R v Secretary of State for the Home Department, ex parte Mangoo Khan
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE ACKNER |
| Judgment Date | 13 February 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0213-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 1980 |
[1980] EWCA Civ J0213-1
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 Lawton and
Lord Justice Ackner
MR. K. S. NATHAN (instructed by Messrs. Duckney & Co.) appeared on behalf of the Applicant (Appellant).
MR. D. IATHAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Farman Ali was born in a village in Pakistan. He came here as long ago as 1962. He has lived and worked at Hemel Hempstead in Hertfordshire. He has a right of abode here. He went back to Pakistan on visits a couple of times.
Ten years afterwards in 1972 he asserted that he had a wife and four children in that same village in Pakistan. He wanted them to come over and join him here in England. She was Rashid Regum, and the children were three boys and one daughter. Farman Ali said he wanted to sponsor them and pay for them here. They applied to the British authorities in Islamabad for entry certificates. The British authorities were very sceptical about their claims. They doubted whether Rachid Begum was really his wife, and they more than doubted whether the children were his children. So they turned down their applications. There were inquiries and appeals. All were turned down until 1978. Until on a final appeal on the 23rd August, 1978, the Immigration Appeal Tribunal allowed their appeal. In their ruling they said:
"We have considered all the relevant matters with care and, notwithstanding the inexplicable discrepancies, are satisfied on the balance of probabilities that the appellants are related to the sponsor as claimed. The appeal is accordingly allowed and we direct that the appellants be granted entry certificates to join the sponsor".
The Home Office obeyed that ruling. On the 2nd June, 1978 they sent this telex out to the British Embassy in Islamabad:
"Rashid Begum, Mangoo Khan, Khalid Khan, Zafar Iqbal,Parveen, Appeals allowed by Tribunal. Please issue Settlement Joining Husband/Father (Appeal) …"
On the 11th June, 1978 the British Embassy in Islamabad wrote to them:
"Rashid Begum and children -
Dear Applicants,
With reference to your application for entry clearance, please call at this office … You should bring with you this letter and your passport".
They were overjoyed. Now after six years they were to get their entry certificates. Of course by this time there were all six years older. In particular the eldest boy, Mangoo Khan (who had been 14 when the application was made in 1972) was now 21. At any rate, mother and children went to the Embassy in Islamabad and were granted entry certificate visas on the 26th June, 1978. Mangoo Khan's was endorsed "Settlement - accompanying mother to join father (appeal)".
Armed with the entry certificates, they made arrangements to come to England in two months' time - to settle here. But in the interval Mangoo Khan got married. It was a family arrangement. On the 28th July, 1978 he was married to Meniza Begum from the same village in Pakistan. He was 21. She was 20. He says that it was only a betrothal and was not followed by co-habitation or consummation. But that point was not pressed before us. It is pretty plain that it was a marriage, and he cannot escape the effect of it by calling it a betrothal.
He did not bring her to England with him. He could not do so. She had no entry certificate. So Mangoo Khan went to England with his mother and the other three children. It was on the 13th August, 1978 that they arrived at Heathrow. Theywent before an immigration officer, Wendy Boden. She looked at his visa. She saw that it was all in order. She asked him: "You are coming to join your father?" He said: "Yes". She granted him "Indefinite leave to enter" and stamped his passport accordingly.
Now, here is the important point. Wendy Boden did not ask him his age. She did not ask him if he was married. She did not ask him if he was fully dependant on his father. If she had asked him - and he had told her that he was' a married man - she would have refused him entry. In order to be eligible under the Rules - coming as part of a family unit - he had to be "an unmarried and fully dependant son under 21", see Rule 39 of House of Commons Paper 81. Those requisites must be satisfied at the time of entry. How by looking at his passport, Wendy Boden could see that he was born on the 20th May, 1957. So she could have seen that he was over 21. He was three months over 21 on the 13th August, 1978 when he presented himself. By admitting him, Wendy Boden certainly waived the requirement that he should be "under 21". By not asking him whether he was married, did she waive the requirement that he should be "unmarried"? To this I will return later. The point to notice at the moment is that here he was in the United Kingdom - a person lawfully here who had been granted perfectly lawfully "Indefinite leave to enter". So long as that leave stood unrevoked, he had a perfect right to stay here.
