• Text size  | | |
• Email this document
• Printable version

R v. Secretary of State for the Home Department, Ex parte Phansopkar; R v. Secretary of State for the Home Department, Ex parte Begum

R v Secretary of State for the Home Department, ex parte Phansopkar
R v Secretary of State for the Home Department, ex parte Begum

QUEEN'S BENCH DIVISION

COURT OF APPEAL, CIVIL DIVISION

813

HEARING-DATES: 24 APRIL 1975, 30 JUNE, 1, 11 JULY 1975

Decision date: 11 JULY 1975

Index Terms:

Immigration - Patrial - Right of abode - Wife of patrial - Proof of patriality - Certificate of patriality - Right of wife to certificate - Grant of certificate not to be refused arbitrarily or delayed without good reason - Wife of patrial arriving in United Kingdom without certificate - Application to Home Office for certificate - Home Office rejecting application on ground that it could be dealt with more satisfactorily in wife's country of origin - Long delay in country of origin because of large number of applicants - Most applicants seeking leave to enter - Whether Home Office bound to consider wife's application on merits - Immigration Act 1971, ss 2(1)(a)(2), 3(9) - Immigration Rules (1973), r 4.

Held:

P and B were Commonwealth citizens whose countries of origin were respectively India and Bangladesh; P lived in Bombay and B in Dacca. Each claimed to be the wife of a person living in England who was a citizen of the United Kingdom and clonies by registration and, therefore, under s2(a) a of the Immigration Act 1971, to be a patrial having a right of abode in the United Kingdom. Each wished to join her husband in England to live with him there.

In order to establish their right to do so they were each required, under s 3(9) b of the 1971 Act, to have a 'certificate of patriality', which, under r 4 c of the immigration Rules (1973) d, would be 'issued... by a British Government representative overseas or by the Home Office'. The United Kingdom immigration authorities had laid down a rule of practice that a wife had to obtain a certificate of patriality in her country of origin. Such certificates were issued by British government offices in Bombay and Dacca but there was a serious delay there, of 14 months or longer, in obtaining a certificate because applicants for them had to take their turn in the long queue of persons who were not asserting the right of abode as patrials and were seeking permission to enter the United Kingdom.

Neither P nor B felt able to wait that long in the queue of applicants in Bombay or Dacca. Accordingly each came to England without a certificate of patriality. The immigration officer at the airport was not satisfied that either P or B was the genue wife of her alleged husband. Since neither of them held a certificate of patriality, he refused each of them permission to enter the United Kingdom, pursuant to s 1(2) of the 1971 Act, on the ground that neither of them held a current (entry certificate'; and he ordered their removal from the United Kingdom.

Shorly after ariving in England P and B applied to the Home Office for certificates of patriality. The home Office refused to consider the applications on the ground that they could be 'most satisfactorily dealt with' by the British High Commission offices in Bombay or Dacca, and that it would be wrong to sanction jumpting of the queue in those places by granting certificates of patriality in England.

P and B applied, inter alia, for orders of mandamus directing the Secretary of State for Home Affairs to issue certificates of Patriality.

a Section 2(2), so far as material, is set out at p 499 e, post b section 3(9), so far as material, is set out at p 499 g, post c Rule 4 is set out at p 499 j, post d Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC 79), laid before Parliament on 25th January 1973 under s 3(2) of the 1971 Act

Held - P and B were entitled to orders of mandamus requiring the Secretary of State to hear and determine their applications for certificates of patriality for the following reasons --

(i) A wife who was truly the wife of a citizen of the United Kingdom and colonies was entitled under ss 1(1) and 2(2)(a) of the 1971 Act to enter the United Kingdom without let or hindrance, provided she could prove her right by a certificate of patriality; that right could not be taken away by arbitrarily refusing her a certificate, or by delaying to issue it to her without good cause. Accordingly she was entitled to apply for a certificate of patriality nd to have her application examined fairly and in reasonable time (see p 506 j to p 507 e, p 509 f to h, p 510 j to p 511 a and p 512 d to f, post).

(ii) The Home Office had not given any good or sufficient reason for refusing to consider the applications for certificates of patriality; P and B would have had to join the long queue in Bombay or Dacca if they had had to apply there for the certificates and that queue, consisting substantially of applicants who were not asserting the right of abode as patrials, should not be allowed to delay those who were claiming the right of abode. Accordingly, the suggestion that the applications should be made in Bombay or Dacca was not a good reason for the Home Office's refusal to consider them (see p 507 e to p 508 a and d, p 509 h to p 510 a, p 511 f and g and p 512 j to p 513 a, post).

Notes:

For persons having the right of abode in the United Kingdom, see 4 Halsbury's Laws (4th Edn) paras 974, 975.

For the removal of persons refused leave to enter, see ibid para 1008, and for the detention of persons liable to examinations and removal, see ibid para 1009.

For the Immigration Act 1971, ss 1, 2, 3, see 41 Halsbury's Statutes (3rd Edn) 16, 17, 20.

Cases referred to in the Judgment:

R v Secretary of State for Home Affairs, ex parte Bhajan Singh [1975] 2 All ER 1081, CA.

Introduction:

Motions for habeas corpus, certiorari and mandamus. R v Secretary of State for the Home Department, ex parte Phansopkar By notice of motion dated 7th April 1975, Maimuna Allimiya a Phansopkar applied for a writ of habeas copus directed to the Secretary of State for the Home Department and to the officer in charge of Her Majesty's Immigration Detention Centre at Harmondsworth, Middlesex.

The applicant also moved for (i) an order of certiorari to quash the decision on orders made on 13th and 27th March 1975 by the immigration officers at Heathrow airport and on 15th March 1975 by the Secretary of State requiring the applicant to submit to further examination and refusing the applicant entry into the United Kingdom and on 29th March 1975 directing her removal from the United Kingdom, and (ii) for an order of mandamus requiring the immigration officers and the Secretary of State to grant the applicant a certificate of patriality and/or to allow her to enter the United Kingdom without let or hindrance. The facts are set out in the judgment of Lord Widgery CJ.

