R v Secretary of State for the Home Department, ex parte Patel
| Jurisdiction | England & Wales |
| Judgment Date | 17 October 1986 |
| Date | 17 October 1986 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
O'Connor, Glidewell Ralph Gibson LJJ
K S Nathan for the appellant
G R Sankey for the respondent
Cases referred to in the judgments:
R v DodgeELRUNK [1972] 1 QB 416; [1971] 2 All ER 1523.
R v Secretary of State for the Home Department ex parte HussainWLRUNK [1978] 1 WLR 700: [1978] 2 All ER 423.
Zamir v Secretary of State for the Home DepartmentELR [1980] AC 930: [197980] Imm AR 203.
Khawaja v Secretary of State for the Home Department [1982] Imm AR 139.
Ahmad v Secretary of State for the Home Department (unreported, CA 27 May 1983).
R v Secretary of State for the Home Department ex parte Kwame Addo (unreported, QBD 17 April 1985).
R v Secretary of State for the Home Department ex parte Dhirubhai Gordhanbhai Patel, QBD, [1986] Imm AR 208.
Deception whether the silent presentation of a passport known to contain false information amounts to deception such as to make a person an illegal entrant. Immigration Act 1971, ss. 26(1)(c), 26(1)(d), 33.
Evidence applicant tendered for cross-examination opportunity to cross-examine on affidavit evidence declined whether Court should then have accepted applicant's unchallenged affidavit evidence.
Practice and Procedure whether during the hearing of an appeal the Secretary of State was entitled to switch the basis of his case that the applicant was an illegal entrant from s. 26(1)(d) to s. 26(1)(c) of the Immigration Act 1971.
Practice and Procedure whether the Secretary of State is entitled to elect to treat a person as an illegal entrant and remove him with very limited rights of appeal where on the facts he could equally have sought to deport him in accordance with s. 3(5)(b) of the Immigration Act 1971, which would give the individual a right of appeal while in the United Kingdom. Whether if the papers are silent on the issue, it is to be presumed that the Secretary of State has properly considered the alternatives open to him. Immigration Act 1971 s. 3(5)(b), Schedule 2 paras. 12(2), 13(2), 16.
The appellant claimed to be the son of Gordhanbhai and Maniben Patel. As their son he was admitted to the United Kingdom. The Secretary of State concluded subsequently that he was not their son. The appellant's birth certificate and application form for a passport were alleged to contain false information. He was alleged to have made false statements when extending his passport. He was also alleged, when he presented his passport on admission to the United Kingdom to have made, by its presentation, a representation as to his status, which he knew to be false.
On application for judicial review, the Court decided the case entirely on affidavit evidence. Counsel for the Secretary of State declined the offer by counsel for the applicant, to cross-examine the applicant on that evidence. In the course of the hearing the Secretary of State, with leave, extended the basis of the case from an offence under s. 26(l)(d) to one also under s. 26(l)(c); the factual basis of the offence was unaltered.
Before the Court of Appeal counsel submitted that the unchallenged affidavit evidence of the applicant should have been accepted by the Court. The Court was wrong to permit the Secretary of State, at that late stage, to extend the basis of the case. He also asserted, following ex parte Addo, that the silent presentation of a passport could not amount to misrepresentation such as to make the appellant an illegal entrant. He also challenged the propriety of the Secretary of State electing to treat the appellant as an illegal entrant when, on the facts, if proved, he could equally have chosen to initiate deportation proceedings against the appellant pursuant to s. 3(5)(b) of the 1971 Act. The papers did not show that the alternatives had been considered: by treating the appellant as an illegal entrant, the Secretary of State cut down his effective opportunities to appeal.
Held:
1. The silent presentation of a passport known to contain false information was deception such as to justify treating the appellant as an illegal entrant. Ex parte Addo not approved.
2. The Court had in the circumstances, been justified in deciding the case on affidavit evidence. For that approach the Court had given full and good reasons. It did not follow that the appellant's affidavit evidence should be accepted merely because it had not been challenged by way of cross-examination.
3. The Court had not been wrong in allowing a late extension to the basis of the case to include offences under s. 26(l)(c) of the Act. The appellant had suffered no detriment. The factual basis had remained the same: the appellant had been fully aware of the material facts. At best counsel should have been allowed a short adjournment, but in the event he had not sought one.
4. The Secretary of State had to be presumed to know the provisions of the Immigration Act 1971. That the papers were silent on his election did not mean that it could be concluded that he had not considered all the alternatives open to him. Following Khawaja to proceed against the appellant under s. 3(5)(b) might not have been appropriate.
O'Connor LJ: I will ask Lord Justice Glidewell to give the first judgment.
