Khawaja v Secretary of State for the Home Department [1983] UKHL 8 (10 February 1983)

KHAWAJA (Appellant)
KHERA (Appellant)
10 February 1983
House of Lords

Lord Fraser of Tullybelton
Lord Wilberforce, Lord Scarman
Lord Bridge of Harwich
Lord Templeman

Louis Blom-Cooper QC and Michael Beloff QC (instructed by Debidin and Co) for Khera. Michael Kershal QC and Ian W. Mclvor (instructed by Barry Lewis) for Khawaja.
Simon D. Brown and Andrew Collins (instructed by Treasury Solicito) for the Home Secretary.

    1. Lord Fraser of Tullybelton: My Lords, these two appeals were heard together. The appellants are immigrants into the United Kingdom. After they had obtained leave to enter, and had entered, the United Kingdom, further information about them came to the knowledge of the Home Office, in consequence of which immigration officers decided that both appellants had obtained leave to enter by practising fraud or deception on the immigration officers at their respective ports of entry, and that they were therefore “illegal entrants” within the meaning of the Immigration Act 1971. The officers who considered the further information ordered, in each case, that the appellant should be detained pending his summary removal as an illegal entrant. The appellants both applied to the courts for judicial review of these decisions, and for orders of certiorari to quash the detention orders. The practical question now before your Lordships’ House is whether either, or both, of the applications for judicial review should be granted, with the result that certiorari would be issued to quash the detention order or orders.

Khera: the facts

    1. The cases differ widely in their facts, which I must now summarise. The appellant Khera was born in India on 21 August 1956. He is a citizen of India and is subject to immigration control under the Immigration Act 1971. His father was employed by the (British) Ministry of Defence as a police officer in Singapore from 1951 to 1971, and he was registered in Singapore as a citizen of the United Kingdom and Colonies in February 1961. In May 1972 the appellant’s father applied for an entry certificate to the United Kingdom for the appellant’s mother and the appellant as his dependants, and in June 1972 the father himself entered the United Kingdom for settlement. In January 1973 the appellant, then aged 16½ years, married in India. The fact of his marriage became of importance as will appear later. Thereafter, the appellant and his mother were at first refused entry certificates to the United Kingdom, on the ground that they were not related to his father. But on 4th October 1974 their appeal to an adjudicator was allowed, and on 12 January 1975 they were given indefinite leave to enter the United Kingdom, and they entered. In November 1978, in consequence of an application from the appellant’s wife to enter the United Kingdom with the children of her marriage to the appellant, the marriage came to light, and after enquiries had been made, an immigration officer ordered that the appellant be detained as an illegal entrant, pending summary removal under paragraph 16(2) of Schedule 2 to the 1971 Act. The detention order against the appellant Khera was made on 22 November 1978. He was only actually detained for about a fortnight, and on 8 December 1978 he was temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act, subject to certain restrictions as to his place of residence and other matters. But the appeal has been dealt with all along as if the appellant were still detained, and I think that is right because his personal liberty is undoubtedly restricted.
    2. The appellant applied for judicial review of the decision of 22 November 1978. The history of the application is a little unusual. It was dismissed by the Divisional Court, and then by the Court of Appeal. On 6 May 1982 his petition for leave to appeal to this House was dismissed by the Appeal Committee of this House, but on 9 July 1982 the Appeal Committee (which had by that time granted leave to the appellant Khawaja to appeal) discharged its order of 6 May applicable to the case of the appellant Khera, and granted leave to him also to appeal.
    3. It was at one time contended on behalf of the Secretary of State that there had been four separate occasions between the refusal of the clearance certificate to the appellant and the eventual grant of leave to enter, on which the appellant, or his father, ought to have disclosed to the immigration authorities that the appellant had been married, but on which one or other of them had failed to do so. But at the hearing in this House counsel for the Secretary of State conceded that, for reasons which I need not particularise, failure to disclose the marriage on the first three of these occasions could not be founded on as amounting to deception. Counsel relied eventually only on the fourth occasion, which was on 16 December 1974, when the applicant underwent a medical examination in India after the successful appeal to the adjudicator. The Home Office, in correspondence, asserted that on that occasion the appellant had falsely told the medical officer that he was not married, and that this lie had been a material factor in the grant of a clearance certificate to him. If the lie were established, it undoubtedly would be material because the appellant was by then (15 December 1974) aged more than eighteen, and under the Immigration Rules then in force (HC 79, Rule 44), children aged eighteen or more had to qualify for admission in their own right, with the exception than “an unmarried and fully dependent son 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”. (Emphasis added). (The Rules have now been changed and the current Rules are set out in the document HC 394. The relevant Rules are numbers 46 and 47 which do not contain the same exception in favour of unmarried sons over eighteen and under twenty-one).
    4. The lie alleged to have been told by the appellant to the medical officer was referred to by the Home Office in letters to a member of your Lordships’ House who had taken up the appellant’s case, the letters being dated 14 February 1979 and 4 April 1979. Thereafter, the appellant’s father swore an affidavit on 27 June 1979 in which he said that the appellant denied having made any statement to the medical officer to the effect that he was unmarried. The father added, by way of explanation, that the appellant spoke Punjabi and had not been able to communicate satisfactorily with the medical officer who did not appear to speak that language. There is no evidence, on affidavit or otherwise, on behalf of the respondent setting out the respondent’s account of the interview with the medical officer. The only affidavit on behalf of the respondent is dated the 30 October 1980, and was sworn by a Mr Chalmers who appears to be the immigration officer who made the decision of 22 November 1978 that the appellant was an illegal entrant. In that affidavit he referred to the three occasions, now no longer relied upon, on which the appellant or his father had not disclosed that he had been married, but he made no reference to the medical examination. It must, therefore, be taken that in reaching his decision he did not rely on what happened at the medical examination. If the alleged lie was to be part of the basis for his decision it should have been mentioned in Mr Chalmers’ affidavit; that was all the more necessary as it had been denied by the appellant’s father on his behalf. As it is now conceded that the failure to disclose on the three earlier occasions did not amount to deception, and as they are apparently the only occasions on which Mr Chalmers relied in coming to his decision, the inevitable consequence is, in my opinion, that Mr Chalmers was not entitled, on the evidence that was before him, to decide that the appellant had been guilty of deception.
    5. I note in passing that the notice of the immigration officer’s decision of 22 November 1978, begins with the following statement (with emphasis added):

“Having considered all the information available to me, I am satisfied that there are reasonable grounds to conclude that you are an illegal entrant in accordance with the provisions of the Immigration Act 1971

The notice does not state that the officer was satisfied that “you are an illegal entrant”. I shall consider later whether the wording indicates that the immigration officer applied the wrong test.

    1. I should mention one ground on which counsel for Khera sought to distinguish his case from that of Zamir v. Secretary of State for the Home Department [1980] AC 930, to which I shall refer in what follows. In Zamir the appellant had married after he had been given entry clearance and the deception which this House held he had practised consisted of failing to disclose a material change of circumstances occurring since entry clearance had been obtained. In the present case, the appellants marriage took place before he had obtained entry clearance and, if there had been any deception, it would have consisted of failing to disclose a material fact when his application was under consideration. In my opinion, there is no relevant difference between the two cases in this respect. What matters is that the alleged failure to disclose, whether it took place before or after entry clearance had been obtained, would have been a material factor in enabling the appellant to enter the United Kingdom.

Khawaja: the facts

    1. I come now to the case of the appellant Khawaja. His application for judicial review was refused by Forbes J. and by the Court of Appeal. Leave to appeal to your Lordships’ House was given by the Appeal Committee on 17 June 1982.
    2. This appellant is a national of Pakistan and is not a patrial; that is to say, he does not have a right of abode in the United Kingdom – see 1971 Act, section 2(6). In October 1978 the appellant enrolled as a student at the University of Brussels, and in August 1979 he applied to the British Embassy in Brussels for a visa to enter the United Kingdom as a visitor for two weeks. The Home Office made investigations and instructed the Embassy to refuse the application. But before the appellant had been served with the notice of refusal he travelled by air to Manchester, where he arrived on 17 March 1980, and was granted leave to enter as a visitor for one month. He told the immigration officer at Manchester that he was visiting the United Kingdom for one week to see his cousin, and that he would be returning to Brussels to continue his studies. He had a return ticket valid for the 23 March 1980. On 11 April 1980, that is during the month for which his leave was valid, solicitors on his behalf wrote to the Home Office stating that he wished to obtain an extension of his visa. On 29 April 1980 the same solicitors wrote saying that the appellant had visited their office since 11 April and had informed them that he had been married on 10 April 1980 to a lady named Mrs Butt and that he wished to obtain indefinite leave to remain with her, as she was settled in the United Kingdom. Investigations were then made by the Home Office which established that the appellant had gone through a civil ceremony of marriage with Mrs Butt in Brussels on 21 December 1979, followed by a Muslim ceremony on 26 December 1979. They further established that Mrs Butt had travelled with the appellant to Manchester on the 17 March 1980 but had presented herself to a diffeent immigration officer from the one who dealt with the appellant, and that Mrs Butt had applied for and been granted entry for an indefinite period as a returning resident.
    3. On 4 May 1981 an immigration officer named Mr Osborne decided that there were “reasonable grounds to conclude” that the appellant was an illegal immigrant and authorised his detention under paragraph 16(2) of Schedule 2 to the 1971 Act, pending summary removal under the Act. When Mr Osborne made his decision he had before him an affidavit from the immigration officer who had granted the appellant’s limited leave to enter on 17 March 1980. That affidavit, and also Mr Osborne’s affidavit, are now before us. Mr Osborne states that if the officer who granted leave had been aware on 17 March 1980 that the appellant had previously made an unsuccessful application for a visa and that he had, before his arrival undergone marriage ceremonies in Brussels with a woman settled in the United Kingdom, and that that lady was travelling with him and seeking entry as a returning resident, the immigration officer could not have been satisfied that the appellant intended to leave the country after a visit of a month but must have concluded that he was entering with the intention of settling here. It is, therefore, apparent that the non-disclosure of the appellant’s marriage was a material factor in his obtaining leave. The appellant was not, in fact, entitled to enter with Mrs Butt, either as her husband or her fiancé, without a visa, although he may have believed otherwise. It remains to consider whether the non-disclosure amounted to deception or fraud and, if so, whether the appellant thereby became an illegal entrant.

