R v Home Secretary, Ex parte Khawaja [1984] AC 74

Key points

  • A decision by a public authority will be quashed where an authority has mistakenly evaluated a precedent fact which is essential to determine the authority’s powers
  • Review of precedent facts will not be limited to Wednesbury unreasonableness, it will be a full review by the courts of the evidence on a balance of probabilities

Facts

  • A person will be removed from the UK if he is classified an ‘illegal entrant’ under paragraph 16(2) of Schedule 2 of the Immigration Act 1971
  • Khera had failed to disclose the fact that he was married when he applied to enter the UK, his marriage was only discovered when his wife applied to enter
  • Khawaja married a woman living in the UK who was already married to another man, and concealed that fact when he entered the UK, stating that he had come for a week to visit a cousin
  • The immigration officers determined that both Khawaja and Khera fell within the definition of ‘illegal entrant’ on the basis of fraud due to non-disclosure
  • The appellants sought judicial review for a declaration that they were not ‘illegal entrants’ and to quash the orders of the immigration officers

Issue

  • Was the term ‘illegal entrant’ lawfully construed to include persons who have entered by fraud or deception?
  • Do the courts have jurisdiction to decide whether the decisions that the appellants were illegal entrants were justified and in accordance with the evidence?

Held (House of Lords)

  • Appeal for Khera allowed, appeal for Khawaja dismissed
  • On the available information, the Home Secretary lawfully decided that fraud renders a person an ‘illegal entrant’
  • There was insufficient evidence to prove fraud in the case of Khera, but sufficient evidence to prove fraud in the case of Khawaja

Lord Fraser

Meaning of illegal entrant

  • ‘the expression “illegal entrant” is not limited to persons who have entered the country clandestinely, but that it includes also any person who has obtained leave to enter by practising fraud or deception in contravention of section 26 (1) (c) of the Act of 1971’: p. 96

Error of precedent fact

  • ‘…an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant. That is a “precedent fact” which has to be established. It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief.’: p. 97
  • The applicable standard of proof is ‘balance of probabilities, the degree of probability being proportionate to the nature and gravity of the issue’: p. 97

Lord Scarman

  • The Wednesbury principle (that the courts will not intervene to quash the decision of a statutory authority unless it can be shown that the authority erred in law, was guilty of a breach of natural justice or acted “unreasonably”) cannot extend to interference with ‘liberty’ unless Parliament has unequivocally enacted that it should: [60]
  • ‘…where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied’: [61]
  • In this case it is impossible to imply into the statute words that would take the relevant provision, “out of the ‘precedent fact’ category”: [65]

Commentary