Second class justice
Anthony Blair
Last week's case of the Patel children, three Indian boys who were deported from England on Tuesday after delay, and ministerial embarrassment, emphasised the uncertainty and ambiguity which surround the status of immigrants in this country. In fact, the experience of the Patels was by no means an unusual one — and the working, of the Immigration Act can have even more severe consequences, as the Hassan family discovered to their cost.
They were asleep in their Birmingham home, where they had lived for 4. years when they were woken by knocking. Mr Hassan went downstairs and opened the door to find three men on his doorstep. They told him they were immigration officers and had come for his eldest child, Mohammed, 18 years old. They wanted to interview him. The boy was given time to dress and then taken immediately to Birmingham airport. He was put in a room and interviewed for two hours..His English was still not good, and the questions were complex: he required the asistance of an interpreter. The immigration officers put it to him that he was not the son of Mr Hassan, but someone quite different and had masqueraded as his son to obtain entry to the United Kingdom in 1973. They told him they were acting on information given to them by informants. They revealed nothing more. They asked questions about his family, his background and relations with the Hassan family, both here and in Pakistan. He denied impersonating anybody. They were not satisfied with his answers. They detained him under the Immigration Act 1971. After conducting detailed inquiries they declared him an illegal entrant. He was then deported. Apart from an intervie■u six months earlier, this was the only chance he got to convince the officers that he was indeed who he said he was. 'here was no proper trial, not even an informal hearing. The immigration officers ih‘vere acting on the say-so of informants.
were they? The couldn't say. There ‘‘lkas not even a lawyer present to help stand n'ttween the officers and the 18-year-old. this basis, he was uprooted from his i 'Irk (he had obtained work n a local ,Lktory), his home and his country of resi e for 44 years and sent back to find his r"wit way in Pakistan. In effect, he was "tried not by process of law but by -4rainistrative act.
This case is not exceptional. It is the st,le diet of an immigration lawyer. This and cases like it are the offspring of a and rather disturbing decision by Home Office and the courts to use, 15 rather abuse, the Immigration Act The result has been to strip a certain cl"ss of entrants to the United Kingdom of eve 11 the fairly minimal rights to which the ‘v entitled them. There are now probably sol))e be several hundred entrants who have thiesn\removed from the United Kingdom in t!"ay. 10W is it that a country, priding itself on lth' tradition of civil rights, can now arrange Ilta man is deported without even a lac,r?ig? The answer lies, in fact, with the 411gration Act itself and the part played jic ur7S interpretation by the executive and the to;iii,rY. This Act governs the law relating 14„-: unmigrants to the United Kingdom. I its most ambiguous elements concern AA °Ile type of immigrant — the entrant. lin.ientrant is someone who has entered the lc;;ted Kingdom but does not have United h1 'ii citizenship. The rules governing Ics 'tnts are a monument to obscurity. But SiVdeal problem is to be found in the hcib'ules to the Act rather than in the main °f it. And il is only by a convoluted 41W`rehase through these Schedules that ha sees how the Home Secretary comes to tiave this power to remove entrants by istrative act. cletphe "IV part of the Act dealing with tt(In and removal by administrative Sch"'e. rather than through the courts) is i Offedille 2. Schedule 2 allows immigration 42eners to detain 'illegal entrants.' These ent cedrs°ns about to enter or who have °Ffere.7 vvithout leave of an immigration Qtae le;'• The officers are empowered to ent„a shin or a plane upon which an illegal has entered to take him back again. See, is is not practical, then the Home terr;et4Y may make arrangements for inIni9vaiThe introductory words to the per,Igtation officers' powers say: 'Where a ref;cm arriving in the United Kingdom is an(sed leave to enter . '. These words, and Ithhe Power of the immigration officers kid i:,"e Home Secretary, suggest the Act by tnitld the use of the power of removal tli1 ,rninistrative act, in a case in which not5.4 as entry is spotted upon arrival — and ogle With the case of Hassan and many counrs' after the entrant has been in the p trY for many years. urther support for this interpretation is to be found in the Act itself: removal by administrative act is not in fact the only method of deportation or removal. To be an illegal entrant is, by section 24 of the Act, also a criminal offence. A person found guilty of being an illegal entrant may be recommended for deportation by the court and removed by the Home Secretary. It has been said on numerous occasions that this penalty should follow a finding that an entrant is an illegal entrant. But, of course, to secure a criminal conviction, there would have to be a criminal trial. That would mean a hearing, with witnesses being called and the entrant being given an opportunity to give evidence and persuade an objective court of his innocence. This would be a much more appropriate method of dealing with an entrant who has made his home here, and who is being expelled on the information of informants, but a more problematical one for the Home Office. So for people like Hassan, the Home Office has deliberately avoided the use of the criminal procedure. It detains and removes them by administrative act and the entrants are never allowed before 'a court.
