Shah v Attorney General for Kenya and Another (Civil Appeal No. 23 of 1955) [1955] EACA 291 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR ENOCH JENKINS, Justice of Appeal, and BRIGGS, Justice of Appeal.

### KESHAVLAL PUNJA PARBAT SHAH, Appellant

#### $\mathbf{v}$ .

# (1) THE SUPERINTENDENT OF H. M. PRISON, NAIROBI, (2) H. M. ATTORNEY-GENERAL FOR KENYA, Respondents

### Civil Appeal No. 23 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, de Lestang, J., and Harley, Ag. J.)

Immigration—Whether permission to enter Colony to be in writing—Effect on permission to enter Colony given in consequence of innocent representation— Immigration (Control) Ordinance, Cap. 51—Defence (Admission of Women and Children) Regulations, 1940—Immigration Restriction Ordinance (Cap. 62), 1926 Edition of Laws as amended by Ordinance No. 20 of 1930.

A deportation order was made against the appellant as a "prohibited immigrant" within the meaning of the Immigration (Control) Ordinance, and, under it, he was detained by the first-named respondent.

The question for decision was whether the appellant had, in June, 1948, entered Kenya lawfully or unlawfully. If his entry was lawful, he had attained the status of a permanent resident and no deportation order could be made against him, but, if his entry was unlawful, a deportation order could be made against him under which the first-named respondent could lawfully detain him.

The appellant was born in India. His father came to Kenya in 1934 where he had resided ever since. His mother joined his father in 1937, leaving him in in India. In 1947 his parents visited India with their three other children and brought the appellant back with them. The mother, before leaving Kenya had applied for a passport on the standard form, the material part thereof reading: "I hereby apply for a passport for travelling to India and vice versa for the purpose of ... accompanied by my wife (and children under the age of 16) as indicated in the margin, who do not possess separate passports." The whole of this passage with the exception of the words "India and vice versa" were in the standard print of the form. In the space for particulars of the children the required particulars of the four children were correctly stated.

The Immigration Department being temporarily out of passports, the mother was issued with an "emergency certificate" including the four children.

The appellant entered in 1948 and had resided in Kenya ever since. In 1954 a deportation order was made against him and he was detained thereunder.

The objections raised to the appellant's entry were threefold: (1) that the appellant being under the age of 18 years at the time of entry, his entry was governed by the Defence (Admission of Women and Children) Regulations, 1940, but he did not enter in accordance with the provisions of those Regulations; (2) that the said Regulations required that he should have a written entry permit, and he had no such permit and (3) that he was permitted to enter, if at all, only in consequence of a misrepresentation contained in his mother's application for a passport, in that the words quoted above implied that at the time of application he was in the Colony, that this was untrue, but the Immigration Officer or Officers thought it to be true, and the untruth avoided the permit and rendered the entry unauthorized and unlawful.

By section 5 (3) of the Immigration (Control) Ordinance: "Any person who has entered the Colony whether before or after the commencement of this Ordinance who, at any time before the expiration of four years of such entry, is found by the Principal Immigration Officer to have been a prohibited immigrant under the law in force at the time of his entry shall be deemed to have been one at the time of such entry."

Held (7-4-55).-(1) Whilst the aforesaid regulations governed the appellant's entry, they must be read with the Immigration Restriction Ordinance (Cap. 62) then in force, and the appellant lawfully entered Kenya thereunder.

(2) There is no express requirement that permission to enter Kenya shall be given in writing except in the special case where the permission given is conditional, so that as the appellant's entry was unconditional, a written permit was not required by him.

(3) Where permission to enter Kenya is given in consequence of an innocent repre-<br>sentation, it entitles the Immigration Officer to revoke his permission on discovering it, but, in the meantime, the permission remains valid. In the instant case no revocation was possible as the appellant having attained the status of a permanent resident by reason of the completion of five years of lawful residence, was not subject of deportation. The deportation order was, accordingly, unlawfully made and his detention thereunder was unlawful.

Appeal allowed. Order of Supreme Court discharging a rule nisi for habeas corpus set aside.

