R v Secretary of State for the Home Department, ex parte Zamir
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Salmon,Lord Fraser,Lord Russell of Killowen |
| Judgment Date | 17 July 1980 |
| Judgment citation (vLex) | [1980] UKHL J0717-2 |
| Date | 17 July 1980 |
| Court | House of Lords |
[1980] UKHL J0717-2
Lord Wilberforce
Viscount Dilhorne
Lord Salmon
Lord Fraser of Tullybelton
Lord Russell of Killowen
House of Lords
This is an appeal from a unanimous decision of the Court of Appeal affirming a unanimous decision of the Queen's Bench Divisional Court refusing the appellant's application for a writ of habeas corpus.
The appellant, an alien of Pakistan nationality, is under detention pending removal from the United Kingdom as an illegal entrant. The history of events leading up to this is as follows: most of this is undisputed, but there are some points upon which there is conflicting evidence.
On 11 December 1972 an application was made by or on behalf of the appellant, then aged 15 and resident in Pakistan, for an entry certificate in order to join his father who had been settled in England since 1962. The printed form of application was headed by notes which applicants were enjoined to read carefully. One of these (D) stated that 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. The form described the appellant as unmarried. The reason for going to the United Kingdom was stated as accompanying mother to join father: and, in reply to the question how much money he would have available to support himself in the United Kingdom, it was stated "father (sic) income". It is stated on affidavit by a Home Office immigration officer in charge of the case that on lodging his application the applicant would have been given a copy of a handout setting out the basis on which children were admitted to the United Kingdom and containing the following statement (in fact rule 39 in H.C.81). This is as follows:
"Generally, children aged 18 or over must qualify for admission in their own right; but an unmarried and fully dependent son under 21 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, and adequate support and accommodation is available for them in the United Kingdom."
The appellant denies that he was given this.
The application, at first refused, was ultimately granted on 25 November 1975. On that date there was stamped on his passport a "visa" with the words "settlement to join father".
On 10th February 1976 Mr. Zamir was married. He had not informed the United Kingdom authorities in Islamabad of his forthcoming marriage because, he says, the marriage was only arranged some weeks after the issue of his entry certificate.
On 2 March 1976 the appellant, then aged eighteen, arrived at London, Heathrow airport. He presented his passport with the visa; he was apparently asked no questions, and he volunteered no information. In particular he did not disclose his marriage. The immigration officer granted leave to enter the United Kingdom for an indefinite period and stamped the passport to this effect.
On 31 July 1978, by which time a son had been born to the appellant in Pakistan, the entry clearance officer in Islamabad informed the Home Office that an application had been made by Mrs. Zamir, the appellant's wife, for her and her son to join the appellant in the United Kingdom. He queried the lawfulness of the appellant's entry on 2 March 1976.
The appellant was then interviewed, on 30 August 1978. 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 4 to 5 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 applicant 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. He did, in fact, it appears, obtain employment in August 1976, until when he was probably maintained by his father.
After consideration by the authorities, the appellant was detained on 2 October 1978 with a view to removal from the United Kingdom.
It is I think unavoidable to mention that since the appellant's detention further enquiries have been made which show that, in the opinion of the Home Office immigration officer in charge of the case, the appellant obtained entry clearance on the basis of a forged birth certificate—the appellant denies any knowledge of this. This enquiry arose out of an attempt, also in 1972, to obtain entry clearance for a man claimed to be but in fact shown not to be, the appellant's brother. These matters have not been adjudicated upon but I mention them to show the kind of problems which arise, and, as the law reports show, with considerable frequency in connection with applications for entry clearance.
In these circumstances the appellant applied for a writ of habeas corpus and it is for him to show that his detention is unlawful. The power of detention arises under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 and is dependent upon whether the detainee is a person in respect of whom an order for removal may be made.
The basis on which the Secretary of State seeks to justify the detention and removal of the appellant is that the leave to enter the United Kingdom was vitiated by deception and there is ample authority that an apparent leave to enter which had been obtained by deception, is vitiated, as not being "leave given in accordance with this Act" (section 3(1)). ( Regina v. Secretary of State for the Home Department Ex parte Hussain [1978] 1 W.L.R. 700 [1978] 1 W.L.R. 700 (C.A.) and numerous cases following).
Two questions of law arise in relation to this.
The first is what is the basis for any judicial review if the Secretary of State, or an immigration officer acting on his behalf, concludes that there has been deception. For this it is necessary to look at the scheme of the Act.
The power to give or refuse leave to enter the United Kingdom is vested in immigration officers (section 4(1)), and is to be exercised in accordance with the provisions of Schedule 2. It is also provided (section 4(2)(c)) that Schedule 2 shall apply with respect to the exercise by immigration officers of their powers in relation to the removal of persons refused leave or remaining unlawfully. Apart from the statutory provisions in Schedule 2 (to some of which I shall return), immigration officers are guided by Immigration Rules (contained in House of Commons paper 81), which have no statutory force. It is those rules which contain paragraph 39 above quoted and also paragraph 10 which I quote:
"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 satified 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 …".
It appears from this, in my opinion, that the immigration officer in deciding whether or not to grant leave to enter is performing an...
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