Zamir v Secretary of State for the Home Department [1980] UKHL 14 (17 July 1980)

ZAMIR (Appellant)

v

SECRETARY OF STATE FOR THE HOME DEPARTMENT (Respondent)

9, 10, 11 June, 17 July 1980

House of Lords:

Lord Wilberforce
Viscount Dilhorne
Lord Salmon
Lord Fraser of Tullybelton
Lord Russell of Killowen.

Louis Blom-Cooper QC and Aydin Turkan (instructed by Sharpe Pritchard & Co, agents for Hall-Wrights, Birmingham) for the appellant.

Simon Brown and David Latham (instructed by Treasury Solicitor) for the Secretary of State.

    1. LORD Wilberforce: This is an appeal from a unanimous decision of the Court of Appeal affirming a unanimous decision of the Queen’s Bench Divisional Court refusing the appellant’s application for a writ of habeas corpus. [1]
    2. The appellant, an alien of Pakistan nationality, is under detention pending removal from the United Kingdom as an illegal entrant. The history of events leading up to this is as follows: most of this is undisputed, but there are some points upon which there is conflicting evidence.
    3. On 11 December 1972 an application was made by or on behalf of the appellant, then aged 15 and resident in Pakistan, for an entry certificate in order to join his father who had been settled in England since 1962. The printed form of application was headed by notes which applicants were enjoined to read carefully. One of these (D) stated that holders of entry certificates will be presumed by the immigration officer in the United Kingdom to be qualified for admission unless he discovers (a) that the entry certificate was obtained by fraudulent representations or by concealment of facts which the applicant knew to be material or (b) that a change of circumstances after issue has removed the basis of the holder’s claim to admission. The form described the appellant as unmarried. The reason for going to the United Kingdom was stated as ‘accompanying mother to join father’; and, in reply to the question how much money he would have available to support himself in the United Kingdom, it was stated ‘father (sic) income’. It is stated on affidavit by a Home Office immigration officer in charge of the case that on lodging his application the applicant would have been given a copy of a handout setting out the basis of which children were admitted to the United Kingdom and containing the following statement (in fact para 39 in HC 81). This is as follows:

“Generally, children aged 18 or over must qualify for admission in their own right; but an unmarried and fully dependent son under 21 or an unmarried daughter 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, and adequate support and accommodation is available for them in the United Kingdom.”

The appellant denies that he was given this.

    1. The application, at first refused, was ultimately granted on 25 November 1975. On that date there was stamped on his passport a ‘visa’ with the words ‘settlement to join father’.
    2. On 10 February 1976 Mr Zamir was married. He had not informed the United Kingdom authorities in Islamabad of his forthcoming marriage because, he says, the marriage was only arranged some weeks after the issue of his entry certificate.
    3. On 2 March 1976 the appellant, then aged eighteen, arrived at London, Heathrow airport. He presented his passport with the visa; he was apparently asked no questions, and he volunteered no information. In particular he did not disclose his marriage. The immigration officer granted leave to enter the United Kingdom for an indefinite period and stamped the passport to this effect.
    4. On 31 July 1978, by which time a son had been born to the appellant in Pakistan, the entry clearance officer in Islamabad informed the Home Office that an application had been made by Mrs Zamir, the appellant’s wife, for her and her son to join the appellant in the United Kingdom. He queried the lawfulness of the appellant’s entry on 2 March 1976.
    5. The appellant was then interviewed, on 30 August 1978. He was asked if he had mentioned his forthcoming marriage to the entry clearance officer and said that he had not because the marriage had not been arranged until about 4 to 5 weeks after he had been given his visa. He also said that he had not informed the entry clearance officer when he actually married because he did not think it was necessary. He was asked whether on his arrival in the United Kingdom he had told the immigration officer of his marriage and replied that he had not been asked any questions regarding this. The applicant was also asked how, at the time of his entry into the United Kingdom, he could regard himself as a dependant of his father when he himself had undertaken marriage. He was apparently unable to offer any explanation but did admit that he had come to the United Kingdom purely for work for himself and his wife. He did, in fact, it appears, obtain employment in August 1976, until when he was probably maintained by his father.
    6. After consideration by the authorities, the appellant was detained on 2 October 1978 with a view to removal from the United Kingdom.
    7. It is I think unavoidable to mention that since the appellant’s detention further enquiries have been made which show that, in the opinion of the Home Office immigration officer in charge of the case, the appellant obtained entry clearance on the basis of a forged birth certificate – the appellant denies any knowledge of this. This enquiry arose out of an attempt, also in 1972, to obtain entry clearance for a man claimed to be but in fact shown not to be, the appellant’s brother. These matters have not been adjudicated upon but I mention them to show the kind of problems which arise, and, as the law reports show, with considerable frequency in connection with applications for entry clearance.
    8. In these circumstances the appellant applied for a writ of habeas corpus and it is for him to show that his detention is unlawful. The power of detention arises under para 16(2) of Sch 2 to the Immigration Act 1971[2] and is dependent upon whether the detainee is a person in respect of whom an order for removal may be made.
    9. 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 had been obtained by deception, is vitiated, as not being “leave given in accordance with this Act” (s 3(1).[3] (R Secretary of State for the Home Department exp Hussain[4] and numerous cases following[5]).
    10. Two questions of law arise in relation to this.
    11. The first is what is the basis for any judicial review if the Secretary of State, or an immigration officer acting on his behalf, concludes that there has been deception. For this it is necessary to look at the scheme of the Act.
    12. The power to give or refuse leave to enter the United Kingdom is vested in immigration officers (s 4(1)), and is to be exercised in accordance with the provisions of Sch 2. It is also provided (s 4(2)(c)) that Sch 2 shall apply with respect to the exercise by immigration officers of their powers in relation to the removal of persons refused leave or remaining unlawfully. Apart from the statutory provisions in Sch 2 (to some of which I shall return), immigration officers are guided by Immigration Rules (contained in HC 81), which have no statutory force. It is those rules which contain para 39 above quoted and also paragraph 10, which I quote:

