Lord Fraser of Tullybelton
Lord Wilberforce, Lord Scarman
Lord Bridge of Harwich
Khera: the facts
"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.
Khawaja: the facts
Issues of general importance
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) 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) 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.
"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.
"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".
"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).
"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.
"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"
"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) 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  1 WLR 1234, to the extent necessary to assert that those answers represent the present law?
Who is an illegal entrant?
" '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;"
(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).
"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 v Secretary of State for the Home Department, Ex parte Hussain  WLR 700 and Reg. v Secretary of State for the Home Department, Ex parte Choudhary  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 v Secretary of State for the Home Department, Ex parte Hussain  1 WLR 700 (Court of Appeal) and numerous cases following."
The court's power to review a decision to detain and remove an illegal entrant
"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."
"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."
"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."
"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.
"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."
"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 v Secretary of State for Home Affairs, Ex parte Budd  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 v Home Secretary  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."
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?
The instant appeals
Appeal of Khawaja dismissed. Appeal of Khera allowed.