R v Secretary of State for the Home Department, ex parte Zamir
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE BRANDON |
| Judgment Date | 21 December 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1221-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. DC/415/78 |
| Date | 21 December 1979 |
[1979] EWCA Civ J1221-6
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(Appeal from Divisional Court Decision of 14th March 1979)
Lord Justice Stephenson
Lord Justice Eveleigh (Not present)
and
Lord Justice Brandon
MISS A.M. TURKAN (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Messrs Taylor, Hall-Wright & Co., Birmingham) appeared on behalf of the Appellant (Applicant).
MR. S. BROWN (instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Respondent)
I am going to read first the judgment of Lord Justice Eveleigh, who is not able to be here this morning.
"This is an appeal from the decision of the Divisional Court on the 14th March 1979 refusing the appellant's application for a Writ of Habeas Corpus.
"The appellant was born on 3rd March 1957. On 11th December 1972 when he was 15 years of age an application was made on his behalf in Pakistan for a United Kingdom Entry Certificate. His personal particulars were given in Part I of the application form including his date of birth. There was a note to Part III of the form saying:
'To be completed if you propose to join relatives already in the United Kingdom.'
This part was completed giving the name and address of the appellant's father who was stated to have been in the United Kingdom since 1962. At the top of the application form there appeared an exhortation to read the notes before filling in the form. Note D stated:
'The holders of Entry Certificates will be presumed by the Immigration Officer in the United Kingdom to be qualified for admission unless he discovers:
(a) that the Entry Certificate was obtained by fraudulent representations or by concealment of facts which the applicant knew to be material; or
(b) that a change of circumstances after issue has removed the basis of the holder's claim to admission; or
(c) that the holder should be refused admission on medical grounds, on grounds of criminal record, on security grounds or because he is subject to a deportation order.'
"On 25th November 1975, when the appellant was 18 years of age, a visa was granted which was valid for presentation in the United Kingdom within six months from its date. There was written upon it:
'Settlement to join father.'
On 10th February 1976 he married in Pakistan, On 2nd March 1976 he arrived in this country and on the basis of the visa was given indefinite leave to enter at Heathrow. He did not disclose his marriage.
"On 31st July 1978 the Entry Clearance Officer in Islamabhad informed the Home Office Immigration and Nationality Department that he was considering applications for Mazloom Begum and Mohammed Zamir who wished to enter the United Kingdom for settlement as the wife and son of the appellant. The Entry Clearance Officer was not satisfied that the appellant had lawfully entered the United Kingdom on 2nd March 1976. He, therefore, referred the matter to the Department for their consideration.
"The appellant was interviewed on 30th August 1978 with the help of an Urdu speaking interpreter. He was asked if he had mentioned his forthcoming marriage to the Entry Clearance Officer and said that he had not because the marriage had not been arranged until about four to five weeks after he had been given his visa. He also said that he had not informed the Entry Clearance Officer when he actually married because he did not think it was necessary. He was asked whether on his arrival in the United Kingdom he had told the Immigration Officer of his marriage and replied that he had not been asked any questions regarding this.
"The appellant was also asked how, at the time of his entry into the United Kingdom, he could regard himself as a dependant of his father when he himself had undertaken marriage. He was apparently unable to offer any explanation but did admit that he had come to the United Kingdom purely for work for himself and his wife.
"Subsequently, on 2nd October 1978, the appellant was arrested and detailed pursuant to paragraph 16 of Schedule 2 of the Immigration Act 1971.
"The respondent contends that the appellant was an illegal immigrant when he came into this country on 2nd March 1976. It is said that the visa was granted on the basis that the appellant satisfied the requirements of Rule 39 of House of Commons Paper 81. That reads:
'Generally, children aged 18 years or over must qualify for admission in their own right; but subject to the requirements of paragraphs 34 and 35 an unmarried and fully dependant son under 21 years or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement.'
It is said that the basis of the grant of the visa had ceased to exist because not only was the appellant married when he entered, but he was not fully dependant upon his father as his admission that he was coming for work clearly showed. We were then referred to paragraph 10 of the House of Commons Paper (HC 81) which reads:
'… A passenger who holds an Entry Clearance which was duly issued to him and is still current is not to be refused leave to enter unless the Immigration Officer is satisfied that:
(a) false representations were employed or material facts were concealed, whether or not to the holder's knowledge, for the purpose of obtaining the Clearance, or
(b) a change of circumstances since it was issued has removed the basis of the holder's claim to admission……'
The marriage was clearly a change of circumstances since the visa was issued. While the appellant had probably ceased to be a dependant upon his father"before the date of issue nonetheless it is said that the absence of dependency is such a change because it should not lie in the appellant's mouth to say that the change in dependency occurred before and not after the date of issue. Alternatively, it is said that the lack of dependency was a material fact which was concealed for the purpose of obtaining the Clearance.
"However, the fact remains that entry Demission was granted although the circumstances were such that the Immigration Officer would have refused permission had he known the truth. Counsel formulated his submission as follows:
'There is a duty to disclose a change of circumstances when otherwise the entry document to the entrant's knowledge or constructive knowledge would speak to an entitlement, namely qualification for entry which as a result of the change of circumstances he does not or might not still have.'
He further submits that if the immigrant silently proffers a passport endorsed with a visa containing information which although accurate when endorsed he knows or should know may materially mislead the Immigration Officer because circumstances have changed, then the immigrant is under a positive duty to disclose the change of circumstances.
"On behalf of the appellant it is submitted that as the application was made when he was only 15 years of age he was applying for admission under paragraph 38 of the Rules. There is no mention of marriage in paragraph 38 and consequently that does not constitute the basis of the claim to admission. Counsel argues that when the visa was issued in November 1975 it was issued upon the basis of the application. Consequent it is said that in so far as the marriage is concerned that was irrelevant and could not operate as a change of circumstances within paragraph 10 of House of Commons Paper 81.
"In so far as dependency is relevant it is submitted that the appellant made no representations that were untrue and that he was under no duty to disclose the fact, if it were a fact, that he was not dependent upon his father. It is further said that if the visa must be taken to have been issued on the basis of paragraph 39 there was still no duty to disclose the marriage. Consequently it is said that there was no deceit on the part of the appellant which invalidated the permission to enter.
"Counsel has also said that the application was made originally on behalf of a 15 year old boy who spoke little English. It was no fault of his that so great a time had elapsed before the visa was granted. It is"wrong to assume that the appellant knew the relevant provisions of the Immigration Rules and as he had been asked no pertinent questions he had done nothing to deceive. Reliance was placed upon the case of Reg v. Secretary of State for the Department, ex parte RAM 1979 1 WLR, 148, to which I will refer later.
"In considering these cases it is always important to keep in mind the provisions of the Immigration Act 1971 itself. Section 3(1) provides:
'Except as otherwise provided by or under this Act, where a person is not patrial -
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom)either for a limited or for an indefinite period;
(c) If he is given unlimited leave to enter or remain in the United Kingdom it may be given subject to conditions restricting his employment or occupation in the United Kingdom or requiring him to register with the police or both.'
An illegal immigrant is defined by paragraph 33 as:
'A person unlawfully entering or seeking to enter in breach of a deportation order or of the Immigration Laws and includes also a person who has so entered.'
"An Immigrant seeking admission therefore has no right to enter. He asks for permission. It must be well known to all such immigrants particularly to those coming from India and Pakistan that there are certain conditions which have to be fulfilled before an...
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