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Yogeshkumar Shantilal Rajput v. Immigration Appeal Tribunal

Publisher United Kingdom: Court of Appeal (England and Wales)
Author Court of Appeal (Civil Division)
Publication Date 26 January 1989
Cite as Yogeshkumar Shantilal Rajput v. Immigration Appeal Tribunal , United Kingdom: Court of Appeal (England and Wales), 26 January 1989, available at: http://www.refworld.org/docid/3ae6b6898.html [accessed 25 December 2014]
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Yogeshkumar Shantilal Rajput v Immigration Appeal Tribunal

Court of Appeal (Civil Division)

[1989] 2 FLR 200, [1989] Imm AR 350

Hearing Date: 26 January 1989

26 January 1989

Index Terms:

Husband -- application for admission for settlement -- primary purpose rule -- whether the rule is ultra vires the 1971 Act -- whether so unreasonable that it should be struck down. Immigration Act 1971 ss 1(1), 1(2), 1(4), 3(1) (as amended), 3(2): HC 169 paras 41, 54, 126.

Marriage -- primary purpose -- concession at hearing that parties intended to live together -- concession recorded by adjudicator -- adjudicator subsequently failed to refer to quality of the marriage in weighing the evidence -- whether his determination fatally flawed. HC 169 paras 54(a), 54(b).

Held:

Appeal from McNeill J who had dismissed an application for judicial review of the refusal by the Tribunal to grant leave to appeal from the dismissal by an adjudicator of the appeal by Yogeshkumar Rajput against the refusal of the entry clearance officer to grant him entry clearance as the husband of a British citizen settled in the United Kingdom. Before McNeill J it had been argued that the provisions of paragraph 54(a) of HC 169 were ultra vires the enabling power in the 1971 Act or, alternatively, the rule was so unreasonable that it should be struck down. It had also been argued that the adjudicator's approach to the evaluation of the evidence had not been in accordance with the guidelines laid down in Kumar and Hoque & Singh.

These arguments were repeated before the Court of Appeal. The rule it was submitted was selective, divisive and unfair: it was very difficult to prove a negative and the rule was uncertain.

Held:

1. The Court accepted that it had the power, following Kruse v Johnson to declare ultra vires a rule if it were so unreasonable and/or so uncertain that the Court considered that Parliament could never have intended it should have been made.

2. On reviewing paragraph 54 of HC 169 the Court concluded that it was not ultra vires the enabling power of the 1971 Act.

3. On an examination of the adjudicator's determination it could not be said that he had misdirected himself in law.

Cases referred to in the Judgment:

Kruse v Johnson [1898] 2 QB 91: [1895-9] All ER 105.

Vinod Bhatia v Immigration Appeal Tribunal [1985] Imm AR 50. R v Immigration Appeal Tribunal ex parte Arun Kumar [1986] Imm AR 446.

Immigration Appeal Tribunal v Amirul Hoque & Matwinder Singh [1988] Imm AR 216. R v Immigration Appeal Tribunal ex parte Yogeshkumar Rajput (unreported, QBD, 22 March 1988)

Counsel:

A Collins QC and A Riza for the appellant; D Pannick for the respondent

PANEL: Sir Stephen Brown, President, Glidewell, Nicholls LJJ

Judgment By-1: SIR STEPHEN BROWN (P)

Judgment One:

SIR STEPHEN BROWN (P): This is an appeal from the decision of McNeill J of 22 March last year, 1988, when he dismissed Mr Rajput's application for judicial review of the refusal of the Immigration Appeal Tribunal to grant him leave to appeal from the decision of an adjudicator of 21 March 1986 dismissing his appeal against an entry clearance officer's refusal to grant him leave to enter the United Kingdom on 28 March 1984.

The appeal involves further consideration of rule 54 of the statement of Changes in Immigration Rules House of Commons Paper 169 laid before Parliament on 9 February 1983 under section 3(2) of the Immigration Act 1971. The rule provides as follows:

"The husband of a woman who is settled in the United Kingdom, or who is on the same occasion being admitted for settlement, is to be admitted if he holds a current entry clearance granted to him for that purpose. An entry clearance will be refused unless the entry clearance officer is satisfied:

(a) that the marriage was not entered into primarily to obtain admission to the United Kingdom: and

(b) that each of the parties has the intention of living permanently with the other as his or her spouse: and

(c) that the parties to the marriage have met.