Issues of general importance

    1. Three issues of general importance arise. The first of these issues relates to the true meaning of the expression “illegal entrant” in the Immigration Act 1971; does it mean, as the appellants submitted, only persons who have entered the United Kingdom clandestinely without presenting themselves to an immigration officer at a port of entry, and seeking leave to enter, or does it include also persons who have entered the country having obtained leave to do so by practising some form of deceit or fraud upon an immigration officer? On that question I am in complete agreement with my noble and learned friend, Lord Bridge of Harwich, that the expression “illegal entrant” is not limited to persons who have entered the country clandestinely, but that it includes also any person who has obtained leave to enter by practising fraud or deception in contravention of section 26(l)(c) of the Act of 1971. I agree also with Lord Bridge’s observations on the passage in the speech of my noble and learned friend, Lord Wilberforce, in Zamir, supra, at p.950 C – E where Lord Wilberforce expressed the opinion that an alien seeking entry to the United Kingdom owes “a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance.” That opinion was not a necessary part of the reasoning leading to Lord Wilberforce’s conclusion, but was obiter. At the time when his speech was delivered I agreed with all of it including that passage, but further reflection, in the light of the arguments in the present appeals, has convinced me that it would be wrong to construe the Immigration Act as if it imposed on persons applying for leave to enter a duty of candour approximating to uberrima fides. But, of course, deception may arise from silence as to a material fact in some circumstances; for example, the silence of the appellant Khawaja about the fact of his marriage to Mrs Butt and the fact that she had accompanied him on the flight to Manchester were, in my view, capable of constituting deception, even if he had not told any direct lies to the immigration officer.
    2. The second general issue relates to the function of the courts and of this House in its judicial capacity when dealing with applications for judicial review in cases of this sort; is their function limited to deciding whether there was evidence on which the immigration officer or other appropriate official in the Home Office could reasonably come to his decision (provided he acted fairly and not in breach of the rules of natural justice), or does it extend to deciding whether the decision was justified and in accordance with the evidence? On this question I agree with my noble and learned friends, Lord Bridge and Lord Scarman, that an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of a ex facie valid permission if the person is an illegal entrant. That is a “precedent fact” which has to be established. It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief. Accordingly, the duty of the court must go beyond enquiring only whether he had reasonable grounds for his belief. In both the present cases the immigration officers stated, in what appears to be a standard formula, that there were “reasonable grounds to conclude” …. etc. That formula indicates, in my opinion, that they applied the wrong test, but as it happens, the facts in the present cases are so clear that I do not think the point is of practical importance.
    3. With regard to the standard of proof, I agree with my noble and learned friend, Lord Scarman, that for the reasons explained by him, the appropriate standard is that which applies generally in civil proceedings, namely proof on a balance of probabilities, the degree of probability being proportionate to the nature and gravity of the issue. As cases such as those in the present appeals involve grave issues of personal liberty, the degree of probability required will be high.
    4. It must be remembered that, in spite of the court’s decision, affirming that of the immigration officer that the illegal immigrant be removed from this country, it will still be open to him to appeal under section 16 of the 1971 Act to an adjudicator against the decision to remove him. The fact that he is not entitled to appeal so long as he is in this country – section 16(2) – puts him at a serious disadvantage, but I do not think it is proper to regard the right of appeal as worthless. At least the possibility remains that there may be cases, rare perhaps, where an appeal to the adjudicator might still succeed.
    5. The third general issue is whether, if your Lordships accept the view that the duty of the courts is not limited to enquiring whether there was evidence on which the immigration officer was entitled to decide as he did, the House should now depart from the train of decisions culminating in Zamir (supra) to the contrary effect. Any such departure from precedent requires careful consideration because of the undesirability of disturbing settled rules. But in the present case I am clearly of opinion that the decision in Zamir, to which I was a party, was erroneous in stating that the function of the court was only to see whether there were reasonable grounds for the decision of the immigration officer. None of the special reasons mentioned in the Practice Direction of 1966 against departure from precedent apply here, and I consider that in the circumstances the House ought to do so.
    6. On the facts which I narrated at the beginning of this speech I am of opinion that in the case of Khera the immigration officer erred in deciding that the appellant had obtained permission to enter by deception; indeed, there was no evidence of the particular deception (the alleged lie to the medical officer) on which his decision was based. In the case of Khawaja, the appellant was plainly guilty of deception in the respects which I have already mentioned.
    7. I would allow the appeal of Khera and dismiss the appeal of Khawaja.
    8. Lord Wilberforce: My Lords, My noble and learned friend, Lord Fraser of Tullybelton, has fully stated the facts relevant to these two appeals. In itself, neither presents any great difficulty, but an extensive argument has been developed on points of principle concerning “illegal entrants”, particularly those who obtain entry to the United Kingdom by fraud or deception, and as to the disposal of those points directly or indirectly in the case of Zamir v. Secretary of State for the Home Department [1980] AC 930.
    9. Two of these may be disposed of fairly shortly.
    10. The first is the fundamental question whether those who obtain entry by fraud or deception may, as a matter of law, viz. the construction of the Immigration Act 1971, be dealt with as illegal entrants at all or whether, as the appellants contend, the Act only treated as illegal entrants persons who entered clandestinely, for example by small boats on the beaches. This point, which had never before been suggested in any of the many deception cases until it was raised in the oral argument of the appellant in Zamir, was, nevertheless, there fully considered. This House, endorsing the law on which the courts had consistently acted at least since 1976, decided against the appellant’s argument, and held that fraud or deception vitiated permission to entry so that the person concerned could be treated as an illegal entrant. I adhere to the opinion I expressed in Zamir and, without disrespect to Mr Blom-Cooper’s careful argument, do not propose to repeat or extend argument on the point.
    11. The second concerns a passage in the opinion I delivered in Zamir as to the positive duty of candour which, I suggested, rested upon those seeking entry to the United Kingdom. It was not necessary for the decision, since the view taken was that Zamir was a case of clear deception. The passage combines two lines of thought which ought to have been more clearly separated. The first relates to conduct which might vitiate the leave to enter and should indicate that vitiation may result, not only from positive acts of deception but also from concealment of or silence as to facts material to the granting or withholding of leave to enter, including those indicating a change of circumstances since entry clearance was granted. The passage was dealing, and I deal here, with the case of deception or concealment by the intending entrant him/herself, leaving for separate consideration in an appropriate case that of deception or concealment by another person.
    12. The second line of thought was prompted by the great number and variety of cases of deception, often organised for money, which have come before the courts. I ventured the opinion that a system of consideration of individual cases for the privilege of admission to this country can only work humanely and efficiently on a basis of candour and good faith on the part of those seeking entry. If here I trespassed on to the ground of moral judgment, I am unrepentant.
    13. The third point upon which the appellants sought reconsideration of Zamir’s case related to the scope of judicial review by the courts of decisions by the Secretary of State to remove “illegal entrants” and to the power and duty of the courts on habeas corpus challenges to the detention of such persons. These remedies of judicial review and habeas corpus are, of course, historically quite distinct and procedurally are governed by different statutory rules, but I do not think that in the present context it is necessary to give them distinct consideration. In practice, many applicants seek both remedies. The court considers both any detention which may be in force and the order for removal: the one is normally ancillary to the other. I do not think that it would be appropriate unless unavoidable to make a distinction between the two remedies and I propose to deal with both under a common principle. Each of the present cases appears, in fact, to be of judicial review.
    14. In Zamir the main argument on this part of the case was that cases where it was sought to remove an “illegal entrant” were part of a category of “precedent fact” cases – where an administrative discretion exists if, but only if, some precedent fact is established to exist, and the existence of which is independently triable by a court. The best known example of this is Eshugbayi Eleko v. Government of Nigeria [1931] AC 662, where the discretionary power was exercisable only if the person affected was a native chief, so that whether he was such a chief or not was what is sometimes called a jurisdictional or collateral fact. The argument in this form was rejected in Zamir – I venture to think correctly. This rejection however in no way involves rejection of a right of judicial review of the factual element in an administrative decision. The present, as other illegal entrant cases, does involve the making of a finding of fact by the administration as can be seen by an examination of the administrative process. In fact, this falls into two parts: first, a determination by the authorities that a person is an illegal entrant; second, a discretionary decision by the Secretary of State to remove him from the country and meanwhile to detain him. Separate principles in my opinion govern these two stages. As regards the latter, review may take place upon those principles, now well familiar, which govern the review of discretionary decisions, a relevant question being whether a reasonable person, or body, could have come to that decision and the decision being upheld if the answer is positive. Review of the former stage depends upon a different formulation, namely, one appropriate as regards a determination of fact by an administrative body. If error has crept in to the decisions of the courts, which I do not think is, in fact, suggested, or into the formulation of their reasons, it has lain in the application to the first stage of language appropriate to the second, viz. in asking whether a reasonable immigration officer could have made the determination that he did. That is not, in my opinion, the correct question.
    15. It is, I think, helpful to test the above analysis by considering what actually happens in “illegal entrant” cases. A person is found in this country in circumstances which give rise to doubt whether he is entitled to be here or not: often suspicions are provoked by an application made by him to bring in his family. So investigations are made by the Home Office, under powers which it undoubtedly has under the Act of 1971 (section 4) and Schedule 2 (paragaphs 2 and 3). Enquiry is made, of him and other witnesses, when and how he came to the United Kingdom, what documents he had, what leave, if any, to enter was given. Further enquiry may have to be made in his country of origin: often this is done through the High Commission there and through the entry clearance officer from whom he may have obtained an initial clearance. Sometimes very extensive enquiries have to be made. In the case of Yasmeen (11 February 1982) the officer made a visit to the village where it was said that the applicant had married, taking photographs of her and her alleged husband – or fiancé. These he showed to a group of 4-5 women, he spoke to other women and then to a group of 8-10 people. He interviewed the fiancé. He sent a report to the Home Office. On this an immigration officer inteviewed the applicant and put to her the report of the entry clearance officer. That officer concluded that in spite of her denials, the applicant was married. The whole case was then reviewed by an officer of the Home Office who took the view that she was an illegal entrant, for reasons which he stated. The point is – and I tried to make this in Zamir – that the conclusion that a person is an illegal entrant is a conclusion of fact reached by immigration authorities upon the basis of investigations and interviews which they have power to conduct, including interviews of the person concerned, of an extensive character, often abroad, and of documents whose authenticity has to be verified by enquiries.
