Re Applications for Writs of Habeas Corpus and Another The Governor of Pentonville Prison ex parte Mohammed Azam and Another Secretary of State for the Home Department and Ors ex parte Gurbax Singh Khera and Another The Secretary of Stats for Home Affairs
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUCKLEY,LORD JUSTICE STEPHENSON |
| Judgment Date | 03 May 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0503-1 |
| Date | 03 May 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0503-1
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 Justice Buckley and
Lord Justice Stephenson
MR. T. KELLOCK, Q. C. and Mr. S. KADIR (instructed by Messrs Michael Sears & Co.) appeared on behalf of the Appellant Azam.
MR. L. J BLOM-COOPER, Q. C. and MR. C. ALLAN (instructed by Messrs Sharpe, Pritchard & Co., Agents for Messrs Cookseys, Wolverhampton) appeared on behalf of the Appellant Khera.
MR. D. TURNER-SAMUELS, Q. C. and MR. S. SEDLEY (instructed by Messrs Simons Muirhead) appeared on behalf of the Appellant Sidhu.
MR. GORDON SLYNN (instructed by The Treasury Solicitor) appeared on behalf of the Respondents.
(Reserved)
These three cases raise questions of the first importance to many Commonwealth citizens now in this country. Each of the three men is an "illegal entrant". Each entered this country clandestinely without any permission to do so. Each has worked here for more than three years. Each has now been arrested and detained in prison. In each case without trial, Each is about to be removed under the directions of the home Secretary from this country. Each has brought a writ of habeas corpus claiming that his detention is unlawful.
Other cases await our decision. There must be many "illegal entrants" wondering whether it will be their turn next. No-one can tell the number. They came in secretly. They went to ground for a time. 'Afterwards they mingled with others. They got lost in the crowd. Frequently they have managed to get passports of some kind. They go to their High Commissioners and say that they did have passports which have been lost or damaged. On that plea they have been issued with new ones. There is no easy way of telling a legal from an illegal entrant. They have obtained work. They have been issued with National Insurance Cards. Now, under the new Act which came into force on 1st January, 1973 they are faced with arrest and removal. The situation is shown by the facts in these three cases.
MOHAMMED AZAM
Mohammed Azam is a young man whose home was in Campbellpur, Pakistan. His father is dead, but his mother and two sisters, aged 12 and 9, still live in Pakistan. He has been here since January 1970. An agent in Pakistan arranged for him to get here. The fee was 15,000 rupees(something over £500). He travelled by air from Pakistan to Paris. He stayed two days in Paris, and eight days in Rotterdam. Then at night he joined a small boat with four or five other Pakistanis. He disembarked at night in England. He went to Birmingham for three weeks. Then to Derby with friends for some four months. He got casual employment. But he afterwards went to south Wales, where he has been in regular work, with a National Insurance Card. He has worked long hours, and sometimes seven days a week, so as to earn money. He has sent £30 to £40 a month home to his family.
After he had been here eighteen months, he took steps to get a passport. He got a Pakistani passport issued by the Pakistani authorities at Bradford on 19th August, 1971. It was a genuine passport for him with his true name and photograph on. It bore an endorsement to the effect that it was issued so as to replace a passport issued a week earlier in Karachi: but this previous passport was not his or was not genuine. He had paid £20 for the endorsement.
On 5th September, 1972, some police officers went to the factory where he worked. At first he denied that he had come into this country illegally. But afterwards he admitted that he had come in January 1970 by boat from Rotterdam. They went with him to his lodgings and examined his National Insurance Card and his passport. At the end of the interview the police told him that the facts would be reported to the immigration authorities. They also told him that he would not be prosecuted by the police.
On 1st January, 1973? the Immigration Act, 1971,came into force. Three or four weeks later, on 26th January, 1973, a Chief Immigration officer, together with two police officers, went to the factory where he works. They took him to his lodgings, and then to the police station. He could not speak much English. So they got an interpreter. He gave his story substantially as I have told it. At the end the Chief immigration Officer told him that, as he had entered the country illegally, he was liable to be removed to Pakistan, and that any decision about it would be taken by the Home Office. The Chief Immigration Officer gave the police officers a Detention Order on these terms:-
"Mohammed Azam
The above-named is a person whose detention I have authorised under paragraph 16 of Schedule 2 to the Immigration Act, 1971 I accordingly request you to receive the said person pending the completion of arrangements for dealing with him under the Act."