Where the entry clearance officer is satisfied that all the conditions at (a) to (c) above apply, an entry clearance will be issued provided that the wife is a British citizen."

The wife of this appellant is in fact a person who has the right of abode in the United Kingdom.

It is convenient to say that similar considerations arise in relation to rule 41 which deals with the position of fiancés -- that is to say, a man seeking to enter the United Kingdom for marriage to a woman settled here and who intends himself to settle thereafter, and also in relation to rule 126 which deals with the situation of a man admitted in a temporary capacity who marries a woman settled here.

The chronology of events giving rise to the proceedings leading to this appeal is as follows. The appellant is a native of India, having been born in India on 12 January 1961. He does not have a right of abode in the United Kingdom. His wife was born in Leicester on 8 October 1964. She has a right of abode in the United Kingdom. On 2 January 1983 her parents took her to India for the purpose of finding a husband, and on 21 January 1983 she was married to the appellant in Bombay. He immediately applied for an entry clearance certificate to enter the United Kingdom. His wife returned to the United Kingdom on 27 February 1983. In due course she sent a sponsorship declaration on 24 June 1983, and on 31 August 1983 the appellant was interviewed by an entry clearance officer in India. The interview was conducted in English by the entry clearance officer through a Gujerati interpreter. The appellant's dialect is Gujerati.

The entry clearance officer refused entry clearance on 28 March 1984 upon the ground that he was not satisfied within the terms of rule 54(a) that the marriage was not entered into primarily to obtain admission to the United Kingdom. It was and is explicitly accepted that the requirements of subparagraphs (b) and (c) of rule 54 were established by the appellant.

The appellant appealed to an adjudicator and on 21 March 1986 the adjudicator, sitting in Birmingham, dismissed his appeal. The appellant then sought leave to appeal from that decision to the Immigration Appeal Tribunal, but the Tribunal refused leave to appeal stating that no point of law arose for consideration. The appellant then sought leave to move for judicial review of the refusal of the Immigration Appeal Tribunal to grant him leave to appeal. He was granted leave to move by Russell J on 11 November 1986, and on 22 March 1988 McNeill J heard the substantive application for judicial review. He dismissed the application. The appellant then gave notice of appeal to this court. The grounds of appeal stated in the notice of appeal are:

"1. That the learned Judge erred in law in holding that paragraph 54(a) of HC 169 was not ultra vires the Immigration Act 1971. It is submitted that rule 54(a) is partial and unequal in its operation, is manifestly unjust and involves an outrageous interference with the rights of those subject to it: see Kruse v Johnson [1898] 2 QB 91 per Lord Russell CJ at page 99. In the premises, it is so outrageous that it is possible to say that Parliament never intended to authorise the making of such a rule.

2. In particular, it is submitted that, quite apart from the rule being so unreasonable as to be ultra vires section 3(2) of the Act, it is also so unreasonable that it cannot be said to be a rule that could be 'lawfully imposed on any person' in accordance with section 1(1) of the Act.

3. Alternatively, that the learned Judge erred in law in holding that the adjudicator's decision was in accordance with the guidelines given by the Master of the Rolls, Sir John Donaldson (as he then was), in R v Immigration Appeal Tribunal ex parte Arun Kumar (1986) Imm AR 446."

At the hearing of this appeal Mr Andrew Collins QC who appears with Mr Riza for the appellant takes two substantive points. Firstly, he submits that rule 54(a) is ultra vires the Immigration Act 1971. He argues that it is so uncertain in its operation and so prejudicial in its effect and operation that this court ought to hold that Parliament could never have intended the rule to be made under the authority of the Immigration Act 1971.

Secondly, he submits that if the court should consider nevertheless that the rule is intra vires the Act, then the adjudicator misdirected himself, and the learned judge was at fault in not so ruling, in his approach to the application of rule 54(a) and in his evaluation of the evidence before him.

House of Commons Paper 169 was issued by the Secretary of State under the authority of section 3(2) of the Immigration Act 1971. Mr Andrew Collins helpfully reminded the court of the context in which the immigration provisions of the Act and the various House of Commons Papers have developed. It is appropriate first to refer to the general principle stated in section 1(1) of the Immigration Act 1971. I read the subsection:

"All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person."

Subsection (2):

"Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain)."