Is there no way, then, that the Home Office decision can be impugned? In fact there is, or more accurately there was: the remedy of 'habeas corpus'. This is the name given to the ancient writ issuing from the Crown on behalf of an imprisoned person of any kind or description. It demands that the person or body detaining a man justify his detention. It has always been the cornerstone of liberty in English law. There are two rules which attach to it. First, the person detaining must show that he has the right to detain; the burden of proof is on him, not the detainee. Second, the court will itself try the facts of the case.
At first, when the Home Office began to remove illegal entrants on the grounds of impersonation, it doubted if habeas corpus applied. The Court of Appeal held in 1974 that it did apply. Indeed any argument to the contrary would have been insupportable by authority. However, habeas corpus posed a great problem to the Home Office. For it would necessitate a fair hearing, a hearing at which the Home Office would have to prove that the entrant was an illegal entrant, just as it would have to do to secure a conviction in a criminal court.
There thus was fashioned, to circumvent this obstacle, what can only be described as the most extraordinary traduction of legal principle to achieve a political end. Starting with the case of Hussain in 1976, the Divisional Court led by Lord Widgery, and then the Court of Appeal, revised, without one iota of support from precedent or statute, both rules of habeas corpus. First they concocted, plucked out of thin legal air, this startling new principle; if the Home Secretary has reasonable grounds for believing an entrant is an impersonator,, the court will not inquire further into the matter of the allegation and see if, in fact, he is.
Thus in immigration law, though in no other field of habeas corpus, the court is not , concerned with the truth of the facts but with the reasonableness of the Home Secretary's belief. As any administrative lawyer knows, for the executive to show reasonable grounds for a belief is not difficult, In Hassan's case, the stories of informants and some conflicting answers in the interview room were enough. But, in fact, not only is there no warrant in the law of habeas corpus for this new concept, there is no warrant for it in the 1971 Immigration Act either. The statute does not talk of grounds: it allows detention if the entrant is illegal, not if he is believed to be. Nonetheless reversing one rule of habeas corpus wasn't enough. So the courts als,o held that the burden of proof is on the detainee, the entrant. He thus has to prove that the belief of the Home Secretary is one no reasonable Home Secretary could hold, an almost impossible burden to discharge.
Thus, with this whimsical sleight of hand, the central question — is the entrant who he says he is — is washed to the side. Attention is instead focused on the quite irrelevant question of how reasonable the belief of the Home Office is.
The predicament of the entrant can be seen by a glance at the case of Hassan. He, like any detainee, sought his writ of habeas corpus. However, due to the reversal of the court of the rules of habeas corpus, the remedy of a person in the position of Hassan was of little use. He produced 13 affidavits to show he was who he said he was. His father, his cousins, friends, even persons back in Pakistan all swore that he was who he claimed to be. His employer even asked for his release. He produced a passport, descriptions by friends and specimens of his writing. Nonetheless the Home Office view prevailed. Not once could Hassan or his father appear in court to convince it of his innocence. Not once was he or his lawyer permitted to test the evidence of 'informants.'
Earlier this year, two applications for leave to appeal to the House of Lords on the very question of the decisions of the Court of Appeal were refused. Entrants like Hassan are thus without a remedy — apart from one, and this is by way of an appeal to an Adjudicator under the 1971 Act. There is just one slight difficulty. An entrant has to be deported first before he can appeal. Even then, he can't attend the hearing, which may be conducted in writing. For all practical purposes, when the allegation is one of impersonation, the remedy is useless. How many entrants are being deported in this way is difficult to say: certainly hundreds.
If the proposal of the Conservative Party to keep a register of immigrants is enacted, it will bestow second-class citizenship on all entrants to the United Kingdom. One group of these, however, already have that status. For the pettiest crime in the kingdom, with the lowest penalty known to the law, no man can be convicted without a trial in open court. An entrant alleged to be illegal can be deported from his home, his family and his work without so much as a hearing.
Previous page
