Skip to main content

Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Re K (H) (an infant) [1967] 1 All ER 226

LORD PARKER CJ: The applicant, Abdul Rehman, a native of Pakistan, came to this country in 1961 and settled and engaged in work at Bradford. He left behind, so he says, in West Pakistan his family, said to consist of his wife and five children, one of whom, the eldest, is the infant H K said to have been born in February, 1951. Earlier this year the applicant was minded to visit his family in Pakistan and to bring back to this country H K. With this in view, he forwarded to the office of the High Commission for Pakistan a sworn declaration dated 8 June 1966, in which he gave particulars of H K as being his son and as being 15 years of age, and he undertook to be responsible for the son's maintenance and expenses in coming to and in this country. That declaration was in due course sent to the passport authorities in Rawalpindi, recommending them to issue a passport to H K, subject to verification of his age and of his relationship with the applicant. In due course, on 18 October a passport was issued in Rawalpindi to H K, his date of birth being given as 29 February 1951. In passing, it is to be observed that this was an impossible date as 1951 was not a leap year. The applicant in fact had gone to Pakistan as he intended and on 21 November he and H K arrived by air at London Airport and were interviewed by the immigration authorities.

Before describing what then happened, it is convenient to look at the relevant legislation. By s 2(1) of the Commonwealth Immigrants Act, 1962, it is provided as follows:

subject to the following provisions of this section, an immigration officer may, on the examination under this Part of this Act of any Commonwealth citizen to whom s. 1 of this Act applies who enters or seeks to enter the United Kingdom((a) refuse him admission into the United Kingdom; or (b) admit him into the United Kingdom subject to a condition restricting the period for which he may remain there, with or without conditions for restricting his employment or occupation there.

Pausing there, both the applicant and H K are undoubtedly Commonwealth citizens to whom the Act of 1962 applies and that subsection on its face gives the immigration authorities complete unfettered discretion whether to admit them or not, and whether, if admission is granted, it should be on conditions. Section 2(2) provides as follows:

the power to refuse admission or admit subject to conditions under this section shall not be exercised in the case of any person who satisfies an immigration officer that he (a) is ordinarily resident in the United Kingdom or was so resident at any time within the past two years; or (b) is the child under sixteen years of age, of a Commonwealth citizen who is resident in the United Kingdom.

I have read only the relevant words, but it becomes perfectly clear from what I have read that the applicant could not possibly be refused entry or made the subject of conditions because he was ordinarily resident in the United Kingdom or at any rate was so resident within the past two years. Equally, there was no power to refuse to admit H K or to impose any conditions on his entry, if he satisfied an immigration officer that he was the child of a Commonwealth citizen and was under sixteen years of age. In other words, sub-s (2) is fettering the absolute discretion which there would otherwise be under sub-s (1). Section 3(1) provides that:

the provisions of Part 1 of Sch. 1 to this Act shall have effect with respect to (b) the exercise by immigration officers of their powers of refusal of admission or admission subject to conditions under s. 2 of this Act, and the cancellation, variation and duration of such refusals and conditions.....

To return to the events at London Airport, the applicant and H K were met by Mr Mottram, an immigration officer employed by the Home Office at London Airport. Turning to his affidavit, one finds in para 2 the inception of what happened. He says:

"On Nov. 21, 1966, I was on duty at the immigration control, No. 3 building, when two persons approached my position at the control. They each presented a passport. The elder person had a passport in the name of [the applicant], and the younger in the name of [H.K.]. The older person appeared to have been ordinarily resident in the United Kingdom within the past two years. I saw from the passport of the younger person that he was stated to be the son of [the applicant], that the photograph matched the appearance of the bearer, but the date of birth was expressed to be '29.2.1951'. [Mr. Mottram adds:] I did not at the time notice that this was a non-existent date but my suspicions were aroused because the bearer appeared to be well over the age of fifteen years, that is to say, sixteen years or more."

Having formed that impression, he sent H K along to the port medical officer with a form requiring the officer to estimate the age. According to Mr Mottram, some half an hour later H K returned with this form on which the medical officer had endorsed "seventeen years +. The two third molars of lower jaw are well erupted". Following that, Mr Mottram caused both of them, both the applicant and H K, to be interviewed, and interviewed separately, and for that purpose had an interpreter, in the first instance a Mr Ross and later a Mr Irons. It is quite clear that what happened as a result of these interviews increased Mr Mottram's suspicions. It is unnecessary to go into the details, but at one time he understood that the applicant was saying that the present age of his wife was twenty years. Finally, he referred the matter to the chief immigration officer, Mr Collison.

Mr Collison apparently then took over the conduct of the interviews, and he sets out in his affidavit and there is set out in the affidavit of the interpreter, Mr Irons, the answers which they obtained. It is enough to say that again those answers apparently increased Mr Collison's suspicions. He was surprised at the absence of relatives, bearing in mind that this was a Pakistani family, both saying apparently that there were no uncles, aunts or cousins at all and matters of that sort. In the end, it is quite clear that Mr Collison made up his mind that he was not satisfied by H K or the applicant that H K was under sixteen years of age, and accordingly he caused that information to be conveyed to H K and a formal notice in writing to be served refusing admission. Accordingly, it was on the afternoon or evening of 21 November that a decision refusing admission was made. It is pointed out to me that the notice also stated that he would be removed from the United Kingdom at noon on the following day, 22 November.....