Subsection (4) provides:

"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependents of persons lawfully in or entering the United Kingdom."

Section 3(1) as amended by the British Nationality Act 1981 provides:

"Except as otherwise provided by or under this Act, where a person is not a British Citizen --

(a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;

(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period".

Subsection (2) of section 3 provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).

"If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."

As I have already stated, House of Commons Paper 169 which contains the relevant rule 54 was laid before the House of Commons on 9 February 1983 under the provisions of that section and was not made the subject of a resolution as provided for in subsection (2) of section 3. It therefore has the implicit authority of Parliament in the sense that no resolution was passed negativing the rule or seeking to alter it.

The provisions and effect of rule 54(a) or its equivalents have been considered by this court on at least three previous occasions which are the subject of reported decisions of this court. On none of those occasions was it suggested that rule 54(a) could be regarded as ultra vires the Act. Mr Andrew Collins who appeared in at least one of them -- indicated with his customary frankness that the ultra vires point now being taken in this case results from the researches of his learned junior who is, if I may be allowed to say so, very experienced in this class of case.

The effect of rule 54 was considered first of all in the case of Bhatia which is reported in [1985] Imm AR 50. In point of fact the actual rule before the court on that occasion was rule 41 of House of Commons Paper 169, but it is accepted that for all material purposes it is the same as rule 54. On that occasion O'Connor LJ, giving the leading judgment of the court, said at page 52:

"In my judgment the wording of the rule is straightforward and clear. The rule presumes that it is the primary purpose of the intended marriage to obtain admission of the applicant to the United Kingdom. It is for the applicant to satisfy the entry clearance officer on a balance of probabilities that this is not so. In considering the application, the entry clearance officer is not limited to such evidence as the applicant may put before him, but is entitled to make enquiries of his own and test such evidence as the applicant chooses to put forward."

The next occasion when the rule or its equivalent came to be considered by the court was in the case of R v Immigration Appeal Tribunal, ex parte Arun Kumar [1986] Imm AR 446. On that occasion Mr Andrew Collins and Mr Riza both appeared for the applicant. The first judgment was given by Nourse LJ who analysed the rule and the provisions of the three subparagraphs. He referred to the case of Bhatia and to the passage in the judgment of O'Connor LJ to which

I have just referred. On page 450 he said:

"One point which arises out of this passage can be briefly disposed of. It is perhaps a little misleading to say that the rule 'presumes' that it is the primary purpose of the intended marriage to obtain admission of the applicant to the United Kingdom. All that it does is to place him under the burden of satisfying the entry clearance officer on the balance of probabilities that that and the other requirements of the rule are duly satisfied. I am in no doubt that that is all that this court intended to decide in that case."

The Master of the Rolls also delivered a judgment which has been referred to by Mr Collins in making his submissions to this court. A passage in the judgment which appears at page 454 was highlighted by Mr Collins. Sir John Donaldson MR said:

"In my judgment the adjudicator seriously misdirected himself in compartmentalising the questions which he had to ask himself under paragraphs (a) and (b). They are, of course, separate questions. A marriage entered into without thought of entry to the United Kingdom and so undoubtedly satisfying the requirement of paragraph (a) may be on the point of breaking up and so fail to satisfy that of paragraph (b). And a couple may theoretically decide to marry primarily in order to enable the husband to gain a right of entry into the United Kingdom, whilst at the same time concluding that if they were to be married for this purpose, they might as well live together permanently. In such a case paragraph (b) would be satisfied, but not paragraph (a). That said, evidence bearing on one question will often cast a flood of light on the other. Again the adjudicator was right to say that under the rules a marriage primarily entered into in order to obtain admission to the United Kingdom would still retain its non-qualifying character whatever happened afterwards and even if the husband applied for entry on their Golden Wedding Day. For my part I do not think that any violence would be done to this country's immigration policy if entry clearance officers put out of their minds the theoretical possibility that a marriage which at the time of application is, on the evidence, undoubtedly a very genuine and soundly based marriage could, at its inception some time before, have had a different character. Yet this appears to be what the Adjudicator has failed to do in this case."