Cases referred to: Hirji Devchand Ramji v. A. G. E. A. C. A. Civil Appeal 85 of 1954; In the matter of an application for Directions in the nature of habeas corpus by Keshavlal An the match of All Approaches to Directors in the Nature of Match of Sensors of Public Protectors of Public Prosecutions (1946) A. C. 347; Benmax v. Austin Motor Co. (1955) 1. A. E. 326.

### Gledhill for appellant.

Havers for respondents.

JUDGMENT (prepared by BRIGGS, J. A.)—The appellant was born in August, 1934, in India, where his parents then lived. In 1934 his father came to Kenya and has been ordinarily resident here ever since. In 1937 his mother came to Kenya to join his father, and they subsequently had three more children, all<br>born in Kenya. In 1947, they desired to visit India with their three younger children and to bring back with them to Kenya the appellant, then aged about thirteen. The mother applied on the standard form then in use for the issue of a passport. The material part of the form reads:

"I hereby apply for a passport for travelling to *India and vice versa* for the purpose of ... (accompanied by my wife (and children under the age of 16) as indicated in the margin, who do not possess separate passports)."

The whole of this passage is in the standard print of the form, except the words "India and vice versa" which we have italicized. In the margin of the form there is a space for particulars of the children with printed headings as follows: -

"Children under the age of 16 if to be included on this passport: Christian Names. Surname. Date of Birth. Sex

. . . . . . . . . . . . . . . . . . . .

In this space the required particulars of the four children were correctly entered. When the Immigration Officer received the application his department was temporarily out of stock of passport forms. It is conceded that otherwise a passport would have been issued to the mother as requested. Instead, a document called and "emergency certificate" was issued to her. It certifies that the mother has stated that she is a British Protected person and that the Passport Control Officer has no reason to doubt her statement. It continues: "This certificate is valid only for the journey to India and Kenya Colony. Leaving Kenya Colony for India, and to be surrendered to the Immigration Officer at the place of arrival in Kenya." At the foot, after the signature of the issuing authority, there is a note headed "Children" and followed by the names, ages and sexes of the four children. The document is dated 28th October, 1947. On the back there is an endorsement as follows:

> "Kenya Defence Regs.—1940. Re-entry permit to Kenya Colony. No. M 164. Name.—Mrs. Manibhai and four children. Passport No. 682/47. Nationality.—British."

This is signed by the Immigration Officer, Nairobi, and dated 30th October, 1947. Also on the back appears the stamp of the Immigration Office, Mombasa, with initials of the officer concerned, and the date 17th June, 1948. The parents and three younger children went to India after issue of this document and returned with the appellant, arriving on 17th June, 1948. The document was surrendered to the Immigration Officer and has been produced by this department from their records. The appellant has resided continuously in Kenya since that time. On 28th October, 1954, the Acting Chief Secretary made a deportation order against the appellant under powers delegated by His Excellency the Governor. See Government Notice No. 1252 of 1954, dated 21st August, 1954. The appellant was arrested and delivered to prison custody and was detained in Nairobi Prison as from 4th November, 1954, in pursuance and under the authority of that deportation order. Since that date there have been various legal proceedings, the object of which was to test the legality of the deportation order and to obtain the release of the appellant if it was unlawful. It may be useful to describe these in a. summarized form:-

- 15-11-54—Ex parte application under section 388 of the Criminal Procedure Code for directions in the nature of habeas corpus filed on the criminal side of the Supreme Court (Misc. Criminal Case No. 19<sup>th</sup>) of $1954$ ). - 15-11-54—Order nisi thereon. - 22-11-54—Hearing inter partes. C. A. V. - 25-11-54—Order discharging the order *nisi*. - 1-12-54—Notice of appeal (Cr. App. No. 996 of 1954). - 7-1-55—Appeal record filed. - 20-1-55—Appeal heard. C. A. V. - 28-1-55—Appeal dismissed on a preliminary point as incompetent. - 28-1-55—Ex parte application for habeas corpus filed on the civil side of the Supreme Court (Misc. Civil Application No. 2 of 1955). - 29-1-55—Order nisi thereon. - 1-2-55—Hearing inter partes: order discharging the order nisi on the grounds of want of jurisdiction. - 2-2-55—Notice of appeal. - 7-2-55—Appeal record filed (Civ. App. No. 10 of 1955). - 9-3-55—Appeal heard by a Court of five judges and allowed: application remitted to the Supreme Court to be heard on the merits.

