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

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE EVELEIGH,LORD JUSTICE DONALDSON
Judgment Date26 February 1982
Judgment citation (vLex)[1982] EWCA Civ J0226-1
Docket Number82/0069
CourtCourt of Appeal (Civil Division)
Date26 February 1982
The Queen
and
The Secretary of State for the Home Department
Ex Parte Salamat Ullah Khawaja

[1982] EWCA Civ J0226-1

Before:

The Master of the Rolls

(Lord Denning)

Lord Justice Eveleigh

and

Lord Justice Donaldson

82/0069

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (DIVISIONAL COURT)

(MR. JUSTICE FORBES)

Royal Courts of Justice.

MR. S. KADRI (instructed by Messrs. Charnley & Afzal of Manchester) appeared on behalf of the Appellant (Applicant).

MR. ANDREW COLLINS and MR. CHRISTOPHER SYMONS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent (Secretary of State for the Home Department).

THE MASTER OF THE ROLLS
1

This case is about Salamat Ullah Khawaja. I will call him S.K. He was born in Pakistan in 1940. He did well and became the manager of a silk mill at Lahore. In October 1978 he enrolled at the University of Brussels as a student for an industrial course for two years. Whilst there in August 1979 he applied to the British Embassy for a visa to come to the U.K. as a visitor for two weeks. This application took some time to process. Meanwhile the immigration authorities were told—by an informant—that he had paid £10,000 to a Pakistani woman in England—by name Mrs. Butt—so as to facilitate his entry into the United Kingdom. So the British Embassy in Brussels were instructed to refuse his application to come here.

2

But S.K. did not wait for the refusal. He jumped the gun. Whilst his application was being processed—and before the result of it was known—he came to England on the 17th March, 1980. He arrived at Manchester Airport and told the immigration officer that he had come for one week to visit his cousin-here. He was in possession of a return ticket for the 23rd March, 1980. It appeared genuine. So the immigration officer granted him limited leave to stay for one month.

3

It so happened that on the same aircraft there was this Mrs. Butt. She went to a different desk at Manchester Airport. She produced a passport. It described her as Mrs. Butt going back to 1973, and containing in 1977 an entry of "indefinite leave to enter". She told the immigration officer that she had divorced her husband, Mr. Butt, and had remarried Mr. S.K. There was an entry to this effect in her passport. So she was allowed to enter. The immigration officer did not know that Mr. S.K. had got in at a different desk.

4

Mr. S.K. went to solicitors in Rochdale. On the 11th April, 1980 the solicitors applied for an extension of his visa. They said:

5

"Our Client has come to this country to visit the several members of his family here, whom he has not seen for many years, having been studying for some time at Brussels University. Our Client wishes to obtain an extension of his Visa and we enclose herewith his Passport for consideration by your Department of his request, and endorsement of the Passport if granted".

6

The Home Office by this time were on their guard. They looked into the matter closely. It then appeared that Mrs. Butt had a chequered history. She had married a Mr. Butt in Rochdale in 1975. She had got a decree nisi of divorce on the 24th January, 1980. It was made absolute on the 3rd April, 1980. Meanwhile, in December 1979, she had gone through a Moslem-religion marriage with Mr. S.K. in Brussels. On the 10th April, 1980 she married Mr. S.K. in Rochdale.

7

Then on the 29th April, 1980 Mr. S.K.'s solicitors applied for indefinite leave to remain. His solicitors made great play with his marriage to Mrs. Butt. They said:

8

"Mr. Khawaja has since visited our office and informs us that he was actually married on 10th April, 1980, to Mrs. Nusrat Butt, who was formerly known prior to her previous marriage to Mohammed Aslam Butt, as Nusrat Dar, (certificate enclosed herewith). Mrs. Butt was actually divorced from Mohammed Aslam Butt during 1979, having been given leave to enter the United Kingdom for an indefinite period, two years prior to that.

9

"Mr. Khawaja has asked to inform you that he now wishes to obtain indefinite leave to remain here himself and also that his wife is expecting a child by him in approximately one month's time. We are, therefore, asked to request you to consider his application for indefinite leave to remain here and we await to hear from you in reply".

10

The Home Office rejected his application. They made many inquiries and came to the conclusion that his leave to enter was vitiated by deception. They decided to treat him as an illegal entrant. They made a detention order in these terms:

11

" To Salamatullah Khawaja

12

"Having considered all the information available to me I am satisfied that there are reasonable grounds to conclude that you are an illegal entrant in accordance with the provisions of the Immigration Act 1971. I have therefore authorised your detention in Manchester Airport under the provisions of paragraph 16(2) of Schedule 2 of the Act pending the completion of arrangements for dealing with you under the Act".

13

Mr. S.K. applied at once for judicial review. He asked for the detention order to be quashed on the ground that he was not an illegal entrant but an overstayer. The difference is of the first importance. If he is treated as an illegal entrant, he has no appeal whilst in this country. He must go back to Pakistan and appeal from there. But, if he is treated as an overstayer, he can appeal here to an adjudicator and can remain here until his appeal is finally determined, which may be a long time.

14

Now when an immigrant obtains "indefinite leave to enter"—and that leave is vitiated by fraud or non-disclosure—it is clear that he is an "illegal entrant" and can be deported. If he wishes to appeal, he must do it from overseas, see Zamir's case (1980) Appeal Cases 930.

15

The present case is different, says Mr. Kadri. Because Mr. S.K. obtained a limited leave to enter. It was for one month. He then applied for a variation so as to have it extended. Such a case, says Mr. Kadri, is governed by rule 88 of White Paper No. 394, which makes him an overstayer. It says:

16

"Refusal will be the normal course if the applicant has made false representations in obtaining leave to enter (including the giving of undertakings, express or implied, which he has not honoured, as to the duration and purpose of his stay); if he has not observed the time limit or conditions subject to which he was admitted, or given leave to remain…"

17

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