The next occasion upon which the rule or its equivalent was considered by this court was in the case of The Immigration Appeal Tribunal v Hoque [1988] Imm AR 216. This was heard together with The Immigration Appeal Tribunal v Matwinder Singh, and both cases raised the same principal points. The significance of this decision is that in his judgment Slade LJ formulated a number of propositions having heard detailed argument from counsel as to the effect of the judgments of this court in the cases of Bhatia and Kumar. At page 220 Slade LJ said:

"In the course of argument, we have had the benefit of very careful and detailed arguments from counsel as to the effect of the judgments of this court in Bhatia and Kumar. However, save as to one important sentence from the judgment of Sir John Donaldson MR in Kumar, no challenge has been made as to the correctness of any part of the judgments in these two cases. It is common ground that the expression of opinion in that one sentence was obiter. The effect of the Bhatia decision was itself subjected to detailed analysis by Nourse LJ in Kumar. Both decisions are binding on us.

"We shall begin by listing a series of propositions of law which we think are clearly to be derived from one or both of those decisions and then proceed to make various comments on the one sentence from the judgment of the Master of the Rolls in Kumar which has given rise to the principal debate on these appeals. These propositions are as follows:"

and he then set out ten propositions. Because the court was hearing appeals relating both to rule 41, and to rule 54 a number of the propositions were in effect duplicated. In formulating proposition 2 Slade LJ said:

". . . under rule 54 the onus falls on the applicant to satisfy the entry clearance officer on the balance of probabilities that, at the time when the marriage took place, its primary purpose was not to obtain admission to the United Kingdom and that the other requirements of the rule are duly satisfied: . . .

3. 'In considering the application . . . the entry clearance officer is not limited to such evidence as the applicant may put before him, but is entitled to make enquiries of his own and test such evidence as the applicant chooses to put forward': . . .

4. In considering the application . . . 'it is the intention of the applicant's side which is the central consideration': . . . However, in assessing the purposes of the marriage, the intentions of both parties will be relevant; so, too, in cases where the marriage is one which has been arranged, by parents or others, will be their reasons for arranging the marriage: . . ."

Propositions 5 and 6 go together:

"The mere fact that an applicant can satisfy the requirement of . . . (b) does not by itself suffice to enable him to satisfy the requirement of paragraph (a), (in either rule 41 or 54). 'Just as no-one would suggest that (c) is conclusive of (a), so I am clear that (b) is not conclusive of (a)':"

A reference to the case of Bhatia at page 54 is included in the judgment.

Proposition 7 was:

"However, in the case of both rules 41 and 54, 'paragraphs (b) and (c) spell out matters which will in any event be relevant to the proper consideration of paragraph (a). To that extent an applicant who satisfies the entry clearance officer of the requirements of (b) and (c) is better placed to satisfy him of (a)': . . . 'If that is true of paragraph 41, it must be still more true of paragraph 54, where evidence of intervening devotion to each other may make it easier to satisfy the entry clearance officer that the parties' primary purpose in entering into the marriage was not the extraneous purpose at which sub-paragraph (a) is aimed'."

A reference to the judgment of Sir John Donaldson, MR, in Kumar at page 455 was then made:

"'Evidence bearing on one question will often cast a flood of light on the other'".

Proposition 8 dealt with arranged marriages which I need not read in full. Proposition 9 was:

"The very fact that an applicant is applying for entry under rules 41 or 54 usually presupposes that he intends to settle in the United Kingdom with his wife after the marriage or when he has received entry clearance, as the case may be."

The court also stated in proposition 10:

"Though Bhatia was concerned primarily with rule 41 and Kumar with rule 54, we think that the propositions set out above relating to rule 54 must apply equally to rule 126 with the substitution of references to rules 126(a) and 126(f) for reference to rules 54(a) and 54(b)."