    16. Now there is no doubt that the courts have jurisdiction to review the facts on which the Home Office’s conclusion was reached: there is no doubt that procedural means exist, whether under the head of habeas corpus or of judicial review, for findings of fact to be made, by the use of affidavit evidence or cross-examination upon them or oral evidence. There is no doubt that, questions of liberty and allegations of deception being involved, the court both can and should review the facts with care. The sole question is as to the nature of this review. How far can, or should, the court find the facts for itself, how far should it accept, or consider itself bound to accept, or entitled to accept, the findings of the administrative authorities? On principle one would expect that, on the one hand, the court, exercising powers of review, would not act as a court of appeal or attempt to try or retry the issue. On the other hand, since the critical conclusion of fact is one reached by an administrative authority (as opposed to a judicial body) the court would think it proper to review it in order to see whether it was properly reached, not only as a matter or procedure, but also in substance and in law. But let us test this principle upon actual cases in order to see what rules have emerged: the material is considerable and has been worked upon by judges of eminence and experience particularly in the field of habeas corpus. We are able now to see at what points weaknesses may have developed.
    17. I take first the case of Ahsan [1969] 2 QB 222, decided under the Commonwealth Immigrants Act 1962. Under that Act the jurisdiction to detain in custody could only be exercised if the person concerned was examined within 24 hours of landing. It was held that it was for the detaining authority to prove compliance with this condition. This was a simple case of “jurisdictional fact”. Lord Parker CJ put it thus: “if the applicant …. challenges that return …. claiming that there was no jurisdiction …. to make the order …. it would …. be for the executive to negative that challenge by proving that jurisdiction in fact existed.” (page 231). The applicant not having proved the absence of this fact, and the respondent not having proved its existence beyond doubt, the court decided the case on the burden of proof. There can be no doubt as to the correctness of this case, but the area to which it relates is different from that which concerns us.
    18. In Azam [1974] AC 18 the courts were concerned with illegal entrants and with their position under the Act of 1971. Mr Blom-Cooper relied strongly on this case, claimed that Zamir had disregarded it, and invited the House to “reinstate” it.
    19. The applicants had entered the United Kingdom clandestinely and orders were made against them under Schedule 2 to the Immigration Act 1971. They applied for habeas corpus. In the Court of Appeal Lord Denning MR referred to the fact that under section 16 of the Act of 1971 an applicant has a right of appeal on the ground “that on the facts of the case he is not an illegal entrant”, and he held that the existence of this right does not take away the right to apply for the writ. “If he makes a prima facie case that he is not an illegal entrant he is entitled to habeas corpus to have the matter determined.” In this House the decision of the Court of Appeal was affirmed and their Lordships proceeded to review the issue of fact.
    20. I have no doubt that the proposition of Lord Denning referred to was correct: if it was not referred to in this House or in the later cases, including Zamir, it is because it is almost axiomatic. Nothing said in Zamir was intended to cut it down. But it does not decide anything as to the scope of the review of facts which may be carried out on habeas corpus and it certainly does not suggest that such review is the same or as extensive as a review carried out under the procedure of appeal. The case itself merely illustrates a kind of review which is evidently possible and which was carried out.
    21. The governing authority as to the practice of the courts as regards persons who enter by fraud or deception is Hussain [1978] 1 WLR 700. This contains some important pronouncements. Lord Widgery CJ, sitting in the Divisional Court, said that questions of fact are ultimately for the Secretary of State and that there are limits to the extent to which the court can go. “Our obligation …. is to be satisfied that the Home Office approach to the problem is one taken in good faith. Further we have to decide whether there is or is not adequate evidence”. This statement was approved by Geoffrey Lane LJ in the Court of Appeal, but the Lord Justice did, after so approving it, say in his own words: “If, on the evidence taken as a whole, the Secretary of State has grounds, and reasonable grounds, for coming to the conclusion that the applicant is here illegally …. this court will not interfere.” (page 707). The Court of Appeal, however, in fact carefully considered the evidence, and indeed admitted and considered fresh evidence. On the basis of the whole of it, it found that the permission to enter was obtained by fraud. That the court was prepared to make its own finding is particularly clear in the judgment of Megaw LJ. In Zamir this House considered Hussain to be correct: I continue so to consider it, if properly understood. It should not be understood, as in some later cases it may have been, as authority that the reviewing court has nothing more to do than to consider whether the Secretary of State, or his responsible officer, could reasonably have come to the conclusion that the applicant was an illegal entrant: nor that the task of either person is to decide whether the applicant could reasonably be so regarded.
    22. Choudhary (Ibid) 1177, decided shortly after Hussain, marks a difference of approach. It was a habeas corpus case and Lord Denning MR said that where on the evidence the Secretary of State had reasonable grounds the court could not enquire further into the truth of the factual basis on which the Home Office had exercised its discretion. The Immigration Office must decide the facts: if the applicant was dissatisfied, the remedy was by appeal: there was no remedy by habeas corpus. Geoffrey Lane LJ similarly accepted the “reasonable grounds” basis for upholding the decision of the Secretary of State (page 1183). It is true that Choudhary was a case where, on any view, the applicant was an illegal entrant, so that it need not be applied to other cases where that fact may be in doubt. Nevertheless, Choudhary is a case which appears to apply a test more appropriate to a case of review of an administrative discretion and to restrict the duty of the court on habeas corpus applications to examine the factual basis for detention of the applicant.
    23. In Iqbal [1979] 1 QB 264, the Court of Appeal again followed Hussain and applied the judgment of Geoffrey Lane LJ. The judgment used the words “It was for the Secretary of State to weigh the evidence” – words sufficiently correct in themselves but liable to convey the impression that the court cannot itself do so.
    24. In Tirgath Singh (11 July 1980) the Court of Appeal went further along the same road. The question being whether the applicant entered as an illegal entrant before 1 January 1973, Megaw LJ said that it was not for the court of review to investigate evidence. The court may look at the evidence in order to see whether it is such that the Secretary of State or other authority could as a reasonable person have arrived at his decision upon that material and in order to see whether there was any substantial unfairness. I do not think that the learned Lord Justice was in this first respect quite consistent with his previous judgment in Hussain.
    25. In Pinky Badwal (29 April 1980) the question was whether the applicant was a patrial, an issue which in turn depended upon some conflicting and unreliable evidence concerning her marriage or marriages. The judgment quotes from a previous decision of Templeman LJ in Parven Akhtar where expressions are reported to the effect that the immigration officer had ^reasonable ground” for finding that the applicant had entered in contravention of the immigration laws, and had reasonable grounds for believing the applicant to be an illegal entrant. To the extent that Pinky Badwal took this approach, it was not, in my opinion, applying the right principle or correctly following Hussain. But I think that the case makes the valid point that since by paragraph 2 of Schedule 2 to the Act of 1971 an immigration officer has power to determine whether a person is a patrial and whether, if he is not, he may or may not enter the United Kingdom without leave, he must have power to determine whether a person is an illegal entrant. The existence of such a power does not, of course, mean that his determination is not subject to review by the court, but an argument that his determination is ultra vires, though suggested at one time (see, for example, Choudhary I.e.) has not survived.
    26. The case of Yasmeen (11 February 1982) has already been referred to as to its facts for the purpose of showing the nature of the determination which in many cases has to be made by the immigration authorities, and the inherent limits which exist upon the court’s power of review. In carrying out the review the court, in that case, again, fn my respectful opinion, deviated to some extent from Hussain. When the result of the enquiries in India was first reviewed by Mr Osborne of the Home Office, he (correctly) viewed his task as being to decide whether, on this material, the applicant was an illegal entrant. He found that she was, for reasons assigned. Woolf J, having doubts as to the effect of the evidence (which doubts, if I am right, he was entitled to have) asked the Home Office to reconsider the position, and further enquiries were made. On this Mr Osborne stated that he “had reasonable grounds” for forming the opinion he had formed – a statement which was (justly) criticised by the court – he should simply have made a decision. But in the end the court seems to have concluded that Mr Osborne had reasonable grounds for his opinion, the judge stating that it was irrelevant whether he would have come to the same conclusion. While the decision was almost certainly correct, the phraseology was perhaps unfortunate in so far as it limited the power and duty of the reviewing court.
    27. This tendency seems to have become accepted in Abdul Malik Hussain (18 July 1982) where on a judicial review of an adjudicator’s decision under section 16 of the Act it was said that it is well established that the court cannot interfere so long as there were reasonable grounds for the Secretary of State to reach his conclusion.
    28. My Lords, I have ventured upon this review of some of the cases (there are many more which might have been examined) in order to show two things. First, that, whatever the theory may be, the courts have in general been willing and able to review for themselves the factual basis, on which decisions by immigration officers that persons are illegal entrants and analogous decisions are made, within the limits open to them. And the cases vividly illustrate what those limits are. They are dictated, on the one hand, by the fact that of necessity extensive fact-finding operations have to be carried out by the immigration authorities which cannot be repeated by the reviewing court; on the other hand, by the fact that these operations are carried out by administrative, not judicial, officers inevitably not wholly qualified in the process of assessing and applying evidence. Secondly, that they have not always consistently or correctly stated the basis on which such review should be made. In some instances, and this seems to be more marked in recent cases, there has been a tendency to limit the courts’ power to that of ascertaining whether there was evidence on which a reasonable Secretary of State or an officer of his could have reached the decision. While there are cases where the facts are so clear that it would not make any practical difference whether this was the test or whether the court ought to appraise the evidence for itself there may be other cases, and indeed the case of Khera may be one, where a different result would follow and where the “reasonable grounds” formula (in fact used in Khera’s case) would understate the court’s duty. While the case of Zamir fell into the former class, there were expressions used which support the “reasonable grounds” approach which, in the light of the argument we have heard and after a further consideration of the case, require some correction.
    29. I would therefore restate the respective functions of the immigration authorities and of the courts as follows:

