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

I will ask Lord Justice Templeman to deliver the first judgment.

The question is whether registration of a citizen of the United Kingdom and Colonies pursuant to the British Nationality Act, 1948 protects the person on whose behalf the registration was sought when that person fails to prove that he is the person described in the register.

The appellant was allowed into this country as Parvaz Akhtar, infant son of Waris Ali. If he was not the son of Waris Ali he was an illegal entrant and was not entitled to be registered as a citizen of the United Kingdom and Colonies. In due course on the application of Waris Ali there was registered as a citizen Parvaz Akhtar, son of Waris Ali. The Secretary of State acting through Immigration Officers believes and has reasonable grounds for believing that the appellant is Abdul Hamid, son of Noor Hussein and that Parvaz Akhtar, son of Waris Ali either never existed or was some person other than the appellant. The Secretary of State acting under powers conferred by the Immigration Act 1971 has directed the removal of the appellant from the United Kingdom as an illegal entrant. The appellant claims that he is Parvaz Akhtar, son of Waris Ali and that as a citizen of the United Kingdom by registration under the British Nationality Act 1948 he is not liable to be so removed.

By section 1(1) and section 2(6) of the Immigration Act 1971 a patrial is free to enter the United Kingdom. By section 1(2) and section 3 a person who is not patrial shall not enter the United Kingdom unless given leave to do so.

By section 2(6) the word 'patrial' is used of persons having the right of abode in the United Kingdom. Such persons are defined by section 2(1) and section 2(2) and include a citizen of the United Kingdom and Colonies, who has that citizenship by registration in the United Kingdom.

An 'entrant' is defined by section 33(1) as a person entering or seeking to enter the United Kingdom and 'an illegal entrant' is defined as a person unlawfully entering or seeking to enter in breach of the immigration laws andincludes also a person who has so entered.

A Thus a person who seeks to enter the United Kingdom may be patrial entitled to enter, or a non-patrial entrant who requires and properly seeks leave to enter or an illegal entrant who requires leave to enter but seeks to enter or has entered in breach of the immigration laws.

By section 3(8) when any question arises whether or not a person is patrial, 'it shall lie on the person asserting it to prove that he is.

By section 4(1) the power to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers.

By schedule 2, paragraph 2(1) an immigration officer may examine any person who has arrived in the United Kingdom for the purpose of determining whether he is or is not patrial and, if he is not whether he shall be given leave or should be refused leave to enter the United Kingdom.

By paragraph 8, 9 and 10 of schedule 2 of the Act an immigration officer or the Secretary of State may give directions for any illegal entrant or any person who is refused leave to enter the United Kingdom to be removed from the United Kingdom. By paragraph 16 of schedule 2 an illegal entrant or person refused leave to enter the United Kingdom may be detained pending his removal from the United Kingdom.

By section 13 a person who is refused leave to enter the United Kingdom may appeal to an adjudicator but he is not entitled to appeal so long as he is in the United Kingdom. By section 16 a person who is directed to be removed from the United Kingdom on the ground that he is an illegal entrant may appeal to the adjudicator but again no appeal lies so long as the appellant is in the United Kingdom.

By section 19(1) the adjudicator shall allow an appeal if, inter alia, he considers that the decision or action against which the appeal is brought is not in accordance "with the law or that any discretion should have been exerciseddifferently. By section 20 an appeal lies from an adjudicator to the Appeal Tribunal.

In the result, an applicant who seeks to enter the United Kingdom on the grounds that he is patrial may be refused entry into the United Kingdom by an immigration officer who has reasonable grounds for believing that the applicant is not patrial and the applicant may appeal to the adjudicator and to the Appeal Tribunal, but any appeal can only take place once the applicant has left or been removed from the United Kingdom.

An applicant who seeks to enter the United Kingdom is bound by the machinery of the Immigration Act 1971. The court will not interfere if, on the evidence as a whole the Secretary of State, acting by the immigration officer, has grounds and reasonable grounds for coming to the conclusion that an applicant is seeking to enter or has entered in contravention of the immigration laws; see Reg v. Home Secretary ex parte Hussein (1978) 1 W. L. R.. 700 at p. 707. That decision concerned a person who claimed that he had been given unconditional leave to stay permanently in the United Kingdom. In my judgment the principle of the Hussein decision applies equally to an applicant who claims that he is patrial, and entitled to enter the United Kingdom because he is a citizen of the United Kingdom by registration. If the immigration, officer reasonably decides that the applicant has not proved that he is a citizen by registration as he asserts, and if the immigration officer determines that the applicant is not patrial and if the immigration officer believes and has reasonable grounds for believing that the applicant is an illegal entrant, then the court will not interfere; the sole remedy of the applicant is to appeal to an adjudicator and if necessary to the Appeal Tribunal under the Immigration Act 1971 after he has been removed from the United Kingdom.

The Immigration Act thus confers fearsome powers on an immigration officer and prevents the effective recourse of an individual to the courts which administer justice in this country, provided that the officer has reasonable grounds for believing that he has a jurisdiction to exercise his powersto exclude and remove. On this appeal and in this court it is not open to the appellant to debate the principles or operation of the Act.

The appellant was, as I have stated, admitted to this country as Parvaz Akhtar, infant son of Waris Ali who had been settled in the United Kingdom for many years and was himself a citizen of the United Kingdom and Colonies. Section 7 of the British Nationality Act 1948 provides that the Secretary of State may cause the minor child of any citizen of the United Kingdom and Colonies to be registered as a citizen of the United Kingdom and Colonies upon application made in the prescribed manner by a parent or guardian of the child. The appeallant remained in this country under the name of Parvaz Akhtar and on the 16th June 1976, as a result of an application by Waris Ali, there was registered as a citizen of the United Kingdom and Colonies, Parvaz Akhtar, son of Waris Ali.

In March 1978 the appellant went to Denmark and returned having lost his passport. He demanded entry into the United Kingdom on the grounds that he was patrial, being a citizen of the United Kingdom and Colonies by registration, namely the registration effected by Waris Ali of Parvaz Akhtar, son of Waris Ali.

The immigration officer received information and evidence and the appellant at one stage confessed but has since denied that the appellant is not Parvaz Akhtar, son of Waris Ali, but Abdul Hamid son of Noor Hussein. The immigration officer decided that the appellant has not proved, as he asserted, that he was a citizen by registration and patrial; the immiegration officer determined that the appellant was not patrial; the immigration officer believed that the appellant was an illegal entrant. There existed reasonable grounds for all the conclusions reached by the immigration officer. The appellant was not allowed to enter and directions were given for his removal from the United Kingdom. Once outside the United Kingdom the appellant will of course be entitled to appeal to an adjudicator and if necessary to the Appeal Tribunal, and if he proves that he is a citizen his appealwill succeed. In my judgment however, in order to prove that he is a citizen by registration the appellant must prove that he is Parvaz Akhtar, son of Waris Ali in conformity with the only entry in the register upon which he claims to rely. The appellant was detained in this country pending removal and applied for a writ of habeas corpus. On 21st December 1979 the Divisional Court of the Queen's Bench Division, Lord Justice Shaw and Mr. Justice Kilner Brown, refused the application. The appellant, who remains in detention in this country pending the outcome of these proceedings, appeals to this court.

The appellant relies on the registration effected upon the application of Waris Ali. In my judgment, that registration does not prove that the appellant is a citizen of the United Kingdom and Colonies by registration When Waris Ali applied for the registration he undoubtedly intended to procure the registration of the appellant and nobody else. But the effect of the registration cannot depend on the intention of the applicant, Waris Ali....