As I have already pointed out, in none of those cases was a submission made that the rule itself which was stated to be clear and concise, was ultra vires the Act. Mr Collins' submission today as was Mr Riza's submission before McNeill J, is that it is ultra vires. His contention is that it is so unclear and/or unreasonable and uncertain that this court ought to take the view that parliament could not have intended that the rule should be made in such terms under the Immigration Act 1971. Mr Collins developed an interesting argument upon that basis. He pointed to the fact that it was difficult if not impossible to conceive of a person marrying a British spouse and wishing to live in the United Kingdom actually succeeding in discharging the burden of proving that settlement in the United Kingdom was not a primary purpose of the marriage since the onus of proof is laid by the rule upon the applicant. Mr Collins argued that the immigration officer or entry clearance officer, as the case may be, could within the terms of the rule always decide that he is "not satisfied" by reason merely of the fact of the proposed settlement. In those circumstances, submits Mr Collins, it would not be possible safely to contract any marriage having regard to the provisions of the rule. He submits that this is particularly the case in the context of the facts of this case where the wife had been born in England and intended to continue to live in England and wanted her husband to live with her in England. Therefore, submitted Mr Collins, the effect of the rule is to lead to the break-up of family life since by its very terms it would be likely to prevent spouses living together. That of itself, he submitted, is clearly contrary to the public policy which seeks to uphold the state of matrimony. Accordingly, he says any rule which seeks to exclude partners to genuine marriages must of itself be considered to be unreasonable. In this case there was no challenge on subparagraphs (b) and (c). It was conceded for the purposes of the appeal to the adjudicator and to the learned judge and to this court that (b) and (c) were in fact satisfied and established. The sole contest lay in the application of subparagraph (a) of rule 54.

It is, he submits, selective, divisive and unfair because it is clearly aimed at those who come from the third world. In the historical context it is designed to deal with the problems arising from so-called "marriages of convenience". Such marriages were and are principally related to countries in the third world. Therefore, he argues, the rule offends the principle that a policy of immigration control should be applied in such a manner as to achieve both consistency and fairness between one person and another. He emphasised the point that it was in itself unfair to require an applicant to prove a negative -- always a difficult undertaking.

In the light of all these matters, he submitted that there was a clear potentiality of unfairness and of arbitrary application of the rule. It is so uncertain in its application and so unfair that it ought to be struck down as being ultra vires. It is not disputed that if the court should conclude that Parliament could not have intended to authorise rule 54(a) to be made in the terms in which it has been made, then the rule can be considered to be ultra vires.

In the notice of appeal and before the learned judge and this court the argument began with a reference to the leading case of Kruse v Johnson [1898] 2 QB 91. That case was concerned with the application of a by-law, not with "delegated legislation" as such. However the principle involved was the same. It has come to be known as the "Wednesbury principle". The court clearly took the view (it was a five-judge Divisional Court presided over by Lord Russell of Killowen LCJ) that if it considered that the by-law was of such a character as to be unreasonable in the context which I have indicated, it could be struck down as being ultra vires.

At the same time it is to be observed that The Lord Chief Justice said:

"In this class of case it is right that the Courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable exercise to the public disadvantage. But, when the court is called upon to consider the by-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered."

It is a matter for consideration whether that approach should perhaps be applied more positively in cases of delegated legislation, or where rules are made under the authority of a statute which requires them to be laid before a House of Parliament. However that may be, it is clear that this court does have power to hold that a rule made under the authority of this statute is capable of being ruled ultra vires if it is so unreasonable and/or so uncertain that the court considers that Parliament could never have intended that it should have been made.

The argument on vires was strongly opposed by counsel for the Secretary of State. He submitted that section 3(2) of the Immigration Act 1971 was framed in the widest possible terms; that Parliament left the matters to be considered under the Act to the Minister and gave him the widest possible authority. He submitted that upon careful examination rule 54(a) advanced what he described as a "logical policy". It could only apply in cases where the immigration officer or entry clearance officer was considering whether marriage of itself was the primary purpose of the applicant and whether he could be satisfied that entry into the United Kingdom was not the primary purpose of the applicant. Mr Pannick argued that no degree of uncertainty was evident in the terms of this rule. He referred in particular to the so-called "guidelines" in the "propositions" formulated in the case of Hoque. He contended that it is clear from those guidelines that there is no lack of certainty in the terms of the rule or in the manner of its application. If the guidelines are followed on the basis of Slade LJ's ten propositions, then there is clear certainty. In any event, he argued that the suggestion that the rule was not clear as to the manner of its application should be viewed in the context of the fact that there is a statutory right of appeal in cases where an immigration or entry clearance officer has refused entry pursuant to rule 54(a). The right of appeal is to an independent adjudicator. As to the point made that the burden of proof is placed upon the applicant, the respondent's counsel drew attention to the passage in the judgment of Nourse LJ in Kumar in the middle of page 450 which set out in clear terms the effect of the rule.

