R v. Immigration Appeal Tribunal, Ex parte Kumar

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	30 July 1986
Citation / Document Symbol	[1987] 1 FLR 444, [1986] Imm AR 446
Cite as	R v. Immigration Appeal Tribunal, Ex parte Kumar, [1987] 1 FLR 444, [1986] Imm AR 446, United Kingdom: Court of Appeal (England and Wales), 30 July 1986, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b63e30.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.

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE KUMAR

Court of Appeal (Civil Division)

[1987] 1 FLR 444, [1986] Imm AR 446

Hearing Date: 30 July 1986

30 July 1986

Index Terms:

Immigration -- Entry of husband of British citizen to UK -- Arranged marriage -- Primary purpose of marriage -- Whether marriage was entered into primarily to obtain admission of husband to UK -- Evidence of primary purpose-- Immigration Rules (HC 169(1983)) para 54

Held:

The applicant was an Indian national who had lived in India all his life. The wife was a British citizen, born and settled in the UK. In December 1982 they were married in India under the Indian arranged marriage system. They lived together until 1984 when the wife, who was then pregnant, returned to the UK where she suffered a miscarriage. The applicant applied for entry clearance to the UK as the husband of a British national. Under para 54 of the Immigration Rules (HC 169 (1983)) the husgband of a woman who is settled in the UK 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 that first, under subpara (a), the marriage was not entered into primarily to obtain admission to the UK and secondly, under subpara (b), that each of the parties has the intension of living permanently with the other as his or her spouse, and finaly by subpara (c) that the parties to the marriage have met. Where the entry clearance officer is satisfied that all the conditions (a) to (c) apply, an entry clearance will be issued provided that the wife is a British citizen. In February 1984 the entry clearance officer refused the husband's application. He appealed. In 1985 the wife became pregnant again after visiting the husband in India for 6 weeks. She gave birth to a child in October 1985. In March 1985 the adjudicator stated that although he was satisfied that the parties had a good marriage and intended that it should last, and that although he had previously inclined towards the view that the primary purpose of the marriage could not be said to be to gain admission to the UK, if the evidence showed a good marriage existed, particularly if the wife was pregnant, he had subsequently revised this view, because otherwise there would be a blurring of the distinction between subparas(a) and (b) of para 54. His opinion now was that the importance of the circumstances that existed and the arrangements that were made leading up to the marriage remained the same whatever happened afterwards.

Held -- allowing the application --

(1) The facts of the case were capable of supporting a decision that not only did each of the parties have the intention of living permanently with the other as his or her spouse, but also that the marriage was not entered into primarily to obtain the admission of the applicant to the UK. An applicant who satisfies the entry clearance officer of the requirements of subparas (b) and (c) of para 54 of the Immigration Rules (HC 169 (1983)) is better placed to satisfy him of subpara (a): 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 (ie an 'immigration' marriage) at which subpara (a) was aimed.

R v Immigration Appeal Tribunal ex parte Bhatia [1985] Imm AR 50 applied.

(2) The adjudicator should have treated the proved devotion between the applicant and his wife as evidence of their primary purpose in entering into the marriage, and should have attached less importance to the fact that this was a typical Indian arranged marriage. As the adjudicator had misdirected himself in law, leave to appeal from the determination of the adjudicator should have been given and therefor the matter would be remitted to the Immigration Appeal Tribunal for a decision.

Per Sir John Donaldson MR: Where the applicant belongs to a community in which arranged marriages are the norm, the fact that the marriage concerned is an arranged marriage is of itself without significance. When considering whether the primary purpose of a marriage is to gain admission to the UK, the proper approach is for the entry clearance officer to consider the question as would a jury, that is to say, by impression based on the evidence as a whole, rather than on legalistic analysis

Notes:

Statutory provisions considered

Immigration Rules (HC 169(1983)), paras 41 and 54

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Alexander [1982] 1 WLR 1076, 1080; [1982] 2 All ER 766

R v Immigration Appeal Tribunal ex parte Bhatia [1985] Imm AR 50 R v Immigration Appeal Tribunal ex parte Singh [1986] 1 WLR 910; [1986] 2 All ER 72l

Counsel:

Andrew Collins QC and Alper Riza for the applicant; David Latham QC for the respondents.

PANEL: Sir John Donaldson MR, Mustill, Nourse LJJ

Judgment One:

NOURSE LJ: This is an immigration case. The question is whether a marriage celebrated in India between a husband who has lived there all his life and a wife who is settled in the UK was entered into primarily to obtain the admission of the husband to the UK. The entry clearance officer at New Delhi decided that it was and an entry clearance was refused. His decision was upheld on an appeal to an adjudicator over here. Leave to appeal against the determination of the adjuicator was subsequently refused by the Immigration Appeal Tribunal. The husband now moves for judicial review by way of an order of certiorari to bring up and quash the tribunal's refusal of leave to appeal, leave to move having been refused by Kennedy J on 26 October 1985 but granted on a renewed application to this court on 10 February 1986.

