R v Secretary of State for the Home Department ex parte Thakrar
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORR |
| Judgment Date | 04 February 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0204-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 1974 |
[1974] EWCA Civ J0204-2
In The Supreme Court of Judicature
Court of Appeal
Royat Courts of Justice Bar Library
Appeal by the applicant, Pravinlal Amarshi Thakrar from Judgment of the Divisional Court of the Queen's Bench Division on 9th October 1973 and 23rd October 1973.
Revised
The Master Of The Rolls
(Lord Denning),
Lord Justice Orr and
Lord Justice Lawton.
The Right Honourable Sir Dingle Foot, Q.C., and Mr. Eugene Cotran (instructed by Messrs. Jaques & Co.) appeared on behalf of the Appellant Applicant.
Mr. Gordon Slynn and Mr. Julian Priest (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
In 1972 a sword fell on the Asians living In Uganda. It was the sword of the President, General Amin. He declared that all Asians who were not citizens of Uganda must leave the country within 90 days. The declaration placed thousands in sore plight. This is the story of one of them.
Pravinlal Amarshl Thakrar is 33 years of age. He was born in Uganda. He had lived there all his life save for four years as a student in Bombay. He had married a Tanzanian girl, and they had two little daughters aged 5 and 2. He was engaged in the family business in Masaka. His father and mother lived there too. They had come originally from India and had been in Uganda for over 40 years. They had six sons and two daughters, all born In Uganda. The father and mother, having been born in India, had always been British subjects. They had been registered, ever since 1953, as citizens of the United Kingdom and colonies. But their sons and daughters, having been born in Uganda whilst it was a protectorate, were British protected persons.
After Uganda became independent in 1962, all the members of the family were able, if they chose, to apply to become citizens of Uganda. The father and mother remained British subjects. They held British passports. Some of the others of the family remained British protected persons. Others became Ugandan citizens. But what did Pravinlal do? Did he become a Uganda citizen or not? That is the question.
But before I go into it, I must say what happened to the family after President Amin's sword fell. Quite a number of the family went to Bombay. These were the father and the mother, two of the sons and a daughter. In addition, Pravinlal's wife and two children went to Bombay, but Pravinlal himself did not go with them. Two other sons went to England. ButPravinlal and one of his brothers stayed on for a time in Uganda.
Pravinlal himself had at one time held a passport as a British protected person. He had held it from 1954 to 1964. He had used it when he went for four years as a student to Bombay. But he had not renewed it after 1964. When Amin's sword fell In October 1972 he tried to renew it. He went to the British High Commission in Kampala, but found it difficult to get there. There were queues a mile long. Everything was in confusion. Eventually he was seen. The High Commission gave him a letter to take to the Uganda Immigration Department to get their remarks on him. He took it there. The Uganda authorities wrote on it:-
"Subject has never been registered as citizen of Uganda.
No previous Uganda passport."
Seeing that that document said he was not a Uganda citizen, Pravinlal hoped to claim that he was a British protected person. He hoped to get a passport from the British High Commission. For that purpose he was travelling from Masaka to Kampala. He was stopped at a road block. He was kicked and punched by the soldiers. They took from him all his money and his case with all his papers. So he never got a pass-port from the British High Commission. He went to the Red Cross office in Kampala. They issued him with a United Nations document which authorised him to travel to Austria. His brother did the same.
On 7th November 1972 Pravinlal went to Austria. He stayed there in the United Nations camp. He worked for a time on a farm. In March 1973 his brother got to England. So Pravinlal determined also to get to England himself if he could.
On 4th September 1973 Pravinlal went by air to Zurich and thence to London. He arrived at 6.30 p.m. He told the immigration officer that he wished to spend 10 days in theUnited Kingdom to visit his brother and that he then Intended to travel on to India to spend a short holiday with the family; he produced an Austrian passport for aliens; but it did not have a visa for the United Kingdom, nor a visa for India. It described his nationality as "not established". He produced a ticket for India which was out of date. The immigration officer made careful enquiries. He was not satisfied with his story and refused to admit him. He served him with this notice:-
"To Pravinlal Thakrar
"You have asked for leave to enter the United Kingdom as a visitor but you do not have a United Kingdom visa. You have also asked for leave to enter as a visitor for ten days, but I am not satisfied that you intend to stay only for this period.