“A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter, unless the Immigration Officer is satisfied that:

(a) false representations were employed or material facts were concealed, whether or not to the holder’s knowledge, for the purpose of obtaining the clearance, or (b) a change of circumstances since it was issued has removed the basis of the holder’s claim to admission….”

    1. It appears from this, in my opinion, that the immigration officer in deciding whether or not to grant leave to enter is performing an administrative duty, in a statutory and para-statutory framework. It follows that the decision can only be reviewed by the courts upon the normal principles applicable to such decisions, of which those capable of being invoked in the present case are that there was no evidence on which he could reach his decision, or that no reasonable person in this position could have reached it.
    2. If, as I think it clearly is, this is the position as regards decisions to grant leave to enter, it must also be the position as regards decisions to remove or at the very least as regards decisions to remove on the ground that the leave to enter has been vitiated. This must follow both from logic and from the terms of the legislation. It would be absurd to apply different principles as regards, on the one hand, a decision to allow entry, and on the other hand a decision that the permission to enter was vitiated. Moreover, and consistently with this, paras 8-14 of Sch 2[6] deal with both kinds of decision within a single framework, and para 16[7] enables detention to be ordered in any case governed by those paragraphs.
    3. This is the principle which has been consistently followed by the courts, including the Court of Appeal in Hussain’s case[8] and in the present case.
    4. It has been challenged by counsel for the appellant. The present, and similar cases under the Immigration Act 1971, is, he submitted, not a case of an administrative decision reviewable on grounds applicable to such decision, but is a case where the exercise of power, or jurisdiction, depends upon the precedent establishment of an objective fact. In such a case it is for the court to decide whether that precedent requirement has been satisfied. That this distinction exists is clear enough: it is vouched by such well-known authorities as Eshugbayi Eleko Government of Nigeria (Officer Administering)[9] and Secretary of State for Home Affairs ex p Greene[10] – see particularly MacKinnon LJ[11]. The case of Hussain he claimed, marked a departure from this principle which should now be reinstated.
    5. 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.
    6. 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 enquiries 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.
    7. The Divisional Court, on the other hand, on judicial review of a decision to remove and detain, is very differently situated. It considers the case on affidavit evidence, as to which cross-examination, though allowable, does not take place in practice. It is, as this case well exemplifies, not in a position to find out the truth between conflicting statements – did the applicant receive notes, did he read them, was he capable of understanding them, what exactly took place at the point of entry. Nor is it in a position to weigh the materiality of personal or other factors present, or not present, or partially present, to the mind of the immigration authorities. It cannot possibly act as, in effect, a court of appeal as to the facts on which the immigration officer decided. What it is able to do, and this is the limit of its powers, is to see whether there was evidence on which the immigration officer, acting reasonably, could decide as he did. It is to be noted that the Act (s 16) does in fact create procedure of appeal against directives for a person’s removal; but this is to an adjudicator and cannot ordinarily be invoked so long as the person concerned is in the United Kingdom.
    8. I conclude therefore that the decision to remove Mr Zamir, and his consequent detention, can only be attacked if it can be shown that there were no grounds upon which the Secretary of State, through his officers, could have acted, or that no reasonable person could have decided as he did.
    9. I approach then the second legal question, what is the standard of the duty owed by persons arriving in the United Kingdom and seeking leave to enter. The Act itself sets no standard, but (s 3(2)) does provide that the Secretary of State should lay before Parliament statements of his rules as to the practice to be followed in the administration of the Act for regulating the entry of persons. The relevant rule 10, HC 81, has already been quoted.
    10. The Act does provide for questioning of intending entrants. In Sch 2, para 2(1), there is conferred power upon immigration officers to examine such persons,[12] and para 4 states that it is “the duty of any person examined under para 2” to furnish “all such information in his possession as that person may require for the purpose of his functions”.
