R v Secretary of State for the Home Department, ex parte Choudhary
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 23 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0523-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 1978 |
[1978] EWCA Civ J0523-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
Divisional Court
The Master of the Rolls (Lord Denning)
Lord Justice Geoffrey Lane and
Lord Justice Bveleigh
MR, A. IRVINE. Q.C. and MR. S. KADRI (instructed by Messrs. Veale Benson & Co., Solicitors, Bristol) appeared on behalf of the Appellant.
MR. H. WOOLF (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.
Iftikhar Ali Choudhary was born in Pakistan. He came to England in November 1970 when he was 21 with a Pakistan passport. He was given permission to stay here as a visitor for six months, and his passport was marked accordingly. He overstayed his leave and remained here illegally Soon afterwards his passport was lost or destroyed. We do not know whether he did this deliberately or not. Maybe it was deliberate because it contained the tell-tale words "for sir months only". So he set about obtaining another one. He went to the Pakistan High Commission in London and told them that he had lost his original passport. The Pakistan High Commission here gave him another Pakistan passport which contained no restrictions on him. They thought that he was here lawfuly: else they would not have issued him with it.
A year later in 1972 he went back to Pakistan. On leaving England, he showed this Pakistan passport at Folkestone. It was marked by the officer there: "Embarked 16 Dec 1972 Folkestone". He returned to England again on the 6th April, 1973 by air. He came to the airport at Heathrow. He produced the Pakistan passport to Mr. Dennis Hall who was the Immigration officer. Mr. Hall does not remember what questions he asked of Mr. Choudhary except that he would, according to his usual practice and in accordance with his duty, have made enquiries as to the circumstances in which Mr. Choudhary had first come into this country to see whether he came in illegally or not. According to Mr. Hall, Mr. Choudhary must have given answers-such as to satisfy Mr. Hall that he was settled lawfully here. So Mr. Hall stamped his passport: " 6 Apr 1973 Indefinite leave to enter".
Mr. Hall went on to say that if he had been told the truth (that Mr. Choudhary had only come here for six months as a visitorand had overstayed) he certainly would not have given him leave and would not have stamped those words on Mr. Choudhary's passport.
As the Lord Chief Justice once said, those words "Indefinite leave to enter" on a passport are worth a goldmine to the holder. Taking advantage of them, Mr, Choudhary went in and out of England time and time again.
In 1977 Mr. Choudhary wanted to obtain permission for his wife and family to come from Pakistan and join him in England. Mrs. Choudhary went to the British High Commission in Pakistan so as to get entry clearance. That put them on inquiry. They sent a request to London. The officers here in London looked for the husband and went to see him in November 1977. The truth came out, it was discovered that he had come here in 1970 with leave to stay for six months, and had overstayed. So those concerned took the view that he was an illegal entrant taken into custody on the 22nd November, 1977.
To be fair to him, he has worked in this country for most of the time he has been here. He has worked with a firm in Bristol, earning about £52 a week, and he has been sending about £12 a week to his wife and children in Pakistan. So as far as we know he is of good character. But now he has challenged his detention, and he has brought a writ of habeas corpus before the courts saying that he is unlawfully detained.
The order for his detention was made in completely proper form. It was made on the 26th November, 1977 on behalf of the Secretary of State, and it says: "On 22.11.77 you were detained as an illegal entrant as defined in Section 35 of the Immigration Act 1971, having entered the United Kingdom in breach of the Immigration laws. The Secretary of State has therefore givendirections under paragraph 10 of Schedule 2 to the Act for your removal from the United Kingdom on Thursday 1.12.77 by flight PK 782 at 1805hrs. to Karachi". He was given information about his right to appeal. He can only appeal after he has returned to his country of origin. Instead of appealing, he has brought a writ of habeas corpus before the court, saying he has been unlawfully detained.
I start with this. The Order for his detention and removal was completely in order. The return, on the face of it, affords sufficient justification for his detention and removal from the United Kingdom. It is prima facie good. If that return is to be challenged, it is for him to challenge it. The burden is upon him to show that he is being unlawfully detained. That appears from many cases which we have had in these courts.
In order to discharge the burden, Mr. Choudhary relies on the stamp on his passport "Indefinite leave to enter". But that stamp is of no avail to him unless it was put on by an immigration officer who had authority in that behalf. So the inquiry becomes this: Were those words stamped on the passport with lawful authority?
The authority of the Immigration officers is derived from the statute and the rules. Section 3(1) of the Act provides that: "… where a person is not a patrial" - and Mr. Choudhary is not a patrial - "he shall not enter the United Kingdom unless given leave to do so in accordance with this Act". So his entry is only lawful if the leave is given lawfully. Mr. Choudhary on the 6th April, 1973 claimed to be a returning resident. In order to qualify as such, he had to come within rule 51 of HC 79 which says: "A passenger who satisfies the Immigration Officer that he was settled in the United Kingdom at the coming intoforce of the Act and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement". And rule 55 says: "A passenger who does not qualify for admission under the...
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