R v Secretary of State for the Home Department, ex parte Bhajan Singh
| Jurisdiction | England & Wales |
| Judgment Date | 19 May 1975 |
| Date | 19 May 1975 |
| Court | Court of Appeal (Civil Division) |
REGINA v. SECRETARY OF STATE FOR THE HOME
DEPARTMENT AND ANOTHER, Ex parte BHAJAN SINGH
Crown Practice - Mandamus - Immigration authorities - Illegal immigrant detained with view to deportation - Request to immigration authorities to provide facilities to marry - European convention providing for right to marry - Effect on English legislation - Convention for the Protection of Human Rights and Fundamental Freedoms) (1950) (Cmd. 8969), arts. 5 (1) (f), 12
1 Convention for the Protection of Human Rights and Fundamental Freedoms 1950 art. 12: see post, p. 207C.
Art. 5 (1) (f): see post, p. 208C - D.
The applicant, who had entered the United Kingdom illegally in April 1973, was arrested in April 1975 and detained in prison with a view to his deportation as an illegal entrant. He requested the Secretary of State for the Home Department to provide facilities for him to marry one PK at a local registry office before action was taken to deport him. The request was refused. The applicant applied to the Divisional Court for an order of mandamus directed to the Secretary of State and the Chief Immigration Officer ("the respondents") to make such facilities available on the ground that they had failed to take into consideration article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that "Men and women of marriageable age have the right to marry and to found a family,..." Evidence for the applicant on affidavit was that the marriage had, in accordance with Sikh custom, been arranged in November 1974 by his uncle and the parents of the girl, then aged 16 and at school, and that he and she did not know of the arrangement until after his arrest. The respondents' affidavit evidence indicated that the proposed marriage was not genuine but had been arranged only after the arrest in order to avoid the applicant's removal from the United Kingdom.
The Divisional Court dismissed the application, holding that the right under article 12 was the conjoined right "to marry and to found a family" so that where there was no element Of founding a family the right to marry simpliciter was not necessarily within the terms of article 12; and, further, that article 12 must be read with article 5 (1) (f) which made it clear that where a person was imprisoned as an illegal immigrant he could not as of right require facilities for a marriage a fortiori if the respondents had ground for regarding the marriage as a sham.
On appeal by the applicant: -
Held, dismissing the appeal, that though it was fair on the evidence to say that the proposed marriage, though arranged, was not a sham, and though a couple might have a right to marry within article 12 even though there was no immediate prospect of founding a family, that right applied only so far as circumstances permitted; and where under article 5 (1) (f) a person was deprived of his liberty by reason of being lawfully detained with a view to his deportation the Secretary of State was entitled in the exercise of his discretion under the immigration legislation to refuse to release him in order that he might marry.
Per Lord Denning M.R. Though it is hardly credible that Parliament or any government department would act contrary to the provisions of the Convention on Human Rights and regard must be had to them in exercising the duty to act fairly, I went too far when I said in Birdi v. Secretary of State for Home Affairs, February 11, 1975, Bar Library Transcript No. 67B that if an Act of Parliament did not conform to the Convention I might be inclined to hold it invalid.
Decision of the Divisional Court of the Queen's Bench Division (post. p.
The following cases are referred to in the judgment of the Court of Appeal:
Birdi v. Secretary of State for Home Affairs, February 11, 1975; Bar Library Transcript No. 67B of 1975, C.A.
Reg. v. Miah [1974] 1 W.L.R. 683; [1974] 1 All E.R. 1110; [1974] 2 All E.R. 377, C.A. and H.L.(E.).
The following additional cases were cited in argument in the Court of Appeal:
Blackburn v. Attorney-General [1971] 1 W.L.R. 1037; [1971] 2 All E.R. 1380, C.A.
Cheney v. Conn [1968] 1 W.L.R. 242; [1968] 1 All E.R. 779.