Motion for certiorari and mandamus

R v Secretary of State for the Home Department, ex parte Begum By notice of motion dated 8th May 1975, Lailun Nahur Begum applied (i) for an order of certiorari to quash a decision of an immigration officer at Heathrow airport on 16th April 1975 refusing the applicant leave to enter the United Kingdom, and (ii) for an order of mandamus requiring the Secretary of State for the Home Department to issue a certificate of patriality to the applicant and admit her into the United Kingdom. On 22nd May 1975 the Divisional Court of the Queen's Bench Division (Lord Widgery CJ, Bridge and Stocker JJ) dismissed the applications holding that, on the facts, the Phansopkar case was indistinguishable and ought therefore to be followed.

Appeals. The applicants, Mrs Phansopkar and Mrs Begum, appealed against the respective decisions of the Divisional Court. The appeals were heard together. The facts are set out in the judgment of Lord Denning MR.

Counsel:

Sibghatullah Kadri for the applicant. Harry Woolf for the respondents.

Sibghatullah Kadri and Anthony Eton for Mrs Phansopkar. Eugene Cotran for Mrs Begum. Harry Woolf for the respondents.

Judgment-READ:

Cur adv vult. 11th July. The following judgments were read.

PANEL: LORD WIDGERY CJ, ASHWORTH AND MAY JJ

LORD DENNING MR, LAWTON AND SCARMAN LJJ

LORD WIDGERY CJ.

Counsel moves this court today for a variety of forms of relief under the prerogative orders which he seeks on behalf of the applicant. According to Mr Phansopkar's account of his personal history, he arrived at London Airport with the applicant and their children seeking entry to this country on 13th March 1975.

Briefly, the situation was this. Mr Phansopkar is a citizen of the United Kingdom and colonies, and he has been in this country for some time. It was his intention to bring his wife and children over from his native country, India, and, according to the evidence which he put before the court, he and his wife were making contributions to an agent who was going to provide the necessary documentation to enable the wife and the children to leave India. According to Mr Phansopkar, the agent proved dishonest and disappeared with the money which he had been given, and Mr Phansopkar thereupon went out to India to try and organise the movement of his family to this country. He brought them over without any documentation authorising the wife or the children to land, and it is from that that all the difficulties have sprung. If it is the fact that the lady who accompanied Mr Phansopkar was his wife, she would have been entitled to claim rights as a patrial in this country under the Immigration Act of 1971. Section 1(1) of that Act provides:

'All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.'

As one goes through the Act looking to see what categories of person have the right of abode which carries the badge of patriality, one find in s 2(2):

'A woman is under this Act also to have the right of abode in the United Kingdom if she is a Commonwealth citizen and either -- (a) is the wife of any such citizen of the United Kingdom and Colonies as is mentioned in subsection (1)(a)...'

That means that, as Mr Phansopkar is a United Kingdom citizen, his wife, if she is his wife, became entitled to patriality by virtue of s 2(2).

But the draftsman of the Act, ever mindful of practical difficulties, has made provision in regard to the onus of proof for these important factual matters which can arise when a claim to enter this country is made.

In s 3 of the 1971 Act one finds two subsections, sub-ss (8) and (9), which are obviously of great importance:

'(8) When any question arises under this Act whether or not a person is patrial, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is.

'(9) A person seeking to enter the United Kingdom and claiming to be patrial by virtue of section 2(1)(c) or (d) or sectin 2(2) above shall prove it by means of such certificate of patriality as may be specified in the immigration rules...'

That certificate of patriality referred to briefly in s 3(9) is also referred to once, with equal brevity, in the immigration rules contemplated by the section. Under r 4 of the Immigration Rules (1973) one finds this interpretation of s 3(9):

'A citizen of the United Kingdom and Colonies does not require leave to enter if he or she has the right of abode in the United Kingdom under section 2(1)(a) or (b) of the Act, or by virtue of marriage to a man to whom section 2(1)(a) or (b) applies. Any other person requires leave to enter unless he has the right of abode and, in proof of that right, holds a certificate of patriality duly issued to him by a British Government representative overseas or by the Home Office.'

I do not find that rule very easy to understand, but at least it makes this point, that anyone seeking a certificate of patriality can go to a British Government representative overseas or may receive it from the Home Office.

To come back to the facts of this case, the immigration officer has made an affidavit of what passed between himself and Mr Phansopkar and the lady on their arrival at Heathrow. According to the immigration officer, he made a number of enquiries designed to enable him to assess the true relationship between Mr Phansopkar and the lady with whom he had arrived. He was of course in no doubt about the status of Mr Phansopkar because he carried a passport which showed that he was a United Kingdom citizen.

What the immigration officer says in his affidavit about the claim to enter made on behalf of the lady and the children is this:

'I had no doubt that Mr Phansopkar was a registered citizen of the United Kingdom and Colonies and was therefore a patrial pursuant to s 2(1)(a) of the Immigration Act 1971. However in the absence of any documentary confirmation I was not satisfied that the Applicant was his wife nor that the four children accompanying her were his children. To the best of my recollection I did not at any stage indicate the contrary to Mr Phansopkar and would not have done so without documentary backing.'

The immigration officer then refers to the terms of s 3(9), which I have already read, and says that having regard to that section he took the view that the lady should have a certificate of patriality, and as she had not and had no other grounds for contending she had a right of entry in the United Kingdom, he refused her permission to enter and duly completed the form of refusal, which was in these terms: 'You have asked for leave to enter the United Kingdom for settlement but you do not hold a current entry certificate granted to your for this purpose.'

Counsel for the applicant complains that the language is wrong in that an entry certificate is referred to when it ought to have been a certificate of patriality. But I do not think the difference affects my judgment in this case and I think that the proper interpretation of the immigration officer's affidavit is that, not being immediately certain that the lady had a right of entry, and recognising that she was basing her claim on s 2(2) of the 1971 Act, he took the view that the only way in which she could prove her status was by means of a certificate of patriality and therefore refused her because she lacked that qualification. In so doing, if that is what the immigration officer did, he seems to me to have followed the rules strictly and correctly.

The first point made on behalf of the applicant is that the immigration officer has not correctly reflected what passed between himself and Mr Phansopkar at the airport. Mr Phansopkar has contended that the immigration officer accepted that the lady was Mr Phansopkar's wife, and the main argument put before us today has been on the assumption that if the fact was accepted that a marriage existed between these parties, the mere absence of formal proof would be an irrelevant factor.