In pursuance of that Order, Mr. Azam was transferred to the prison at Swansea. Afterwards he was transferred to the prison at Pentonville on 3rd February, 1973.
On 9th February, 1973, he applied to the Divisional Court for a writ of habeas corpus. This was refused. He now appeals to this Court.
GURBAX SINGH KHERA
Gurbax Singh Khera is now 33 years of age. He is married, with a wife and small daughter in India. He was born in a village in the Punjab. He lived there all his life until December 1968. His father was then already in England, living in Wolverhampton. His uncle still livesin the same village in the Punjab. The uncle arranged with agents in India to get him to England. The uncle paid the agents about 15,000 rupees (some £500). The son got a valid Indian passport issued by the Government of India in New Delhi. He travelled by air from New Delhi to Paris. Then by car to a port on the French Coast. When it was dark he embarked on a small motor-boat with three other Asians. The boat was manned by two white men. He was frightened because it was his first time at sea. They crossed to England. They got out on a sandy shore. The white men led them to hard ground. The Asians were put into the back of a van. They were driven for five or six hours till they arrived at Wolverhampton. He was dropped at his father's house. The others went on elsewhere. He soon obtained work and has continued at work ever since. Eighteen months later, in August 1970, he got a new passport issued to him by the Indian High Commission in London. The High Commission noted that his former passport was damaged and had been cancelled and retained.
In November 1970 he purchased a house No.243 Willenhall Road, Wolverhampton, for £1,200. He lived there with his father.
On 30th December, 1971 - when he had been here three years - a police officer called at his home. At first he gave a wrong name, but afterwards he admitted that he had come illegally by boat three or four years ago. The officer took him to the police station and called an interpreter to his aid. At the end the police officer told him that further enquiries would be made. He was bailed to appear at the police station six days later on5th January, 1972. The police officer kept his passport.
But the day before he was due to appear, a police officer came to his house. He gave him back his passport and told him there was no need for him to report on the next day. He said: "There will be no further police action. The full circumstances have been reported to the Home Office". Soon afterwards his father returned to India. Gurbax Singh Khera thought that in the circumstances he could lawfully remain in England. So he made inquiries with a view to bringing his wife and daughter over to England.
On 1st January, 1973, the 1971 Act came into operation. Five or six weeks later, on 5th February, 1973, a police officer called at his house and took him to the police station. An Immigration Officer was waiting there for him, together with an interpreter. Mr. Khera told him all that had happened. The Immigration Officer told him that he had entered and remained in this country in breach of the immigration laws. He made out a detention order requesting the police to detain him. He was then taken to Winson Green prison, and detained there.
His employers were much disturbed by his arrest. They wrote on 12th February, 1973, this letter:-
"This man has been employed by Ductile Planetary Mill Ltd. since 17th June, 1969, and has always been a good, cheerful and honest worker. He has responded to training in a way that has allowed us to make him a skilled operative on a finishing process, and at the moment production is affected by his absence …"
On 22nd February, 1973, his solicitor applied to the Divisional Court for a writ of habeas corpus. Thiswas refused. He now appeals to this Court.
MALKIAT SINGH SIDHU
Malkiat Singh Sidhu is a man of 43. He was born at Jullunder in India. He has a wife and eight children there. On 24th March, 1967, he was issued at New Delhi by the Government of India with a passport. He arrived at Dover on 17th December, 1967, and reported to the Immigration Authorities. He was refused admission. He came again on 9th January, 1968, and was again refused admission. A few days later he came in a small boat and landed somewhere on the coast. He travelled by bus to Birmingham. He has lived in Solihull and has been in work here. On 8th October, 1970, he went to the Indian High Commission in London, and reported to them that he had lost his passport of 24th March, 1967. Thereupon the High Commission issued him with a fresh passport.
In 1971 he got into touch with the Joint Council for...
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