Osama v. Immigration Officer, London (Gatwick) Airport
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 7 July 1977 |
| Citation / Document Symbol | [1978] Imm AR 8 |
| Type of Decision | TH/13501/77(990) |
| Cite as | Osama v. Immigration Officer, London (Gatwick) Airport, [1978] Imm AR 8, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 7 July 1977, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b624c.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
OSAMA v IMMIGRATION OFFICER, LONDON (GATWICK) AIRPORT, TH/13501/77(990)
Immigration Appeal Tribunal
[1978] Imm AR 8
Hearing Date: 7 July 1977
7 July 1977
Index Terms:
Leave to enter -- Refusal -- "Exclusion conducive to the public good" -- Returning resident -- Information before immigration officer that 'returning resident' status acquired on revocation of conditions obtained (in September 1975) following 'marriage of convenience' -- Misrepresentation of intentions on original entry as visitor -- Breach of conditions of entry (and extensions) by taking employment -- Association with other persons evading immigration control -- Leave to enter as 'returning resident' properly refused -- HC 81, paras 46, 65(b).
Returning resident -- "Exclusion conducive to the public good" -- Leave to enter properly refused to Egyptian whose status of returning resident was acquired by a revocation of conditions obtained (in September 1975) on his contracting a 'marriage of convenience' solely with a view to settlement -- HC 81, paras 46, 65(b).
Marriage -- Settlement in United Kingdom -- 'Marriage of Convenience' -- Marriage of Egyptian while in UK with limited leave to remain -- Wife settled in UK -- Revocation of conditions of entry -- Marriage found later to have been marriage of convenience contracted solely with view to settlement -- Refusal of leave to re-enter UK as a 'returning resident' justified -- Exclusion "conducive to the public good" -- HC 82, para 23 (as amended by Cmnd 5718), HC 81, paras 46, 65(b).
Held:
Refusal of leave to enter as a returning resident (under para 46 of HC 81) was justified in the case of an Egyptian citizen whose status of returning resident resulted from his obtaining a revocation of his previous conditions of entry by deliberately contracting for this purpose on 19 August 1975 a 'marriage of convenience' with a woman settled here. n1 His exclusion for this (and other reasons relating to his conduct and associations) was "conducive to the public good" under para 65(b) of HC 81. n2 n1 For the immigration rule then operative and under which the appellant obtained a revocation of his conditions of stay, see footnote 3, post. n2 Paragraph 65(b) is set out on p 10, post.Introduction:
The Tribunal so held on the facts which are set out in the determination reported below.Counsel:
D. R. Watkinson, counsel for the appellant. G. Treadwell for the respondent. PANEL: P. N. Dalton Esq (Vice-President), L. Golding Esq, J. A. Noble EsqJudgment One:
THE TRIBUNAL: This is an appeal by Saleh Abdalla Osama, an Egyptian citizen born on 19 August 1950, against a refusal by an immigration officer in March this year to grant him leave to enter. On 14 June 1974 Mr Osama, who was then in possession of a "15 short visit" visa issued in Cairo on 7 June 1974 was granted leave to enter the United Kingdom for one month as a visitor. He told the immigration officer who interviewed him that he wished to visit the United Kingdom for ten days as a tourist and that he did not intend to prolong his stay or seek work. However he subsequently sought and was granted extensions of stay and on 4 September 1975 his conditions of stay were revoked n3 due to his marriage to a citizen of the United Kingdom and Colonies ('Miss S'). Since that date the appellant had departed from and returned to the United Kingdom on three occasions and been treated as a 'returning resident'. When Mr Osama arrived at Gatwick Airport on 20 March this year he was granted unconditional leave to enter as a returning resident under para 46 of HC 81, n4 but before he left the control area he was recognised by an immigration officer as the subject of recent enquiries made jointly by the Sussex Police and the Immigration Service. On 7 February 1977 the Sussex Police had made enquiries at 'Pizzaland', Brighton, concerning the employment of illegal immigrants and overstayers: three overstayers and one person in breach of conditions were discovered to be working there and the three overstayers were charged and duly convicted with overstaying. The appellant who was the assistant manager at Pizzaland, was also interviewed during those February enquiries. He said that his marriage had lasted only three to four weeks, that he did not know where his wife was living, that he was expecting a divorce from her and that he hoped to marry a Swiss girl. n3 The revocation of conditions was granted under the terms of para 23 of Cmnd 5718: "A man admitted in a temporary capacity who marries a woman settled here should on application have the time limit on his stay removed." Under HC 241, with effect from 22 March 1977, the abuses which had resulted from Cmnd 5718 were recognised by the introduction of new provisions; these require that a man in the appellant's position contracting marriage with a woman settled here, fulfil a number of conditions in order to qualify for a removal of the time limit on his stay and any other restrictions imposed on his limited leave to enter or remain. n4 