R v. Immigration Appeal Tribunal, Ex parte Islam
R v IMMIGRATION APPEAL TRIBUNAL ex parte ISLAM
Queen's Bench Division
 Imm AR 452
Hearing Date: 20 February 1992
20 February 1992
Tribunal -- declined to hear a witness -- no earlier advice as to the nature of the evidence to be led -- Tribunal after enquiry concluded evidence would not advance the case before it -- assertion to court that other witnesses would also have been produced -- no application to Tribunal to lead other witnesses -- no details of the nature of the fresh evidence given to the court -- whether in the event the Tribunal's approach contrary to natural justice. Immigration Appeals (Procedure) Rules 1984 rr 18(2), 18(3)(a).
Judicial Review -- the obligation of counsel to prepare a skeleton argument for the assistance of the court. RSC Ord 53 para 14/45.
Held: Application for judicial review of Tribunal's dismissal of appeal in a primary purpose case. The unqualified representative of the applicant before the Tribunal had sought to introduce fresh oral evidence. The witness in question, it appeared, was to give evidence on the nature of arranged marriages. There had been no earlier indication of the nature of the evidence, in breach of the requirements of the Procedure Rules. The Tribunal declined to hear the evidence, it concluding that it was already fully aware of the nature of arranged marriages. On application for judicial review it was asserted that two other witnesses would also have been called and their evidence would have been germane to the particular case before the Tribunal. No application however had been made to call those witnesses before the Tribunal and counsel was unable to tell the court anything about the evidence it was claimed they would have given. Held 1. On the evidence before it, including an affidavit sworn by the respondent's representative before the Tribunal, the court was satisfied that the Tribunal's approach had not been contrary to natural justice. 2. The Tribunal could not be criticised for not hearing witnesses in respect of whom no application for leave to produce had been made. 3. The court had not been assisted by counsel's failure to produce a skeleton argument as required by the Rules of the Supreme Court.
Cases referred to in the Judgment: Bashirul Islam v Immigration Appeal Tribunal (unreported, CA, 17 October 1990). The Court of Appeal judgment has not been reported because there is nothing material in that two page judgment beyond that which is quoted from it by the learned judge in the pages which follow.
Counsel: F Shah for the applicant; R Jay for the respondent PANEL: Schiemann J
Judgment One: SCHIEMANN J: In this application for judicial review by the applicant, Bashirul Islam, he wishes to challenge a series of decisions of the immigration appeal machinery which resulted in preventing him from joining his English-born wife. The various tribunals which have considered the matter came to the conclusion that they were not satisfied that the marriage was not entered into primarily to obtain admission to the United Kingdom. The matter was considered by the Immigration Appeal Tribunal, and on that occasion the applicant was represented by a Mr Bashir, who apparently had no legal qualification and indeed had never appeared in a tribunal before. It is alleged by the applicant that the Tribunal in effect prevented Mr Bashirfrom putting forward a proper case on behalf of the applicant by preventing him from calling witnesses whom he wished to call. On that basis application was made for leave to move for judicial review, which application was refused by Kennedy J. However, the applicant then appealed to the Court of Appeal, and the Master of the Rolls said this: "The issue was quite simply whether this was what has sometimes been described as an immigration marriage or whether it was a marriage which complied with the conditions laid down in the House of Commons Paper. Both the entry clearance officer and the adjudicator expressed the view that Mr Islam had clearly been deceitful and was lying and in those circumstances they were not satisfied that this was such a marriage as complied with the conditions in the House of Commons Paper." The Master of the Rolls goes on to say, after describing Mr Bashir: "He appeared before the Immigration Appeal Tribunal and it is common ground that he offered to tender evidence designed to enlighten the Tribunal on the general question of arranged marriages in the Bangladeshi community." I interpose here, although the Master of the Rolls says, "it is common ground", and indeed it was not disputed at the hearing before him for leave, as is customary the application was ex parte. The Master of the Rolls continued: "The Tribunal said they were sufficiently familiar with those matters from other appeals for such evidence to be wholly unhelpful. That was a decision which I can well understand which I think is quite unassailable. But Mr Bashir says that what he was intending to do was to tender evidence not only on the general matter but to tender three witnesses who could deal specifically with the marriage of Mr Islam and he points out that, at a separate hearing prior to the Immigration Appeal Tribunal, the Vice-President of the Tribunal had given leave for such evidence to be called." Then the Master of the Rolls says that it is possible that there may have been a misunderstanding, and, if there was such a misunderstanding, quite clearly the case needed to be looked at but the Court of Appeal was not the tribunal to look at it. It was to be looked at with the Immigration Appeal Tribunal having an opportunity to be heard. He went on: "The proper tribunal to decide that is the Queen's Bench Division judge and we will give leave. On that hearing he will have to decide, as one always has to decide in these cases, whether, in the exercise of discretion it is right to grant relief . . . or whether the case is so plain that no amount of additional evidence can do more than merely increase the doubts which were entertained by the Tribunal." Then he goes to say that he is not expressing any view as to what the judge's decision should be. I am that judge. I had the advantage of hearing the representative of the Immigration Appeal Tribunal and Mr Shah who on this occasion appears for the applicant. May I say at the outset that I have been significantly disadvantaged by something which is very common in immigration appeals, namely, a refusal by the applicant's representatives to follow the instructions given daily in the