Those are the facts up to the time of the application, and counsel for the applicant submits that in deciding whether or not he is satisfied as to the matter set out in the subsection ( in this case whether he is satisfied that the boy is under sixteen ( an immigration officer is acting in a judicial or quasi-judicial capacity and must conform to the rules of natural justice. Subject to there being due compliance with those rules, counsel admits that the decision of the immigration officer cannot be challenged and that this court should not interfere. He does, however, maintain that the rules of natural justice require that before reaching his decision the immigration officer must give the immigrant an opportunity to satisfy him and if, as in this case, he has formed an impression that the immigrant is sixteen or more, he must give the immigrant an opportunity to remove that impression. He claims that if that opportunity had been given evidence would have been provided such as has been produced before us in these proceedings, which evidence he claims would have satisfied the officer. Having regard to the course which these proceedings have taken, it is unnecessary and I think indeed inadvisable to comment on that further evidence. It is enough to say that there has been produced to us medical evidence, evidence from medical experts, to the effect that the conclusion reached by the port medical officer may not be right or at any rate the grounds on which that report was made are inconclusive. There is also evidence now that there being no births registration in Pakistan the date of birth on the school leaving certificate is generally regarded as some evidence at any rate, if not strong evidence, of the date of birth, and finally there is the evidence of the applicant himself and of friends of his and of the surrounding circumstances which counsel for the applicant would say show that H K is the applicant's son. All this, it is said, if proper inquiries had been made by the immigration officer, would have come to light and would have resulted in the immigration officer being satisfied of the matters in the section. On one thing I myself am quite clear, and that is that even if an immigration officer is required to act judicially or quasi-judicially, he is not under any duty to hold a full-scale inquiry or to adopt judicial process and procedure. The burden here under the Act of 1962 is on the immigrant to satisfy the immigration officer and the provisions of the schedule to which I have referred quite clearly show that it is impossible and therefore not contemplated that an immigration officer should hold any inquiry of that sort.

The court was referred by counsel for the applicant to Shareef v Comrfor Registration of Indian and Pakistani Residents, a decision of the Judicial Committee. It is unnecessary to consider that in any detail, but that was a case where the commissioner of registration of Indian and Pakistani residents was specifically required by the statute to hold an inquiry and specific provision was made for the serving of notices and for hearings. That is a clear case where not only was the commissioner acting judicially or quasi-judicially but also he was required to adopt the judicial processes envisaged by the statute. This, as it seems to me, is a very different case, and I doubt whether it can be said that the immigration authorities are acting in a judicial or quasi-judicial capacity as those terms are generally understood. At the same time, however, I myself think that even if an immigration officer is not acting in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but of acting fairly, and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially. It has sometimes been said that if there is no duty to act judicially or quasi-judicially there is no power in the court whatever to interfere. I observe that in the well-known case of Nakkuda Ali v M F de S Jayaratne, again a decision of the Privy Council, the court were considering this sort of case. There the controller of textiles in Ceylon was empowered to revoke licences where the controller had reasonable grounds to believe that any dealer was unfit to be allowed to continue as a dealer. Those were the words to be considered in that case which are of course different from those in the present case. Lord Radcliffe when giving the advice of the Judicial Committee, however, began by distinguishing that case from Liversidge v Anderson and went on to consider the position of the controller in law. He said ([1951] AC at pp 78, 79.):

"In truth, when he cancels a licence he is not determining a question: he is taking executive action to withdraw a privilege because he believes, and has reasonable grounds to believe, that the holder is unfit to retain it. The power conferred on the controller stands by itself on the bare words of the regulation and, if the mere requirement that the controller must have reasonable grounds of belief is insufficient to oblige him to act judicially, there is nothing else in the context or conditions of his jurisdiction that suggests that he must regulate his action by analogy to judicial rules".

Having come to that decision, Lord Radcliffe then went on in effect to deal with the position if that was wrong, and if the controller was acting in a judicial capacity. Later he said ([1952] AC at pp 81, 82.):

"It is impossible to see in this any departure from natural justice. The respondent had before him ample material that would warrant a belief that the appellant had been instrumental in getting the interpolations made and securing for himself a larger credit at the bank than he was entitled to. Nor did the procedure adopted fail to give the appellant the essentials that justice would require, assuming the respondent to have been under a duty to act judicially".

That might be understood as saying that if there was no duty to act judicially then it would be impossible to interfere, even if the applicant had not been given the essentials that justice requires. I very much doubt however whether it was intended to say any more than that there is no duty to invoke judicial process unless there is a duty to act judicially. I do not understand him to be saying that if there is no duty to act judicially then there is no duty even to be fair. When however that has been said, it seems to me impossible in the present case to say that the decision made on the evening of 21 November was not arrived at, as I put it, fairly. It is impossible to believe other than that both the applicant and H K knew full well of what they had to satisfy the authorities. They were, as it seems to me, given ample opportunity to do so, and the fact that the officer was not satisfied is not, as is admitted, a matter for this court.....