We cannot in this court settle or decide disputed issues of fact, and it is quite impossible for us to say that the facts are other than those spoken to by the immigration officer. If that is the case, in my judgment he acted properly in refusing entry because the lady had not got the only from of formal proof which s 3(9) of the 1971 Act accepts as sufficient.

The Home Office came into this matter at quite an early stage because reference was made to them by a member of Parliament who was interesting himself in the situation of Mr Phansopkar and his alleged wife. There is in the papers a letter from the Home Office to the member of Parliament in question, which refers to the parties as man and wife, which does not attempt to contend that there is no relationship of marriage between them, but which streese at some length the importance of certificates of patriality being granted in the country of origin because of the long queue of applicants seeking to transfer themselves from the Indian sub-continent to the United Kingdom and unfairness which quenue-jumping would provoke if people were allowed to appear, as it were, at Heathrow without documentation and then expect to have the matter put right for them in this country. There is no doubt that that is the aspect of the case which has been stressed in the Home Office letter, and I decline to regard it as any guide to the correctness or incorrectness of the conduct of the immigration officer, which, after all, is the matter with which we are concerned.

With that survey, brief as it is, of the facts, I must now turn to the various forms of relief which are sought. First of all, taking them in convenient order, there is an application for certiorari to quash the immigration officer's refusal of permission to enter this country. I have already said enough to indicate that in my judgment certiorari cannot go to quash the immigration officer's refusal because it seems to me that he acted strictly in accordance with the Act and the rules in the decision which he took.

Next there is an application for a writ of habeas corpus, the basis of which is of course that the lady and children are wrongly detained and entitled to be released by issue of that writ. But, as has been said more than once in the past, this type of case is not really a habeas corpus case at all. This is not a case in which the lady's rights of movement are restricted. She can leave the country at a moment's notice if she wants to. The proper relief to test the validity of an immigration officer's decision is certainly not habeas corpus because it cannot take the matter any further. It follows that if we are right in rejecting the application for certiorari, the writ of habeas corpus will be refused also.

But that is not the end of the matter because there is a further application for relief, and it is sought to obtain an order of mandamus to require the Home Office to issue a certificate of patriality and thus to supply the lady with the one qualification which she lacks and needs on the way in which the case has been presented on her behalf. This is a matter which has caused me, speaking for myself, rather more concern than the other aspects of it because although the Act clearly contemplates that the rules should deal with how a certificate of patriality is to be issued and by whom, all one finds in the Immigration Rules (1973) is the very brief reference in r 4, which I have already read, which seems to suggest that anyone who wants such a certificate can go either to the Home Office or to the British government representative in any overseas country.

In fact whilst the lady and her children have been in this country application has been made directly to the Home Office for the issue of a certificate of patriality, and the Home Office has refused and has given as its grounds of refusal, in what is obviously intended to be a formal determination, the following reasons:

'Your letter is being treated as an application for a certificate of patriality. It is considered that the application can be most satisfactorily dealt with by the entry certificate officer at the British Deputy High Commission in Bombay, who is a British Government representative in India for the purposes of paragraph 4 of the Immigration Rules for Control on Entry: Commonwealth Citizens (HC 79).'

Thus, the rules apparently authorise an application to the Home Office or to the country of origin. In this case the Home Secretary's representative is saying that it is considered that the application can be most satisfactorily dealt with by the application in Bombay.

I ask myself: is it open to the Secretary of State to decide that an application for a certificate must be made in India, when on the face of it, he has authority to issue one himself in the Home Office if so minded?

I think in the end it is right to support the action of the Home Secretary on the ground which counsel has put forward on his behalf. That is that in deciding whether the application of this family should be specially considered in London instead of being considered in India, one must remember that all those who are responsible for the administration of this legislation are charged with a duty of being fair. It is one thing which we have tried to insist on in this court from the initiation of the legislation in question. But it must be remembered that being fair is not simply being fair to one family.It is a question of being fair to all those who suffer from this problem, and the Home Secretary is entitled in my judgment to take the view that in order to be fair to all he should not allow one family, or one individual, to obtain priority in the queue by such means as are put forward in this case.

For all those reasons I have come to the conclusion in the end that there is no relief to which the applicant is entitled under the various heads on which application is made and that all these applications must accordingly be refused.

ASHWORTH J.

I agree

MAY J.

I also agree.

LORD DENNING MR.

In 1971 the Parliament of the United Kingdom invented a new word. It made a new man. It called him 'patrial'. Not a patriot, but a patrial. Parliament made him one of us; and made us one of them. We are all now patrials. We are no longer, in the eye of the law, Englishmen, Scotsmen or Welshmen. We are just patrials. Parliament gav this new man a fine set of clothes. It invested him with a new right. It called it 'the right of abode in the United Kingdom'. It is the most precious right that anyone can have. At least I so regard it. It is declared in simple but expressive words. Every patrial 'shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance...'

At the same time, Parliament made it very easy for many an immigrant to become a patrial and get this precious right. Those of us who were born here and live here get it automatically. Those coming from overseas get it by being registered as 'a citizen of the United Kingdom and Colonies'. This is not difficult, at any rate, not for anyone who has been living here for five years, provided that he is a Commonwealth citizen. If he comes, for instance, from Canada, or Australia, or, I must add, India or Bangladesh, and is of good character and has a sufficient knowledge of English, he can become registered as a 'citizen of the United Kingdom and Colonies'. And here is the important point. Not only does he himself, on registration, become a patrial and entitled to the right of abode here. But also his wife does automatically. Even though she is living in far off India or Bangladesh. Even though she has never been to England and cannot speak a word of English. She, too, becomes a patrial and entitled to the right of abode here. So she has the right to come into the United Kingdom without let or hindrance, bringing, no doubt, her babies with her. The only thing in her way is that she has to prove that she is his wife; or, I suppose, one of his wives, if by their law, such is permitted. To prove this, she has to get a 'certificate of patriality'. She can get this in her homeland by going to the British High Commission there and satisfying the officers there that her husband is a patrial and that she is his wife. But there is a very long queue there of people wanting to get entry clearance for England. It may take 18 months or more to get an interview with the officer. Some of these husbands and wives are upset by this waiting in the queue. Three or four wives have tried to jump the queue. They have come to England without getting a certificate of patriality beforehand. Soon after arriving at Heathrow they have applied for a certificate here. The Home Office have refused, saying: 'We are not going to consider your application here. It would be much more satisfactorly dealt with in Bombay or Dacca. So back you go. You cannot be allowed to jump the queue. It would not be fair to the others who have lined up in it.' This reply has been challenged by the people here who are advising immigrants on their rights. They rely amongst other things on the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950[1]n1, to which we have adhered. It gives in art 8 the right to respect for family life; and says that there shall be no interference with it, except such as is in accordance with the law and is necessary in a democratic society.

