• In the case of R v Home Secretary ex parte Khawaja [1984] ac 74 tomorrow, the court will overturn a decision of a public body where that public body has made an error when evaluating a precedent fact which is key to concluding their powers.
  • Such a review will not only be attributed to the application of the Wednesbury unreasonableness test. Rather, the court will seek to undertake a full review of the evidence on the circumstances on a balance of probabilities

Facts of the Case

  • C was married when they applied to come to the UK but failed to inform the authorities of this fact.
  • C’s marriage was evidenced when C’s wife applied to come to the UK.
  • Under Paragraph 16(2) of Schedule 2 of the Immigration Act 1971, any person who is deemed as an ‘illegal entrant’ will be removed from the UK.
  • The immigration authorities concluded that Cs were categorised as ‘illegal entrants’ under the Act on the ground of fraud because of non-disclosure of their marital circumstances.
  • Cs applied for judicial review to conclude that they should not be categorised at ‘illegal entrants’ and sought to overturn the immigration authority’s orders.

Issues

  • Did the immigration authority correctly interpret the term ‘illegal entrant’ which should include individuals entering the UK by fraud or deception?
  • Does the court have jurisdiction to conclude whether the immigration authority’s decision that Cs were ‘illegal entrants’ is justified and compatible with the available evidence of Cs’ circumstances?

Held by the House of Lords

  • For one of the Cs, the claim for appeal was allowed, whereas it was dismissed for the other. The House of Lords found that the Home Secretary correctly concluded based on the law that fraud can categorise an individual as an ‘illegal entrant.’

Lord Fraser

  • His Lordship interpreted the meaning of an ‘illegal entrant’ and one who entered the UK through the act of fraud or deceptive behaviour which contravenes section 26(1)(c)of the Act.
  • “… an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virture 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.” [97]

Lord Scarman

  • Lord Scarman emphasised that the applicability of the Wednesbury unreasonableness principle cannot extend to infer ‘liberty’ unless Parliament explicitly enact that it should.
  • “…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]

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