1. The immigration authorities have the power and the duty to determine and to act upon the facts material for the detention as illegal entrants of persons prior to removal from the United Kingdom.

2. Any person whom the Secretary of State proposes to remove as an illegal entrant, and who is detained, may apply for a writ of habeas corpus or for judicial review. Upon such an application the Secretary of State or the immigration authorities if they seek to support the detention or removal (the burden being upon them) should depose to the grounds on which the decision to detain or remove was made, setting out essential factual evidence taken into account and exhibiting documents sufficiently fully to enable the courts to carry out their function of review.

3. The court’s investigation of the facts is of a supervisory character and not by way of appeal (it should not be forgotten that a right of appeal as to the facts exists under section 16 of the Act of 1971 even though Parliament has thought fit to impose conditions upon its exercise). It should appraise the quality of the evidence and decide whether that justifies the conclusion reached – e.g. whether it justifies a conclusion that the applicant obtained permission to entry by fraud or deceit. An allegation that he has done so being of a serious character and involving issues of personal liberty, requires a corresponding degree of satisfaction as to the evidence. If the court is not satisfied with any part of the evidence it may remit the matter for reconsideration or itself receive further evidence. It should quash the detention order where the evidence was not such as the authorities should have relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularity.

    1. As regards the present appeals, in Khera there was a good deal of discussion in both the Divisional Court and in the Court of Appeal of the “candour” passage in Zamir. I have dealt with this and regret that it should have caused some difficulty to the learned judges. As regards the evidence, Ormrod LJ thought that the applicant had “demonstrably failed to disclose a material fact”. Dunn LJ found that it was open to the immigration officer to come to his conclusion and there was ample evidence to justify him in doing so. He followed the passage in Zamir dealing with the powers of the court. I am not convinced that either of the Lords Justices really misdirected himself in law: I think that both may in fact have appraised the evidence for himself. But I am satisfied, for reasons given by my noble and learned friend. Lord Fraser of Tullybelton, and which I need not state in my own words, that the evidence placed before the court by Mr Chalmers on behalf of the Home Office, though raising a case of suspicion and doubt, was not sufficient to make good a case of deception or concealment of a material fact and that the reviewing court should have so found. Mr Khera’s appeal must be allowed.
    2. In Khawaja Lord Denning MR stated the facts as deposed to and reached the conclusion that the case was one of “gross deception”. It is true that he added the words “the Home Secretary was quite entitled to treat him as an illegal entrant”, but I do not read this as taking a “reasonable grounds” approach – rather as saying that on the facts before the Court of Appeal the Secretary of State was right. I have no doubt that on the proper standard of review the decision was correct and would dismiss the appeal.
    3. Lord Scarman: My Lords, the facts of these two cases have been fully set out and analysed by my noble and learned friend, Lord Fraser of Tullybelton. I will proceed, therefore, at once to a consideration of the law.
    4. Two questions of law fall to be considered in the two appeals. Both arise under the Immigration Act 1971 (the Act). One is as to the construction to be put upon the definition of “illegal entrant” which is contained in section 33(1) of the Act. The other is as to the proper scope of judicial review where the immigration authority has decided to exercise its statutory power to remove an illegal entrant from the United Kingdom and detains him, or permits his temporary admission into the country subject to restrictions pending removal.
    5. Both questions were considered and answered by the House in the recent case of Zamir Secretary of State for the Home Department (“Zamir”) [1980] AC 930. The House in these two appeals is being invited to reconsider that decision and to depart from it, using the power to depart from precedent which the House declared by its Practice Statement of 1966 it was prepared to use in certain circumstances: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
    6. The Practice Statement is an affirmation of the importance of precedent “as an indispensable foundation upon which to decide what is the law and its application to individual cases.” However, it recognises that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.” The House will depart in the exceptional case from the precedent of a previous decision “when it appears right to do so.” This formula indicates that the House must be satisfied not only that adherence to the precedent would involve the risk of injustice and obstruct the proper development of the law, but also that a judicial departure by the House from the precedent is the safe and appropriate way of remedying the injustice and developing the law. The possibility that legislation may be the better course is one which, though not mentioned in the Statement, the House will not overlook (a recent illustration is its decision in Pirelli Faber [1983] 1 65, HL). Provided, however, due attention is paid to the dangers of uncertainty in certain branches of the law (especially the criminal law) the House, as it has already in a number of cases made clear, will, if it thinks it right, depart from a previous decision whether the decision be ancient or modern and whether the point of law arises upon the construction of a statute or in the judge-made common law or equity.
    7. Three propositions of law were enunciated in Zamir by a unanimous House:

(1) that a person who has succeeded in entering the United Kingdom by committing an offence under the Immigration Act is an illegal entrant as defined by section 33(1) of the Act: he has entered “in breach of the immigration laws”

(2) that a person who has to seek leave to enter the United Kingdom owes to the immigration authority a positive duty of candour, i.e. a duty to disclose material facts even though he be asked no questions and has neither expressly nor by his conduct implicitly made any false representation as to them:

(3) that, if the immigration authority has reasonable grounds for believing that a person is an illegal entrant, the decision to remove him and to detain him until he is removed is for the authority. It is not subject to review by the courts, save to the limited extent recognised by what has come to be called “the Wednesbury principle”.

    1. For the reasons developed by my noble and learned friend, Lord Bridge of Harwich, I entertain no doubt that in Zamir the House correctly construed the definition of “illegal entrant” in section 33(1) of the Act as covering one who has obtained leave to enter by deception. It is an offence for a person who is being examined by an immigration officer to make a statement or representation which he knows to be false or does not believe to be true: section 26(l)(c) of the Act. Silence can, of course, constitute a representation of fact; it depends upon conduct and circumstances. If the offence is committed, it is a breach of the immigration laws. The definition therefore covers a person who by committing the offence obtains leave to enter the United Kingdom.
    2. It was strenuously argued that the definition must be limited to persons who enter the country by evading immigration control, e.g. clandestinely over the beach. Even if I were disposed to accept this submission, I would not do so in the face of the unanimous decision in Zamir. I see nothing unjust in the construction the House then put upon the statutory definition, nor any threat to the proper development of the law.
    3. In Zamir deception was proved. Lord Wilberforce observed that the case was, in his opinion, disposable under any test. It was not necessary, therefore, for the House to consider whether even where there is no deliberate deception a person seeking leave to enter the United Kingdom owes a positive duty of candour to the immigration authority. The House’s expression of opinion that he does was obiter. It is certainly an entrant’s duty to answer truthfully the questions put to him and to provide such information as is required of him: paragraph 4 Schedule 2. But the Act goes no further. He may, or may not, know what facts are material. The immigration officer does, or ought to, know the matters relevant to the decision he has to make. Immigration control is, no doubt, an important safeguard for our society. Parliament has entrusted the control to immigration officers and the Secretary of State: section 4. To allow officers to rely on an entrant honouring a duty of positive candour, by which is meant a duty to volunteer relevant information, would seem perhaps a disingenuous approach to the administration of control: some might think it conducive to slack rather than to “sensitive” (Zamir p 950) administration. The Immigration Act does impose a duty not to deceive the immigration officer. It makes no express provision for any higher or more comprehensive duty; nor is it possible in my view, to imply any such duty. Accordingly I reject the view that there is a duty of positive candour imposed by the immigration laws and that mere non-disclosure by an entrant of material facts in the absence of fraud is a breach of the immigration laws.
    4. Real difficulties, however, arise in respect of the third proposition of law in Zamir. This was part of the ratio decidendi. The House approved a line of authority (beginning with Ex parte Hussain [1978] 1 WLR 700) which put a gloss upon the words of the critical provision in the Immigration Act, i.e. paragraph 9 of the Second Schedule.
    5. The paragraph declares an illegal entrant to be liable to removal. It provides that where an illegal entrant is not given leave to enter or remain in the United Kingdom an immigration officer may give directions for his removal. Unless he (or the Secretary of State, paragraph 10) may give such directions, no power to detain him arises: for paragraph 16 (2) provides a power to detain only in respect of a person who may be so removed. Similarly, paragraph 21 of the Schedule empowers the release of a person from detention and his temporary admission into the United Kingdom subject to restrictions as to residence and reporting to the police only if that person may be lawfully removed from the country.
    6. The gloss which the House in Zamir put upon the words of paragraph 9 was to read them as meaning: – not “where a person is an illegal entrant” but “where the immigration officer has reasonable grounds for believing a person to be an illegal entrant” he may be removed if not given leave to enter.
    7. If it be sought to justify the gloss as a proper construction of the statutory language, there is a difficulty. The gloss consists of the introduction into the paragraph of words that are not there. Must they, then, be implied? This question lies at the heart of the problem.
    8. In Zamir the House was impressed with the difficulties arising if the implication were not to be made. The House attached importance to three considerations: –

(1) the line of cases beginning with Hussain, supra, in which the Court of Appeal had held it necessary to make the implication;

(2) the scheme of the Immigration Act; and especially,

(3) the nature and process of the power of decision conferred by the Act upon immigration officers.

    1. These considerations, in the view of the House, made it necessary to reject the appellant’s argument based upon the well-established principle that, where the exercise of an executive power depends upon the precedent establishment of an objective fact, it is for the court, if there be a challenge by way of judicial review, to decide whether the precedent requirement has been satisfied. In Azam’s case [1974] AC 18 at p 34 Lord Denning MR (in the Court of Appeal) considered the principle applicable in the case of removal of an illegal entrant. The House recognised the existence of the principle, but, following and approving Hussain, opted for a construction of the legislation which would oust it.
    2. In rejecting the appellant’s argument based on the “precedent fact” principle of review Lord Wilberforce said (Zamir p 948): –

“My Lords, for the reasons I have given I am of opinion that the whole scheme of the Act is against this argument. It is true that it does not, in relation to the decisions in question, use such words as ‘in the opinion of the Secretary of State’ or ‘the Secretary of State must be satisfied’, but it is not necessary for such a formula to be used in order to take the case out of the ‘precedent fact’ category. The nature and process of decision conferred upon immigration officers by existing legislation is incompatible with any requirement for the establishment of precedent objective facts whose existence the court may verify.”

He therefore implied into paragraph 9 the words needed to bring it outside the “precedent fact” category of provision.

    1. My Lords, in most cases I would defer to a recent decision of your Lordships’ House on a question of construction, even if I thought it wrong. I do not do so in this context because for reasons which I shall develop I am convinced that the Zamir reasoning gave insufficient weight to the important – I would say fundamental – consideration that we are here concerned with, the scope of judicial review of a power which inevitably infringes the liberty of those subjected to it. This consideration, if it be good, outweighs, in my judgment, any difficulties in the administration of immigration control to which the application of the principle might give rise.
    2. The Zamir construction of paragraph 9 deprives those subjected to the power of that degree of judicial protection which I think can be shown to have been the policy of our law to afford to persons with whose liberty the executive is seeking to interfere. It does therefore, in my view, tend to obstruct the proper development and application of the safeguards our law provides for the liberty of those within its jurisdiction. If I can make good this view of the law, it must be right to depart from the precedent of Zamir. I, therefore, now turn to the reasons why I conclude that it is correct.
    3. The Zamir decision would limit judicial review where the executive has decided to remove someone from the country as being an illegal entrant to the “Wednesbury principle”. This principle is undoubtedly correct in cases where it is appropriate. But, as I understand the law, it cannot extend to interference with liberty unless Parliament has unequivocably enacted that it should. The principle was formulated by Lord Greene MR in Associated Provincial Picture Houses, Ltd Wednesbury Corporation [1948] 1 KB 223. The case concerned the conditions imposed upon the issue of a licence. The principle formulated was that the courts will not intervene to quash the decision of a statutory authority unless it can be shown that the authority erred in law, was guilty of a breach of natural justice or acted “unreasonably”. If the authority has considered the matters which it is its duty to consider and has excluded irrelevant matters, its decision is not reviewable unless so absurd that no reasonable authority could have reached it. The principle excludes the court from substituting its own view of the facts for that of the authority.
    4. Such exclusion of the power and duty of the courts runs counter to the development of the safeguards which our law provides for the liberty of the subject. The law has largely developed through the process of habeas corpus. But in the common law habeas corpus was itself of limited scope, though a rapid and effective remedy where it applied. It brought the gaoler and his prisoner into court; but, if the respondent’s return to the writ was valid on its face, that was the end of the matter. The court could not take the case further. The great statute of 1816, “an Act for more effectually securing the liberty of the subject” substantially extended the scope of the process. It conferred upon the judges the power in non-criminal cases to enquire into the truth of the facts contained in the return. Section 3 is the beginning of the modern jurisprudence the effect of which is to displace, unless Parliament by plain words otherwise provides, the Wednesbury principle in cases where liberty is infringed by an act of the executive. The section deserves quotation:

“3. In all cases provided for by this Act, although the return to any writ of habeas corpus shall be good and sufficient in law, it shall be lawful for the justice or baron before whom such writ may be returnable, to proceed to examine into the truth of the facts set forth in such return . . . and to do therein as to justice shall appertain”.

