R v Secretary for the Home Department, Ex parte Zamir (Zamir v Secretary of State for the Home Department)

An immigration officer’s decision that leave to enter was obtained by deception is an administrative decision. A reviewing court determines whether evidence existed on which the officer, acting reasonably, could reach that conclusion. It does not decide the underlying facts afresh as precedent facts.

An intending entrant owes a positive duty of candour concerning every material fact, including a change of circumstances after entry clearance was issued. Deception may consist of conduct accompanied by silence. The officer’s failure to ask a particular question does not relieve the entrant of that duty.

Leave procured by deception is not leave given in accordance with the Immigration Act 1971. A person entering under such vitiated leave is an illegal entrant even if entry occurred openly through an authorised port.

The appellant, a Pakistani national, obtained entry clearance as an unmarried and dependent son seeking settlement with his father. He married after the clearance was issued but before travelling to the United Kingdom. On arrival he presented the clearance, disclosed neither his marriage nor his changed purpose, and received indefinite leave to enter.

After his wife and son applied to join him, the immigration authorities concluded that his silence had procured entry by deception. He was detained pending removal as an illegal entrant under the Immigration Act 1971.

The Queen’s Bench Divisional Court refused habeas corpus: [1979] QB 688. The Court of Appeal unanimously affirmed that decision: [1980] QB 378. The appeal concerned the proper scope of judicial review, the entrant’s duty to disclose material facts, and whether a person entering through a port under vitiated leave was an illegal entrant.

1. The appeal was dismissed unanimously. Lord Wilberforce delivered the leading speech. Viscount Dilhorne, Lord Salmon, Lord Fraser of Tullybelton and Lord Russell of Killowen agreed with his reasons and conclusion.

2. Per Lord Wilberforce, an immigration officer deciding whether to grant leave, remove an entrant or treat apparent leave as vitiated performs an administrative function within a statutory and para-statutory framework. The decision is reviewable only on the ordinary grounds that there was no evidence capable of supporting it or that no reasonable decision-maker could have reached it. The statutory scheme was incompatible with treating deception as an objective precedent fact which the reviewing court must determine for itself.

3. The reviewing court could not act as an appellate fact-finder. Immigration decisions commonly involved disputed documents, unverifiable statements, foreign practices and assessments of materiality. Habeas corpus proceedings conducted on affidavit evidence did not place the Divisional Court in a position to resolve those matters. Its function was confined to determining whether evidence existed on which the immigration officer, acting reasonably, could decide as he did.

4. Per Lord Wilberforce, an intending entrant owes a positive duty of candour concerning all material facts, including changes occurring after entry clearance. Paragraph 4 of Schedule 2 to the Immigration Act 1971, which required a person examined to furnish requested information, did not make disclosure dependent upon an officer asking the correct question. Deception could arise from conduct combined with silence concerning a material fact. The relationship required a more exacting standard than disclosure between parties negotiating a contract.

5. The appellant’s undisclosed marriage was a clear and material change from the circumstances supporting his admission as a dependent child. Presenting a visa stating that he was joining his father, while intending to work for himself and his wife, gave the immigration officer ample grounds to find deception. The resulting leave was therefore vitiated.

6. The Court of Appeal’s decision in R v Secretary of State for the Home Department, ex parte Khan [1980] 1 WLR 569 was distinguishable because the entrant there was over 21 and paragraph 39 of HC 81 did not apply. Lord Wilberforce also expressed doubt, without deciding the point, whether its reasoning was compatible with the duty of candour.

7. Section 33(1) was not confined to clandestine entry. A person entering openly through a port under leave vitiated by deception entered unlawfully and fell within the statutory definition of an illegal entrant. The detention and proposed removal were lawful.

1. House of Lords: Unanimously dismissed the appeal and upheld the refusal of habeas corpus: [1980] AC 930.

2. Court of Appeal: Stephenson, Eveleigh and Brandon LJJ unanimously affirmed the Divisional Court’s decision: [1980] QB 378; [1980] 1 All ER 1041.

3. Queen’s Bench Divisional Court: Lord Widgery CJ, Cumming-Bruce LJ and Neill J unanimously refused the application for habeas corpus: [1979] QB 688; [1979] 2 All ER 849.