12-3-55—Order discharging the order *nisi* on the merits.

18-3-55—Notice of appeal.

22-3-55—Record filed. (Civ. App. No. 23 of 1955.)

24-3-55—Appeal part heard and adjourned.

25-3-55—Appeal heard and allowed. Order that appellant be released.

We frequently have to complain of delays in litigation, and it certainly is most unfortunate that the appellant should have spent so long in prison, but we think the dates and short particulars given suffice to show that the matter has been conducted by Mr. Gledhill with outstanding expedition. The two previous judgments of this Court make it clear that the abortive proceedings on the criminal side of the Supreme Court were in no way due to his fault, but to an erroneous refusal by the Supreme Court to entertain habeas corpus proceedings on the civil side, which was in turn due to an old decision of this Court which has now been held to be of no authority. We are unable to think of any means by which the release of the appellant could have been effected more expeditiously than it has. It is improbable that bail could lawfully have been given, and, if it had, habeas corpus proceedings would have been impossible. In that event protracted proceedings for a declaration or for the issue of a prerogative writ would probably have been necessary. The Court and the appellant are alike indebted to Mr. Gledhill for his most able conduct of these involved and difficult proceedings.

The issue before the Supreme Court and this Court was in form simple. Did the appellant enter the Colony lawfully or unlawfully in June, 1948? It was common ground that, if his entry was lawful, he has now achieved the status of a permanent resident and no deportation order could be made against him; but, if his entry was unlawful, the deportation order was properly made and his detention under it was lawful. The order recites that he is a "prohibited immigrant within the meaning of the Immigration (Control) Ordinance", but does not explain why. It is made under section 9 of the Ordinance (Cap. 51). Section 9 (1) is as follows:-

"The Governor may make an order directing that any prohibited immigrant or any person whose presence within the Colony is, under the provisions of this Ordinance, unlawful, shall be deported from and remain out of the Colony, either indefinitely or for a time to be specified in the order."

Under section 5 (1), paragraph $(h)$ , a prohibited immigrant does not include any permanent resident, but includes "any person whose presence in or entry into the Colony is, or at the time of his entry was, unlawful under this or any other Ordinance or law for the time being in force". Sub-sections (2) and (3) of section 5 may also be important. They read: $-$

$(2)$ The burden of proof that any person is not a prohibited immigrant shall lie upon that person.

(3) Any person who has entered the Colony whether before or after the commencement of this Ordinance who, at any time before the expiration of four years of such entry, is found by the Principal Immigration Officer to have been a prohibited immigrant under the law in force at the time of his entry shall be deemed to have been one at the time of such entry."

The objections raised to the appellant's entry are three:-

(i) He was then under 18 years of age and at that time the entry of any such person was governed by the Defence (Admission of Women and Children) Regulations, 1940 (hereinafter called "the Regulations), but he did not enter under or in accordance with the provisions of the Regulations.

- (ii) The Regulations required that he should have a written entry permit, and he had no such nermit. - (iii) He was permitted to enter, if at all, only in consequence of a misrepresentation contained in his mother's application for a passport, in that the words quoted above implied that at the time of application the appellant was in the Colony. This was untrue, but the Immigration Officer or Officers concerned believed it to be true, and the untruth avoided the permit and rendered the entry unauthorized and unlawful.

Before dealing with these objections it is necessary to refer to a different point. It seems clear that at one time the Immigration Department believed either that the appellant was not the lawful and natural son of his parents, or that he was masquerading as some other person. They persistently referred to him in the deportation order and in the affidavits by his own name with the *alias* "Keshavlal Karamshi Lakha", a name which he does not use, and has never used, and which is not his. It is conceded now that this is the case, and that the identity and parentage of the appellant are as stated above. But this point may serve to explain the general attitude of the Government towards this case, an attitude which might otherwise appear surprising.

