R v Secretary of State for the Home Department, ex parte Hussain
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE GEOFFREY LANE,LORD JUSTICE ORR |
| Judgment Date | 26 May 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0526-5 |
| Date | 26 May 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J0526-5
In The Supreme Court of Judicature
Court of Appeal
Civil Division
(On appeal from Divisional Court Queen's Bench Division)
(Revised)
Lord Justice Megaw
Lord Justice Orr and
Lord Justice Geoffrey Lane
Mr. BENET HYTNER, Q. C. and Mr. M. HUSSAIN (instructed by Messrs.
Clintons, Agents for Messrs, Kuit Steinart Levy & Co., Manchester) appeared on behalf of the Appellant (Applicant).
Mr. T. SCOTT BAKER (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
I shall ask Lord Justice Geoffrey Lane to deliver the first judgment.
This is an appeal from an order of the Divisional Court of 4th May last whereby they refused a motion by the appellant for a writ of habeas corpus. The facts are somewhat unusual, even in this context. The appellant, in an affidavit sworn on December 17th, 1976, deposes that he was born on 8th December, 1953; that he lived in Lahore until about Autumn 1971, and has always been known as Safder Hussain, It is, however, not disputed that on November 14th, 1970 (that is, a year earlier than his sworn statement suggests) he came to this country from Pakistan under the name of Ijaz Ahmed Lodhi. It is likewise not disputed that there was produced to the immigration officer on that occasion a passport in that name of Lodhi and that under that name the appellant was given leave to enter the United Kingdom and to stay for two months. There is before us the application form in respect of the Lodhi passport. Suffice it to say that the age, address and other particulars of Lodhi do not tally with the information about himself appearing in the appellant's affidavit. There is no doubt that Lodhi and the appellant are one and the same person. This is established by the photograph on the application form for the passport and also by admissions made to this Court. The appellant seeks in his affidavit to explain these matters by saying that he was only 18 when he first came to England in 1970 and that he was brought here by a friend of the family called Uncle Shafi; that Uncle Shafi made all the arrangements about the visit to this country; that he, the appellant, knew nothing of any application for a passport - indeed he went so far as to swear that he was not the holder of a passport at all at that time; that he was not interviewed when he arrived at Heathrow; and that as far ashe knew no conditions were imposed upon his entry. In a later affidavit he seeks to qualify those statements by saying that he did not physically have a passport in his possession, although a passport had been issued to him: it was in Uncle Shafi's physical possession.
Despite the limit on his stay, he remained here, and did so, therefore, illegally. We are dependent on his own account of events for what happened thereafter. According to that account he moved to Leeds in 1972 and has remained there, at various addresses, ever since, and has set himself up in business there and is in the process of buying a house.
In 1972 he applied to the Pakistani Consulate in Bradford for a fresh passport. This was issued to him on 3rd February, 1972. It is certified by the Pakistan authorities to be a genuine passport. There is no mention on that document of any earlier passport. It is issued in the name of SAFDBR HUSSAIN. On May 26th, 1974, he went on a short visit to Germany. He returned on 29th May, three days later, and his passport was then stamped by the immigration officer "Given leave to enter the United Kingdom for an indefinite period". Nothing else happened until November, 1976, when the appellant was arrested and detained in Armley Prison under the order of an immigration officer acting under the Immigration Act, 1971, 2nd Schedule, paragraph 16, as a preliminary step to returning the appellant to Pakistan.
The contentions put forward on behalf of the Secretary of State before the Divisional Court were (briefly) that the appellant assumed the identity of safder Hussain and assumed it falsely in order to obtain the indefinite leave to stay on the strength of the new name which was not his but was that of another real person. Some support to the idea that Lodhi was the true name, and Hussain the false, was lent by the discovery amongst the possessions of theappellant of a woman's passport in the name of Lodhi. However, since the hearing before the Divisional Court two new pieces of evidence have emerged. The first is what purports to be a birth certificate of Safder Hussain, emanating from the Municipal Corporation of Multan, Pakistan, with a duly attested translation. This contains particulars which coincide with the particulars on the new passport. The appellant swears that that is his birth certificate.
The second piece of evidence is an affidavit from a gentleman called Safder Hussain Malik, who was named Safder Hussain at birth. This man, it had been suggested by the immigration officer in his affidavit originally, was the person whom the appellant was seeking (so to speak) to impersonate. It is clear from Malik's affidavit that he did not hold a passport in 1974, having returned his to the Home Office in 1973 on his application for British citizenship. Thus there is doubt at this stage whether the earlier theory propounded by the Home Office now holds good. In other words, there is a possibility that the appellant is in reality Safder Hussain.
Mr. Hytner, who has presented the arguments on behalf of the appellant with commendable clarity and force, submits that in these circumstances his client has discharged such burden of proof as rests on him and that the Secretary of State has failed to show that the permission to stay in the United Kingdom indefinitely, which appears on the passport, was other than a proper exercise of the immigration officer's discretion, uninfluenced by any misrepresentation on the part of the appellant. He relies to some extent on the judgment of Mr. Justice Peter Pain on 3rd May of this year in the case of Re Badaikl, the material part of which reads as follows: "If the Secretary of State wishes to show that in fact he" - that was the appellant in that case - "was not given leaveto enter within the meaning of the Immigration Act but was let in by virtue of some mistake, then I feel that the burden lies upon the Secretary of State to establish that". Mr. Hytner submits that the judgment of the Lord Chief Justice in the instant case is inconsistent with that passage and was wrong. What the Lord Chief Justice said in the Divisional Court in this case was as follows. (I read from page 4/C). "Where do we stand with regard to those matters? First of all it must be borne in mind that the Governor having returned that he was holding this person under paragraph 16, it is for Mr. Hussain to set up a prima facie case to discharge that burden. Counsel on his behalf says that the prima facie case is set up when it is shown that Hussain came back through Dover, presented his passport and had it stamped...
To continue reading
Request your trial
- Leung v Minister for Immigration and Multicultural Affairs
-
M v The Minister for Foreign Affairs
... ... friend had been physically present in the State for the period required by s. 6A of the Irish ... ...
- R v Secretary of State for the Home Department, ex parte Rahman
-
R v Secretary of state for the home department ex parte Maxwell Chikwendu Nwanurue
...being leave [given] in accordance with this Act (section 3(1)): See R v Secretary of State for the Home Department ex parte HussainWLR [1978] 1 WLR 700, CA, and numerous cases following. In R v Secretary of State for the Home Department ex parte KhawajaELR [1984] AC 74, the House of Lords c......