Such is the problem. But, before considering it in detail, I must set out the facts of the two cases before us, together with references to the various sections of the Act of Parliament.

The Phansopkar case

The husband, Allimiya Bawa Phansopkar, was born in India on 17th February 1936. So he is now 39. He has produced a marriage certificate issued in India which shows that in 1962, when he was 27, he married his wife, Maimuna, who was then 20. The marriage was solemnised at the bride's house by her father, in accordance with the Moslem religion. Their first child, a girl, was born in January 1964. Two years later, in 1966, the husband came to England and found work here; but he went back to India from time to time to join his wife, and they had there three more children, all boys, born in May 1968, September 1971 and February 1974.

Then in March 1974 the husband took a most important step. He became a citizen of this country; or, more accurately, a citizen of the United Kingdom and colonies. He was enabled to do this by reason of the provisions of ss 1(3) and 6(1) of the British Nationality Act 1948, as amended by Schs 1 and 2 to the Immigration Act 1971. He had all the necessary qualifications. He was a citizen of India. He had been ordinarily resident in the United Kingdom for five years. He was of good character. He had sufficient knowledge of the English language. He intended to reside here. Accordingly, on 16th March 1974, the Home Office issued him with this certificate: 'This certificate... confirms that the person named below has been registered as a citizen of the United Kingdom and Colonies.' There was set out his name and particulars.

Having obtained that certificate, the husband became entitled to a most valuable right. He himself thenceforward had 'the right of abode in the United Kingdom'. His right was equal to the right of abode of any of us. You and I and our families have been born here and lived here from time immemorial. Yet Mr Phansopkar, from the moment he was registered, had just as much right here as we have. He became a citizen of no mean country. He could say proudly -- if he spoke Latin -- civis angliae sum. He became a patrial.

And not only he. His wife also obtained at that very moment the selfasame right. She had never been to England. She could not speak English. She could not read or write. She lived in India with her four young children.But she was a Commonwealth citizen. And, as such, as soon as her husband, by registration, gained the right of abode in the United Kingdom, she acquired the selfsame right of abode: see s 2(2) of the Immigration Act 1971. This right was conferred on her husband and on her by s 1(2) in these wide and generous terms:

'All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance.'

The only qualification on that right was that, if called on, each of them had to prove it: see the concluding words of ss 1(1) and 3(8). The husband could prove it at any time by producing his certificate of registration. His wife, if she sought to enter the United Kingdom, had to prove it by producing a certificate of patriality: see s 3(9). How was she to get a certificate of patriality? There is nothing in the Act to tell us. The only clue is to be found in the Immigration Rules (1973), r 4, which says that she must hold 'a certificate of patriality duly issued to [her] by a British Government representative overseas or by the Home Office'.

Now we come to the crux of the case. The immigration authorities have for themselves laid down a rule of practice that a wife who desires a certificate of partiality must obtain it in her country of origin. In this case the husband sought to get his wife and their children to join him in England. It was to be arranged by an agent in India. He sent 3,000 rupees to his wife as the agent's fee, but the agent simply pocketed the fee and did nothing. So the husband went to India himself. He went to the British High Commission in Bombay. He was told, he says, that they could not give an appointment for an interview for 21 months. This may have been an exaggeration, because the Home Office say that at Bombay it is 14 months. At any rate, the husband did not want to wait for so long. So he decided to bring them with him. They arrived at London Heathrow Airport on 13th March 1975. They were seen by the immigration officer. The husband produced his United Kingdom passport, and also his certificate of registration as a citizen of the United Kingdom and colonies. The wife produced her Indian passport (which contained a list of her four children), and also a certificate of domicile issued by the government of India. The immigration officer interviewed them separately -- the wife through an interpreter. Their replies substantially corresponded the one with the other. The immigtation officer was satisfied that the husband was a patrial. He asked the wife if she had a certificate of patriality or an entry certificate. She had none. According to the husband the immigration officer said: 'I accept that she is your wife but because she does not have an entry certificate, she will have to go.' The immigration officer denies this.He says that, in the absence of documentary confirmation, he was not satisfied that she was his wife or that the children were his children. At any rate, he issued a form of refusal in these words in handwriting:

'To M. A. Phanspokar and four children: You have asked for leave to enter the United Kingdom for settlement, but you do not hold a current entry certificate granted to you for this purpose.'

Then, in print:

'I therefore refuse you leave to enter the United Kingdom. I... propose to give directions for your removal...You are entitled under section 13(1) of the Act to appeal against refusal of leave to enter but only after you have left the United Kingdom.'

The immigration officer gave directions that she was to be removed to India by air on the next day but one. But the case was taken up by two members of Parliament and the United Kingdom Immigration Advisory Service. They made representations on her behalf. On 26th March 1975 the Minister of State refused them, saying: 'While I have every sympathy with the family, it would be wrong for me to sanction this kind of queue jumping and quite unfair to those waiting patiently overseas.' They were detained. They would have been removed, but on 29th March application was made to the High Court and Court of Appeal for habeas corpus, certiorari and mandamus. In the application it was asked that the Home Secretary do issue her a certificate of patriality. Her solicitor followed it up by a letter asking for it to be issued. On 18th April 1975 the Home Office replied:

'It is considered that the application [for a certificate of patriality] can be most satisfactorarily dealt with by the entry certificate officer at the British Deputy High Commission in Bombay... It is regretted that, because of the very large number of applications... there is bound to be some delay...'

The application was due to come on before the Divisional Court on 24th April 1975. On the day before the husband and wife, in order to put their relationship beyond doubt, were married at the Croydon registry office, and a marriage certificate was issued to them, On the 24th April 1975, the Divisional Court refused her applications but granted her leave to appeal. We expedited the appeal, but before it came on for hearing another case arose.