Some other minor points may be cleared up. It is correct that the Regulations governed the appellant's entry, but they refer to, and must be read with, the Ordinance then in force, the Immigration Restriction Ordinance (Cap. 62), in the 1926 Edition of the Laws, as amended by Ordinance No. 20 of 1930. The present Ordinance only came into force on 1st August, 1948, after the appellant's entry. Another point concerns the "re-entry permit" endorsed on the emergency certificate. There was no statutory authority for the issue of re-entry permits, and this must be considered as a purely administrative document, issued for the joint convenience of the holder and the department. Its effect will be considered later. It should also be made clear that the Defence Regulations, 1940, properly so called, do not themselves in any way deal with immigration, but there are other regulations, such as the Defence (Immigration) Regulations, 1940, which do. It seems that the heading of the re-entry permit was probably intended to refer to the Regulations applicable in this case and also to those other special regulations in a short and comprehensive manner.

The first objection, that the appellant did not enter under the Regulations, can be dealt with very shortly. He could enter lawfully only under those Regulations, and not otherwise. Prima facie he did enter under the Regulations, and the suggestion that he did not is really based only on the special matters raised in objections (ii) and (iii). The second objection is in our view based on a series of misapprehensions. There is no express requirement in the Ordinance or the Regulations that permission to enter shall be given in writing, except in the special case where the permission is conditional. The provisions of regulations 4 and 5 strongly suggest that the omission in the case of unconditional permission to enter was deliberate. The operative words "may permit... to enter" in regulation 3 do not carry any suggestion of a written permission. If a written permit were required in any such case, it would be required in all, and one is faced with the position that a detachment of several hundred members of the women's services of the Navy, Army or Air Force might arrive in a convoy and all require separate written permits to enter. Counsel for the respondents sought to escape this by proposing a mass permit for them; but there is certainly no authority for anything of this kind, and we cannot believe that such a practice ever obtained. The whole submission that a written permit was necessary for legal entry appears to spring from a passage in the affidavit of Mr. Pearce, a Senior Immigration Officer. He exhibits a document taken from an old file and avers

that a document of this type was issued as an entry permit under the Regulations to every person entering thereunder. Mr. Pearce was not in the department at the material date, and makes this statement only to the best of his knowledge and belief, based on later experience and the perusal of old records. We think his belief is quite ill-founded. The document is in the following form: -

"I have the honour to acknowledge receipt of your letter No. ........ dated 30th September, 1946, and to inform you that there will be no objection under the Defence (Admission of Women and Children) Regulations, 1940, to the entry into Kenya Colony of your son, Mr. Hansraj Nemchand Shah, provided he is under 18 years of age and complies with the provisions of the Immigration Restriction Ordinance and its amendments."

It should be obvious to anyone, unless he confuses a department's administrative decisions and practices with the express requirements of the statutes which the department administers, that this letter does not even purport to be an entry permit. It was merely an assurance that at the time of writing there was no already known objection to the entry, which would prevent permission to enter from being given in due course. This was no doubt a very valuable document for an intending entrant to hold and produce to the Immigration Officer, who had to decide whether or not to permit him to enter. It would allay the officer's doubts on many points which had to be considered, for example, whether the entrant was the child of parents normally residing or employed in Kenya; but it could not satisfy him as to age at the time of entry, or as to the freedom of the entrant from many of the special disqualifications laid down by section 5 of the Ordinance. On these points only the Immigration Officer at the time and place of intended entry could possibly form a proper decision. It was his duty, and no one else's, to decide then and there whether or not to permit entry. A document of this kind is not an entry permit, and no written permit to enter was in law required in this particular case, since the permission to enter was unconditional. It was never suggested that the appellant evaded the Immigration authorities. It is in evidence that he passed the Immigration officer with his family at Mombasa on 17th June, 1948, and was allowed by him to enter. The surrender of the emergency certificate and the Mombasa office stamp demonstrate the truth of this. No further formality was required for entry under the regulations. It may be observed that the Immigration authorities have not always, as it seems, been under the misapprehension that a written entry permit was required in all cases. Rules made under the old Ordinance prescribe a form of permit for use where permission to enter is conditional, but make no provision for a form where permission is unconditional. This was presumably thought to be unnecessary, as indeed it was. There is no substance in the second objection.