Paragraph 46 provides as follows: "A passenger returning to the United Kingdom from overseas (except one who received assistance from public funds towards the cost of leaving this country) is to be admitted for settlement on satisfying the Immigration Officer that he was settled in the United Kingdom when he left and that he has not been away for longer than 2 years." On 17 March 1977 the immigration officer had received information that the appellant's wife, 'Miss S', had said that she was seeking an annulment of marriage for two reasons: (a) The marriage had not been consummated; (b) She did not realise until after the marriage that Mr Osama had only married her in order to gain settlement in the United Kingdom. When the appellant was interviewed at the airport on 20 March 1977 he said he was aware that his wife was seeking an annulment of marriage on the grounds of non-consummation and that he had only entered into the marriage in order to gain settlement here; he said it was untrue that he had only married in order to gain settlement here though it was true that the marriage had not been consummated. [Reasons, in part critical of his wife, were then given by the appellant.] The appellants position was considered under the provisions of para 65 of HC 81 which provides: "Any passenger except the wife or child under 18 of a person settled in The United Kingdom may be refused leave to enter on the ground that his exclusion is conducive to the public good where -- (b) from information available to the Immigration Officer it seems right to refuse leave to enter on that ground -- if, for example, in the light of the passenger's character, conduct or associations it is undesirable to give him leave to enter." In the circumstances the immigration officer was satisfied that Mr Osama's character and conduct demonstrated that his exclusion was "conducive to the public good" and the appellant was refused leave to enter. n5 n5 The immigration officer acted under para 6(2) of Sch 2 to the Immigration Act 1971 to cancel the notice which had earlier given the passenger leave to enter. The appellant appealed and was the only witness before the adjudicator, Sir Norman Costar. The adjudicator in dealing with the history of the appellant's stay in this country said in his determination: "He (the appellant) admitted at the hearing that almost from the beginning of his arrival here he had worked part-time as well as studied, despite the 'no work' condition imposed on landing and continued on extension. Having seen and heard the appellant giving evidence, it is my impression that he came from working in the hotel industry in Egypt with the deliberate purpose of taking similar employment here. His story of coming only for a short visit and his story of being a student were both false. When he got here he took a course of studies only in order to prolong his stay so that he could work part-time. From the beginning therefore I feel that the basis of the appellant's admission to and extension of stay in this country has been deliberate deception." The adjudicator then referred to the appellant's marriage to 'Miss S' and said: "4. According to his evidence the appellant met his wife in May 1975 and married her on 19 August 1975. He said he met his wife in a pub and thought she was a nice girl. Two days after his marriage he applied in person to the Home Office for the revocation of his conditions of stay on the ground that he was married to a person settled in the United Kingdom. According to the appellant his wife accompanied him to the Home Office, but there was no record as to this in the Home Office file. His conditions were revoked on 4 September 1975. Meanwhile, however, after only two or three weeks (the appellant said somewhat surprisingly at the hearing that he could not remember exactly how long) the pair separated. [Reasons for the separation, critical of his wife, given by the appellant.] It appears that the wife has applied for the annulment of her marriage on two grounds, namely that the marriage has not been consummated (which is not denied by the appellant) and that she did not realise until after the marriage that the appellant had only married her in order to gain settlement in the United Kingdom. The latter point the appellant denies. The divorce petition is still pending."5. It was the contention of Mr Regan on behalf of the respondent that the marriage was in fact nothing but a marriage of convenience designed to secure the removal of the conditions of landing on the appellant's passport. Though this is denied by the appellant, it would on the face of it seem the most probable explanation of the facts. A marriage of convenience would explain the non-consummation of the marriage and the separation of the pair in two or three weeks if indeed they stayed together so long. The claim of the woman in her petition of divorce that she did not realise that the appellant had married her in order to gain settlement in the United Kingdom suggests to me that, whether or not the appellant's wife knew it beforehand, and this is a moot point, the appellant himself did in fact marry her in order to get the conditions on his passport removed. Indeed he took very prompt action to have this done by applying to the Home Office only two days after the wedding. There is a further reason for doubting the appellant's claim that this marriage was not a marriage of convenience and this will appear subsequently."