The Begum case

Abdul Rouf was born in East Pakistan on 15th February 1937. So he is now 38. In 1954, when he was 17, he married his first wife, Soyfa, in East Pakistan, and had two children born in 1955 and 1957. In November 1960, when he was 23, he came to England and lived in West Oldham. At that time he was able to become a citizen of this country as soon as he had been ordinarily resident for 12 months without more ado: see s 6(1) of the British Nationality Act 1948. On 12th February 1962 he made his application for citizenship, and on 16th March 1962 the Home Office granted him this certificate:

'The above named applicant has been registered as a citizen of the United Kingdom and Colonies.'

In 1965 he went back to his first wife in Pakistan and a third child was born in 1966. He returned to England, leaving his first wife and three children in Pakistan. He says that on 20th March 1968 his first wife died. A few days later, according to him, his father made an engagement for him to marry his second wife, Lailun Nahar Begum. It was made by his father with her grandfather before he even knew of the death of his first wife. But it was not doubt a suitable match, because this young lady was aged 20 and her father and mother were already living in England. As soon as the husband heard that his first wife had died, he rushed back to Pakistan and married the young lady as his second wife, on 14th April 1968. He returned to England without her.

Some months later, in 1970, the second wife applied to the British High Commission at Dacca in East Pakistan for an entry certificate to England. At that time she had no right of abode in England because the Immigration Act 1971 had not come into force. So she had to get leave to enter. The officer there refused her application. He did not accept her evidence that she was married to Abdul Rouf. She appealed to the adjudicator at Manchester, England. He refused her appeal. She applied to the immigration appeals tribunal in London for leave to appeal. Her application was refused as there was no point of law. All this was before the Immigration Act 1971 came into force.

But when that Act came into force, the husband, Abdul Rouf, acquired the right of abode in the United Kingdom, because he was a citizen of the United Kingdom and colonies by virtue of his registration in 1962. His second wife, too (if she was truly his wife), also acquired the right of abode in England. She acquired it because she was a Commonwealth citizen and was his wife: see s 2(2) of the 1971 Act.

In January 1974, Abdul Rouf was badly injured at his work. His right hand was crushed. He went back to East Pakistan (now Bangladesh) for some time. No doubt he was with his second wife there. He then returned to England without her. He then determined to get her to join him in England if he could manage it. He did not apply in Dacca for entry clearance. But he arranged for her to come to England. She arrived at Heathrow Airport on 14th April 1975. He was there to meet her. The immigration officer interviewed them both. He gave her a temporary permit; but after making inquiries, he found out about the previous refusal in 1970. So he refused to give her leave to enter. He issued the form of refusal, writing on it:

'To: Lailun Nahur Begum. You have asked for leave to enter the United Kingdom as the wife of Adbul Rouf but you do not hold a current entry certificate granted to you for this purpose. I therefore, refuse you leave to enter the United Kingdom. I have given... directions for your removal on 18/4/75.'

But on the very day she got here, 14th April 1975, her solicitor wrote to the Home Office asking that she be issued with a certificate of patriality. He followed this up by an application for habeas corpus. She was given permission to stay temporarily pending the court's decision. She went to stay at her parents' house in the East End of London. As I have said, they are settled here. Her husband stayed there with her. She said in an affidavit:

'I was brought up in an orthodox Muslim household and it would be unthinkable in my society to live with a man unless one was married... this state of affairs would not be tolerated by my father if we were not genuinely married.'

In order to show that they are genuine, they have made application to the registrar of marriages at Aldgate to be married here. This was held up pending enquiries. Her counsel tells us this morning that it has gone through, and they were married on 7th July 1975.

On 22nd April 1975, however, the Home Office refused to issue her with a certificate of patriality and said she must go back to Bangladesh. They sent a letter in the selfsame words as in the Phansopkar case: 'It is considered that this application can be most satisfactorily dealt with by... the British High Commission in Dacca...' On 22nd May 1975, the Divisional Court refused her application, saying it was bound by Phansopkar's case.

This case has, however, an additional twist. The lady sayd that, if she is not to be admitted as a patrial, she would wish to enter as a financee. She relies on r 50 of the Immigration Rules (1973), which provides:

'A woman seeking to enter to marry a man settled in the United Kingdom should be admitted if the Immigration Officer is satisfied that the marriage will take place within a reasonable time. She may be admitted for a period of up to 3 months and should be advised to apply to the Home Office for the removal of the time limit once the marriage has taken place...'

There is a short answer to that claim. Abdul Rouf has regularly sent this lady money from the United Kingdom and has claimed tax allowances for a wife for many years.So neither he nor she could say that she is only a financee. If she is anything, she is a wife and must come as such.

The legal position

Each of these two ladies is entitled to come into England without let or hindrance provided that she is truly the wife of her husband. She does not have to seek permission. She comes as of right and not by leave. No one can refuse to admit her, provided she can prove it by means of a certificate of patriality: see s 3(9) of the 1971 Act.

Such being her right, I do not think it can be taken away by arbitrarily refusing her a certificate, or by delaying to issue it to her without good cause. She can invoke the Great Charter: 'To none will we sell: to no one will we delay or deny right or justice.' It seems to me to be implicit in this legislation that a wife, who is truly a wife, is entitled to apply for a certificate of patriality and to have her application examined fairly and in a reasonable time. If refused a certificate, she has no right of appeal to anyone, not even to an adjudicator or to the appeal tribunal: see s 13(2) and (3) of the 1971 Act. She is then thrown back to the lesser class of those who do not enter by right but only by leave: see s 3(1).

If her right is to be of any avail, the authorities must set up the appropriate machinery by which she can apply for a certificate of patriality. There is nothing in the Act or the rules to tell us what the machinery is except that a certificate of patriality may be 'duly issued to [her] by a British Government representative overseas or by the Home Office': see the Immigration Rules (1973), r 4.

Seeing that it can be issued by one or other of those authorities, I should have thought that her application could properly be made to one or other of them; and that it should be entertained by that particular authority -- the one to whom she applies -- unless there was some sufficient reason for sending her off to the other.

