Grant v Borg

Under section 24(1)(b)(i) of the Immigration Act 1971, knowingly remaining beyond a limited leave is a once-and-for-all offence committed only on the day after the leave expires. The prosecution must prove knowledge of the material facts, but need not prove knowledge that those facts constitute an offence. Ignorance of the law remains no defence.

If the immigrant then lacks knowledge of a necessary fact, acquiring that knowledge while subsequently remaining in the United Kingdom does not create a new offence. The statutory prosecution period therefore runs from the day after expiry, rather than from a later acquisition of knowledge.

The appellant entered the United Kingdom with limited leave expiring on 8 May 1976. Before expiry, he sought further leave and permission to work. The Home Office refused his applications after the original leave had expired and offered an extra-statutory review procedure.

An information laid on 26 May 1979 alleged that he had knowingly remained beyond his leave between 19 April 1977 and 24 May 1979. The magistrates convicted him. The Divisional Court quashed the conviction but remitted the case to determine when he first knew that he had overstayed.

The central question was whether the offence under section 24(1)(b)(i) of the Immigration Act 1971 could be committed only on the day after expiry or on a later day when the immigrant acquired the relevant knowledge.

1. Disposition. The House unanimously allowed the appeal. It affirmed the order quashing the conviction, set aside the remission to the magistrates and held that the prosecution was out of time. Lord Bridge of Harwich delivered the leading speech. Lord Diplock, Lord Fraser of Tullybelton and Lord Scarman agreed with it. Lord Russell of Killowen agreed with the operative result on the facts.

2. Meaning of “knowingly”. Per Lord Bridge, the prosecution under section 24(1)(b)(i) of the Immigration Act 1971 had to establish knowledge of the facts material to guilt. It did not have to prove knowledge that those facts amounted in law to an offence. Construing “knowingly” as requiring knowledge of the relevant law would contradict the fundamental principle that ignorance of the law is no defence. Lord Russell reached the same conclusion and distinguished an honest factual misunderstanding about whether leave had expired from a mistaken belief that something legally amounted to leave.

3. Date of the offence. Per Lord Bridge, applying Singh (Gurdev) v The Queen [1973] 1 WLR 1444, the offence was not continuing. It could be committed only on the day after the limited leave expired. If the immigrant then lacked knowledge of a fact constituting an element of the offence, later acquisition of that knowledge while remaining without leave would not create a later offence. The offence in this case was therefore committed, if at all, on 9 May 1976, and the information laid more than three years later was time-barred.

4. Earlier authority. Per Lord Bridge, if Reg v Tzanatos intended to establish that knowledge of the law was required, or that the offence could arise upon later acquisition of knowledge, both propositions were emphatically rejected. Lord Russell similarly considered the dictum unjustified.

5. Remission. Per Lord Bridge, the Divisional Court should not have permitted the prosecution to raise a new point dependent upon the appellant’s state of mind when the necessary facts had not been found. It was also wrong to remit the case to give the prosecution a second opportunity to establish an offence within the limitation period.

6. The conclusions concerning criminal liability did not affect the separate statutory powers to deport an overstayer or remove an illegal entrant.

1. House of Lords: The appeal was allowed unanimously. The order quashing the conviction was affirmed, but the remission for rehearing was set aside.
2. Divisional Court of the Queen’s Bench Division: The conviction was quashed, but the case was remitted to the justices to determine when the appellant first knowingly overstayed.
3. Wells Street Magistrates’ Court: The appellant was convicted under section 24(1)(b)(i) of the Immigration Act 1971, fined £10 and recommended for deportation.