I therefore refuse you leave to enter the United Kingdom. I have given/propose to give directions for your removal on 5 September 1973 by flight… to Zurich"
That notice was served on Pravinlal at 8 p.m. He was detained overnight pending his departure next day. Meanwhile one of his brothers got into touch with the Joint Council for Welfare of immigrants. Next day at 10.45 a.m. Pravenlal told a different story to the immigration authorities. He said that he had come to England to settle here and that he had a right to be here. He said he had £30,000 in England. He gave the immigration officer particulars of his father and mother and the rest of the family. He claimed that he was a British protected person and not a citizen of Uganda. He said that Her Majesty's Government had, through the Secretary of State for Home Affairs, accepted moral and legal responsibility to allow entry into England of all British Ugandan Asians, i.e., Asians who are either citizens of the United Kingdom andColonies or British protected persons who had not acquired Ugandan citizenship. In view of this assertion, Pravinlal was not sent off straightway. He was detained pending further inquiries.
On 14th September 1973 Pavinlal by his solicitor applied for a writ of habeas corpus. On 5th October 1973 he applied for certiorari and mandamus. These were refused. He appeals to this Court.
International Law:-
Sir Dingle Foot, on behalf of Pravinlal, raises this fundamental point: let us assume for the time being that Pravinlal is, as he asserts, a British protected person. Sir Dingle says that as such he is a Britiah national just as much as a citizen of the United Kingdom and Colonies. As a British national, if he is expelled from the land where he is living, he is entitled as of right to come into the- United Kingdom. This right, says Sir Dingle, is given by international law: and international law, he says, is part of the law of the land. It is incorporated into it and is to be enforced by the Courts unless it is excluded by Parliament. To support this claim in international law, Sir Dingle Foot quoted Oppenheim, 8th edition, at page 645-6:-
"The home state of expelled persons is bound to receive them on the home territory."
To support his assertion that international law is part of the law of the land, Sir Dingle quoted Sir William Blackstone in his Commentaries, book IV, at page 679 and Lord Mansfield in Heathfield v. Chilton (1767) 4 Burrow's Reports 2016. They said that the law of nations is "part of the law of the land," But they were speaking of the law of nations, and then only of that part of it which was universally accepted andknown for certain, such as the immunity of ambassadors. They were not speaking of rules which were not universally accepted nor known for certain. In my opinion, the rules of international law only become part of our law in so far as they are accepted and adopted by us. I would follow the words of Lord Atkin in Chung Chi Cheung 1939 A.C. 160 at page 167:
"It must be always remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law."
Test it by reference to the very point we have to consider here: the mass expulsion of Asians from Uganda. International law has never had to cope with such a problem. None of the Jurists, so far as I can discover, has considered it. The statement of Oppenheim is all very well when one is considering a home state which is a self-contained country with no overseas territories or protectorates, if one of Its citizens goes to a foreign country and is expelled from it, the home state may well be bound to accept him on his home territory if he has nowhere else to go. But that rule does not apply when the home state is an out-going country with farflung commitments abroad, such as the United Kingdom has or recently did have. Take the class of persons with whom we are here concerned — British protected persons. They are said to be British nationals, but they are not British subjects. These number, or used to number, many millions. They were not born here. They have never lived here. They live thousands of miles away in countries which have no connection with England except that they were once a British protectorate. Is it to be said that by international law every one of them has a right if expelled to come into these small islands?Surely not. This country would not have room for them. It is not as if it was only one or two coming. They come not as single files but in battalions. Mass Expulsions on this scale have never hitherto come within the cognisance of international law. To my mind, there is no rule of international law to...
To continue reading
Request your trial
- R v Secretary of state for the home department ex parte Mohammed Manzur Yakub
-
Kavanagh v Governor of Mountjoy Prison
... ... Corpus Act, 1782 - Offences Against the State Act, 1939 - International Covenant On Civil And ... ...
-
Trendtex v Central Bank of Nigeria
...wore wrong - and they seem to follow the opinions of all three members of this court in R. v. Immigration Officer ex parte Thakrah (1974) Queen's Bench 684 - they clearly decided, by no means per incuriam, that it was not open to them to accept the rule of restrictive immunity, and the rat......
-
Chagos Islanders v Attorney General and Another
...residence therein of persons whatever their status may be". In the same vein, Lord Denning MR held in R v Secretary of State ex p Thakrar [1974] QB 684 CA that the obligation in international law owed by one state to another to admit its nationals expelled by another could not be relied on ......