Each of these ladies was, therefore, entitled to apply to the Home Office in England for a certificate of patriality. Each of them did so, soon after her arrival at Heathrow. Die the Home Office have any sufficient reason for not entertaining her application? No reason was given in either case except that 'it is considered that [the] application can be most satisfactorily dealt with by the entry certificate officer at the British High Commission in' Bombay or Dacca respectively. Was that a sufficient reason?

That reason would, I think, have been a good and sufficient reason if -- and it is an important if -- the officers in Bombay or Dacca had been able to consider applications promptly and without undue delay. If they had been able to do so, each of those ladies would have applied there. They would not have made the long and expensive trip to England. As things are, however, a wife who applies in Bombay or Dacca for a certificate of patriality has to join a long queue of those who require leave to enter. By the time she is granted an interview, 14 months or more will have passed. The delay was so long that these two ladies, at any rate, determined to test the matter by coming here and applying here. In the circumstances I think they were justified in so doing. It must be remembered that in all these cases the burden is on the wife. Section 3(8) of the 1971 Act provides:

'When any question arises under this Act whether or not any person is a patrial... it shall lie on the person asserting it to prove that he is.'

Such being the burden of proof, it is plain that, in the case of wives, a very important part of the enquiry must be made in England. The husband must be resident here. He must be a patrial. He must have his own certificate of registration as a citizen of the United Kingdom and colonies. He must produce evidence of remittances to his wife, and his income tax returns showing his claim for tax relief on her account. She, on her side, must produce the marriage certificate from India or Bangladesh and show that she is the woman named in it. It must be a genuine marriage certificate with no suspicion of forgery. Both of them, husband and wife, must answer all such questions as may reasonably be asked of them. They are asked separately, each apart from the other. If their answers substantially correspond, that helps to show they are genuine. If their answers differ markedly, it tells against therm. In whichever place the enquiry is held -- in London or Bombay or Dacca -- there may have to be telexes to celar up the various queries that may arise.

Such being the nature of the enquiry, I do not think the Home Office in London are justified in refusing the application simply because these two ladies are 'jumping the queue'. There ought, I suggest, to be a separate queue in Bombay or Dacca for those wives who seek a certificate of patriality. If they fail to satisfy the officer, they should go to the bottom of the other queue of those who require leave to enter. That should discourage fraudulent applications. By making a separate queue for certificates of patriality, there should be little delay; and the Home Office could well then say that they will not deal with them in London. If a wife comes to the British High Commission in Bombay or Dacca simply wanting to come to England, she should join the general queue. It is only those that have a simple straightforward case for patriality who should get priority: and they get it because they are entitled as of right and not by leave.

There are just one or two other points. It was suggested that the form of refusal was invalid and ought to be quashed because the ground given was that the wife did not have a current entry certificate, whereas the better reason was that she did not have a certificate of patriality. But that was an immaterial difference. She desired to enter. Not having a certificate of patriality, she presumably wanted leave to enter. And, if that were refused, she had a right of appeal on return to her homeland. I see no ground for certiorari to quash.

Nor do I see any ground for habeas corpus. The immigration officer was authorised to detain under paras 2 and 16 of Sch 2 to the 1971 Act, and to give temporary admission under para 21.

The only remedy for each of the ladies is an order in the nature of mandamus. In the special circumstances of these cases, I think the order should issue. The Home Secretary ought not to send these ladies back to India and Bangladesh to face the long delays. He ought to examine the applications to see whether or not each lady is a patrial, and to give or refuse a certificate according to whether she satisfies him, or not.

I would allow the appeal, accordingly.

LAWTON LJ.

These appeals concern rights, not privilege.The rights are fundamental human rights -- of husbands and wives to live together.

Both appellants claim to be the wives of men who have the right of abode in the United Kingdom. Mrs Begum's husband has had this right since 16th March 1962, Mrs Phansopkar's since 18th March 1974. Both the marriages were celebrated overseas. Both ladies, who are Commonwealth citizens, say that they want to join their husbands in the United Kingdom and to live with them here. Their claims seemto fall squarely within s 2(2)(a) of the Immigration Act 1971, since their husbands' rights of abode arise under s 2(1)(a).

Parliament recognised, however, that claims under s 2(2)(a) would have to be verified. Provision was made for this by s 3(8) and (9). Under s 3(8) any person claiming a right to enter the United Kingdom (referred to in the Act as a 'patrial') has to prove that he has got the right. Wives claiming to be patrials under s 2(2) must prove that they are such 'by means of such certificate of patriality as may be specified in the immigration rules': see s 3(9).

Section 3(2) provides that the Secretary of State shall lay before Parliament statements of the rules, or of any changes in the rules, laid down by him 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 required by the Act to have leave to enter. This is the only provision in the Act which relates to the making of rules to be followed in its administration. Such rules as have been made under s 3(2) would not apply to patrials, including wives coming within s 2(2), as they have a right to enter; they do not require leave to enter.

The Act is silent as to how a wife obtains a certificate of patriality. There are only two other references in the Act to such a certificate. One is in the interpretation section, s 33, which is outstandingly valueless as a definition: '"certificate of patriality" means such a certificate as is referred to in section 3(9) above.' The other reference is in s 13, which provides for appeals against exclusion from the United Kingdom. Under s 13(3) a person not holding a certificate of patriality shall not be entitled to appeal on the ground that he is a patrial by reason of s 2(1)(c) or (d) or s 2(2). There is an exception which is not applicable in these two cases.

This scarcity of information in the Act about certificates of patriality is surprising and likely to lead to confusion and misunderstandings. In my judgment the Statement of Immigration Rules laid before Parliament on 25th January 1973 under s 3(2) increases the likelihood of confusion. Rules 2 to 7 give general information. Rule 4 correctly points out that certain categories of persons, including the wives of men hiaving a right of abode in the United Kingdom, do not require leave to enter. This rule goes on as follows:

'Any other person requires leave to enter unless he has the right of abode and, in proof of that right, holds a certificate of patriality duly issued to him by a British Government representative overseas or by the Home Office.'

Insofar as this rule refers to certificates of patriality it is declaratory, not mandatory.

