Azam and Others v. Secretary of State for the Home Department and Another [1973] UKHL 7

House of Lords

Between

Azam and OthersAppellant

Secretary of State for the Home Department and AnotherRespondent

Before

Lord Salmon

Lord Widgery

Lord Denning

Lord Wilberforce

Date 11 June 1973

Immigration - Detention - Illegal entrant - Illegal entrant not given leave to enter or remain in United Kingdom - Detention pending directions for removal - Persons entering United Kingdom and present there in breach of immigration laws - Commonwealth immigrant - Immigrant entering United Kingdom clandestinely in breach of laws relating to Commonwealth immigrants previously in force - Immigrant no longer liable to prosecution under previous laws - Whether immigrant 'settled' in United Kingdom and deemed to have indefinite leave to remain - Whether immigrant 'illegal entrant' liable to detention and removal - Commonwealth Immigrants Act 1962, ss 4, 4A (as added by the Commonwealth Immigrants Act, 1968, s 3) - Immigration Act 1971, ss 1 (2), 4 (2), 33 (1), (2), 34 (1) (a), Sch 2, paras 9, 16 (2).

Held:

'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; and (d) the detention of persons pending examination or pending removal from the United Kingdom; and for other purposes supplementary to the foregoing provisions of this Act.'

'8. -- (1) where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may [make directions for his removal from the United Kingdom]...

'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 9 above are authorised by paragraph 8 (1)...

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

'(1) For purposes of this Act, except in so far as the context otherwise requies... "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... "limited leave" and "indefinite leave" mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration; "settled" shall be construed in accordance with section 2 (3) (d)...

'(2) It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom... at a time when he is there in breach of the immigration laws...'

Notes:

Cases referred to in the Judgment:

Introduction:

Counsel:

Judgment-READ:

Judgment One:

'(1) Subject to the following provisions of this section, if any person being a Commonwealth citizen to whom section 1 of this Act applies lands in the United Kingdom and does not fulfil either of the conditions specified in the next following subsection, he shall be guilty of an offence.

'(2) The conditions referred to in subsection (1) of this section are -- (a) that, while on board the ship or aircraft from which he lands in the United Kingdom, he has been examined by an immigration officer; (b) that he lands in accordance with arrangements approved by an immigration officer, and on landing, submits to examination in accordance with those arrangements...

'(7) In this section "land" means land from a ship or aircraft...' The section fixed a period of 28 days from the date of landing within which the person concerned was obliged to submit to examination, so that, after the expiry of the 28 days, an offence would be committed if he did not so submit. Any prosecution for this offence must be brought within six months under the general law applicable to summary offences (Magistrates' Courts Act 1952, s 104).

'... indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).'

'... references to a person being settled in the United Kingdom... are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.' 'Ordinarily resident' is not defined in the Act, so it must be given its normally understood meaning. I think it is clear that, parat from the next provision to be mentioned, all three appellants would be regarded as 'ordinarily resident' in the United Kingdom on 1st January 1973. But s 33 (2) declares that:

'... except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom... at a time when he is there in breach of the immigration laws.' It is on the last 13 words that this point depends.

Judgment Two:

Judgment Three:

'The inference from this is that the method of control enacted was intended to be experimental. Parliament was to have an opportunity of seeing how it worked.'

'(1) Subject to the following provisions of this section, if any person being a Commonwealth citizen to whom section 1 of this Act applies lands in the United Kingdom and does not fulfil either of the conditions specified in the next following subsection, he shall be guilty of an offence.

'(2) The conditions referred to in subsection (1) of this section are --(a) that, while on board the ship, or aircraft from which he lands in the United Kingdom, he has been examined by an immigration officer;

(b) that he lands in accordance with arrangements approved by an immigration officer, and on landing, submits to examination in accordance with those arrangements.' Section 4 of the 1968 Act amended para 1 (2) of Sch 1 to the 1962 Act by increasing from 24 hours to 28 days the time after landing within which a Commonwealth citizen could be required to submit to examination.

Judgment Four:

Judgment Five:

'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). At first sight anyone might be forgiven for thinking that this paragraph is referring to persons entering illegally after the Act comes into force. If, however, you refer to s 33 (1) which is the interpretation section you find:

'... "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...' Accordingly, I am driven to the conclusion that subject to s 1 (2) of the Act, by necessary implication the powers conferred in paras 8 to 16 of Sch 2 may be exercised retrospectively in respect of Commonwealth immigrants who before the 1971 Act came into operation entered the United Kingdom in breach of s 4A of the 1962 Act, but had been lawfully residing there for years, without let or hindrance and free from fear of removal. It would surely have been easier, far more satisfactory and fairer to have made this plain by express language in one of the main sections of the Act. It is impossible to ignore the danger that the unnecessarily circuitous and complicated fashion in which the power to act retrospectively was conferred (if it was conferred by the Act) may have concealed the very existence of that power.

'It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom... at a time when he is there in breach of the immigration laws.'

DISPOSITION:

SOLICITORS: