Wadhera v Principal Immigration Officer (Civil Appeal No. 35 of 1953) [1954] EACA 113 (1 January 1954)

#### $\cdot$ 113 $\cdot$

### APPELLATE CIVIL

Before BOURKE, J.

## SOHAN LAL WADHERA, Appellant

#### ν.

# THE PRINCIPAL IMMIGRATION OFFICER. Respondent

## Civil Appeal No. 35 of 1953

Immigration (Control) Ordinance (Cap. 51)-Section 7 (1) Class A and (3)-Appeal against decision of Principal Immigration Officer refusing entry permit—Section 5 (1) $(f)$ —Appellant a prohibited immigrant—Section 2 (1) (b) (c)—Whether appellant a permanent resident—Immigration (Control) Regulations—Regulation 3 (1) $(c)$ —Whether appellant entitled to be issued with a certificate of permanent residence.

In 1945, the appellant was convicted of sedition. In 1946, he left Kenya for India, showing on the official form for emigration particulars that he was completing a holiday visit to Kenya. Since his departure the appellant had not returned to Kenya. In September, 1946, under the law then in force, he was declared a prohibited immigrant. After the coming into force of the Immigration (Control) Ordinance, 1948, the Principal Immigration Officer, acting under the provisions of section 5 (1) $(f)$ , deemed the appellant to be a prohibited immigrant and his re-entry permit was cancelled. This decision was confirmed by the Governor in Council on 25th October, 1948. On 13th August, 1947, the appellant's home in India was destroyed in rioting and he was evacuated to Delhi. On 6th August, 1948, the appellant wrote to the Chief Secretary asking for a temporary permit to visit the Colony to settle his affairs. This was refused. On 22nd June, 1953, the appellant applied for an entry permit in terms of section 7 (1) Class A on the grounds that he was a permanent resident. The application was refused by the Principal Immigration Officer, the appellant being deemed to be a prohibited immigrant. The appellant appealed on the ground that section 5 of the Ordinance, which provides for persons deemed to be prohibited immigrants, could not apply to him since expressly it does not apply to "permanent residents". The appeal was decided upon the issues of whether or not the appellant was a "permanent resident" or $\hat{a}$ "person entitled to be issued with a certificate of permanent residence".

*Held* $(24-2-54)$ .—(1) The appellant was not a "permanent resident" in the sense of being a person who permanently resides in the Colony within the meaning of section 2 (1) (b) of the Ordinance.

(2) The appellant, never having made any application to the Principal Immigration<br>Officer and never having set out to satisfy that Officer as to periods of lawful residence in pursuance of any such application, had not complied with the provisions of regulation 3 (1) (c) of the regulations. Even on the material before the Court, the appellant could not satisfy the requirements of the regulation.

The appeal was dismissed.

Chanan Singh for appellant.

Gledhill for respondent.

JUDGMENT.—This is an appeal brought under section $7$ (3) of the Immigration (Control) Ordinance (Cap. 51), the appellant "being aggrieved by a decision refusing him an entry permit" under Class A of sub-section (1) of the same

section. Any person, other than a prohibited immigrant, satisfying the prescribed authority that he possesses the qualifications required for Class A is entitled to a permit to enter the Colony. On 22nd June, 1953, the appellant applied through his advocates for such entry permit on the ground that he was a "permanent resident" of the Colony. By a letter of 23rd June, 1953, the appellant was informed that the application could not be entertained in view of the fact that he was a prohibited immigrant under section 5 (1) $(f)$ of the Ordinance. The Principal Immigration Officer had under that sub-section deemed him to be an undesirable immigrant and on 25th October, 1948, the Governor in Council confirmed this decision. The submission put forward by Mr. Chanan Singh on behalf of the appellant is that he is a "permanent resident" under two heads as defined under section 2 (1) (b) and (c) in that he is "a person who resides permanently in the Colony" and also is a person "who is entitled to be issued with a certificate of permanent residence" issued under the provisions of regulation 3 (1) (c) of the Immigration (Control) Regulations. Accordingly, it is contended that section 5 of the Ordinance, which provides for persons who are prohibited immigrants, could not be employed in the case of the appellant since expressly it does not apply to "permanent residents". The action taken in respect of the appellant making him a prohibited immigrant under sub-section $(1)$ $(f)$ of the section was therefore illegal and wrong so that he is not precluded from benefiting by the provisions of section 7 (1) to obtain an entry permit under Class A (i) as being a "permanent" resident". Having some doubts, I raised the question whether any right of appeal under section 7 (3) would lie in an instance of this sort where the Principal Immigration Officer has apparently not come to a decision on the merits refusing an entry permit, but on the face of it has simply declined to entertain the application at all on the ground that section 7 could not apply to the appellant as he was a prohibited immigrant. The advocates on both sides, however, take the view that in effect there is a decision that the appellant is not a permanent resident within section 7 (1) Class A (i) and is entitled to have the matter tested on appeal; I am not prepared to differ.