    1. The court’s duty is to examine into the truth of the facts set forth in the return: the section thereby contemplates the possibility of an investigation by the court so that it may satisfy itself where the truth lies. There is here a principle which the judges, faced with decisions by statutory authorities which restrict or take away, liberty, have accepted as being justly met by the rule, the existence of which was recognised in Zamir, though not applied, that where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied.
    2. The classic dissent of Lord Atkin in Liversidge Anderson [1942] AC 206 is now accepted (IRC Rossminster, Ltd [1980] AC 952, pp 1011, 1025) as correct not only on the point of construction of Regulation 18(b) of the then emergency Regulations but in its declaration of English legal principle. Lord Atkin put it thus:

“that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act.” (p 245).

    1. In an earlier Privy Council decision Lord Atkin had made the same point in the specific case of an executive decision. In Eshugbayi Eleko Government of Nigeria [1931] AC 662 Lord Atkin said: –

“In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive.”

For, as Blackstone said of habeas corpus, describing it as a high prerogative writ,

“the King is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted”: Commentaries, Bk III p 131, 12th edition (Christian) 1794.

    1. There are, of course, procedural differences between habeas corpus and the modern statutory judicial review. Zamir was a case of habeas corpus: in the instant cases the effective relief sought is certiorari to quash the immigration officer’s decision. But the nature of the remedy sought cannot affect the principle of the law. In both cases liberty is in issue. “Judicial review” under RSC Order 53 and the modern statute is available only by leave of the court. The writ of habeas corpus issues as of course. But the difference arises not in the law’s substance but from the nature of the remedy appropriate to the case. The writ issues as of right summoning into court the person in whose custody the subject is. It gets the custodian into court: but discharge from custody is not possible unless “the party hath a probable cause to be delivered”, as Vauhan CJ put it in words quoted by Blackstone, op cit, Bk III p 132. This remains the law today and effectually puts habeas corpus in like case with the other form of judicial review. Whatever the process, the party seeking relief carries the initial burden of showing he has a case fit to be considered by the court.
    2. Accordingly, faced with the jealous care our law traditionally devotes to the protection of the liberty of those who are subject to its jurisdiction, I find it impossible to imply into the statute words the effect of which would be to take the provision, para. 9 of Schedule 2 of the Act, “out of the ‘precedent fact’ category” (Lord Wilberforce, supra). If Parliament intends to exclude effective judicial review of the exercise of a power in restraint of liberty, it must make its meaning crystal clear.
    3. Two points remain. First, does our law’s protection extend to aliens and non-patrials? There is a suggestion that because an alien is liable to expulsion under the royal prerogative and a non-patrial has no right of abode, it is less difficult to infer a Parliamentary intention to deprive them of effective judicial review and a decision to infringe their liberty. And, secondly, the problem of proof.
    4. Habeas corpus protection is often expressed as limited to “British subjects”. Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic “no” to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed “the black” in Somersett’s case (1772) 1 St Tr 20. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed.
    5. Secondly, there is the problem of proof. The initial burden is upon the applicant. At what stage, if at all, is it transferred to the respondent? And, if it is transferred, what is the standard of proof he has to meet? It is clear from the passages cited from Lord Atkin’s opinions in Liversidge Anderson and Eshugbayi’s case that in cases where the exercise of executive discretion interferes with liberty or property rights he saw the burden of justifying the legality of the decision as being upon the executive. Once the applicant has shown a prima facie case, this is the law. It was so recognised by Lord parker CJ in Reg Governor of Brixton Prison, ex parte Ahsan [1969] 2 QB 222, and by Lord Denning MR in the Court of Appeal in Reg Governor of Pentonville, ex parte Azam [1974] AC 18 at p 32D. And, I would add, it is not possible to construe section 3 of the 1816 Act, supra, as meaning anything different.
    6. The law is less certain as to the standard of proof. The choice is commonly thought to be between proof beyond reasonable doubt, as in criminal cases, and the civil standard of the balance of probabilities: and there is distinguished authority for the view that in habeas corpus proceedings the standard is beyond reasonable doubt, since liberty is at stake. This appears to have been the view of Lord Atkin (Eshugbayi’s case, supra p 670), and certainly was the view of Lord Parker CJ (Ahsan’s case, supra).
    7. But there is a line of authority which casts doubt upon their view. The Court of Appeal has held that the standard of proof of criminal offences in civil proceedings is that of the balance of probabilities: Hornal Neuberger Products Ltd. [1957] 1 QB 247. As judicial review whether under the modern statutory procedure or section 3 of the Habeas Corpus Act 1816 is a civil proceeding, it would appear to be right, if Hornal’s case was correctly decided, to apply the civil standard of proof.
    8. My Lords, I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice.
    9. The issue has been discussed in a number of cases. In Bater Bater [1951] P 35, the trial judge had said that the petitioner, who alleged cruelty by her husband, must prove her case beyond reasonable doubt. This was held by the Court of Appeal not to be a misdirection. But Denning LJ observed that, had the judge said the case required to be proved with the same strictness as a crime in a criminal court, that would have been a misdirection. He put it thus (pp 36-37):

“The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case.”

And a little later he added:

“So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion”

    1. It is clear that all three members of the court (Bucknill, Somervell and Denning, LJJ) found difficulty in distinguishing between the two standards. If a court has to be satisfied, how can it at the same time entertain a reasonable doubt (Bucknill LJ at p 36)?
    2. In Hornal Neuberger Products Ltd (supra), the Court of Appeal had to consider the standard of proof where fraud is alleged in civil proceedings. The court held that the standard was the balance of probabilities. But, since the degree of probability required to tip the balance will vary according to the nature and gravity of the issue, “no real mischief results from an acceptance of the fact that there is some difference of approach in civil actions …. the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities:” Morris LJ p 266. A notable application of the principle that civil courts apply the balance of probabilities is to be found in the will case in which Ungoed-Thomas J had to decide whether the wife had feloniously killed her husband: In re Dellow’s Will Trusts. Lloyds Bank Ltd Institute of Cancer Research and others [1964] 1 WLR 451. He held the crime proved upon the balance of probabilities.
    3. Hornal’s case was approved by this House in the divorce case, Blyth Blyth [1966] 1 All ER 524. Lord Denning picked up what he had said in Bater and Hornal and concluded that:

“so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear.”

    1. My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited: and I would direct particular attention to the words of Morris LJ already quoted. It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater and in Hornal, a grave matter. The reviewing court will therefore, require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. “The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue:” Dixon J in Wright Wright (1948) 77 CLR 191, 210. I would, therefore, adopt the civil standard flexibly applied in the way described in the case law to which I have referred. And I completely agree with the observation made by my noble and learned friend Lord Bridge of Harwich that the difficulties of proof in many immigration cases afford no valid ground for lowering the standard of proof required.
    2. Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law.
    3. For these reasons I conclude that in these two appeals, once the applicant had shown, as each did, that he had entered the United Kingdom with the leave of the immigration officer, the burden of proving that he had obtained leave by deception was upon the executive and the standard of proof was the balance of probabilities. In Khera’s case, the executive failed to prove that he was guilty of deception. In Khawaja’s case the evidence that he deceived the immigration authority was overwhelming. Accordingly, I would allow the appeal of Khera and dismiss that of Khawaja.
    4. Lord Bridge of Harwich: My Lords, these two appeals come before your Lordships’ House in unusual circumstances. On 17 July 1980 the House delivered judgment in Zamir Secretary of State for the Home Department [1980] AC 930. Both the decisions now appealed from were given by the Court of Appeal on the ground that they were bound by Zamir to decide as they did. In the case of Khera, leave to appeal, having been refused by the Court of Appeal, was also initially refused by the House. But a petition to the House for leave to appeal in the case of Khawaja was later granted on the grounds not only that it raised a question as to the scope of the decision in Zamir, but also that it might be appropriate that the questions of law which Zamir had decided should be re-examined. In the light of this decision, the petition for leave to appeal by Khera was reconsidered, the original order refusing leave discharged and leave granted.
    5. Against this background, as was to be expected, your Lordships have heard exceptionally full and comprehensive argument directed to three main questions, viz:

(1) Who can be treated as an illegal entrant under the Immigration Act, 1971 (“the Act”)?

(2) When a person has been detained as an alleged illegal entrant under the authority of an immigration officer pursuant to paragraphs 9 and 16(2) of Schedule 2 to the Act pending the giving and implementation of directions for his removal under that Schedule, what is the scope of the court’s power to review the legality of the detention and proposed removal and how should it be exercised?

(3) In so far as the answers your Lordships are minded to give to either of the two previous questions differ from the answers given to the same questions in Zamir, would it be appropriate to depart from Zamir pursuant to the Practice Statement on Judicial Precedent made by the House on 26 July 1966 [1966] 1 WLR 1234, to the extent necessary to assert that those answers represent the present law?

    1. Before turning to the facts of the two cases under appeal, I propose to consider these three clearly defined questions of law.

Who is an illegal entrant?

    1. Section 33(1) provides that:

” ‘entrant’ means a person entering or seeking to enter the United Kingdom, and ‘illegal entrant’ means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered;”


” ‘immigration laws’ means this Act and any law for purposes similar to this Act which is for the time being or has (before or after the passing of this Act) been in force in any part of the United Kingdom and Islands;”

    1. Before examining these definitions it is necessary to consider their significance in the scheme of the Act. The Act provides machinery for the control of entry into and residence in the United Kingdom of non-patrials. Non-patrials may or may not be British subjects. Whenever a non-patrial enters the United Kingdom he requires leave to do so; leave may be given for an indefinite or for a limited period, and, if given for a limited period, may be subject to certain specified conditions: section 3(1). Once a non-patrial has entered and is resident in the United Kingdom he may be liable to expulsion by one or other of two distinct procedures, viz: (1) by deportation under section 5 and Schedule 3, (ii) by summary removal under section 4 and Schedule 2. Subject to the preservation of the Royal prerogative in relation to aliens by section 33(5) – which is not presently relevant – there is no other procedure for expulsion.
    2. The grounds for deportation of a non-patrial, so far as relevant are:

(i) that “having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave”: section 3(5)(a).

(ii) that “the Secretary of State deems his deportation to be conducive to the public good”: section 3(5)(6).

