force (H.C. 79, Rule 44), children aged eighteen or more had to qualify for admission in their own right, with the exception that "an unmarried and fully dependent son under 21 … who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement (Emphasis added.) (The Rules have now been changed and the current Rules are set out in the document H.C. 394. The relevant Rules are numbers 46 and 47 which do not contain the same exception in favour of unmarried sons over eighteen and under twenty-one.)


The lie alleged to have been told by the appellant to the medical officer was referred to by the Home Office in letters to a member of your Lordships' House who had taken up the appellant's case, the letters being dated 14th February 1979 and 4th April 1979. Thereafter, the appellant's father swore an affidavit on 27th June 1979 in which he said that the appellant denied having made any statement to the medical officer to the effect that he was unmarried. The father added, by way of explanation, that the appellant spoke Punjabi and had not been able to communicate satisfactorily with the medical officer who did not appear to speak that language. There is no evidence, on affidavit or otherwise, on behalf of the respondent setting out the respondent's account of the interview with the medical officer. The only affidavit on behalf of the respondent is dated the 30th October 1980, and was sworn by a Mr. Chalmers who appears to be the immigration officer who made the decision of 22nd November 1978 that the appellant was an illegal entrant. In that affidavit he referred to the three occasions, now no longer relied upon, on which the appellant or his father had not disclosed that he had been married, but he made no reference to the medical examination. It must, therefore, be taken that in reaching his decision he did not rely on what happened at the medical examination. If the alleged lie was to be part of the basis for his decision it should have been mentioned in Mr. Chalmers' affidavit; that was all the more necessary as it had been denied by the appellant's father on his behalf. As it is now conceded that the failure to disclose on the three earlier occasions did not amount to deception, and as they are apparently the only occasions on which Mr. Chalmers relied in coming to his decision, the inevitable consequence is, in my opinion, that Mr. Chalmers was not entitled, on the evidence that was before him, to decide that the appellant had been guilty of deception.


I note in passing that the notice of the immigration officer's decision of 22nd November 1978, begins with the following statement (with emphasis added):

"Having considered all the information available to me, I am satisfied that there are reasonable grounds to conclude that you are an illegal entrant in accordance with the provisions of the Immigration Act 1971 …".


The notice does not slate that the officer was satisfied that "you are an illegal entrant". I shall consider later whether the wording indicates that the immigration officer applied the wrong test.


I should mention one ground on which counsel for Khera sought to distinguish his case from that of Zamir v. Secretary of State for the Home Department [1980] A.C. 930, to which I shall refer in what follows. In Zamir the appellant had married after he had been given entry clearance and the deception which this House held he had practised consisted of failing to disclose a material change of circumstances occurring since entry clearance had been obtained. In the present case, the appellant's marriage took place before he had obtained entry clearance and, if there had been any deception, it would have consisted of failing to disclose a material fact when his application was under consideration. In my opinion, there is no relevant difference between the two cases in this respect. What matters is that the alleged failure to disclose, whether it took place before or after entry clearance had been obtained, would have been a material factor in enabling the appellant to enter the United Kingdom.


Khawaja: the facts


I come now to the case of the appellant Khawaja. His application for judicial review was refused by Forbes J. and by the Court of Appeal. Leave to appeal to your Lordships' House was given by the Appeal Committee on 17th June 1982.


This appellant is a national of Pakistan and is not a patrial; that is to say, he does not have a right of abode in the United Kingdom—see 1971 Act, section 2(6). In October 1978 the appellant enrolled as a student at the University of Brussels, and in August 1979 he applied to the British Embassy in Brussels for a visa to enter...

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