Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration officer to submit to examination. Under ss 2 and 3 (1) (b) of the Act and para 2 of Sch 1, the immigration officer then had power, within 12 hours after the examination, to give notice refusing the Commonwealth citizen admission into the United Kingdom or admitting him subject to conditions. If the immigration officer refused admission, he could under s 3 (1) (c) of the Act and para 3 of Sch 1 give directions for the removal of the Commonwealth citizen from the United Kingdom. Also if the Commonwealth citizen, having been refused admission, entered the United Kingdom, he was under s 4 of the Act guilty of an offence which continued while he was in the United Kingdom and under s 14 he was liable on summary conviction to be fined, or imprisoned. The six months limitation under s 104 of the Magistrates’ Courts Act 1952 would not operate to bar a prosecution because the offence was continuing. He could, therefore, be prosecuted at any time while he remained in the United Kingdom, and, if he was convicted and recommended by the court for deportation under s 7 of the 1962 Act, a deportation order could be made by the Secretary of State under s 9. Thus, in the case of a person who had been refused admission, even if the time for giving directions for removal had passed by, there might still be a prosecution and conviction leading to deportation. In the case of a person admitted subject to conditions, if he remained in the United Kingdom in breach of a condition, there was (apart from the special provisions of Part II of Sch 1 relative to seamen and stowaways) no power for the immigration officer to give directions for removal of such a person, but he could be prosecuted at any time under ss 4 and 14 for the continuing offence, and if he was convicted and recommended by the court for deportation under s 7 a deportation order could be made by the Secretary of State under s 9.
Lord Diplock said: ‘Under our system of Parliamentary government what Parliament enacts are not policies but means for giving effect to policies. Those means often involve imposing on private citizens fresh obligations or restrictions on their liberties to which they were not previously subject at common law. The constitutional function of the courts in relation to enacted law is limited to interpreting and applying it. It is the duty of the judge to ascertain what are the means which Parliament has enacted by the Act. In construing the enacting words he may take account of what the Act discloses as the purpose that those means were intended to achieve and, in the case of ambiguity alone, he may interpret them in the sense in which they are more likely to promote than hinder its achievement. But it is no function of a judge to add to the means which Parliament has enacted in derogation of rights which citizens previously enjoyed at common law, because he thinks that the particular case in which he has to apply the Act demonstrates that those means are not adequate to achieve what he conceives to be the policy of the Act.
To do so is not to carry out the intention of Parliament but to usurp its functions. The choice of means is itself part of the Parliamentary choice of policy. It represents the price, by way of deprivation of freedom to do or not to do as they wish, which Parliament is prepared to exact from individual citizens, to promote those objects to which the Act is directed. To raise the price is to change the policy – not to give effect to it. If the policy is to be changed it is for Parliament not the courts to change it – as Parliament has in fact changed the policy of the Commonwealth Immigrants Act 1962, by the amending Act of 1968 which makes it an offence for Commonwealth citizens to do what the respondent did in 1967. This is what Parliament has also done in numerous Finance Acts which have followed on decisions of your Lordships’ House in cases which have brought to light inadequacies in the enacted means of raising public revenue. In each of those cases the method adopted by the taxpayer of avoiding the incidence of taxation involved concerted action with at least one other person, and the decisions of your Lordships’ House in them are irreconcilable with the proposition for which the prosecution contends in the instant appeal.’ Lord Diplock spoke of ‘the common law rights of British subjects . . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm.’
Lord Diplock
[1970] 3 All ER 97, [1972] AC 60, [1970] 3 WLR 501, 54 Cr App Rep 460, 134 JP 622
Commonwealth Immigrants Act 1962 3
England and Wales
Cited by:
Cited – South Wales Electricity Plc v The Director General of Electricity Supply ChD 22-Oct-1999
An electricity company which also operated also as a water supplier did not have the power to issue coin operated meters which were capable of metering and charging for both electricity and water supplies. The words allowing the company to install . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.183188