It had been argued by Mr Collins that the unreasonableness of the rule and its unfairness should also be considered in relation to its impact upon a wife who is a citizen with the right of abode in the United Kingdom. Its effect was to prevent her from bringing into the country her husband with whom she had contracted a genuine marriage. That was he said a serious manifestation of unfairness.

Mr Collins had further argued that there was what amounted in practice to a permanent bar upon the applicant and his wife once the ruling had been made under rule 54(a). The respondent in answer to those arguments said there was no question of preventing the parties living together but only of preventing them from living together in England. However inconvenient that might be it could not be regarded as an interference of the kind which was being suggested on their married life as such. Also he did not accept that the argument of a permanent bar should be a practical consideration. So the question is: has the applicant (the appellant in this court) shown that this rule is so uncertain, unclear and unfair that the view should be taken that Parliament could never have intended that it should be made in these terms under the authority of the Immigration Act 1971? For my part I am quite clear that the appellant has not established that. I am not prepared to hold that the rule is ultra vires. It is an ingenious argument. It is, as I have said, interesting to note that although consideration of this rule has been before this court on at least three previous occasions it has not previously been advanced. However, this court has now been able to consider it with care and in the light of very detailed and helpful arguments. In my judgment that ground of appeal fails.

The second ground pursued by Mr Collins is that in this case the adjudicator misdirected himself in the hearing of the appeal in coming to his decision. Before McNeill J there was very detailed reference to his decision and this court has read the decision in its entirety, although not all of the decision has in fact been referred to in the course of argument. The operative part of the decision is to be found in the adjudicator's conclusions. At page 47 of the bundle before the court (page 6 of the decision which he delivered) having reviewed the evidence which he had heard which included that of the appellant's wife (the sponsor), members of her family and others, and consideration of the entry clearance officer's notes of his interview with the applicant himself, the adjudicator said:

"Carefully considering all the evidence in this case on the balance of probabilities and bearing in mind the guidelines of . . . Bhatia I come to the following conclusions.

"In favour of the appellant is that there has been no previous attempt to enter the United Kingdom. He only took out his passport after the interview. The parties are of the same caste and the sponsor's two sisters . . . have already married Indian boys of the same caste whom they brought to the United

Kingdom. Also in favour of (the applicant) is that he has a reasonable job as a solicitors clerk."

He referred then to the maternal aunt of the applicant and said:

". . . but the sponsor and appellant are not related. There is the conflict as to how long Maniben has known the sponsor's family, she says 20 years. The sponsor's mother says 2-4 years. Be that as it may. In any event there is no history of inter-marriage between the two families as envisaged by (the case of) . . . Bhatia."

Then he went on:

"Against the (applicant) is the fact that he admits that his wife made a condition that he should go to the United Kingdom with her. He also admits that it was a 'major part' of his decision in marrying this girl that he could go to the United Kingdom and life would be better in the United Kingdom if he went there. I assess the sponsor and her father as less than frank in parts of their evidence. It was motivated at times by expediency. Despite the present denials, it is clear to me that the sponsor did make a pre-condition of the marriage that the boy should come to live in the United Kingdom. That being so the place of residence was for her more important than the marriage itself, for if marriage itself had been the primary purpose then she would have gone to India and lived with him there.

"I have to take into account the intention of all the parties though of course it is intention of the appellant himself which is paramount. His major intention in the marriage was to go to England."

He then went on to refer to various meanings of "major" in the dictionaries and continued:

"The essential consideration for the appellant is the chance to gain entry to the United Kingdom and to better himself. If marriage alone had been his intention it would have been fulfilled by simply marrying and living with his bride in India. The points in favour of the appellant are outweighed by those against him. At the end of the day I am not satisfied that his marriage was not entered into primarily to obtain admission to the United Kingdom. The decision of the Entry Clearance Officer was correct and in accordance with the immigration laws and rules applicable."

In the course of hearing the evidence the adjudicator had been referred to the entry clearance officer's notes of his interview with the applicant. The relevant part of the notes was referred to by the adjudicator at page 44, page 3 of his decision:

"The appellant now denies in his written reply saying this", said the adjudicator, "but the Entry Clearance Officer's notes read: 'Q. Why not call wife to live in India with you -- you have a job? A. Wife had made a condition that she would take him to the United Kingdom'",

and the adjudicator went on:

"In spite of the denials of the sponsor and appellant it is clear to me that the sponsor had made residence in the United Kingdom a pre-condition of the marriage. That is obvious from her answers when asked what would happen if the appellant would not come to the United Kingdom to live with her."

