18 August 1979: Second class justice for immigrants

Since we launched The Spectator Archive, the most read piece has been the first ever published article by one Anthony Blair in 1979, before he switched to the more informal Tony. Here, the future Labour Prime Minister examines how immigrants were unfairly treated by the British justice system. Reportedly, the article was only printed because Blair was turned down from the New Statesman. Many thanks to @JohnRentoul for digging up this article.

Last week's case of the Patel children, three Indian boys who were deported from England on Tuesday after delay, and ministerial embarrassment, emphasised the uncertainty and ambiguity which surround the status of immigrants in this country. In fact, the experience of the Patels was by no means an unusual one — and the working, of the Immigration Act can have even more severe consequences, as the Hassan family discovered to their cost.

They were asleep in their Birmingham home, where they had lived for 4.5. years when they were woken by knocking. Mr Hassan went downstairs and opened the door to find three men on his doorstep. They told him they were immigration officers and had come for his eldest child, Mohammed, 18 years old. They wanted to interview him. The boy was given time to dress and then taken immediately to Birmingham airport. He was put in a room and interviewed for two hours. His English was still not good, and the questions were complex: he required the asistance of an interpreter. The immigration officers put it to him that he was not the son of Mr Hassan, but someone quite different and had masqueraded as his son to obtain entry to the United Kingdom in 1973. They told him they were acting on information given to them by informants. They revealed nothing more. They asked questions about his family, his background and relations with the Hassan family, both here and in Pakistan. He denied impersonating anybody.

They were not satisfied with his answers. They detained him under the Immigration Act 1971. After conducting detailed inquiries they declared him an illegal entrant. He was then deported. Apart from an interview six months earlier, this was the only chance he got to convince the officers that he was indeed who he said he was. There was no proper trial, not even an informal hearing. The immigration officers were acting on the say-so of informants. Who were they? The couldn't say. There was not even a lawyer present to help stand between the officers and the 18-year-old. On this basis, he was uprooted from his work (he had obtained work in a local factory), his home and his country of residence for 4.5 years and sent back to find his own way in Pakistan. In effect, he was returned not by process of law but by administrative act.

This case is not exceptional. It is the staple diet of an immigration lawyer. This and cases like it are the offspring of a curious and rather disturbing decision by Home Office and the courts to use, or rather abuse, the Immigration Act 1971. The result has been to strip a certain class of entrants to the United Kingdom of even the fairly minimal rights to which the law entitled them. There are now probably some several hundred entrants who have been removed from the United Kingdom on this way.

How is it that a country, priding itself on its tradition of civil rights, can now arrange that a man is deported without even a hearing? The answer lies, in fact, with the Immigration Act itself and the part played in its interpretation by the executive and the judiciary. This Act governs the law relating to all immigrants to the United Kingdom. But its most ambiguous elements concern only one type of immigrant — the entrant. An entrant is someone who has entered the United Kingdom but does not have United Kingdom citizenship. The rules governing his rights are a monument to obscurity. But his real problem is to be found in the in the Schedules to the Act rather than in the main of it. And it is is only by a convoluted paperchase through these Schedules that one sees how the Home Secretary comes to have this power to remove entrants by administrative act.

The only part of the Act dealing with detention and removal by administrative act (i.e. rather than through the courts) is Schedule 2. Schedule 2 allows immigration officers to detain 'illegal entrants.' These are persons about to enter or who have entered without leave of an immigration officer. The officers are empowered to order a ship or a plane upon which an illegal has entered to take him back again. If this is not practical, then the Home Secretary may make arrangements for removal. The introductory words to the immigration officers' powers say: 'Where a person arriving in the United Kingdom is refused leave to enter...'. These words, and the power of the immigration officers and the Home Secretary, suggest the Act had in mind the use of the power of removal by administrative act, in a case in which illegal  entry is spotted upon arrival — and not, as with the case of Hassan and many others, after the entrant has been in the country for many years.