By necessary implication from the terms of the Act itself and the rules, certificates of patriality are to be issued by the British Government through the Customary channels, that is to say through their representatives overseas if application is made outside the United Kingdom and through the Home Office if application is made within. There is nothing in either the Act or the rules to the effect that the overseas channel must be used by those normally resident overseas. The Secretary of State for Home Affairs has the duty of dealing with claims to citizenship of the United Kingdom and colonies: see the British Nationality Act 1948. Under s 25 of that Act he is empowered to issue certificates of citizenship on the application of any person with respect to whose citizenship a doubt exists, whether on a question of fact or of law. He decides. The provisions of the 1971 Act about certificates of patriality are a particular application of the more general powers given by s 25 of the 1948 Act.

Any woman claiming to be entitled to the issue of a certificate of partiality is entitled to get one if her claim is well founded in fact and law. She is claiming a right under s 2(2). If the claim is made to the Secretary of State, he must decide whether it is well founded. The constitutional position of a British government representative overseas is not clear. He may be nothing more that a servant of the Crown who has delegated authority from the Secretary of State for Home Affairs to deal with applications for leave to enter and for the issue of certificates of patriality. He has no statutory powers such as were given to governors of overseas territories by s 8 of the 1948 Act.

In both these cases applications for the issue of certificates were made to the Secretary of State. There is nothing in either Act or the rules which provides that the application should not have been made to him. Indeed r 4 seems to give an applicant a choice. When the Secretary of State receives such an application he has to adjudicate on the claim to a right. If it is ill founded, whether in fact or in law, he can reject it; but if it is not he must grant it. He cannot refuse to consider the application; nor can he delay consideration unreasonably. These duties were imposed on the Crown and its servants by Magna Carta.

In these two cases the Secretary of State has not refused to consider the application. He has said that they can be dealt with more satisfactorily by the government's representative overseas. This will mean long delays which would not occur if the Secretary of State considered the applications here.

It was submitted on behalf of the Secretary of State that as neither of the appellants had a right to be here, they would be in no better posiltion than applicants overseas. They were in fact here; and even if they should be deemed in law not to be here, they could still apply to the Secretary of State. Any applicant can and will continue to be able to do so until such time as the rules referred to in s 3(9) give more information and direction about the issue of certificates of patriality. Administrative convenience, however well intentioned it may have been, cannot be made a justification for depriving people of their rights or for delaying consideration of their claims to rights. These two appellants may have rendered an ill service to other wives in the sub-continent of India. The gap in the rules through which they have slipped into the United Kingdom may for the future, and pending amendment of the rules, be blocked by sending straight back wives arriving here without certificates of patriality.

This is not the way the 1971 Act has been administered so far. A woman claiming to be entitled to enter under s 2(2), but having no certificate of patriality, has her case considered under s 1(2) which emplwers immigration officers to give or refuse leave to enter the United Kingdom. We were informed by counsel for the Secretary of State that these officers use their discretion to give leave to enter if they are satisfied that there are strong compassionate grounds for so doing. Both these appellants had their cases considered under s 1(2). They were given notice of refusal of leave to enter which referred to their lack of current entry certificates, not of certificates of patriality. These notices were issued under para 6 of Sch 2 to the 1971 Act. they were correct in form. As the appellants were not in possession of certificates of patriality, they could not prove their right to enter. They could only get in if they could bring themselves under s 1(2) which they could not be decause they had no entry certificates. It follows that the claim to have the notices of refusal quashed by orders in the nature of certiorari fail as does Mrs Phansopkar's claim to habeas corpus. Once she had been lawfully refused leave to enter, she could be detained under para 16 of Sch 2.

I would allow the appeal and order that the Secretary of State for Home Affairs shall consider and determine the applications for certificates of patriality made by both these appellants.

SCARMAN LJ.

The background to these two appeals is disturbing. Each appellant is a Commonwealth citizen and claims to be the wife of a citizen of the United Kingdom and colonies. If this was true when they arrived at London Airport (Mrs Phansopkar from India on 13th March and Mrs Begum from Bangladesh on 14th April), they then had the right of abode in the United Kingdom: ss 1(1) and 2(2) of the Immigration Act 1971. They had not, however, provided themselves with a certificate of patriality -- a document by which, according to the Act, a lady claiming the right of abode on the sole ground of marriage to a citizen of the United Kingdom and colonies 'shall' prove the existence of her right. They arrived without one because neither of them felt able to wait any longer for the issue of a certificate overseas. British offices in India and Bangladesh issue such certificates on application, but there is serious delay. Applicants have to wait at least 14 months, and sometimes longer, in order to get their applications dealt with. They delay arises largely from the great number of applicants in those countries for certificates giving leave to enter the United Kingdom, i e applicants who assert no right but seek permission to enter. We have been told by counsel for the Secretary of State that in 1974, 12,864 entry certificates were granted by overseas offices in the Indian sub-continent and 859 certificates of patriality. It is significant that during the year not one application for a certificate of patriality was refused, though the applicants had to endure the wait in the queue for 14 months or more. Whatever may be though of the plight of those who Seek only leave to enter the United Kingdom, it is a matter for serious concern that those who claim the right or freedom 'to live in, and to come and go into and from, the United Kingdom without let or hindrance' (s 1(1) of the 1971 Act) have to wait 14 months or more for an adjudication on their claim. However, when the claim (as in these two cases) is that the right arises from the status of wife to a man living in this country, the delay may impose great hardship and stress on private and family life. Delay of this order appears to me to infringe at least two human rights recognised, and therefore protected, by English law. Justice delayed is justice denied: 'We will not deny or defer to any man either justice or right': Magna Carta. This hallowed principle of our law is now reinforced by the European Convention for the Protection of Human Righs 1950 to which it is now the dury of our public authorities in administering the law, including the Immigration Act 1971, and of our courts in interpreting and applying the law, including the Act, to have regard: see R v Secretary of State for Home Affairs, ex parte Bhajan Singh [2]n2 in this court. Article 8 of the convention provides:

'(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

'(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

It may, of course, happen under our law that the basic rights to justice undeferred and to respect for family and private life have to yield to express requlirements of a statute. But in my judgment it is the duty of the courts, so long as they do not defy or disregard clear unequivocal provision, to construe statutes in a manner which promotes, not endangers, those rights. Problems of ambiguity or omission, if they arise under the language of an Act, should be resolved so as to give effect to, or at the very least so as not to derogate from,the rights recognised by Magna Carta and the European convention.