    11. The appellant’s first contention is based upon this paragaph: the immigration officer, he says, could have asked him if he was married, or if his circumstances had changed, but he did not. The appellant’s only duty was to answer, if asked: he was under no duty to volunteer information. I do not accept this contention: indeed, it cannot be too strongly repudiated. At the very lowest, an intending entrant must not practise a deception: it has over and over again been decided, and the correctness of these decisions is incontestable, that deception vitiates the permission to enter. 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. It can be no answer to a claim that such deception has occurred to say that no question was asked: paragaph 4 above merely confers a power, which carries a sanction if not complied with, and in no way derogates from a general duty not to deceive. I would, indeed go further than this – a point so far left open in the Court of Appeal. In my opinion an alien seeking entry to the United Kingdom owes a positive duty of candour on all material facts, including those which denote a change of circumstances since the issue of the entry clearance. He is seeking a privilege; he alone is, as to most such matters, aware of the facts: the decision to allow him to enter, and he knows this, is based upon a broad appreciation by immigration officers of a complex of considerations, and this appreciation can only be made fairly and humanely if, on his side, the entrant acts with openness and frankness. It is insufficient, in my opinion, to set as the standard of disclosure that which applies in the law of contract; the relation of an intending entrant and the authorities is quite different in nature from that of persons negotiating in business. The former requires a higher and more exacting standard. To set it any lower than as I have described is to invite – as unhappily so many of the reported cases show – a bureaucratic and anti-bureaucratic contest with increasing astuteness, manoeuvring and ingenuity on one side, and increasingly cautious technicality and procrastination on the other. This cannot be in the interest of sensitive administration.
    12. My Lords, the present case is, in my opinion, disposable under any test. The appellant was not candid in not revealing the fact of his marriage, a clear change of circumstances which was most material to the immigration officer’s decision as para 39 of HC 81 itself makes clear. It is one thing to seek to enter as a child dependent upon a resident father: quite another to enter as the head of a household and prospective father, even if there is to be a short period of dependence. It is clear that the immigration officer had ample grounds for deciding that there had been deception vitiating the permission to enter. Mr Clements, who handled Mr. Zamir’s application on entry, deposed on affidavit that although he could not recall the actual facts he had no doubt that had the applicant revealed that he had married or that he was no longer dependent on his father, he could not have been satisfied that he fulfilled the requirement of para 39. The change of circumstances would have removed the basis of the applicant’s claim to admission. And finally, if it were for the court to judge the matter for itself, it is to my mind plain that by presenting his passport with the visa upon it stating “settlement to join father”, when, as the appellant himself does not deny that he admitted, he had come to the United Kingdom “purely for work for himself and his wife”, it could come to no conclusion other than that he was guilty of a deception. The analysis of the situation contained in the judgment of Stephenson LJ admits of no refutation.
    13. It was submitted for the appellant that this case was indistinguishable from that of Mangoo Khan decided by the Court of Appeal on 13 February 1980[13]. The court then had before it the Court of Appeal’s decision in the present case (Zamir)[14], and Lawton and Ackner LJJ thought the latter to be distinguishable on the ground that Zamir was under 21 at the time of entry, so that para 39 of HC 81 applied to him, whereas Mangoo Khan was over 21 so that para 39 did not apply. They concluded that there was no deception, but merely a waiver by the immigration officer of a requirement. My Lords, I have some doubt whether even on the basis of this distinction the case of Mangoo Khan is acceptable, if the duty of entrants is such as I have suggested. But, as the Court of Appeal itself thought, it affords no basis upon which Zamir, in the present case, can succeed.
    14. One further point was taken, arising from the fertile mind of Mr Blom-Cooper QC. It was not taken below, nor in the appellant’s printed case, and has never before been suggested. This was that illegal entrants, within the meaning of the Immigration Act 1971, are limited to clandestine entrants – for example, through the benches, and do not include persons coming in through ports of entry. My Lords, with all respects, I find this distinction illogical, and unsupported by the statutory language. An illegal entrant is defined (s 33(1)) as 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”. Under s 3 a non-patrial may not enter the United Kingdom unless given leave to do so in accordance with the Act – so a person who has entered upon a vitiated leave to enter is clearly within the definition. Mr Blom-Cooper’s argument mainly rested upon the reference in s 33(1) to breach of a deportation order: this he says would only be necessary if a restrictive meaning is placed upon the words “the immigration laws”. But far clearer words would be needed, in my opinion, if the reference to immigration laws were to be limited to a requirement to come in through a port of entry: it is preferable to regard them as possibly superfluous, and ex majore cautela.
    15. I am of opinion that this appeal must be dismissed.
    16. Viscount Dilhorne: My Lords, I have had the advantage of reading the speech of my noble and learned friend Lord Wilberforce in draft. I agree with it and especially with his observations as to the duty of candour owed by aliens seeking entry to this country. For the reasons he gives, this appeal should in my opinion be dismissed.
    17. Lord Salmon: My Lords, I entirely agree with the reasons stated by my noble and learned friend Lord Wilberforce and accordingly would dismiss the appeal.
    18. Lord Fraser of Tullybelton: My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Wilberforce. I agree with it and, for the reasons given by him, I would dismiss the appeal.
    19. Lord Russell of Killowen: My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Wilberforce. I agree with it and with the conclusion that this appeal should be dismissed.

Appeal dismissed

Source: https://www.bailii.org/