R v Governor of Pentonville Prison, Ex parte Azam (Azam, Ex parte, Azam v Secretary of State for Home Department, Khera, Ex parte, Khera v Secretary of State for Home Department, R v Secretary of State for the Home Department, Ex parte Khera, R v Secretary of State for the Home Department, Ex parte Sidhu, Sidhu, Ex parte, Sidhu v Secretary of State for the Home Department)

A person who clandestinely landed in breach of the former immigration legislation was an “illegal entrant” under the Immigration Act 1971. In that context, landing and entering formed a single process.

By a majority, the House also held that an illegal entrant remained in the United Kingdom “in breach of the immigration laws”, even after the time for prosecuting the original, non-continuing offence had expired. Such a person could not be treated as ordinarily resident or settled when the 1971 Act commenced. The person therefore acquired no deemed indefinite leave to remain and could be detained pending removal.

Clear statutory language may give legislation retrospective effect, including consequences arising from an unlawful entry before its commencement.

Three Commonwealth citizens entered the United Kingdom clandestinely before the Immigration Act 1971 commenced. Sidhu entered after twice being refused admission and thereby committed a continuing offence. Azam and Khera landed without submitting to examination and committed non-continuing offences for which the prosecution periods had expired.

Immigration officers detained them under Schedule 2 to the 1971 Act. Their applications for habeas corpus were dismissed by the Divisional Court. The Court of Appeal dismissed their consolidated appeals: [1973] 2 WLR 949; [1973] 2 All ER 741. Buckley LJ dissented concerning Azam and Khera.

The questions were whether the appellants were “illegal entrants”; whether they were nevertheless settled and deemed to possess indefinite leave to remain; and whether the statutory powers of detention consequently applied.

1. Appeals dismissed. Lord Wilberforce delivered the leading speech. Lord Hodson and Lord Kilbrandon expressly agreed with it, and Lord Pearson reached the same conclusions. Lord Salmon agreed as to Sidhu but dissented as to Azam and Khera.

2. Per Lord Wilberforce, the Immigration Act 1971 applied to unlawful entry predating its commencement. Parliament may enact retrospective legislation through sufficiently clear words. The definition of “illegal entrant” included a person who had entered in breach of immigration laws previously in force. The contrary construction was therefore unavailable.

3. All three appellants were illegal entrants. Sidhu's entry after refusals of admission constituted a continuing offence under section 4 of the Commonwealth Immigrants Act 1962. Azam and Khera had landed in breach of section 4A. In this context, landing and entry were not distinct legal events: their landing was an integral part of their entry.

4. By a majority, Azam and Khera remained in the United Kingdom “in breach of the immigration laws” for section 33(2) of the 1971 Act. The expiry of the time for summary prosecution did not transform the legal quality of a presence resulting from unlawful entry. Parliament had not granted an implied amnesty to entrants whose prosecution periods had expired.

5. It followed that none of the appellants could be treated as ordinarily resident when the 1971 Act commenced. They were therefore not “settled” within sections 1(2), 2(3)(d) and 33. They acquired no deemed indefinite leave to remain. As illegal entrants without leave, they could lawfully be detained under paragraphs 9 and 16(2) of Schedule 2 pending directions and removal.

6. Lord Salmon dissented on the fourth and fifth points concerning Azam and Khera. He considered that section 4A regulated their manner of entry but did not remove their pre-1973 right to remain. In his view, they ceased to be in breach once the non-continuing offence was complete, so section 33(2), construed protectively of liberty, did not prevent their being settled. He agreed that Sidhu's continuing offence excluded him from that status.

7. The appellants' subsidiary arguments under section 34 failed. Azam and Khera had received nothing “by virtue of” the earlier Acts that could become leave under section 34(2). There was no waiver in Khera's case, and the immigration officer had breached no duty of inquiry. Sidhu's earlier refusals of admission were not unimplemented removal decisions within section 34(4).

1. House of Lords: The three appeals were dismissed. The Court of Appeal's decision was affirmed.
2. Court of Appeal: The consolidated appeals were dismissed: [1973] 2 WLR 949; [1973] 2 All ER 741. Buckley LJ dissented concerning Azam and Khera.
3. Divisional Court of the Queen's Bench Division: The respective applications for writs of habeas corpus were dismissed in February and March 1973.