The adjudicator then moved on to what he described as the next climactic event in the appellant's career. This was the police raid on 7 February 1977 on 'Pizzaland', where the appellant was assistant manager, working with seven others and all of them Egyptians. The appellant had said in his evidence that he did not know that four of these people were working there illegally. The adjudicator's comments on the appellant's evidence on this matter are as follows: "In giving his evidence on this point, however, I must say that not only did the appellant not impress me as being truthful but that from time to time he contradicted himself and retracted earlier statements. clearly knew more than he found it convenient to admit. In short, on the balance of probabilities, I find it incredible that the appellant did not know that four of the seven people besides himself working at Pizzaland were working illegally and that the remaining three had all had their conditions of landing cancelled through marriage either to English people or in one case to an Egyptian who herself was a resident. The appellant's knowledge and his denials of this knowledge are the additional reason referred to in paragraph 5 above for not believing the appellant when he says he did not marry an English wife in order to get the conditions of his landing revoked. This, added to the very short period in which the appellant and his wife remained together and the wife's own statement, convinces me that the marriage was a marriage of convenience certainly on the part of the appellant, if not on the part of both parties." After referring to the arguments put forward by the appellant's representative Sir Norman Costar said:"In the present case, I find on the evidence before me, and for the reasons set out in the preceding paragraphs, that the behaviour of the appellant in deliberately seeking entry as a student on a short term visit when it was his intention to remain in this country indefinitely and to take employment, in planning to secure the revocation of his conditions of landing by arranging a marriage of convenience and in being knowingly associated in the capacity of assistant manager with a firm where half the employees were in illegal employment (and the other half had secured the removal of their conditions of landing by marrying somebody settled here), establish that the appellant's character, conduct and associations are such as to make it undesirable to give him leave to enter, inasmuch as he has throughout set out to evade and circumvent an orderly immigration control."
The adjudicator dismissed the appeal, but granted leave to appeal to the Tribunal. Prior to the hearing of this appeal the appellant's solicitors, Bosley & Co gave notice that the grounds of appeal were that fresh evidence is available for the consideration of the Tribunal which was not available to the adjudicator. More specifically, the appellant's wife would give evidence to show that the marriage between herself and Mr Osama was not one of convenience, and Hazem Hanafy Mahmoud would give evidence to show that the appellant had not committed a breach of the immigration laws. The appellant's wife gave evidence and said that she married the appellant at Brighton District Register Officer on 19 August 1975 and that it was a genuine marriage. At the time of her marriage she knew that Mr Osama was not settled in this country but she did not know if her marriage would cause the restrictions on his stay to be lifted. This witness told the Tribunal that the appellant did not tell her that he got married to her because he wished to obtain British nationality nor did she get married to Mr Osama to enable him to do so. However, her petition for a declaration that the marriage celebrated between her and Mr Osama be declared null and void has been placed before us. In the particulars in this petition it is stated:"After the marriage on the 19th day of August 1975 the Respondent (Mr Osama) told the Petitioner (Miss S...) that he had only gone through the ceremony because he wished to obtain English nationality. The Respondent declared that he had no intention of consummating the marriage or of living with the Petitioner. This caused the Petitioner distress and on the 30th day of August 1975 she left the Respondent since which time the parties have lived separate and apart."
In answer to counsel the appellant's wife said that this was not correct and she did not know where this statement in her particulars, which was drawn up by her solicitors, came from. When cross-examined by Mr Treadwell she said the appellant's name is Abdulla Osama but she did not know his date of birth or where he was born in Egypt, nor did she know if he had any brothers or sisters. She said her own parents did not know of the marriage; she had no contact with them. She had not told her brother or sister about the marriage. The other witness was Mr Hazem Hanafy Mahmoud, the manager of Pizzaland, Brighton. This witness knew of the appellant's marriage to 'Miss S', and after two weeks the appellant said his marriage had broken down and he seemed a bit worried and said it was because his wife had left him. [The Tribunal then referred to Mr Mahmoud's evidence on the nature of the appellant's employment.] After careful consideration of the facts, the evidence of the witnesses called before us and the submissions by counsel and Mr Treadwell, we dismissed this appeal. It is apparent from the determination that the adjudicator, having heard the appellant's evidence, had a poor opinion of his credibility, not only as to the reasons he gave for coming to this country but also as to the genuineness of his marriage, and also his claim that he did not know that four of his fellow employees at 'Pizzaland' were working illegally and the remaining three had had their conditions of landing cancelled through marriage. We have heard the evidence of the appellant's wife and she said that when she married the appellant it was a genuine marriage. Having regard to the rest of her evidence we have the gravest doubt whether even on her side it was a genuine marriage, but even if her statement was true, in our view the adjudicator was amply justified in finding that as far as the appellant was concerned it was a marriage of convenience deliberately entered into so as to enable him to have his conditions revoked and remain in this country. Mr Mahmoud was called to show that because of the nature of his employment the appellant would have no reason to know, and so presumably did not know of the immigrant status of his fellow employees. This witness sought to make us accept that even he, whose responsibility it was to employ people at 'Pizzaland', did not know that some of the staff were overstayers. Nothing in his evidence leads us to conclude that the adjudicator erred in finding that the appellant's evidence on this matter was incredible. In our judgment there was ample evidence to justify the adjudicator's finding, which we have quoted, and his dismissal of the appeal.