(iii) that he has been recommended for deportation by a court on conviction of an offence punishable with imprisonment: section 3(6).

    1. The procedure for deportation ensures that, before the deportation order is made, i.e. while the person proposed to be deported is still in the United Kingdom, certain rights of appeal are exercisable. These are in case (i) appeal to an adjudicator and a limited right of further appeal from the adjudicator to the Immigration Appeal Tribunal, in case (ii) a limited right of appeal direct to the Immigration Appeal Tribunal: section 15. There is no appeal to the statutory appellate authorities in case (iii).
    2. The only ground for summary removal by directions given pursuant to paragraph 8 or 10 of Schedule 2 of a resident non-patrial is that he is an illegal entrant, which, in this context, must mean that he comes within the relevant words of the definition as “a person who has entered the United Kingdom in breach of a deportation order or of the immigration laws”. A deportation order invalidates any leave to enter granted before or after the order was made and remains in force until it is revoked or the person to whom the order applies become patrial: section 5. Hence, entry in breach of a deportation order presents no problem. The relevant problem of illegal entry is that of entry “in breach of the immigration laws” which in turn, more shortly, means entry “in breach of the Act”.
    3. A right of appeal against directions for removal lies to an adjudicator with a limited further right of appeal to the Immigration Appeal Tribunal but these rights are not exercisable while the appellant is still in the United Kingdom, i.e. in effect until the directions for removal have been implemented: section 16.
    4. There is a clear and unbroken line of authority that where permission to enter has been obtained by the fraud of the entrant he is an illegal entrant and can be removed by the summary procedure. The principle was first stated in the unreported decision of the Divisional Court in Re Maqbool Hussain on 4 May 1976, when it does not seem to have been contested. Having quoted the section 33 definition, Lord Widgery CJ said:

“There was no doubt whatever, and it is not disputed, that when the applicant came through Heathrow on the 2 Novemer 1974 he was an illegal entrant. The fraud which he practised in regard to the passport would clearly entitle the Home Office to describe him as a person who entered in breach of the immigration laws.”

the principle was applied by the Court of Appeal in Reg Secretary of State for the Home Department, Ex parte Hussain [1978] WLR 700 and Reg. Secretary of State for the Home Department, Ex parte Choudhary [1978] 1 WLR 1177 which have been followed in numerous subsequent cases. The whole line of authority received the imprimatur of this House in a single sentence in the speech of my noble and learned friend, Lord Wilberforce, in Zamir (concurred in by all the other noble Lords) when he said at p 947:

“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 has been obtained by deception is vitiated, as not being ‘leave [given] in accordance with this Act’ (section 3(1)): see Reg Secretary of State for the Home Department, Ex parte Hussain [1978] 1 WLR 700 (Court of Appeal) and numerous cases following.”

    1. Mr Blom-Cooper QC, for the appellant Khera, challenges this principle. He submits that the only resident non-patrial who can be removed summarily as an illegal entrant is one who, having entered clandestinely, has never passed through immigration control and has thus succeeded in entering without the grant of any leave whatever. When leave to enter has been obtained by fraud, that leave, he contends, is not void but voidable.
    2. If it is desired to expel one who has obtained leave to enter by fraud, this, says Mr Blom-Cooper, can be achieved in one of two ways, viz: (i) by securing a conviction coupled with a recommendation for deportation under section 26(l)(c) by which a person is guilty of an offence punishable with a fine or imprisonment if “he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true;” or (ii) by deportation under section 3(5)(6) on the ground that the Secretary of State deems his deportation to be conducive to the public good. Both these procedures, Mr Blom-Cooper points out, incorporate suitable safeguards for the person alleged to have entered by fraud. In the one case he has his full rights, including appellate rights, as a defendant in criminal proceedings. In the other he has his rights of appeal to the appellate authorities under the Act. These are contrasted with the right of appeal given by section 16 which, being exercisable only after the appellant has left the country, is virtually valueless. We were indeed told by counsel for the Secretary of State in the course of argument that only one section 16 appeal has ever succeeded. I should perhaps add here in parenthesis, for the avoidance of misunderstanding, that very different considerations apply to appeals under section 13. If a person seeking entry to the United Kingdom chooses to present himself at a port of entry without either an entry clearance or a work permit, there are obvious and important reasons why his right of appeal against refusal of leave to enter should not carry with it any right of entry for the purpose presenting that appeal.
    3. I see great force in the contention that the illegal entrant proposed to be removed by the summary procedure requires the protection of some effective judicial process before removal. But I shall return to this when considering the second main question raised by these appeals to which, in my view, it is primarily relevant. I do not find it persuasive in considering who is an illegal entrant. On the contrary, if the only procedures available to secure the expulsion of a non-patrial who has obtained leave to enter by fraud are those suggested by Mr Blom-Cooper, it seems to me that there is a startling lacuna in the Act. A conviction under section 26(1 )(c) would not necessarily lead to a recommendation for deportation; moreover, being a summary offence, it must normally be prosecuted within six months of commission, though, exceptionally, this time limit may be extended to a maximum of three years: section 28. Those who have obtained leave to enter by fraud are frequently not exposed until after three years from their arrival. On the other hand, the power given to the Secretary of State to deem deportation to be conducive to the public good seems to me to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground. The examples given in section 15(3) – “that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature” – although clearly not exhaustive, nevertheless illustrate the kind of objection contemplated. I cannot suppose that this power was ever intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry. On the other hand, no one has suggested in argument that a non-patrial who has obtained leave to enter by fraud should not be liable to expulsion when the fraud is exposed, nor doubted that one would expect the Act to provide for such a case. That provision, I conclude, has to be found, if anywhere, in the statutory machinery for the removal of an illegal entrant.
    4. Despite the wealth of authority on the subject, there is nowhere to be found in the relevant judgments – perhaps because none was thought necessary – a definitive exposition of the reasons why a person who has obtained leave to enter by fraud is an illegal entrant. To say that the fraud “vitiates” the leave or that the leave is not “in accordance with the Act” is, with respect, to state a conclusion without explaining the steps by which it is reached. Since we are here concerned with purely statutory law, I think there are dangers in introducing maxims of the common law as to the effect of fraud on common law transactions and still greater dangers in seeking to apply the concepts of “void” and “voidable”. In a number of recent cases in your Lordships’ House it has been pointed out that these transplants from the field of contract do not readily take root in the field of public law. This is well illustrated in the judgment of the Court of Appeal in the instant case of Khawaja [1982] 1 WLR 625, where Donaldson LJ, as he then was, spoke of the appellant’s leave to enter as being “voidable ab initio” (at p 630 G), which I find, with respect, an impossibly difficult legal category to comprehend.
    5. My Lords, in my opinion, the question whether a person who has obtained leave to enter by fraud “has entered in breach of the Act” is purely one of construction. If the fraud was a contravention of section 26(l)(c) of the Act, the provisions of which I have already quoted, and if that fraud was the effective means of obtaining leave to enter – in other words if, but for the fraud, leave to enter would not have been granted – then the contravention of the Act and the obtaining of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry iteslf was “in breach of the Act”. It is on this simple ground and subject to the limitations that it implies that I would rest my conclusion that those who obtain leave to enter fraudulently have rightly been treated as illegal entrants. I would add, however, that if I had reached an opposite conclusion, the issue turning at the very least on an arguable point of construction, I should not have thought it appropriate, on this point, to depart from Zamir.
    6. It remains to consider some of the implications of the principle stated in the foregoing paragraph. First, it is clear that a mere non-disclosure to the immigration officer by the person seeking permission to enter of a fact known to him cannot, by itself, amount to a contravention of section 26(l)(c). In so far as the passage in the speech of my noble and learned friend Lord Wilberforce in Zamir at p 950 C-E may be understood as imposing on an applicant for leave to enter a duty of candour approximating to uberrima fides the breach of which would have the same effect as fraud, it cannot, I think, be accepted. If intended in that sense, it was obiter, was not supported in the present case by Mr Brown for the Secretary of State and, as I understand, does not now find favour with my noble and learned friend Lord Wilberforce himself. On the other hand, as Lord Wilberforce said in Zamir at p 950 B, “It is clear on general principles of law that deception may arise from conduct, or from conduct accompanied by silence as to a material fact.” The relevant words of section 26(1 )(c), “a statement or representation which he knows to be false or does not believe to be true,” embodying as they do the classic definition of a fraudulent deception, are amply wide enough to allow for the operation of this salutary principle.
    7. Next, I would point out that the process of reasoning which I have suggested as justifying the conclusion that a person who obtains leave to enter by fraud is an illegal entrant avoids the necessity to characterise the leave to enter itself as a nullity. It is for the immigration authorities to decide whether or not to seek to secure the summary removal of an illegal entrant by invoking their powers under Schedule 2. If they do not do so, the leave to enter stands. On this view, there is no illogicality or inconsistency in the indication given in paragraph 88 of the current Immigration Rules (HC 394) that, on an application for an extension of leave to enter granted for a limited period, “refusal will be the normal course if the applicant has made false representations in obtaining leave to enter (including the giving of undertakings, express or implied, which he has not honoured, as to the duration and purpose of his stay).” Similarly, the Gilbertian situation which arose in Reg Secretary of State for the Home Department, Ex parte Jayakody [1982] 1WLR 405, where an adjudicator, on an appeal against the refusal by the Secretary of State to extend the appellant’s limited leave to remain in the United Kingdom, held that the leave to enter had been obtained by fraud and therefore that there was no leave capable of being varied, on the analysis I have suggested, simply could not arise.
    8. Finally, I would wish to leave for consideration on a future occasion the difficult questions that may arise when leave to enter has been obtained by the fraud of a third party, but the person entering had no knowledge of the fraud. I am not convinced that Reg Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466, where it was held that the innocent wife who obtained leave to enter on a false passport procured for her by her husband was an illegal entrant, was rightly decided. In such cases the proper conclusion may depend on a variety of circumstances and I think it safer to express no present view but to leave such cases to be decided as they arise.

The court’s power to review a decision to detain and remove an illegal entrant

    1. The Act provides by section 4(2):

“The provisions of Schedule 2 to this Act shall have effect with respect to – . . .

(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully.”

Paragraphs 2 to 6 of Schedule 2 are concerned with the procedure governing the exercise of the power to grant or refuse leave to enter. The cross-heading to paragraphs 8 to 11 is:

“Removal of persons refused leave to enter and illegal entrants.”

    1. Detailed provisions as to the giving of directions for removal are to be found primarily in paragraph 8, which empowers the immigration officer to give such directions “where a person arriving in the United Kingdom “is refused leave to enter”. The vital provisions for present purposes are the following:

“9. Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1).

16(2) A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given.”