Months passed. Then Mangoo Khan wanted to get his wife, Meniza Begum, over here to join him. He made the requisite declaration here. She applied in Islamabad. She was given an entry clearance on the 14th May, 1979 endorsed "Settlement to join husband". She then arranged her flight to England andarrived at Heathrow on the 2nd July, 1979. Her husband, Mangoo Khan, was there to meet her. The immigration officer was Mrs. Sutton. She asked some questions through an interpreter. Meriza Begum said she had married Mangoo Khan on the 28th July, 1978. He admitted that they had got married after he got his entry certificate. He said: "My mother told me that now I had the entry clearance I should get married. I had a say in the arrangements for the marriage. I did not bring my wife with me when I came to the United Kingdom in August 1978. I decided to leave her behind and call her later. I was not asked at Heathrow whether I was married. I arrived with my mother, two brothers and my sister".
The immigration authorities felt that, on these answers, they ought to look further into the matter. They gave the wife temporary admissions and allowed the husband to go free.
Three weeks later the immigration authorities made up their minds. They regarded Mangoo Khan as a person who had obtained entry by deception. On the 22nd July, 1979 he was arrested, taken into custody and detained in Pentonville Prison. The immigration authorities claimed authority to do so under paragraph 16(2) of Schedule 2 of the Immigration Act 1971. At the same time his wife was refused leave to enter. She lodged an appeal under section 13(2) of the Act.
After being taken to prison, Mangoo Khan applied for habeas corpus. In an affidavit of the 14th August, 1979, he said:
"I am not an illegal entrant. I was given leave to enter the United Kingdom for an indefinite period on 18.8.1978. I submit that my detention is unlawful".
He was given leave to apply for habeas corpus. On the13th November, 1979 it was refused by a Divisional Court consisting of Lord Justice Waller and Mr. Justice Park. He appeals by leave to this court.
THE RELEVANT PROVISIONS
On the return to habeas corpus made by the Governor of the prison, the detention is justified as being authorised under "paragraph 16(2) of Schedule 2 of the Immigration Act, 1971". That refers back to paragraph 9, which says that:
"Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an Immigration Officer may give directions", and so forth.
In order to justify the detention, therefore, the immigration officer must show that Mangoo Khan was "an illegal entrant". That carries us back to section 33 of the 1971 Act, which says that "illegal entrant' means 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 …"
"Immigration laws" means this Act - not the Rules.
The only relevant immigration law is section 24(1)(a), which makes it a criminal offence - "if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave".
It seems to me, therefore, that, in order to justify the detention of Mangoo Khan, the immigration officer must show that he entered the United Kingdom without leave.
DID HE ENTER WITHOUT LEAVE?
On the face of it, Mangoo Khan entered with leave. He had an entry clearance with a visa endorsed "settlement accompanying mother to join father (appeal)". On producing it, theimmigration officer granted him "Indefinite leave to enter". Then how can the immigration authorities say that he entered without leave?
Looking at the matter in principle, it seems to me that everything depends on whether on the 18th August, 1978 the grant of "indefinite leave to enter" was void or voidable, or valid. If it was void, it would in law be a nullity - from the very beginning. It would be automatically null and void without more ado. There would in law be no grant of leave at all. But, if it was voidable, it would have legal effect up to the time at which it was set aside. It would, therefore, operate so as to be a grant of leave at the time he entered. If it was valid, clearly he had leave.
Now I can understand that, if the immigration officer granted leave under a fundamental mistake - as, for instance, if the applicant is guilty of fraud or misrepresentation of such character as to vitiate the consent - then the grant of leave is void altogether. Such was the cases of Hussain (1978) 1 Weekly Law Reports 700, and Choudhury (1978) 1 Weekly Law Reports 1177. But if he has been guilty of no...
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