I turn now to the particular questions raised by the two appeals. Each appellant has had her application rejected by the Divisional Court -- habeas corpus, certiorari, and mandamus. For the reasons already given by Lord Denning MR and Lawton LJ I am satisfied that the Divisional Court was right to refuse habeas corpus and certiorari.

I respectfully agree with Lord Widgery CJ that the more difficult question is whether mandamus should go to compel the Secretary of State to hear and determine the two applications, made after arrival in the United Kingdom, for certificates of patriality. As I read the Secretary of State's reply to each aplication, he has refused to consider either application on its merits, expressing the view that it would be more convenient -- more satisfactory -- for the applications to be dealt with in India and Bangladesh. If the true balance really be between the convenience of the authorities (for it cannot be convenient for the ladies) and respect for human rights, the Secretary of State would be misreading the scales of justice.

But in truth the balance, as he sees it, is one of justice between those who, with these ladies, jump the queue and the members of the queue in India and Bangladesh. This is more difficult, but I think the answer that counsel make for the appellants is fair: the queue which imposes the delay consists substantially of applicants for leave, and should not be allowed to delay those who are claiming a right. And I could add that the facts of each case are such as to indicate a strong probability that the right will be proved -- as it was in every such application handled in India and Bandladesh in 1974.

The Secretary of State has refused to hear and determine the two applications because they were made in England and he submits that he is entitled under the law to insist that one be made in India and the other in Bangladesh -- in other words, that each lady should return there to rejoin the queue which, with an impatience quite understandable, each has sought to avoid. His case in law rests on s 3(9) of the 1971 Act and the rules for the control of immigrants on entry made under s 3(2) of that Act. I assume, without deciding the point, that the effect of s 3(9) is, as the Secretary of State submits, mandatory, i e that 'shall' means 'must', and that if an applicant does not produce a certificate of patriality she does not establish that she is a patrial. The certificate has to be 'as may be specified in the immigration rules'.

I will make a second assumption in favour of the Secretary of State -- that rules made under s 3(2) for regulating the entry the United Kingdom of persons required by the Act to have leave to enter apply to persons claiming the right to enter as part of their right of abode. If I do not make this assumption, there are no rules specifying how a certificate of patriality is to be obtained, in which event the court would be thrown back on general principles and the solution to the case simple: mandamus would go. The Immigration Rules (1973) contain only one reference to certificates of patriality. Th second sentence of r 4 says:

'Any other person requires leave to enter unless he has the right of abode and, in proof of that right, holds a certificate of patriality duly issued to him by a British Government representative overseas or by the Home Office.'

The rule appears to allow an applicant her choice: she may seek the issue of a certificate from a representative overseas of the British Government or from the Home Office here. There is no express indication that a person who is overseas must apply there or that a person who arrives in the United Kingdom without one may not on arrival apply to the Home Office.

To justify his refusal to consider these two applications on their merits, the Secretary of State, therefore, has to make good one of two positions: either that in the absence of positive direction in the rules he may do as he thinks fit or that there is to be implied into r 4 words to the effect that an applicant who is resident overseas must apply overseas.

Either position is, in my judgment, untenable. The appellants seek to exercise a right, a freedom to enter the United Kingdom without let or hindrance save such as is necessary to enable them to prove their right: see s 1(1). The Act does not put on them the burden of proving their right in the manner specified in the rules: s 3(9). I ask myself: what principle or authority in English law requires the court to read into the rule a let or hindrance on the exercise of the right which the rule does not specify? I know of none. The Act, after all, does describe the right as a freedom. If the Secretary of State wishes to compel these applicants to stand in that long queue waiting in India and Bangladesh, he should say so in an appropriate immigration rule so that all who claim the right may know.

Had I entertained any doubt, I would have held without hesitation that the combination of Magna Carta and the European convention would not permit in law the Secretary of State to maintain either of the two positions I have mentioned. Neither the Act nor the rules help him, and without clear and express provision in the Act or rules, there is no overriding that combination.

The Secretary of State really took two points in support of his refusal to consider these applications on their merits. He submitted that refusal was in the circumstances a reasonable exercise of his discretion. First, he asserted that the ladies had jumped the queue -- which was unfair to others. I have made my comment on the composition of the queue. If he thinks it right to place those who have (or claim to have) a right in a queue which is swollen by those who do not have a claim of right, he should say so in the rules and so obtain the approval of Parliament for his view of the matter. Secondly, he told the court, through his counsel, that had either appellant chosen to get herself registered under the nationality legislation as citizens of the United Kingdom and colonies, as they could have done at Delhi and Dacca respectively, they would have avoided the queue. Counsel informed the court that it takes only six weeks for a qualified applicant to obtain such a registration: and, once registered as a United Kingdom citizen, a woman does not have to produce a certificate of patriality to prove her right of abode. We have not looked at the law, but I will assume that counsel for the Secretary of State was correct in telling us that these appellants could have been registered. They did not, however, wish to do so (in India one who registers as a citizen of the United Kingdom and colonies loses Indian nationality). What then? It is, in my judgment, no reason for forcing them into the queue; for they already have the right of abode which its attendant freedom to come and go, provided they can prove it. For these reasons I would allow both appeals to this extent -- that mandamus should go to compel the Secretary of State to hear and determine the two applications.

One final word. This is not a case of an unthinking, heartless exercise of administrative power. The Secretary of State is clearly, and rightly, troubled by that queue. But, unless the law expressly confers on him the power to compel those who have a right to wait while those who have no right have their cases for leave considered, he is putting a let or hindrance in the way of the exercise of the right of abode. This, under the law as it now is, he cannot do, for it is not necessary that the application should be made overseas in order to enable the existence of the right to be established, and neither the Act nor the rules expressly empower him to erect this obstacle to the exercise of the right.

DISPOSITION:

Appeals allowed; mandamus granted. Leave to appeal to the House of Lords granted on terms as to costs.

Applications dismissed.

SOLICITORS:

JJ Norris & Co (for Mrs Phansopkar); Nazerali Suchak & Co (for Mrs Begum); Treasury Solicitor.

JJ Norris & Co (for the applicant); Treasury Solicitor

 

---

[1]n1. (1953) Cmd 8969

[2]n2. [1975] 2 All ER 1081

Topics: Habeas corpus, Arrival,