The applicant husband is Arun Kumar. He is an Indian citizen who was born in India on 18 May 1955. The wife is Santosh Kumari. She is a British citizen who was born in the UK on 6 April 1965. Both the applicant and Santosh are Hindus of the Brahmin caste. The applicant's brother, Rakesh Kumar, who is also settled her, is married to a sister of Santosh's father.

It seems that the marriage was arranged between Santosh's parents and Rakesh Kumar on behalf of the applicant's parents, although the adjudicator recorded a conflict of evidence as to whether the first approach had been made by the former to the latter or by the applicant himself to Santosh's mother as long ago as 1975, when he and Santosh were aged 20 and 10 respectively. In any event, they became engaged in 1981. On 25 March 1982 the applicant applied for an entry clearance to come to the UK in order to marry Santosh. She subsequently made two sponsorship delcarations to that end, the second in November 1982. She apparently then changed her mind, because it was in that month that she went to India. The marriage took place in the village of Chackoki in the Punjab on 12 December 1982. In her evidence-in-chief before the adjudicator, Santosh said that she went to India because the applicant's family would be able to attend the wedding there. In cross-examination she said that it was also to enable them to get together more quickly, and later that it was also done with a view to accelerating the immigration procedure for the applicant.

After the marriage, the applicant and Santosh lived in his father's house. On 21 April 1983 they were both interviewed by the entry clearance officer at New Delhi. In Janury 1984, after having been in India for more than 13 months, Santosh returned to the UK. In his affidavit in support of this application the applicant has said that she did so for health reasons. In any event, she was then pregnant. On 11 February 1984 she was admitted to the Conventry and Warwickshire Hospital, where she suffered a miscarriage at 10 weeks pregnant. Three days earlier, on 8 February, the applicant was again interviewed at New Delhi, this time by an entry clerance officer who refused his application for entry clearance.

In due course, steps were taken to mount an appeal against the refusal of entry clearance. Meanwhile, Santosh visited the applicant in India for 6 weeks in January 1985, when she again became pregnant. No doubt she had to be back in time for the hearing of the applicant's appeal before the adjudicator in Birmingham. He heard oral evidence from Santosh, her mother and Rakesh Kumar, but not of course from the applicant, who remained in India. He also had certain documentary evidence before him, including a long explanatory statement by the entry clearance officer dated 7 August 1984, a written statement and explanation by the applicant in respect of matters arising from certain paragraphs of the explanatory statement and a letter dated 25 January 1984 from the applicant to Rakesh Kumar. The adjudicator gave his written determination and reasons on 25 March 1985, when he dismissed the appeal. I shall return to that determination in greater detail later. Leave to appeal against it was refused by the President of the Immigration Appeal Tribunal on 26 June 1985. On 25 August the applicant was admitted as a visitor in order to be near to Santosh during the latter part of her pregnancy. A child was born to them in October 1985. We were told that since then Santosh has suffered a further miscarriage.

The immigration rule which the entry clearance officer had to apply in the present case is that found in para 54 of HC 169 (1983) under the heading 'Husbands':

'54. 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

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.'

It cannot be doubted that the effect of that rule was to place the applicant under the burden of satisfying the entry clearance officer, and in due course the adjudicator, of the matters mentioned in subparas (a), (b) and (c). If he could not do so, the refusal of entry clearance was mandatory. No question has arisen on subpara (c), which is admitted to have been satisfied. The dispute has centred on the effect of, and the interaction between, subparas (a) and (b).

In R v Immigration Appeal Tribunal ex parte Bhatia [1985] Imm AR 50 it fell to another division of this court, of which I myself was a member, to consider the effect of the comparable rule headed 'Fiancés' and found in para 41 of HC 169, the first part of which is in the following terms:

'41. A man seeking to enter the United Kingdom for marriage to a woman settled here and who intends himself to settle thereafter should not be admitted unless 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 it is not the primary purpose of the intended marriage to obtain admission to the United Kingdom; and

(b) that there is an intention that the parties to the marriage should live together permanently as man and wife; and

Since that decision has played a large part in the argument on this application, it is necessary to consider it with some care.

Vijay Kumari was a British citizen settled here whose marriage had been dissolved in 1978. She had a daughter by that marriage. It is rare for an Indian woman who is divorced to find another husband. In 1980 Vijay's parents, who were in New Delhi, having unsuccessfully made enquiries in this country, advertised in an Indian newspaper for a husband for her. Mr Bhatia, an Indian citizen whose family also lived in New Delhi, was selected from those who replied to the advertisement. He met Vijay when she visited India later in 1980. The marriage was arranged between the parents and entry clearance applied for. Mr Bhatia told the entry clearance officer that he did not think that his father would have agreed to the marriage had Vijay not been settled in this country. For her part, Vijay told an immigration officer in England that she was not prepared to live in in India because of the education of her daughter. The entry clearance officer refused the application on the ground that he was not satisfied that it was not the primary purpose of the intended marriage to obtain Mr Bhatia's admission to the UK.

