R v Secretary of State for the Home Department, ex parte Phansopkar; R v Secretary of State for the Home Department, ex parte Begum
| Jurisdiction | England & Wales |
| Judgment Date | 11 July 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0711-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 1975 |
Appeal by Maimuna Allimiya Phansopkar from judgment of the Divisional Court of the Queen's Bench Division of the High Court given on 24th April 1975
[1975] EWCA Civ J0711-4
The Master of The Rolls
(Lord Denning)
Lord Justice Lanton and
Lord Justice Scarman
In The Supreme Court of Judicature
Court of Appeal
Mr. SIBGHATULLAH KADRI (instructed by Messrs. J. J. Norris & Co.) appeared on behalf of the appellant Phansopkar.
Mr. EUGENE COTRAN (instructed by Messrs. Nazerali Suchak & Co.) appeared on behalf of the appellant Begum.
Mr HARRY WOOLF (instructed by the Treasury Solicitor) appeared on behalf of the Secretary of State.
In 1971 the Parliament of the United Kingdom invented a new word. In made a new man. It called him "patrial". Not a patriot, but a patrial. Parliament made him one of us: and made us one of them. We are all now patrials. We are no longer, in the eye of the law, Englishmen, Scotsmen or Welshmen. We are just patrials. Parliament gave this new man a fine set of clothes. It invested him with a new right. It called It "the right of abode in the United Kingdom". It is the most precious right that anyone can have. At least I so regard it. It is declared in simple but expressive words. Every patrial "shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance".
At the same time, Parliament made it very easy for many an immigrant to become a patrial and get this precious right. Those of us who were born here and live here get it automatically. Those coding from overseas get it by being registered as "a citizen of the United Kingdom and Colonies". This is not difficult, at any rate, not for anyone who has been living here for five years, provided that he is a Commonwealth citizen. If he comes, for instance, from Canada, or Australia, or, I must add, India or Bangladesh: and is of good character and has a sufficient knowledge of English: he canbecome registered as a "citizen of the United Kingdom and Colonies." And here is the important point. Not only does he himself, on registration, become a patrial and entitled to the right of abode here. But also his wife does automatically. Even though she is living in far off India or Bangladesh. Even though she has never been to England and cannot speak a word of English. She, too, becomes a patrial and entitled to the right of abode here. So she has the right to come into the United Kingdom without let or hindrance: bringing, no doubt, her babies with her. The only thing in her way is that she has to prove that she is his wife; or, I suppose, one of his wives, if by their law, such is permitted. To prove this, she has to get a "certificate of patriality". She can get this in her homeland by going to the British High Commission there and satisfying the officers there that her husband is a patrial and that she is his wife. But there is a very long queue there of people wanting to get entry clearance for England. It may take eighteen months or more to get an interview with the officer. Some of these husbands and wives are upset by this waiting in the queue. Three or four wives have tried to jump the queue. They have come to England without getting a certificate of patriality beforehand. Soon after arriving at Heathrow they have applied for a certificate here. The Home Office have refused, saying: "We are not going to consider your application here. It would be much more satisfactorily dealt with in Bombay or Dacca. So back you go. You cannot be allowed to jump the queue. It would not be fair to the others who have lined up in it". This reply has been challenged by the people here who are advising immigrants on their rights. They rely amongst other things on the European Convention on Human Rights, to which we have adhered. It gives in Article 8 the right to respect for family life: and says that there shall be no Interference with it, except such as in accordance with the law and is necessary in a democratic society.
Such is the problem. But, before considering it in detail, I must set out the facts of the two cases before us, together with references to the various sections of the Act of Parliament.
1. THE PHANSOPKAR CASE
The husband, Allimlya Bawa Phansopkar, was born in India on 17th February, 1936. So he is now 39. He has produced a marriage certificate issued in India which shows that In 1962, when he was 27, he married his wife, "Maimuna, who was then 20. The marriage was solemnized at the bride's house by her father, in accordance with the Moslem religion. Their first child, a girl, was born in January 1964. Two years later, in 1966, the husband came to England and found work here: but he went back to India from time to time to join his wife, and they had there three more children, all boys, born in May 1968, September 1971 and February 1974.
Then in March 1974 the husband took a most important step. He became a citizen of this country; or, more accurately, a citizen of the United Kingdom and Colonies. He was enabled to do this by reason of the provisions of sections 1(3) and 6(1) of the British Nationality Act 1948, as amended by Schedules 1 and 2 of the Immigration Act, 1971. He had all the necessary qualifications. He was a citizen of India. He had been ordinarily resident in the United Kingdom for five years. He was of good character. He had sufficient knowledge of the English language. He intended to reside here. Accordingly, on 16th March, 1974, the Home Office issued him with this certificate:-
"This certificate confirms that the person named below has been registered as a citizen of the United Kingdom and Colonies."
There was set out his name and particulars.
Having obtained that certificate, the husband became entitled to a most valuable right. He himself thenceforward had "the right of abode in the United Kingdom". His right was equal to the right ofabode of any of us. You and I, and our families, have been born here and lived here from time immemorial. Yet Mr. Phansopkar, from the moment he was registered, had just as much right here as we have. He became a citizen of no mean country. He could say proudly, if he spoke latin — Civis Angliae sum. He became a patrial.
And not only he, His wife also obtained at that very moment the selfsame right. She had never been to England. She could not speak English. She could not read or write. She lived in India with her four young children. But, she was a Commonwealth citizen. And, as such, as soon as her husband, by registration, gained the right of abode in the United Kingdom, she acquired the selfsame right of abode, See section 2(2) of the Immigration Act, 1971. This right was conferred on her husband and on her by section 1(1) in these wide and generous terms:-
"All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance." The only qualification on that right was that, if called upon, each of them had to prove it. See the concluding words of section 1(1) and 3(8). The husband could prove it at any time by producing his certificate of registration. His wife, if she sought to enter the United Kingdom, had to prove it by producing a certificate of patriality, see section 3(9). How was she to get a certificate of patriality? There is nothing in the Act to tell us. The only clue is to be found In the Immigration Rules, Mo. 79, paragraph 4, which says that she must hold "a certificate of patriality duly issued to her by a British Government representative overseas or by the Home Office."
Mow we come to the crux of the case. The Immigration Authorities have for themselves laid down a rule of practice that a wife who desires a certificate of patriality, must obtain it in her countryof origin. In this case the husband sought to get his wife and their children to join him in England. It was to be arranged by an agent in India. He sent 3,000 rupees to his wife as the agent's fee, but the agent simply pocketed the fee and did nothing. So the husband went to India himself. He went to the British High Commission in Bombay. He was told, he says that they could not give an appointment for an interview for 21 months. This may have been an exaggeration, because the Home Office say that at Bombay It is 14 months. At any rate, the husband did not want to wait for so long. So he decided to bring them with him. They arrived at London Heathrow Airport on 13th March, 1975 they were seen by the Immigration Officer. The husband produced his United Kingdom passport, and also his Certificate of Registration as a citizen of the United Kingdom and Colonies. The wife produced her Indian passport (which contained a list of her four children), and also a Certificate of Domicile issued by the Government of India. The immigration officer interviewed them separately — the wife through an Interpreter. Their replies substantially corresponded the one with the other. The immigration officer was satisfied that the husband was a patrial. He asked the wife if she had a certificate of patriality or an entry certificate. She had none. According to the husband the immigration officer said: "I accept that she is your wife, but because she does not have an entry certificate, she will have to go." The...
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