As regards the third objection, we refer again to Mr. Pearce's affidavit. He refers to the mother's application for a passport and says: -

"5. Such declaration made by the said Manibai was a misrepresentation as it purported to declare that the four children of the said Manibai whose names were contained in the said declaration were present and resident in the Colony.

6. I verily believe that because of such misrepresentation the Immigration Officer issued to the said Manibai the Emergency Certificate Exhibit "p.1" endorsed with a re-entry permit for herself and four children. The reason for such belief is that from knowledge acquired by me in the course of my duty I know it to be the practice that where an application for a passport is received by the Immigration Officer that it is accepted that the children named thereon are in the Colony."

This is in substance the argument put before us, but it is reinforced by reference to certain remarks printed on the back of the passport application form, and particularly to one which reads: —

"9. A passport cannot be issued by the Passport Control Officer on behalf of any person not at the time being in the Colony and Protectorate of Kenya. Passports are not forwarded by post outside the Colony and Protectorate."

We think it was probably originally intended to contend for the respondents that the application was deliberately fraudulent, perhaps on the ground that the appellant was not her son. Now, however, no such suggestion is made. It is conceded that, if there was misrepresentation, it was innocent and honest. There is no word of actual untruth in the application, but it is said that it is misleading. The learned Judges of the Supreme Court held that it was, de Lestang, J., said: -

"I am clearly of the opinion, however, that in the absence of any qualifying words the sentence in Manibai's application for a passport, 'I hereby apply for a passport for travelling to India and vice versa for the purpose of (blank), accompanied by my children under the age of sixteen years as indicated in the margin who do not possess a separate passport', suggests that the children whose names are given would be travelling to India with their mother and therefore were in the Colony when she made the application."

Harley, Ag. J., adopted this reasoning, though evidently with some hesitation. We are unable to accept it.

We think in the first place that we are entitled to take judicial notice of the normal practice regarding issue and use of passports. The Kenya form of application is practically identical with that used by the Foreign Office in England, and so far as we are aware in all other countries where British passports can be issued. Passports are issued, not for a specific journey or journeys, but for unlimited and general travel within specified areas. It is now customary to issue them valid for travel in extensive areas, even if those areas are not specified in the application. Words such as "Countries for which this passport is valid—British Commonwealth, all countries in Europe including the Union of Soviet Socialist Republics and Turkey" are commonly found printed in the form of passport. A passport issued to a husband and covering his wife may be used by the husband for travelling alone, and a passport issued to a parent in such form as to include several children under sixteen years of age may be used by the parent to travel with all, some, or none of those children. This is elementary, but it is also fundamental in this case, for it is essential to consider, "What, in effect, was the mother asking for when she filled up the application form, and what did she say in order to get it?" She was not asking for an emergency certificate to allow her to travel once to India and once back to Kenya, in each case accompanied by four children. She was asking for a general document which would cover an unlimited number of journeys to and from India in accordance with ordinary passport practice, that is to say, permitting her to travel alone, or with one, two, three or four named children, as and when she might feel inclined. Her application form must be considered in relation to its real purpose and if, in that context and relation, it is misleading, it may well be held to contain a misrepresentation. It cannot, however, be construed in the light of consequences which it was never intended to produce. It is conceded that, had it not been for the accident that no forms were available, a passport would have been issued to her in terms of her application. She could then have used it in the extended way we have described. Could it then be said that the application had contained a misrepresentation?