It appears that before the adjudicator there was no dispute that the proposed marriage would be a 'genuine' marriage and that the requirements of para 41(b) were fulfilled. It ws not suggested that subpara (c) had not been satisfied. But the adjudicator dismissed the appeal, saying that on the evidence before him he could only find that the primary purpose of the intended marriage was for Mr Bhatia to obtain admission to the UK. The Immigration Appeal Tribunal, by a majority, subsequently affirmed his determination. Mr Bhatia's application for judicial review of the decision of the tribunal having been refused by Forbes J, an appeal was brought to this court.

The first submission made on behalf of Mr Bhatia in this court was that the purpose which has to be taken into account in determining the primary purpose of the intended marriage is the purpose of the parties to the marriage alone. In rejecting that submission, O'Connor LJ, with whose judgment Goff LJ and I agreed, said this at pp52-53:

'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 UK. 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. Quite obviously a curriculum vitae of the woman who is settled here and her reasons for wanting to marry the applicant are relevant matters for the entry clearance officer to consider. In cases where the intended marriage is one which has been arranged, whether it be by parents or others, their reasons for arranging the marriage are also relevant for consideration by the entry clearance officer.

I think it useful to look at para 54 of HC 169, which deals with the admission of husbands of women settled in the UK. The relevant part reads: "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) and (c) are in precisely the same terms as (b) and (c) of para 41. I am satisfied that subpara (a) of each paragraph is saying the same thing, though the wording in 41(a) is more appropriate for dealing with fiancés.'

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 UK. 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 is all that this court intended to decide in that case.

The first part of the passage which I have quoted from O'Connor LJ's judgment has not in other respects been questioned in argument in the present case.

But the second part, with its comparison of para 41 with para 54, has been attacked in the primary argument of Mr Collins on behalf of the applicant. In order that that argument may be fully understood, I must first refer to the second submission made on behalf of Mr Bhatia, which was that, where the requirements of para 41(b) are satisfied, that of itself is sufficient to show that it is not the primary purpose of the intended marriage to obtain admission to the UK. In rejecting that submission, O'Connor LJ said this, at p54:

'It seems to me that, for the convenience of all, paras (b) and (c) spell out matters for separate consideration which will in any event be relevant to the proper consideration of para (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); but, just as no one would suggest that (c) is conclusive of (a), so I am clear that (b) is not conclusive of (a)'.

He then returned to a consideration of the first issue and concluded by saying that it is the intention on the applicants side which is the essential consideration in determining what is the primary purpose of the intended marriage.

Mr Collins' primary argument on behalf of the applicant was to the following effect. He emphasized that this is a case under para 54, which is couched in different terms and applies to a different class of persons from para 41. He submitted that the view expressed in Bhatia that paras 41(a) and 54(a) are saying the same thing was obiter and is incorrect. He referred us in some detail to earlier immigration rules, in particular to the revised para 47 of the original rules (HC 79 (1973)) which was substituted by HC 238 (1977). The second sentence of that paragraph was in these terms:

'An entry clearance will be refused if the officer to whom application is made has reason to believe that the marriage was 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.'

Mr Collins submitted that that proivision demonstrated that the mischief at which the rule was aimed was 'the immigration marriage of convenience', that is to say, a marriage which is entered into with the intention that the parties should not live together as man and wife, at any rate after admission here has been obtained. Accordingly, when you come to the current para 54, subparas (a) and (b) must continue to be treated as different faces of the same coin, so that the satisfaction of para 54(b) makes the satisfaction of para 54(a) either automatic or perhaps unnecessary.

Having carefully considered Mr Collins' primary argument, which was of course broadly to the same effect as the second submission made on behalf of Mr Bhatia, I feel bound to reject it. I trust and believe that I do so, not out of a blind adherence to the decision in Bhatia, but because it seems to me, first, that speculation as to the intentions behind successive changes in these rules is dangerous and unprofitable and that each version must be treated as it stands; secondly, that, subject to one important qualification which is made below, there is for present purposes no substantial distinction between the meaning and effect of the three subparagraphs of para 54 and those of para 41; and, thirdly, that both form and substance suggest that the requirements of each subparagraph are cumulative and that they must all be satisfied in turn.

