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

An entrant who obtains leave by a fraudulent statement or representation contrary to section 26(1)(c) of the Immigration Act 1971 is an illegal entrant if the fraud was an effective means of obtaining leave. Mere non-disclosure does not itself establish fraud, although conduct accompanied by silence may constitute a fraudulent representation.

Where a person with facially valid leave challenges detention or summary removal, the court must determine whether illegal-entry status is established. Reasonable grounds for the immigration officer’s belief are insufficient. Once the entrant shows a prima facie case, the executive must prove the necessary facts on the balance of probabilities. The gravity of fraud and the consequences for liberty require a correspondingly high degree of probability.

These conjoined appeals concerned two entrants who had received leave to enter the United Kingdom but were later treated as illegal entrants because the immigration authorities alleged that their leave had been obtained by deception. Both sought judicial review and certiorari against decisions authorising detention pending summary removal under the Immigration Act 1971.

Khera v Secretary of State for the Home Department had been unsuccessful in the Divisional Court and Court of Appeal. Khawaja v Secretary of State for the Home Department had been unsuccessful before Forbes J and the Court of Appeal, whose decision was reported at [1982] 1 WLR 625. The lower courts regarded themselves as bound by Zamir v Secretary of State for the Home Department [1980] AC 930.

The House considered who qualified as an illegal entrant, whether non-disclosure alone amounted to deception, the scope of judicial review of illegal-entry decisions, and the burden and standard of proof where detention and removal affected personal liberty.

1. Disposition. The House unanimously allowed Khera’s appeal and dismissed Khawaja’s appeal. Fraud was not proved against Khera. Khawaja’s deliberate deception and his intention to settle, concealed when he sought entry as a short-term visitor, were proved to the required standard.

2. Fraudulent entry. Lord Bridge of Harwich gave the principal statutory analysis, which Lord Fraser of Tullybelton accepted and Lord Templeman expressly adopted. A person who obtains leave by fraud contrary to section 26(1)(c) of the Immigration Act 1971 enters in breach of the immigration laws and is an illegal entrant under section 33(1). The fraud must be an effective means of obtaining leave: but for it, leave would not have been granted.

3. Non-disclosure. Lord Fraser, Lord Wilberforce, Lord Scarman and Lord Bridge rejected the broader suggestion in Zamir v Secretary of State for the Home Department [1980] AC 930 that immigration law imposed a positive duty of candour approximating to uberrima fides. Mere failure to volunteer a material fact is insufficient. Fraud may nevertheless arise from conduct accompanied by silence where the circumstances amount to a knowingly false representation.

4. Judicial review and precedent fact. Lord Fraser, Lord Scarman and Lord Bridge concluded that detention and summary removal under paragraphs 9 and 16(2) of Schedule 2 depend on the person being an illegal entrant in fact. The court’s function extends beyond asking whether the immigration officer had reasonable grounds for that belief. Although Lord Wilberforce described the court’s inquiry as supervisory rather than appellate and declined the precedent-fact label, he likewise required the court to appraise the quality of the evidence and decide whether it justified the administrative conclusion.

5. Proof. Per Lord Scarman, with Lord Fraser, Lord Bridge and Lord Templeman agreeing in substance, an applicant who demonstrates entry under facially valid leave establishes a prima facie case. The executive must then justify detention and removal by proving fraud on the balance of probabilities. The degree of probability must be high because fraud is grave and personal liberty is at stake. Affidavit evidence may suffice; cross-examination remains discretionary and should be ordered where justice requires it.

6. Departure from precedent. The House departed from the ratio of Zamir which had confined review to whether the immigration authority possessed reasonable grounds. The contrary approach understated the judicial protection required when executive action restrains liberty.

7. Reserved matters. Lord Bridge, whose reasons Lord Templeman adopted, left open the effect of fraud by a third party where the entrant was innocent. He doubted whether R v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466 had been correctly decided.

• House of Lords: Khera’s appeal was allowed and Khawaja’s appeal was dismissed. The House departed from part of Zamir v Secretary of State for the Home Department [1980] AC 930.
• Court of Appeal: Both appellants were unsuccessful. The Court of Appeal considered itself bound by Zamir. Khawaja’s Court of Appeal decision was reported at [1982] 1 WLR 625.
• Divisional Court: Khera’s application for judicial review was dismissed. Khawaja’s application was refused by Forbes J.