It appears that the appellant was born in 1918 in India and came to Kenya in August, 1939. At the end of 1945 or early in 1946 he was convicted for the offence of sedition and served four months' imprisonment. About the middle of 1946 he left Kenya for India and indicated on the official form for emigration particulars regarding the conditions under which he was leaving East Africa, that he was completing a holdiay visit. He now says that this was a mistake due to hurry in completing the form and that he should instead have stated that he was leaving temporarily. I would think that in an important matter of this kind it is unlikely that a person would make any such mistake. Since his departure in 1946 the appellant has not been in the Colony. In September, 1946, he was declared a prohibited immigrant under the law then in force and his re-entry permit was cancelled. Under the Immigration (Control) Ordinance of 1948 he became in October of that year a prohibited immigrant under section 5 (1) $(f)$ . The appellant has maintained no place of residence in the Colony and in his application for an entry permit states that he will reside "at some hotel, until I secure permanent accommodation". By a letter of 6th August, 1948, the appellant approached the Chief Secretary stating that he was a director of Messrs. Holmes & Co. and wished to settle his business affairs, for which purpose he sought the grant of a temporary permit for three months for the purpose of visiting the Colony. He makes no suggestion that he is entitled to any rights as a permanent resident of the Colony. The appellant now says that in so applying he never intended to abandon a right to re-entry on a permanent basis but had every intention of fighting on "against my being declared a prohibited immigrant for ever".

I have considered all that is before me and I am certainly not prepared to conclude that the appellant is a "permanent resident" in the sense of being "a person who permanently resides in the Colony" within paragraph $(b)$ of section 2 (1) of the Ordinance. It is then argued that under paragraph $(c)$ of the same subsection the appellant is a "permanent resident" within the Ordinance in that he "is<br>entitled to be issued with a certificate of permanent residence" under regulation 3. (1) (c) of the Immigration (Control) Regulations which reads: -

"3. (1) Each of the following persons shall be entitled on application to the Principal Immigration Officer, to have endorsed on his passport by the Principal Immigration Officer a certificate of permanent residence, namely-

- (c) A person who satisfied the Principal Immigration Officer that, within $\frac{1}{2}$ a period of eight years immediately preceding the date of his application he has been lawfully resident in the Colony for a period in the aggregate of five years. - Provided that— - (i) Residence in the Colony by reason of service or employment under sub-section (2) of section 6 of the Ordinance; - (ii) Previous residence in the Colony by virtue of service or employment of any person who is deemed to be seeking to enter the Colony under sub-section (2) of section 7 of the Ordinance; and - (iii) Any period spent in prison or as an internee or a prisoner of war... shall not be included in the aggregate, unless in respect of (i) such person enlisted or was appointed whilst residing permanently or temporarily in the Colony or, in respect of (ii) unless the Principal Immigration Officer in his discretion permits such service or employment to be included."

I quote also the relevant portion of section 2 (1) of the Ordinance— $\frac{1}{2}$

"2 (1) In this Ordinance, unless the context otherwise requires-"permanent resident" means-

(c) A person who is in possession of a valid, or is entitled to be issued with a, certificate of permanent residence issued under the provisions of any regulations made under this Ordinance."

There is no dispute that the appellant has never made any application to the Principal Immigration Officer under the regulation and has never set out to satisfy this officer as to periods of lawful residence in pursuance of any application under the regulation. It is submitted that it is sufficient if the appellant now satisfies this Court of the existence of circumstances required under paragraph $(c)$ of the regulation; it is a question, as it is put, of "entitlement" as distinct from the actual possession of a valid certificate duly endorsed on a passport in pursuance of an application satisfying the Principal Immigration Officer. I think there is much in this, but though I am prepared to go so far with the appellant I cannot see on the material afforded that the appellant would be entitled to be issued with the certificate. If an application were now to be regarded as having been made it is evident, and is not in dispute, that the appellant cannot satisfy the requirements of paragraph $(c)$ of the regulation. It is argued that one should go back to 25th October, 1948, when the appellant became a prohibited immigrant under section 5 (1) (f) and consider the matter as if at that time an application for a certificate of permanent residence fell to be adjudicated upon. I do not think that one can properly approach the question in that way; but even if the opposite view should in correctness prevail, I would not be satisfied on the evidence that the requirements of regulation 3 (1) (c) had been fulfilled.

The appeal is dismissed with costs.

f