He then referred to further answers at page 45, page 4 of his decision:

"When the appellant was asked by the entry clearance officer" said the adjudicator, "'You married this girl so you could go to the United Kingdom?' the appellant answered 'Was a major part but I also liked her. Also my life would be better in the United Kingdom if I went there'." And the adjudicator continued -- "That seems an honest answer of the appellant's intentions but currently hotly denied now that the damaging character of his reply has become apparent. I reject the appellant's denials and prefer the entry clearance officer's notes. That officer has no axe to grind."

It is quite clear that it was that passage in the entry clearance officer's notes which was the principal evidence leading the entry clearance officer to register his refusal to grant leave to enter, and which also in due course led the adjudicator to his decision.

The appellant has argued that in any event the adjudicator was wrong to place such reliance on those noted answers because (1) the adjudicator did not have the advantage of hearing the entry clearance officer himself who was in India, and (2) the answers had been given through a Gujerati interpreter, and the appellant had indicated in a letter to his solicitors which was put before the adjudicator that there may have been some misunderstanding of his replies by the interpreter; he did not allege bad faith on the part of the entry clearance officer.

So, says Mr Collins, (1) the adjudicator placed too much reliance upon those reported questions and answers, and (2) he relied but should not have relied at all upon the wife's allegedly making it a condition that he, the appellant, should go to the United Kingdom after marrying her. Mr Collins submits that the adjudicator therefore wrongly approached his consideration of subparagraph (a) of rule 54. He merely paid lip-service, says Mr Collins, to the true test when in the final paragraph of his decision he said ". . . of course it is the intention of the appellant himself which is paramount. His major intention in the marriage was to go to England." The decision, submits Mr Collins, is flawed upon that basis, and this court should allow an appeal from the learned judge who heard the motion for judicial review and order that the matter should go back to the Immigration Tribunal. The effect of the decision of the adjudicator is endorsed and upheld by the respondent in his argument to this court. Mr Pannick submits that the points made by Mr Collins are not valid when considering the real effect of the adjudicator's decision. He claimed that there was clear evidence upon which the adjudicator could have come to the conclusion that the appellant had said -- and clearly said -- that his major intention in entering into the marriage was to go to England. If that was so it was evidence upon which the entry clearance officer was bound to act. Mr Pannick further argued that it was not wrong of the adjudicator to refer to the intention of the wife to live in England. It was relevant in the context of assessing the credit of the wife herself because she went back on that matter in her evidence. The adjudicator expressed the view that her evidence and that of her father was less than frank in parts, motivated at times by expediency. As to interpretation, the respondent says that those letters and the very point made upon them were in fact before the adjudicator. Essentially however his decision reveals a close attention to all the relevant facts. The decision upon the vital matter was clearly open to the adjudicator upon the evidence before him.

For my part, I have come to the conclusion that no fault can be attributed to the adjudicator in this matter for the manner in which he approached his decision. I agree with McNeill J that the adjudicator appears to have approached his task carefully and independently and to have reached a decision upon evidence which clearly entitled him to come to his conclusion. Accordingly the second limb of the appeal also fails in my judgment. I would dismiss this appeal.

Judgment Two:

GLIDEWELL LJ: I agree with my Lord, the President, that the appeal should be dismissed for the reasons he gives. I have nothing to add on Mr Collins' argument that the provisions of paragraph 54(a) of House of Commons Paper 169 go further than or are just outside the powers of the Immigration Act 1971.

There is, however, one additional comment I think it right to make on the second argument, namely that based on the assumption that paragraph 54(a) is intra vires.

Under the rules contained in earlier House of Commons Papers the provisions which are now contained in paragraphs 54(a) and (b) of HC 169, or since the relevant date for the purposes of this appeal paragraph 46 of HC 503, were to be found in one phrase in paragraph 47 of HC 238. That read:

"The husband of a woman who has settled in the United Kingdom . . . is to be admitted if he holds a current entry clearance granted to him for that purpose, and entry clearance will be refused if the officer to whom application is made has reason to believe that the marriage is one of convenience entered into primarily to obtain admission here with no intention that the parties should live together permanently as man and wife, or that one of the parties no longer has any intention of living with the other as his or her spouse."