    1. Here again the authorities from Reg Secretary of State for the Home Department, Ex parte Hussain (supra) to Zamir have consistently affirmed the principle that the decision of an immigration officer to detain and remove a person as an illegal entrant under these provisions can only be attacked successfully on the ground that there was no evidence on which the immigration officer could reasonably conclude that he was an illegal entrant.
    2. It will be seen at once that this principle gives to an executive officer subject, no doubt, in reaching his conclusions of fact to a duty to act fairly, a draconian power of arrest and expulsion based upon his own decision of fact which, if there was any evidence to support it, cannot be examined by any judicial process until after it has been acted on and then in circumstances where the person removed, being unable to attend the hearing of his appeal, has no realistic prospect of prosecuting it with success.
    3. It will be further observed that to justify the principle important words have to be read into paragraph 9 of Schedule 2 by implication. That paragraph, on the face of the language used, authorises the removal of a person who is an illegal entrant. The courts have applied it as if it authorised the removal of a person whom an immigration officer on reasonable grounds believes to be an illegal entrant. The all important question is whether such an implication can be justified.
    4. The presently pevailing doctrine was first enunciated in Reg Secretary of State for the Home Department, Ex parte Hussain (supra) by Geoffrey Lane LJ, as he then was. He explained the suggested basis of the doctrine rather more fully in Reg Secretary of State for the Home Department, Ex parte Choudhary (supra) where he said at p 1183:

“The whole object of this part of the Immigration Act 1971, read as a whole, is to ensure that there is a procedure, and a readily available and easy procedure, whereby the Secretary of State can detain pending removal any person such as the appellant in this case. The Secretary of State obviously, from the nature of things, has no desire to detain a man longer than is necessary to get him out of this country and back to Pakistan, or wherever it was he came from. It is conceded by Mr Irvine – and, if I may say so, rightly conceded – that a reasonable belief held by the Secretary of State is sufficient to justify the initial detention of the man; but it is said that, once the Secretary of State’s inquiries are at an end, then one has to examine the basis of fact and, if that shows that the Secretary of State had got the factual basis wrong, then the whole of the detention from the moment the inquiries have come to an end and onwards is unlawful. With that submission I cannot agree. It seems to me that the detention in circumstances such as these is throughout a matter for the discretion of the Secretary of State; and, if he was acting upon reasonable grounds and acting bona fide upon those reasonable grounds, then he is protected.”

    1. In Zamir Lord Wilberforce said at pp 948, 949:

“The nature and process of decision conferred upon immigration officers by existing legislation is incompatible with any requirement for the establishment of precedent objective facts whose existence the court may verify.

The immigration officer, whether at the stage of entry or at that of removal, has to consider a complex of statutory rules and non-statutory guidelines. He has to act upon documentary evidence and such other evidence as inquiries may provide. Often there will be documents whose genuineness is doubtful, statements which cannot be verified, misunderstandings as to what was said, practices and attitudes in a foreign state which have to be estimated. There is room for appreciation, even for discretion.”

He proceeds to contrast the disadvantageous position of the Divisional Court as a fact-finding tribunal in the relevant field.

    1. But perhaps the most colourful expression of the argument which can be advanced in support of the prevailing doctrine is to be found in the judgment of Lord Lane CJ in the Divisional Court in the unreported decision of Reg Secretary of State for the Home Department, Ex parte Pinky Badwal given on 29 April 1980, where he said:

“No distinction can properly be drawn between a person who is discovered at the airport trying to enter illegally and a person who by skill, fraud and deceit manages to get past the immigration officer at the airport and is then interviewed that night by the immigration officer in his hotel, the immigration officer by that time having gathered the necessary information of the fraud or deceit. There can be no possible distinction in principle between those two situations.”

    1. It appears to me, with every respect, that all these approaches rely upon the statutory juxtaposition of the immigration officer’s power to refuse leave to enter and thereupon to order removal of the unsuccessful aspiring entrant with his power to order removal of an illegal entrant after entry as a ground for assimilating the principles by which the two powers are governed. The somewhat improbable illustration chosen in the last passage cited to justify the assimilation is, I say with all due deference, calculated to obscure and minimise the real and important differences between the two powers. Whenever a non-patrial comes from abroad he needs leave to enter the United Kingdom and the decision whether or not such leave should be granted is fairly and squarely committed to the immigration officer by the statute. This necessarily entrusts all relevant decisions of fact, as well as the application to the facts of the relevant rules and any necessary exercise of discretion, to the immigration officer. If leave to enter is refused, that decision can plainly only be challenged on the now familiar grounds on which the court has jurisdiction to review a public law decision committed by statute to an administrative authority. Following a refusal of leave to enter there can be no successful challenge to a consequential order for detention and directions for removal unless the refusal of leave to enter can itself be successfully impugned. But the detention and removal of a non-patrial resident in this country, who may or may not be a British subject, who may have been here for many years and who, on the face of it, enjoys the benefit of an express grant of leave to be here, on the ground that he is an illegal entrant, seems to me to be dependent on fundamentally different considerations. A person seeking leave to enter requires a decision in his favour which the immigration officer alone is empowered to give. The established resident who entered with express permission enjoys an existing status of which, so far as the express language of the statute goes, the immigration officer has no power whatsoever to deprive him.
    2. My Lords, we should, I submit, regard with extreme jealously any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on. The fact that, in the case we are considering, detention is preliminary and incidental to expulsion from the country in my view strengthens rather than weakens the case for a robust exercise of the judicial function in safeguarding the citizen’s rights.
    3. So far as I know, no case before the decisions under the Act which we are presently considering has held imprisonment without trial by executive order to be justified by anything less than the plainest statutory language, with the sole exception of the majority decision of your Lordships’ House in Liversidge Anderson [1942] AC 206. No one needs to be reminded of the now celebrated dissenting speech of Lord Atkin in that case, nor of his withering condemnation of the process of writing into the statutory language there under consideration the words which were necessary to sustain the decision of the majority. Lord Atkin’s dissent now has the approval of your Lordships’ House in IRC Rossminster Ltd [1980] AC 952.
    4. A person who has entered the United Kingdom with leave and who is detained under Schedule 2 paragraph 16(2) pending removal as an illegal entrant on the ground that he obtained leave to enter by fraud is entitled to challenge the action taken and proposed to be taken against him both by application for habeas corpus and by application for judicial review. On the view I take, paragraph 9 of Schedule 2 must be construed as meaning no more and no less than it says. There is no room for any implication qualifying the words “illegal entrant”. From this it would follow that while, prima facie, the order for detention under paragraph 16(2) would be a sufficient return to the writ of habeas corpus, proof by the applicant that he had been granted leave to enter would shift the onus back to the immigration officer to prove that the leave had been obtained in contravention of section 26(1 )(c) of the Act, in other words by fraud.
    5. I find indirect support for this view in Reg Governor of Brixton Prison, Ex parte Ahsan [1969] 2 QB 222, where many of the earlier authorities on habeas corpus are reviewed. Ahsan was a case arising under the predecessor of the Act, the Commonwealth Immigrants Act 1962. The issue was whether immigrants who had entered the United Kingdom clandestinely were lawfully detained. This depended on whether they had been arrested within 24 hours of their entry. The majority of the Divisional Court (Lord Parker CJ and Blain J) held that the onus lay on the executive to prove beyond reasonable doubt the fulfilment of the condition precedent to the right to arrest.
    6. More directly in point is a passage from the judgment of Lord Denning MR in Azam Secretary of State for the Home Department [1974] AC 18, at pp 31, 32, as follows:

“Once the Secretary of State gives directions that a man is to be removed on the ground that he is an illegal entrant, the man is given a right of appeal to an adjudicator on the ground that, on the facts of the case, he was not in law an illegal entrant: see section 16(1) of the Act of 1971. He has no right of appeal on any other ground: cf section 13(4). But there is a very significant provision in the statute. He cannot appeal so long as he is in the United Kingdom: see section 16(2). He can only appeal after he has been removed, that is, presumably when he has got back to his homeland. Such an appeal would not seem to be a very beneficial remedy if a mistake has been made.

These provisions as to appeal give rise to a question of the first importance. Do they take away a person’s right to come to the High Court and seek a writ of habeas corpus? I do not think so. If Parliament is to suspend habeas corpus, it must do so expressly or by clear implication. Even in the days of the war, when the enemy were at the gate, habeas corpus was not suspended or taken away. When a man was detained under regulation 18B, he was entitled to apply for a writ of habeas corpus if he could show a prima facie case that he was unlawfully detained. During the war, a man called Budd made an application which was successful, because the prerequisites of a lawful detention had not been complied with. But in his next application he failed, because the Home Secretary had made a return which could not be faulted: see Rex Secretary of State for Home Affairs, Ex parte Budd [1942] 2 KB 14. Lord Greene MR put an illustration which is appropriate here, at pp 22-23:

‘if, for example, a regulation empowered the Home Secretary to detain any person who was in fact an alien, the court could inquire into the nationality of the applicant since, if it transpired that he was not in fact an alien, his detention would be ultra vires.’

Under Schedule 2 the power to detain and remove applies in respect to a person who is in truth an illegal entrant. If a man can make a prima facie case that he is not an illegal entrant, he is entitled to a writ of habeas corpus as of right: see Greene Home Secretary [1942] AC 284, 302 by Lord Wright. The court has no discretion to refuse it. Unlike certiorari or mandamus, a writ of habeas corpus is of right to every man who is unlawfully detained. If a prima facie case is shown that a man is unlawfully detained, it is for the one who detains him to make a return justifying it.”

    1. Accordingly, I have no doubt that when a person detained and proposed to be removed as an illegal entrant enjoys the right to be in this country in pursuance of leave to enter and remain here which is valid on its face the onus lies on the immigration officer to prove the fact that the leave was obtained by fraud in contravention of section 26(l)(c) of the Act. The question about which I have felt most difficulty concerns the standard of proof required to discharge that onus. I was at first inclined to regard the judgment of Lord Parker CJ in Ahsan’s case (supra) as sufficient authority for the proposition that proof is required beyond reasonable doubt. But I have been persuaded by the reasoning on this point in the speech of my noble and learned friend Lord Scarman and by the authorities which he cites that that proposition cannot be sustained. These have led me to the conclusion that the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree. I would add that the inherent difficulties of discovering and proving the true facts in many immigration cases can afford no valid ground for lowering or relaxing the standard of proof required. If unlimited leave to enter was granted perhaps years before and the essential facts relied on to establish the fraud alleged can only be proved by documentary and affidavit evidence of past events which occurred in some remote part of the Indian sub-continent, the courts should be less, rather than more, ready to accept anything short of convincing proof. On the other hand it must be accepted that proof to the appropriate standard can, and in the vast majority of cases will, be provided, in accordance with the established practice of the Divisional Court, by affidavit evidence alone. I understand all your Lordships to be agreed that nothing said in the present case should be construed as a charter to alleged illegal entrants who challenge their detention and proposed removal to demand the attendance of deponents to affidavits for cross-examination. Whether to permit cross-examination will remain a matter for the court in its discretion to decide. It may be that the express discretion conferred on the court to permit cross-examination by the new procedure for judicial review under Order 53 of the Rules of the Supreme Court has been too sparingly exercised when deponents could readily attend court. But however that may be, the discretion to allow cross-examination should only be exercised when justice so demands. The cases will be rare when it will be essential, in the interests of justice, to require the attendance for cross-examination of a deponent from overseas. If the alleged illegal entrant applying for habeas corpus, certiorari or both, files an affidavit putting in issue the primary facts alleged against him he will himself be readily available for cross-examination, which should enable the court in the great majority of cases to decide whether or not he is a witness of truth. If he is believed, he will succeed in his application. If he is disbelieved, there will be nothing to stop the court relying on affidavit evidence, provided it is inherently credible and convincing, to prove the fraud alleged against him, even though it has not been tested by cross-examination.