Glidewell LJ: This is an appeal against a decision of Webster J given on 26 March 1986 refusing to issue an order of habeas corpus directed to the Secretary of State for the Home Department to show cause why the appellant should not be released immediately and an order of certiorari to quash the decision of an immigration officer dated 10 August 1983 to detain the appellant as an illegal entrant to the United Kingdom. The appellant was released on conditional bail by the late Forbes J on 16 April 1984 and has so remained since that date pending the final determination of these proceedings. The issues that arise in relation to the two orders sought are substantially the same. The matter really becomes a question of certiorari.
The essential factual issue which the immigration officer had to decide and which Webster J had to consider was, Whose son is the appellant? There is no doubt who he issometimes there is doubt in cases of this sortbut there is no doubt here. He is Dhirubhai Gordhanbhai Patel. There is equally no doubt that he was born on 30 November 1962. He entered the United Kingdom through Heathrow Airport on 24 January 1983 when he was aged twenty. He had in his possession a passport originally issued to him on 2 August 1976 and renewed on 2 August 1981 by the British Deputy High Commissioner in Bombay. That passport showed him to be a British subject, a citizen of the United Kingdom and Colonies. Since the coming into force of the British Nationality Act 1981 that citizenship has now suffered a change of name, and if he is entitled to it he is now a British Overseas Citizen. The passport contained an entry certificate granted a few days before he arrived.
On arrival at immigration control at Heathrow the appellant was given leave to enter the United Kingdom and to remain for an indefinite period. He claims to be, and the passport and the entry certificate were issued to him on the basis that he is, the son of the late Gordhanbhai Somabhai Patel and his wife Maniben Gordhanbhai Somabhai Patel whom I will call Somabhai and Maniben. If he is their son the passport and the entry certificate were issued to him validly and he is not an illegal entrant.
The Home Secretary claims that the appellant is the son of Gordhanbhai Chaturbhai Patel and Madhuben Gordhanbhai Chaturbhai Patel whom I shall call Chaturbhai and Madhuben. They are Indian citizens resident in India. If that is correct the appellant was not entitled to the passport or the entry certificate and he is an illegal entrant.
The evidence which was before the immigration officer and was put before the judge was as follows. Somabhai was a resident of Uganda and thus was a British subject and a citizen of the United Kingdom and Colonies. In 1941 Maniben, who was then in her teens, went to Uganda to marry Somabhai, and she acquired the same citizenship. While they were in Uganda they had three children, two sons, one called Bipinchandra, who is married to a lady called Bharti, and Rameshbhai, who is married to Miraben, and a daughter called Indiraben. Invariably it seems that these people have the ultimate syllable left off their names and they are familiarly called Ramesh, Indira and so on.
In 1957 the parents and the three children returned to India. Maniben then bore another son, Kamlesh, who was born in 1964, and it seems that she had one or two more children, who died. The appellant says that he was born to her in 1962 and that Kamlesh is thus his younger brother. Somabhai died in 1977.
Although they had left Uganda Maniben and her children were entitled to the benefit of the special voucher scheme which was introduced in 1968 by the United Kingdom government to assist British subjects who were expelled from East African states. By taking advantage of this scheme Maniben and all her children, including the appellant Dhirubhai, arrived in the United Kingdom on various dates in and between 1981 and early 1983, and they have all been here since.
When the appellant's passport was first issued in 1976 he was only thirteen years old. The Home Secretary does not suggest that at that stage he personally knew that any deception was being practised on his behalf. As part of the process of obtaining that passport Maniben in March 1976 swore an affidavit that Dhirubhai was her child and produced a marriage certificate on which he was listed as one of her children. In 1981 however, by the time the appellant was eighteen, he himself applied for a passport extension, since the passport originally was for five years, on a form which showed that Somabhai was his father. He also later made an application for a special voucher after the extension of the passport had...
To continue reading
Request your trial
-
R v Secretary of State for the Home Department, ex parte Rahman
...of State for the Home DepartmentELR [1984] AC 74: [1982] Imm AR 139. Dhirubhai Patel v Secretary of State for the Home Department [1986] Imm AR 515. Rahim Miah v Secretary of State for the Home Department [1989] Imm AR 559. R v Secretary of State for the Home Department ex parte Isap Muse (......
-
Hunt v The Court at First Instance, Antwerp, Belgium
...own akin to our (and the New Zealand courts') abuse of process jurisdiction"; and the approach of the court in R v Secretary of State for the Home Department ex parte Patel [1995] 7 ALR 56, I am satisfied that, where there is no information or evidence as to how the court in the requesting ......
-
Re Rahman
... ... could see all the evidence that the Secretary of State for the Home Department had used as the ... ...
- R v Secretary of State for the Home Department, ex parte Sattar