Re Mohamed Arif (an Infant)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RUSSELL |
| Judgment Date | 12 March 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0312-2 |
| Date | 12 March 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J0312-2
The Master of the Rolls
(Lord Denning)
Lord Justice Russell and
Mr Justice Cuming-Brice
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From Mr Justice Cross
Mr P.A.W. Merriton (instructed by Mr Alfred P. Halberstam) appeared as Counsel for the Appellant H.
Mr Anthony Lester (instructed by Messrs Lawford & Co.) appeared as Counsel for the Appellant S.
Mr J.P. Warner (instructed by The Treasury Solicitor) appeared as Counsel for the Respondent.
Mohamed Arif is a boy from Pakistan. He claims that his father is in "the United Kingdom and that he is entitled to enter this country as of right by virtue of Section 2(2)(b) of the Commonwealth Immigrants Act, 1962. That section says that a child is not to be refused entry if he satisfies the immigration officer that he is "a child under sixteen years of age, of a Commonwealth citizen who is resident in the United Kingdom". Mohamed Arif arrived at London Airport on the 26th January, 1968, on a Pakistan International Airlines flight. He produced a Pakistani passport which showed him to have been born on the 2nd March, 1956, at Jadda, Pakistan. There was at London Airport that day a Mr Hanif who was said to be the father of the boy. The immigration officer saw the boy and Mr Hanif separately. He asked questions of them so as to check the claim. Mr Hanif produced a passport showing that his date of birth was the 20th August, 1942: whereas the boy's birthday was the 2nd March, 1956, If those dates were correct, it would mean that the man begot the child when he was twelve years of age. That was so unlikely that the immigration officer was not ready to accept the paternity without further inquiry. He asked each of them about their relatives. The boy said he had only one brother who was aged nine. Mr Hanif said he had two sons aged twelve and one. The officer asked about the boy's uncles, aunts, grandmothers and suchlike. Each of them gave entirely different accounts. In the result the immigration officer was not satisfied that Mohamed Arif was the child of Mr Hanif. He referred the matter to the chief immigration officer. He decided that the boy could not be allowed to enter. The immigration officer handed Arif the form of refusal. It required him to return back to Karachi on the next day. Shortly afterwards a barrister made representations on behalf of the boy. In consequence he was not removed from the country at that time. An application was made to the Court on the 8th February, 1968, to make him a ward of court, with care and control to be given to the father, and directionsto be given, as to his residence., and that a declaration be made as to the legitimacy and the paternity of the child.
Nirbhai Singh is a young man from India. He was 17 years of age. As he was over 16 he was not entitled to come in as of right. But there is a discretionary power in the immigration officer to admit him. An instruction has been issued which says that children aged 16 and under 18 should be freely admitted if they are coming to join both parents or the only surviving parent in the United Kingdom, Nirbhai Singh sought to enter under that discretionary power. Nirbhai Singh arrived on the 16th February, 1968, at London Airport on an Air India flight from India. He produced a passport showing that he was born on the 27th February, 1950, in India. He came with a lady who was said to be his mother and a girl said to be his sister. They produced their passports. The lady claimed that she was the wife of Mr Hazura, Singh, who had come to this country in July 1967, about seven months before. He was at the airport to meet them. He was sponsoring them - his wife and two children - and bringing them into the United Kingdom. The immigration officer enquired into their relationship. He saw them each separately and he also saw Mr Hazura Singh. He found several discrepancies. For instance, the boy said that the family home was built of mud, had only one story and consisted of two small rooms: where as the father, the mother and the daughter said it was built partly of bricks and the father and the daughter said that it had two storeys. The boy said that since leaving school three or four years ago he had worked as a labourer in a factory and as an electrician in a shop; whereas the mother and the daughter said he had done no work since leaving school two years ago, apart from occasionally feeding their animals. In the result the immigration officer was satisfied that the mother and the daughter were the wife and daughter of the father, but he was not satisfied that the boy was the son of Mr Hazura Singh. So he consulted the chief immigration officer. He refused the boy
rules 1 and 2, as soon as application is made to make a child a ward of court, it becomes a ward of court on the making of the application. The child does not cease to be a ward of court unless the applicant fails within three weeks to apply for an appointment. But the Court may at any time order that the child shall cease to be a ward of court. So the argument runs in this fashion. Each of the children became a ward of court as soon as the application was made to make him a ward of court, and he remains a ward of court unless and until an order is made that he shall cease to be a ward of court. Meanwhile, it is said, he cannot be removed from the jurisdiction without the leave of the court because no ward can be removed from the jurisdiction without leave.
In answer to this argument, two points are taken. First, it is said that once a child has been ordered to be removed, there is no jurisdiction to make him a ward of court. I do not think it necessary to determine that point. I can well see that there may be exceptional cases where such a jurisdiction may be desirable. Second, it is said that at any rate, even if there is jurisdiction, it ought not to be exercised in cases like the present one. I think that this second submission is correct; It seems to me that in the Commonwealth Immigrants Act, 1962, Parliament laid down a full and complete code to govern the entry or removal of immigrants from the Commonwealth end has entrusted the administration of it to the immigration officers. So much so that the Courts ought not to interfere with their decisions save in the most exceptional circumstances. Take the case of the Pakistani boy. In order to gain a right of admission, he must satisfy an immigration officer "that he is a child under sixteen years of age of a Commonwealth citizen", see Section 2(2)(b) of the Act, It is the immigration officer who has to be satisfied, not the Court. Then...
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