cause list that they are to present various materials for the use of the court, so that the court may do its work, in particular they are to set out a skeleton argument setting out the points they wish to argue. In the case of Mr Shah, the difficulty which the court always has in this type of case has been increased because I do find it difficult sometimes to understand physically what he is saying. But doing the best that I can, I feel that I can give judgment in this case without doing injustice. I ought to set out the background to the position in front of the Immigration Appeal Tribunal which is governed by rules which are called the Immigration Appeal (Procedure) Rules 1984. It is permitted under those rules to hear further evidence. The proper procedure is set out in rule 18 of those rules which provides for, effectively, the record to be put in front of the Tribunal, as it was in this case, and then provides in rule 2 that if any party to the appeal wishes to adduce evidence before the Tribunal, he should give notice in writing to that effect indicating the nature of the evidence. All that has happened in the present case is that Mr Bashir, possibly because he was unfamiliar with the rules, wrote to the Tribunal in a note in the notice of appeal which said, "I would also like the opportunity to provide further evidence." He gave absolutely no indication of what further evidence he wished to call. When the matter came before the Tribunal one finds in the Tribunal's reasons the following: "Mr Bashir sought leave to call a Mr Khalique as a witness. We refused the application after Mr Bashir had told us that he would give evidence on the nature generally of arranged marriages and not evidence specifically relating to the events in this case. Hearing primary purpose appeals so frequently, we felt we were already fully aware of the traditional nature of such marriages." It is to be noted that in the reasons given by the Immigration Appeal Tribunal there is no reference to any application to call any other witness, nor is there any reference to any application to call Mr Khalique for the purpose of giving evidence in relation to this particular marriage. Mr Khalique has, however, sworn an affidavit for the purpose of these proceedings. This is an affidavit which I apprehend was before the Court of Appeal prior to their giving leave. In that affidavit he referred to the fact that at the adjudicator's hearing he had given evidence and he says that: "When the applicant's appeal came up for hearing before the Immigration Appeal Tribunal . . . my daughter-in-law was already in the United Kingdom. New evidence was available and the refusal by the Tribunal to hear this evidence, has prejudiced the applicant's case." What that new evidence was he does not tell us, nor has Mr Shah put before me any further evidence to indicate what Mr Khalique wished to say which he had not said before the adjudicator. When quizzed before the adjudicator -- we have the transcript of what was said, but I can summarise it -- he was saying that, so far as the two parties to the marriage are concerned, he was not in a position even to attempt to enlighten the adjudicator as to what was in their minds. But he indicated effectively in his mind there was no motivation which involved the son-in-law settling in the United Kingdom. Mr Bashir in his affidavit, which was also before the Court of Appeal, said that he made arrangements with three witnesses to attend and that an interpreter be provided for adducing further evidence. He sets out those three witnesses who include Mr Khalique, the wife and a further third person called Tera Miah, who is the sister of the applicant. He does not indicate there what further evidence those people would have given. Again I have quizzed Mr Shah about this, and have not had from him any indication as to what evidence he would have put before the Tribunal which had not been put in front of the adjudicator. The position has moved on somewhat since the Court of Appeal gave leave in this case, because an affidavit has been sworn by Mr Cunningham who was there in front of the Tribunal. He produces the notes that he made at the time of the Tribunal hearing and those notes refer exclusively to Mr Khalique and say the Tribunal wanted to know why there was no advance warning of his evidence. Mr Bashir indicated that the evidence was going to be of arranged marriages and customs and practices followed in Bangladesh. Mr Cunningham indicated to the Tribunal that he saw no point in this evidence but he did not object to it. The Tribunal ruled that they would not hear it. There is no indication in that note that there was any desire to call Tera Miah or the wife. It is of course very difficult for the court to rule precisely as to what happened, the more so since there has been no application to cross-examine any of the witnesses, not that I am suggesting that such an application would necessarily have succeeded. It is not actually stated in Mr Bashir's affidavit that he applied to the Tribunal to call either the wife or Tera Miah. He says that "The Tribunal Chairman was very abrupt and did not give me an opportunity to call my witnesses." That is the implication. Feeling himself bullied by the Tribunal and being a stranger, not being a barrister used to questioning by judges, he was thrown off his stroke. Although he had people waiting he did not ask for them to be called. I have to consider whether or not, in my discretion, I should quash the Tribunal's decision and send this case back to it. So far as the hearing before the Tribunal is concerned, I am not satisfied on the evidence, which includes Mr Cunningham saying the Tribunal was kindly and considerate, if I may put it that way, that the Tribunal behaved in any such manner as would amount to a breach of natural justice requiring the quashing of that decision. So far as the two people who were not the subject of any application before the Tribunal to call them, I do not think the Tribunal can be criticised for not allowing an application which was not made. So far as Mr Khalique is concerned, the efforts which I have made to get through Mr Shah precisely how he could have helped the Tribunal have not resulted in his revealing to me anything which would lead me to suppose it would be a useful exercise to send the case back to the Tribunal. In those circumstances I refuse this application.
DISPOSITION: Application refused
SOLICITORS: Hafiz & Co, London SW4; Treasury Solicitor.
Copyright notice: Crown Copyright