R v Secretary of State for the Home Department, ex parte Momin Ali
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE FOX,LORD JUSTICE STEPHEN BROWN |
| Judgment Date | 01 March 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0301-1 |
| Docket Number | 84/0092 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 March 1984 |
[1984] EWCA Civ J0301-1
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Fox
and
Lord Justice Stephen Brown
84/0092
IN THE SUPREME COURT OF JUDICATURE
COUNT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(MR. JUSTICE WEBSTER)
Royal Courts of Justice.
MR. S. HUSAIN (instructed by B.C. Mascarenhas, Esq.) appeared on behalf of the Appellant.
MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Momin Ali, son of Cherag Ali, and Fozlu, son of Roquib Ali, are both citizens of Bangladesh. The applicant says that he is Momin. The Secretary of State says that he is Fozlu. If he is Momin, he has permission to stay in this country. If he is Fozlu, he is an illegal immigrant.
Personation is a continual problem for the immigration authorities and it is much more of a problem when the immigrants come from a country without fully developed personal records. Immigration officers wrestle with the problem both at home and abroad and there is a system of appeals to specialist adjudicators, who have unrivalled experience. It is unfortunate that the instant application has arisen in circumstances in which the applicant has no right of appeal to an adjudicator, who would be better equipped to resolve the issues than is a court. It is even more unfortunate that this is not an isolated application.
Ever since the decision in Hussain (1978) 1 Weekly Law Reports 700, immigration cases concerning illegal immigrants have formed a material part of the Crown Office list, but so long as the duty of the court was only to consider whether the decision was based upon reasonable grounds, the task was manageable. However in Reg. v. The Secretary of State, ex parte Khawaja and Khera (1983) 2 Weekly Law Reports 321, the House of Lords re-defined the supervisory duty of the court in three crucial respects. First, the issue ceased to be whether the Secretary of State had reasonable grounds for his decision and became whether his decision on illegality was justified. Second, the burden of justification was held to lie on the Secretary of State. Third, the standard of proof was held to be commensurate with the seriousness of an issue involving personal liberty.
This is bound to result in a very considerable increase in the number of applications to the Divisional Court at a time when that court is already very fully occupied and it is for consideration whether it would not be more sensible and more efficient to arrange that they be heard by specialist adjudicators.
This dispute as to the applicant's identity is of long standing. In October 1973 application was made to the British High Commission in Dacca for entry clearance certificates for Mr. Cherag Ali, his wife and children including Momin Ali. Mr. Cherag Ali was successful on the basis that he was a returning resident. The applications of the others were adjourned because of allegations by an informant and, after further enquiries and the receipt of further allegations from the informant, all the applications were rejected. The basis for the rejection seems to have been doubts whether Mr. Cherag Ali was the husband of the lady said to be his wife and whether he was the father of the children, including the present applicant.
There was an appeal to the adjudicator and in March 1977 he allowed it and directed the issue of entry certificates. The applicant was then aged 21. It is clear from the adjudicator's decision that the matter was very fully and carefully investigated. The adjudicator correctly directed himself that the burden of proof lay on Mr. Cherag Ali and those who claimed to be his relations to satisfy him that they were indeed his wife and children. The adjudicator recorded that they had discharged this burden.
On the strength of this decision, the applicant was permitted to enter this country without limitation upon the duration of his stay. The Home Office now say that they had grave doubts about the correctness of that decision, but did not appeal. The plain fact is that they could not appeal, because the adjudicator made no error of law and they had to have further evidence before they could bypass the adjudicator's decision. All went well for two years, but then the Home Office was informed, by what was called a "police informant", that the applicant was not the son of Cherag Ali as he claimed, but really a nephew—Fozlu, son of Roquib Ali. I do not know anything about the source of the information, the circumstantial details supplied or the apparent reliability of the source, but it is reasonably clear that this was the same allegation as had been made, investigated and rejected by the adjudicator, who had been told, and may well have accepted, that there were many people of Mr. Cherag Ali's village who were jealous of the progress which his family had made.
For whatever reason, in June 1979 the Home Office decided to take the matter further and the applicant was detained briefly and interviewed by an immigration officer, who also interviewed Mr. Cherag Ali. It emerged that the applicant had not been living with Mr. Cherag Ali for the past six months, because Mr. Cherag Ali disapproved of his drinking habits. Nevertheless, Mr. Cherag Ali was able to produce the applicant's passport. The immigration officer doubted whether Mr. Cherag Ali's wife was old enough to be the mother of the applicant, but the matter which really aroused his suspicions was the fact that the applicant did not know the name of the baby who had been born nine months before and who must have been in the same house with him for three months. I share the immigration officer's suprise, but since it is common ground that the applicant was living in the house with the baby for three months, I would have expected him to know the baby's name whether or not it was his brother.
The applicant was released after a few hours and later his passport was returned to him. He thought, not unreasonably, that the incident was closed. In this he was gravely mistaken.
The following year the applicant visited Bagladesh and at about the same time the British High Commission, on instructions from the Home Office, mounted what can only be described as "an expedition" to the applicant's home village of Holimpur. There were no less than 4 entry clearance officers involved, travelling in two Land Rovers. For the last three miles they had to walk and cross two rivers, one by boat and the other by way of what is described as "a rather precarious bamboo bridge". It is clear that the local inhabitants regarded them with hostility and at one stage they had to beat a strategic retreat. They were armed with photographs of the applicant and of two other people who were, or claimed to be, sons of Mr. Cherag Ali and therefore brothers of the applicant, if he was who he claimed to be. However it seems probable that the photograph of the applicant was one which had been taken eight years before when he was 16. What they may not have anticipated was that they would meet the applicant, but this is what happened.
Just outside the village the applicant came from the direction of the bazaar and introduced himself. He asked whether they were making enquiries in connection with his family and, upon being told that this was so, invited them to visit Mr. Cherag Ali's compound. Two officers went with him and two went to other compounds.
The two who went to the Cherag Ali compound seemed to have concentrated on determining whether the applicant was staying there and disbelieved him when he said that he was. The basis of their disbelief was that he did not seem to have any spare clothes, other than a shirt, and had no washing things. He also had some women's clothing in a suitcase which bore someone else's name and which he said that he had borrowed. The clothing was said to be gifts which he had brought with him. So far as indentification was concerned, one villager in this compound identified the applicant as Fozlu, but the rest said that he was Momin. The report relies heavily on this identification as Fozlu and dismisses the contrary indentifi-cations with the words "The rest of the family all agreed the sponsor's story, as naturally they would."
The officers who went to other compounds had to rely upon their photographs and it is fair to say that there were several identifications of the old photograph of Momin as being Fozlu.
The officers clearly had difficulty in getting answers to their questions, but whether this was a sign of hostility to their invasion of the village or whether, as they thought, it was due to a briefing by or on behalf of the applicant may be a matter for conjecture. It may, of course, have been partly one and partly the other. What is, I think, clear is that the entry clearance officers did not go to the village with an open mind. They clearly believed their informants and were going there in order to establish that the applicant was Fozlu and not Momin. This approach is understandable. The Dacca entry clearance officers probably had always thought that the claims of Mr. Cherag Ali to be the father of the applicant were fraudulent, but they had been overruled by an adjudicator in London, who was not as familiar with local conditions.
On the strength of this report, the interview with the applicant in June 1979 when he did not know the name of the baby and the fact that there had been many statements made to the Home Office between 1974 and 1979 that the applicant was not the son of Mr. Cherag Ali, the...
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