It is submitted that, if the mother had paid due attention to Passport Regulation 9 quoted above, she would have known that she was asking for something which she could not have; but the passport she wanted would have been issued to her, not to the children, and she was in the Colony. There was no need to send it by post out of the Colony. We do not think it can fairly be said that she was asking for something which was not permitted—much less that she should have known it. Indeed, we are by no means persuaded that the passport office would, if they had known the full facts, have refused to issue a passport covering the appellant, had the necessary passport form been aavilable. They might have so refused, but we cannot see why they should.

This form of application for a passport has been in use, substantially unchanged, for very many years. It is legitimate for an applicant nowadays to assume that the form asks for all the information the authorities require. If the addresses of children to be included are material, the form should be amended so as to require them to be stated. In the absence of any indication that those addresses are material, it is a little unreasonable to suggest that they are material, and highly unreasonable to suggest that an applicant should know that. When Mr. Pearce says it is the practice in his department to assume that children named in an application are in the Colony, one can only reply that, if he is right, the practice is wholly unjustified and should be discontinued, if the whereabouts of the children is for any purpose material. If that is the case, the form should be altered, and the applicant should be asked to give the information, instead of the Department making a mere guess.

We accept that in this case the Department did make a guess, and an incorrect guess. We should not necessarily so conclude from the emergency certificate alone, but the re-entry permit seems to be conclusive. No separate application was ever made for re-entry permits. They were apparently endorsed as a matter of routine, and we are prepared to accept that the permit to the appellant was given in the mistaken belief that he was in Kenya. It does not, however, at all follow that the mistake was due to any misrepresentation by the mother. We think it was the result of an unfounded assumption for which she was in no way to blame. It is said that the appellant entered the Colony under the authority of the re-entry permit, and it is probable that the Immigration Officer at Mombasa did rely on it to some extent; but it was not conclusive and the decision to permit entry was his decision. We find it impossible to say that the decision was due to any misrepresentation by the mother.

There is, however, another ground on which we think the deportation order should be held unlawful. We have held in Hirji Devchand Ramji v. A. G., Civil Appeal No. 85 of 1954 (unreported), that, where permission to enter was given in consequence of a fraudulent misrepresentation, the fraud rendered the permission a nullity and the entry was unlawful ab *initio*. It is true that the judgment speaks only of "material" and not of "fraudulent" misrepresentation, but there clearly was fraud and the court never had to consider the issue of innocent misrepresentation. Assuming that there was here an innocent misrepresentation, and (as was conceded) that the mother was the appellant's agent and he must bear the consequences $\quad\text{ of }\quad$ the misrepresentation, if any, we think the position may well be different. There was no fraud and permission to enter was in fact given. The innocent misrepresentation would on principle entitle the Immigration Officer to revoke his permission on discovering it, but in the meantime it seems to us that it was a valid permission until revoked. It was not, so far as we can ascertain, revoked in terms at any time before the deportation order was signed and, assuming that the order itself was a revocation, we think it came too late, for by that time the appellant had completed five years of lawful residence, i.e. residence in consequence of a lawful permission to enter, and had thus achieved the status of a experiment resident, against whom, as we have said, no deportation order can be made. The theory that a permission to enter, given in consequence of innocent. misrepresentation, is valid, though revocable, finds support in section 5 $(3)$ of the 1948 Ordinance, which seems to contemplate an entry initially believed to be lawful, but later found to be unlawful. It may be that that section applies directly to a case like this and provides that, in the absence of fraud, a four-year period of residence cures defects, or at least that they are not to be pursued to the logical consequence of revocation if that period has elapsed. If that is the correct interpretation of the section it appears to be consonant with justice and good sense. If a man has been a good citizen of Kenya for some years he should not be deprived of his rights of permanent residence, whether matured or almost matured, merely because of a late-discovered, and perhaps purely technical, objection to the manner of his original entry.

We think the deportation order was in the circumstances unlawfully made. and is a nullity. In consequence the appellant was unlawfully detained in prison. The order of the Supreme Court discharging the rule nisi for habeas corpus was erroneous and must be set aside. The appellant should have been, and now has been, set at liberty under it. The respondents must pay the appellant's costs of this appeal and of the application to the Supreme Court at all stages.