Further support for this interpretation is to be found in the Act itself: removal by administrative act is not in fact the only method of deportation or removal. To be an illegal entrant is, by section 24 of the Act, also a criminal offence. A person found guilty of being an illegal entrant may be recommended for deportation by the court and removed by the Home Secretary. It has been said on numerous occasions that this penalty should follow a finding that an entrant is an illegal entrant. But, of course, to secure a criminal conviction, there would have to be a criminal trial. That would mean a hearing, with witnesses being called and the entrant being given an opportunity to give evidence and persuade an objective court of his innocence. This would be a much more appropriate method of dealing with an entrant who has made his home here, and who is being expelled on the information of informants, but a more problematical one for the Home Office. So for people like Hassan, the Home Office has deliberately avoided the use of the criminal procedure. It detains and removes them by administrative act and the entrants are never allowed before 'a court.

Is there no way, then, that the Home Office decision can be impugned? In fact there is, or more accurately there was: the remedy of 'habeas corpus'. This is the name given to the ancient writ issuing from the Crown on behalf of an imprisoned person of any kind or description. It demands that the person or body detaining a man justify his detention. It has always been the cornerstone of liberty in English law. There are two rules which attach to it. First, the person detaining must show that he has the right to detain; the burden of proof is on him, not the detainee. Second, the court will itself try the facts of the case.

At first, when the Home Office began to remove illegal entrants on the grounds of impersonation, it doubted if habeas corpus applied. The Court of Appeal held in 1974 that it did apply. Indeed any argument to the contrary would have been insupportable by authority. However, habeas corpus posed a great problem to the Home Office. For it would necessitate a fair hearing, a hearing at which the Home Office would have to prove that the entrant was an illegal entrant, just as it would have to do to secure a conviction in a criminal court.

There thus was fashioned, to circumvent this obstacle, what can only be described as the most extraordinary traduction of legal principle to achieve a political end. Starting with the case of Hussain in 1976, the Divisional Court led by Lord Widgery, and then the Court of Appeal, revised, without one iota of support from precedent or statute, both rules of habeas corpus. First they concocted, plucked out of thin legal air, this startling new principle; if the Home Secretary has reasonable grounds for believing an entrant is an impersonator,, the court will not inquire further into the matter of the allegation and see if, in fact, he is.

Thus in immigration law, though in no other field of habeas corpus, the court is not , concerned with the truth of the facts but with the reasonableness of the Home Secretary's belief. As any administrative lawyer knows, for the executive to show reasonable grounds for a belief is not difficult, In Hassan's case, the stories of informants and some conflicting answers in the interview room were enough. But, in fact, not only is there no warrant in the law of habeas corpus for this new concept, there is no warrant for it in the 1971 Immigration Act either. The statute does not talk of grounds: it allows detention if the entrant is illegal, not if he is believed to be. Nonetheless reversing one rule of habeas corpus wasn't enough. So the courts als,o held that the burden of proof is on the detainee, the entrant. He thus has to prove that the belief of the Home Secretary is one no reasonable Home Secretary could hold, an almost impossible burden to discharge.

Thus, with this whimsical sleight of hand, the central question — is the entrant who he says he is — is washed to the side. Attention is instead focused on the quite irrelevant question of how reasonable the belief of the Home Office is.

The predicament of the entrant can be seen by a glance at the case of Hassan. He, like any detainee, sought his writ of habeas corpus. However, due to the reversal of the court of the rules of habeas corpus, the remedy of a person in the position of Hassan was of little use. He produced 13 affidavits to show he was who he said he was. His father, his cousins, friends, even persons back in Pakistan all swore that he was who he claimed to be. His employer even asked for his release. He produced a passport, descriptions by friends and specimens of his writing. Nonetheless the Home Office view prevailed. Not once could Hassan or his father appear in court to convince it of his innocence. Not once was he or his lawyer permitted to test the evidence of 'informants.'

Earlier this year, two applications for leave to appeal to the House of Lords on the very question of the decisions of the Court of Appeal were refused. Entrants like Hassan are thus without a remedy — apart from one, and this is by way of an appeal to an Adjudicator under the 1971 Act. There is just one slight difficulty. An entrant has to be deported first before he can appeal. Even then, he can't attend the hearing, which may be conducted in writing. For all practical purposes, when the allegation is one of impersonation, the remedy is useless. How many entrants are being deported in this way is difficult to say: certainly hundreds.

If the proposal of the Conservative Party to keep a register of immigrants is enacted, it will bestow second-class citizenship on all entrants to the United Kingdom. One group of these, however, already have that status. For the pettiest crime in the kingdom, with the lowest penalty known to the law, no man can be convicted without a trial in open court. An entrant alleged to be illegal can be deported from his home, his family and his work without so much as a hearing.