The division into separate subparagraphs was introduced in paragraph 50 of HC 394 which had effect from 1 March 1980. It must be assumed, in my view, that both the Secretary of State when he deliberately made that division at that time and Parliament when it did not strike it down intended that the two subparagraphs should be separated and should have separate effect.

The problem which arises in this case stems partly from the conclusion of the adjudicator that paragraph 54(a) was not satisfied when it was conceded in the argument before him that paragraph 54(b) was satisfied -- that is to say, it was conceded that it had been shown that each of the parties had the intention of living permanently with the other as his or her spouse. In the propositions which he so clearly set out in the decision of this court in Immigration Appeal Tribunal v Hoque and Singh [1988] Imm AR 216 Slade LJ said in a passage my Lord has already read from the seventh proposition:

". . . in the case of both rules 41 and 54, 'paragraphs (b) and (c) spell out matters which will in any event be relevant to the proper consideration of paragraph (a). To that extent an applicant who satisfies the entry clearance officer of the requirements of (b) and (c) is better placed to satisfy him of

(a)'".

That latter passage is a quotation from O'Connor LJ's judgment in Bhatia, and then another quotation:

"'If that is true of paragraph 41, it must be still more true of paragraph 54, where evidence of intervening devotion to each other may make it easier to satisfy the entry clearance officer that the parties' primary purpose in entering into the marriage was not the extraneous purpose at which subparagraph (a) is aimed'" --

a quotation from Nourse LJ in Kumar, and finally:

"'Evidence bearing on one question will often cast a flood of light on the other'"

-- a quotation from Sir John Donaldson, Master of the Rolls, also in Kumar.

Now the adjudicator, as I have said, records in his decision at page 43 of the bundle (page 2 of his decision) that it was conceded before him that subparagraph (b) was satisfied. At the conclusion of his decision in the passage my Lord has already read he set out or listed the points he was taking into account in favour of the appellant, and those he was taking into account against the appellant. Mr Collins points out that in the list of points in favour of the appellant at that state of his decision the adjudicator did not list the fact that it was conceded that subparagraph (b) of paragraph 54 was met. Mr Collins submits that this can only be because the adjudicator failed improperly to take this important, indeed he would argue vital, factor into account.

It seems to me however that the probable reason for that is to be found embodied in the adjudicator's decision itself because at page 44 he gave consideration to the question whether or not the wife intended to live in India if the husband could not gain entry into the United Kingdom. He said, again to read the passage to some of which my Lord has referred, at page 44 (page 3 of the adjudicator's decision):

"In spite of the denials of the sponsor and appellant it is clear to me that the sponsor (that is the wife) had made residence in the United Kingdom a pre-condition of the marriage. That is obvious from her answers when asked what would happen if the appellant would not come to the United Kingdom to live with her. She said she would continue to appeal. When asked 'Suppose he cannot come at the end?', her reply was 'No. I wouldn't go to him'. Narini (the wife) denied in cross examination that she had told Shantilal (the husband) she wouldn't come to India. That rings untrue in my view of her strongly asserted statement in chief 'I won't go to India to live with him'. Further confirmation of the conditional nature of the marriage is shown in paragraph 3 when Narini was interviewed by the Immigration Officer in the United Kingdom. She said she did not enjoy the weather in India and had no intention of settling there."

The adjudicator did not say that in his view despite the concession that had been made subparagraph (b) of paragraph 54 was not satisfied. We must continue to approach the appeal on the basis of the concession that it was. Nevertheless in view of the finding I have just read it seems to me that inevitably the concession became of much less weight or significance. It is for that reason in my view that the adjudicator, having made it clear earlier in his decision that the concession had been made, nevertheless did not think it necessary to refer to it later. I cannot for myself accept that he took no account of it, but that he gave it little weight, seems to me to be a matter that was well within his discretion.

For that reason, in addition to those given by my Lord, I too would dismiss the appeal.

Judgment Three:

NICHOLLS LJ: I also agree that, for the reasons given by my Lords, this appeal should be dismissed.

DISPOSITION:

Appeal dismissed

Leave to appeal to the House of Lords refused

SOLICITORS:

Alexander Johnson, agents for Miss VA Jones Leicester Rights Centre; Treasury Solicitor

Copyright notice: Crown Copyright

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