Should the House depart from Zamir in relation to the court’s power to review the detention and removal of an alleged illegal entrant under Schedule 2 to the Act?

    1. The point in question does not fall into any of the categories in which the Practice Direction indicated the need for special caution. By departing from Zamir your Lordships would not be altering the criminal law or “disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into.” The consideration that the decision in Zamir is relatively recent is, in relation to the use of the Practice Direction, one which has evoked conflicting expressions of opinion in your Lordships’ House and it seems to me safest to regard it as a neutral factor. The question, however, concerns a matter of high constitutional principle affecting the liberty of the subject and the delineation of the respective functions of the executive and the judiciary. In Reg National Insurance Commissioner, Ex parte Hudson [1972] AC 944, Lord Reid thought it inappropriate to depart from an earlier decision in a case where “no broad issue of justice or public policy is involved nor is any question of legal principle.” The present question does, in my opinion, involve a broad issue of justice and public policy and an important question of legal principle. But what weighs most heavily with me in reaching the conclusion that the House should depart from the view expressed in Zamir on this point is that my noble and learned friends Lord Wilberforce, who delivered the leading speech in Zamir, and Lord Fraser of Tullybelton, who agreed with it are, as I understand, after the fuller argument we have heard in these appeals, persuaded in principle that the power of the court to review the detention and summary removal of an alleged illegal entrant under Schedule 2 was too narrowly stated in Zamir and must include power to decide whether the applicant for relief is or is not in fact an illegal entrant.

The instant appeals

    1. The facts of both appeals are summarised in the speech of my noble and learned friend Lord Fraser of Tullybelton and I need only refer to them briefly. In the case of Khera it is sufficient to say that the evidence fails to prove that the appellant’s leave to enter was obtained by any kind of fraud or deception. The appellant Khawaja, on arrival at Manchester Airport on 17 March 1980, told the immigration officer that he was visiting the United Kingdom for one week to see a cousin, that he would then return to Brussels, and showed the officer a return ticket dated 23 March 1980. He was given leave to enter for one month. The surrounding circumstances, fully disclosed in the evidence, lead to the irresistible inference that what he told the officer was a deliberate lie. The appellant had travelled from Brussels to Manchester with a lady who had the right to reside in the United Kingdom with whom he had already gone through a bigamous ceremony of marriage. They entered through different desks at immigration control to conceal the connection between them. The lady’s previous marriage was dissolved on 3 April. The appellant married her on 10 April. Having applied on 11 April for an extension of his temporary leave to remain, without disclosing the marriage, he made a further application on 29 April for indefinite leave to remain as the husband of the lady entitled to reside here. It is perfectly clear that the appellant’s intention from the outset was to settle in the United Kingdom with his wife. He may or may not have believed, erroneously, that the marriage would entitle him to leave to settle here, but that is immaterial. His blatant lie to the immigration officer as to his intention was a contravention of section 26(l)(c) of the Act. If he had disclosed his true intention, he would not have been granted leave to enter. In this case the evidence clearly proves that the appellant was an illegal entrant.
    2. My Lords, I would allow the appeal of Khera and dismiss the appeal of Khawaja.
    3. Lord Templeman: My Lords, for the reasons given by my noble and learned friend, Lord Bridge of Harwich, I too would allow the appeal of Khera and dismiss the appeal of Khawaja.
    4. In an ideal world there would be no restrictions on immigration. In the actual world accidents of history, geography and climate create pressures to emigrate which are not matched by facilities for reception. Hence the imposition of immigration controls designed to produce a logical and just system for admitting those numbers and categories of long-term and short-term applicants for entry who can be absorbed without disastrous economic, administrative or social consequences. If immigration controls are, or are thought to be necessary there must be machinery for the qualification and selection of entrants and for the enforcement of the controls.
    5. Section 3 of the Immigration Act 1971 provides that a person who has no right of abode in the United Kingdom shall not enter the United Kingdom unless given leave to do so in accordance with the Act. By the same section the Secretary of State must lay before Parliament rules as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons requiring leave to do so. The Immigration Act and the Immigration Rules constitute the machinery for the enforcement of immigration control.
    6. By section 4, the power of granting or refusing leave to enter the United Kingdom is conferred upon immigration officers. An appeal lies from an immigration officer to an adjudicator, and from the adjudicator to the Immigration Appeal Tribunal. By section 13(3) no appeal can be brought against a refusal of leave to enter so long as the applicant is in the United Kingdom unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit. The system of issuing entry certificates and work permits enables the task of checking qualifications and entitlement to selection to be carried out in the country of origin of the immigrant, although the final power of deciding whether the immigrant shall be given leave to enter rests with the immigration officer, subject to the appeal procedure provided by the Act.
    7. The Act does not permit (save in the case of holders of current entry clearances or work permits) any right of appeal against refusal of leave to enter to be pursued while the applicant remains in the United Kingdom. In the absence of such a provision, any applicant refused leave to enter would have to be detained, or permitted to enter, for the purpose of arguing before the adjudicator and the Tribunal that he ought to have been permitted to enter. In those circumstances, immigration control would become inefficient and unworkable. In many cases material facts relevant to an appeal can only be ascertained from the country of origin of the applicant to which he is removed. The adjudicator and the Tribunal are not bound by strict rules of evidence but may receive on behalf of the applicant, and on behalf of the immigration authorities, written representations and reports of investigations which may take some time and involve enquiries as to identity, births, marriages, deaths and other circumstances in remote countrysides.
    8. If an immigration officer in the exercise of his powers refuses leave to enter, the officer and the Secretary of State have powers under paragraphs 8 and 10 of the Second Schedule to the Act, to procure the removal of the applicant from the United Kingdom, and under paragraph 16 to order his detention pending removal. These powers of detention and removal are also essential in order to ensure that immigration controls are effective.
    9. In addition to the statutory rights of appeal given to an applicant who seeks leave to enter the United Kingdom, the court retains power in habeas corpus and judicial review proceedings to protect any applicant who complains that he has not been fairly treated. The court, if satisfied of unfair treatment, may order the applicant to be released from detention and may forbid his removal from the United Kingdom.
    10. An applicant who requires leave from an immigration officer to enter the United Kingdom is entitled to proper consideration by the immigration officer, but he has no right to enter or remain in the United Kingdom. It is for the immigration officer and not the court to decide whether leave to enter shall be given.
    11. Once, however, an applicant has obtained from the immigration officer leave to enter the United Kingdom, he becomes an entrant entitled as of right to remain in the United Kingdom during the currency and on the terms of the leave granted to him. The rights of such an entrant are forfeited if he is found to have obtained leave to enter by fraud. An entrant who has obtained leave to enter by fraud is an illegal entrant and is liable to be detained and removed from the United Kingdom at the behest of the immigration officer or the Secretary of State pursuant to paragraphs 9, 10 and 16 of the Second Schedule to the Act. But these powers of detention and removal only apply to an illegal entrant. An entrant threatened with forfeiture of his rights may seek the protection of the court in habeas corpus and judicial review proceedings, asserting that he did not obtain leave to enter by fraud, that he is not an illegal entrant, and that therefore the immigration authorities have no power to detain him or to remove him from the United Kingdom. If the court is not satisfied that the entrant obtained leave to enter by fraud, the court will protect the entrant against detention and removal.
    12. I agree with my noble and learned friend, Lord Scarman, that the burden of proving that leave to enter was obtained by fraud and that consequently the entrant is an illegal entrant liable to arrest and expulsion can only be discharged by the immigration authorities manifesting to the satisfaction of the court a high degree of probability.
    13. It does not follow that the court must disregard written statements by witnesses who are not available for cross-examination or documents which are not supported by direct written or oral evidence as to the circumstances in which they came into existence.
    14. In habeas corpus and judicial review proceedings evidence will be by affidavit, subject to cross-examination at the discretion of the court. It may be necessary for the court to reach a conclusion on the available information and without the benefit of oral evidence or of a prolonged investigation in the country of origin of the entrant. If fraud has been concealed for a number of years, witnesses of recorded statements may not be available to provide affidavits as to the circumstances in which those statements were prepared, composed and signed. Those statements may appear before the court as exhibits to affidavits from persons in whose custody the statements have been preserved. It will be for the court to determine what weight to attach to any of the information provided. It will be for the court to consider any explanations furnished by the entrant and his witnesses and to judge the reliability of the entrant under cross-examination.
    15. In Khera’s case, for example, it is said that there was available a record of Khera’s medical examination bearing the thumb-print or signature of Khera himself and the signature of the medical officer. The record is said to have contained the statement that Khera was unmarried. The medical officer might or might not have been available, and might or might not have recollected the interview. Faced with any such record Khera himself could have given evidence and been cross-examined as to the recorded statement that he was unmarried. It would have been open to the court on consideration of the record and other circumstances, and on consideration of the cross-examination of Khera, to have decided that fraud was not made out. But it would also have been open to the court to conclude that Khera had lied to the medical officer, and to disbelieve any proffered explanation that the record had been prepared previously to Khera’s marriage, or that Khera from Amritsar had failed to make himself understood to anyone present at the interview in Delhi. It would also have been open to the court to infer that Khera had told a lie to the medical officer and subsequently kept silent to the immigration officer about his marriage because he must have appreciated that his marriage had defeated or prejudiced his chances of obtaining admission to the United Kingdom. But in the event the immigration authorities failed to produce any record of the medical examination which in correspondence they claimed to exist.
    16. If the court decides that on the available information fraud on the part of the entrant in obtaining leave to enter the United Kingdom has been made out, the entrant will be liable to be removed from the United Kingdom pursuant to directions by the immigration authorities.
    17. Both Khera and Khawaja obtained leave to enter the United Kingdom. Fraud has been made out against Khawaja and his appeal must be dismissed. Fraud has not been made out against Khera and his appeal must be allowed.

Appeal of Khawaja dismissed. Appeal of Khera allowed.