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Khawaja -v- Secretary of State for The Home Department

Immigration, nationality, asylum, and extradition. Visas etc.

Khawaja -v- Secretary of State for The Home Department

Postby dls » Mon Jul 14, 2014 12:58 pm

Khera -v- Secretary of State for The Home Department; Khawaja -v- Secretary of State for The Home Department - HL - 10-Feb-1983 - Lord Fraser of Tullybelton, Lord Wilberforce, Lord Scarman, Lord Bridge of Harwich and Lord Templeman (lip, [1983] 2 WLR 321, [1984] 1 AC 74, Bailii, [1982] UKHL 5, Bailii, [1983] UKHL 8, [1983] 1 All ER 765, [1982] Imm AR 139) - Immigration - Judicial Review - Evidence
The appellant Khera's father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal immigrant.
Held: The term 'illegal immigrant' included anyone entering unlawfully. This could include those obtaining leave to enter by deception as well as those entering clandestinely. There is no duty of absolute candour upon someone applying for entry, but silence as to certain important facts might amount to fraud: "it would be wrong to construe the Immigration Act 1971 as if it imposed on persons applying for leave to enter a duty of candour approximating to uberrima fides. But, of course, deception may arise from silence as to a material fact in some circumstances; for example, the silence of the appellant Khawaja about the fact of his marriage to Mrs Butt and the fact that she had accompanied him on the flight to Manchester were, in my view, capable of constituting deception, even if he had not told any direct lies to the immigration officer."
Habeas Corpus is available to all, not just British Nationals. When reviewing the decision of the immigration officer the court should go beyond asking only whether there was evidence on which the officer could have reached his decision, and look also at the sufficiency of that evidence. On a judicial review it was for the administrative authority to prove the facts upon which the decision it had reached had been made. The house was free to not follow its earlier decisions. The decision in Zamir was too narrow.
Lord Scarman said: "My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited: and I would direct particular attention to the words of Morris LJ already quoted. It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v Bater [1951] P 35 and in Hornal v Neuberger Products Ltd [1957] 1 QB 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue": Dixon J in Wright v Wright (1948) 77 CLR 191, 210. I would, therefore, adopt the civil standard flexibly applied in the way described in the case law to which I have referred. And I completely agree with the observation made by my noble and learned friend, Lord Bridge of Harwich, that the difficulties of proof in many immigration cases afford no valid ground for lowering the standard of proof required.
Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law."
Lord Bridge said: "the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree."
Lord Wilberforce said: "These remedies of judicial review and habeas corpus are, of course, historically quite distinct and procedurally are governed by different statutory rules, but I do not think that in the present context it is necessary to give them distinct consideration. In practice, many applicants seek both remedies. The court considers both any detention which may be in force and the order for removal: the one is normally ancillary to the other. I do not think that it would be appropriate unless unavoidable to make a distinction between the two remedies and I propose to deal with both under a common principle."
Statutes:
Immigration Act 1971 s. 33(1)

Cases Cited:
Regina -v- Secretary of State for the Home Department, Ex parte Zamir HL 1980 ([1980] AC 930 HL, Bailii, [1980] UKHL 14, [1980] 2 All ER 768, [1980] 3 WLR 249) - Not followed
Bater -v- Bater CA 1951 ([1951] P 35)
Hornal -v- Neuberger Products Ltd CA 1956 ([1957] 1 QB 247, [1956] 3 All ER 970)
In re Dellow's Will Trusts; Lloyd's Bank -v- Institute of Cancer Research ChD 1964 ([1964] 1 WLR 451)
Wright -v- Wright 1948 ((1948) 77 CLR 191)
Sommersett's Case, Sommersett -v- Stewart 1772 ((1772) 20 StTr 1, Commonlii, [1772] EngR 57, (1772) Lofft 1, (1772) 98 ER 499, (1772) 20 How St Tr 1)
Practice Statement (Judicial Precedent) HL 1966 ([1966] 3 All ER 77, [1966] 1 WLR 1234)

Cited by:
Regina (on the application of Abassi and Another) -v- Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-11-2002 (Times 08-Nov-02, Bailii, Gazette 06-Dec-02, [2002] EWCA Civ 1598, [2002] All ER (D) 70, [2003] UKHR 76)
Regina -v- Secretary of State for the Home Department ex parte Bugdaycay HL 19-2-1986 ([1987] AC 514, [1987] 2 WLR 606, Bailii, [1986] UKHL 3, [1987] 1 All ER 940, [1987] Imm AR 250)
Regina -v- Secretary of State for Home Department ex parte Dolapo Omolara Martins Admn 29-11-1996 (Bailii, [1996] EWHC Admin 302)
Regina -v- Secretary of State for Home Department ex parte Cengiz Doldur Admn 26-6-1997 (Bailii, [1997] EWHC Admin 600)
Szoma -v- Secretary of State for the Department of Work and Pensions HL 28-7-2005 (Bailii, [2005] UKHL 64, House of Lords, Times 01-Nov-05, [2006] 1 AC 564, [2006] 1 All ER 1, [2006] INLR 88, [2005] 3 WLR 955, [2006] Imm AR 48)
Regina -v- Fraydon Navabi; Senait Tekie Embaye CACD 11-11-2005 (Bailii, [2005] EWCA Crim 2865, Times 05-Dec-05)
AN, Regina (on the Application of) -v- Mental Health Review Tribunal (Northern Region) and others CA 21-12-2005 (Bailii, [2005] EWCA Civ 1605, Times 12-Jan-06, [2006] 4 All ER 194, [2006] 2 WLR 850, [2006] QB 468, [2006] MHLR 59, (2006) 88 BMLR 59)
SK, Regina (on the Application of) -v- Secretary of State for the Home Department Admn 25-1-2008 (Bailii, [2008] EWHC 98 (Admin))
In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners -v- D HL 11-6-2008 (Bailii, [2008] UKHL 33, Times 24-Jun-08, HL, [2008] NI 292, [2009] Fam Law 192, [2008] 4 All ER 992, [2008] 1 WLR 1499)
In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-6-2008 (Bailii, [2008] UKHL 35, [2008] 2 FLR 141, HL, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] Fam Law 837, [2008] 2 FCR 339, [2008] Fam Law 619, [2008] 4 All ER 1)
A, Regina (on the Application of) -v- London Borough of Croydon SC 26-11-2009 (Bailii, [2009] UKSC 8, Times, [2010] 1 All ER 469, [2009] 3 FCR 607, [2009] 1 WLR 2557, [2010] PTSR 106, [2010] UKHRR 63)
Secretary of State for Foreign and Commonwealth Affairs -v- Rahmatullah SC 31-10-2012 (Bailii, [2012] UKSC 48, [2012] WLR(D) 301, Bailii Summary, [2012] 3 WLR 1087, UKSC 2012/0142, UKSC 2012/0033, SC Summary, SC)
ZN and Another, Regina (on The Application of) -v- Bromley Youth Court Admn 9-7-2014 (Bailii, [2014] EWCh 2300 (Admin))
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