Golder, In re (unreported), February 21, 1975, European Court of Human Rights.
McWhirter v. Attorney-General [1972] C.M.L.R. 882, C.A.
Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924; [1968] 1 All E.R. 694, C.A. and H.L.(E.).
Reg. v. Secretary of State for the Home Department, Ex parte Thakrar[1974] Q.B. 684; [1974] 2 W.L.R. 593; [1974] 2 All E.R. 261, C.A.
The following cases are referred to in the judgment of the Divisional Court:
Birdi v. Secretary of State for Home Affairs, February 11, 1975;Bar Library Transcript No. 67B of 1975, C.A.
Golder, In re (unreported), February 21, 1975, European Court of Human Rights.
The following additional cases were cited in argument in the Divisional Court:
Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.).
Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924; [1968] 1 All E.R. 694, C.A. and H.L.(E.).
Silver (orse. Kraft) v. Silver [1955] 1 W.L.R. 728; [1955] 2 All E.R. 614.
Snelling v. John G. Snelling Ltd. [1973] Q.B. 87; [1972] 2 W.L.R. 588; [1972] 1 All E.R. 79.
APPLICATION for order of mandamus.
The applicant, Bhajan Singh, was detained in prison while awaiting deportation as an illegal immigrant. He applied for an order of mandamus directed to the respondents, the Secretary of State for the Home Department and the Chief Immigration Officer, to provide facilities for him to be married to Miss Paramjit Kaur before his deportation, and in the alternative that they properly determine according to law his request that he be escorted from prison to be married at a local registry office. He sought relief on the ground that the Secretary of State, in refusing him facilities to marry by a decision of April 7, 1975, had failed to take into account all relevant considerations including article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950; that he based his decision on the wrong grounds and that it was made unfairly and contrary to the rules of natural justice.
The facts are stated in the judgment of Lord Widgery C.J.
Preetam Singh for the applicant.
Harry Woolf for the respondents.
LORD WIDGERY C.J.In these proceedings Mr. Singh moves for an order of mandamus directed to the Secretary of State for the Home Office, as he describes him, and the Chief Immigration Officer, first, to provide facilities for the marriage of the applicant and Paramjit Kaur before action is taken to deport the applicant, and, in the alternative, secondly, that they properly determine according to law the request of the applicant, that he be escorted from H.M. Prison, Winson Green, Birmingham to the office of the Superintendent Registrar of Births Marriages and Deaths at Stafford Street, Wolverhampton in the County of West Midlands for the purpose of a ceremony of marriage being performed between the applicant and Paramjit Kaur of 173 Willenhall Road, Wolverhampton.
An affidavit filed in these proceedings by Mr. Leng, who is Chief Immigration Officer at the Home Department gives, as it were, the history which led up to this application.
On April 7, 1975, the applicant, Bhajan Singh, was arrested by the Coventry Police as an illegal immigrant: that is someone who had come into this country illegally, I think, from India. He was accordingly and properly detained as an illegal immigrant, and no one here, least of all Mr. Singh who appears for him, seeks to resist the suggestion that he must go back to India; but he desires to get married before he goes back to India and this is the cause of the application which comes before us today.
Going on with Mr. Leng's account of this matter, he says the applicant was arrested on April 7. On April 9 Mr. Leng received a telephone call from the applicant's solicitors stating that the applicant wished to marry Miss Kaur. This information was contrary to the statement which he, Leng, had from the initial interview of the applicant where he was reported to have said that he was neither married nor engaged and had no plans. However 48 hours later application is being made for facilities for him to marry Miss Kaur.
Mr. Leng goes on to say that he interviewed the applicant at 10 o'clock on April 9 and the applicant then said that he wanted to marry, the arrangements having been made. He said that his fiancee was Miss Kaur and he was unable to give her age or her address. He said that he had met her but was unable to describe her. He admitted that he had no thoughts of marrying her prior to his arrest. He was...
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