The qualification which must be made is that under subpara (a) of para 54 the entry clearance officer is required to look back to the time at which the marriage was entered into, whereas under subpara (b) of that paragraph and both the corresponding subparagraphs of para 41 he looks only at the present. Mr Collins did, I think, place some reliance on that distinction in support of his primary argument, but I agree with Kennedy J that it is not of any real assistance for that purpose. The importance of the point is that it is a practical one which may have significant effects on decisions of entry clearance officers and adjudicators in some of these cases.

Let me take the facts of the present case as above stated. When the matter came before the entry clearance officer for decision on 8 February 1984 the applicant and Santosh had been married for nearly 14 months, for most of which they had lived together in India; she was pregnant and she had recently returned to England, the applicant says for health reasons, perhaps because of complications in her pregnancy. When the matter came before the adjudicator in February or March 1985 Santosh had recently returned from another 6 weeks in India, where she had again become pregnant. It could not be suggested that these facts are in themselves conclusive. On the other hand, they would have been capable of supporting a decision, either on 8 February 1984 or on 25 March 1985 that not only did each of the parties then have the intention of living permanently with the other as his or her spouse, but also that the marriage was not entered into primarily to obtain the admission of the applicant to the UK. In Bhatia it was said of para 41 that an applicant who satisfies the entry clearance officer of the requirements of subparas (b) and (c) is better placed to satisfy him of (a). If that is true of para 41, it must be still more true of para 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 subpara (a) is aimed.

This brings me to Mr Collins' secondary argument, which was that the adjudicator in any event misdirected himself and that leave to appeal ought therefore to have been given. When the present case was before the adjudicator, Bhatia had only reached the Immigration Appeal Tribunal. The decision of Forbes J in that case was given on 3 April 1985. That was how the matter stood when the President of the tribunal refused leave to appeal in this case. He said that the adjudicator's determination was not inconsistent with the judgment of Forbes J and that he did not misdirect hismelf as to the way in which he approached the question of what was the primary purpose of the applcation. He added that the adjudicator's findings of fact were not against the weight of the evidence, that the determination of the appeal did not turn upon any arguable point of law and that there were no other circumstances which would merit the granting of leave to appeal.

The question whether the tribunal ought to have granted leave to appeal from the determination of the adjudicator in the present case must be decided in accordance with the law as stated by this court in Bhatia and now in this case itself. This question rquires me to return to the adjudicator's written determination and reasons. Having stated that he was satisfied that Santosh and the applicant had made a good marriage, intended by the parties to subsist, but that, consistently with the majority decision of the tribunal in Bhatia, that was something which must be distinguished from the question raised by para 54(a), the adjudicator said this (para 5):

'Under the Indian arranged marriage system, an ulterior primary reason for entering into a marriage can exist alongside an intention to make a lasting marriage; this is because such marriages are arranged by the parties' respective families, before the parties to the marriage themselves have had a chance to develop, any or any substantial, knowledge of or affection for each other. Once such ulterior primary reason could be to gain admission to the UK. Mr Fleming, for the respondent, generously expressed the view that it was easier to show that primary purpose was not to gain admission to the UK where the evidence showed that a good marriage exists, particularly where the wife is pregnant. Until recently, I myself was inclined towards this view, but I have revised my ideas, because it has occurred to me that to admit this is to blur the distinction between the requirements of subparas (a) and (b) of para 54. It denies the due importance of the circumstances that existed and the arrangements that were made leading up to the marriage, which remain the same, whatever happens afterwards. It is these circumstances and arrangements that I must examine.'

In my view, two objections can properly be raised in respect of this passage. First, I am unsure of what the adjudicator meant by 'an ulterior primary reason' for entering into a marriage. If the words are taken literally, it would seem difficult for an ulterior reason also to be a primary one. I think it more likely that what he was saying was that a primary reason for entering into a marriage can be one whose fulfilment is delayed or postponed. If that is what he meant, then I think that that objection goes. Seocndly, and more important, it seems to me that in revising his ideas away from the proposition which had been put forward by Mr Fleming, he was failing to apply the law as now stated. He ought to have treated the proved devotion between the applicant and Santosh as evidence of their primary purpose in entering into the marriage, bearing in mind that the purpose to make a true and lasting marriage can often, in circumstances such as these, be formed after only a short acquaintance. Furthermore, it seems to me to be reasonably clear from the following paragraphs of his determination, that the adjudicator may well have attached too much importance to the fact that this was, as he described it, a typical Indian arranged marriage, perhaps leading him too readily to conclude that it was arranged for the purpose of obtaining the applicant's admission to the UK. The two things are not at all the same. In all the circumstances i conclude that a good case has been made out for saying that the adjudicator did misdirect himself in law.

For these reasons, I think that leave to appeal from the determintion of the adjudicator ought to have been given and that the decision to refuse it ought to be quashed accordingly, It will then be for the tribunal to consider the whole matter afresh in accordance with the law as now stated and taking note of the points made in this court. That was the course contemplated by the House of Lords in the recent case of R v Immigration Appeal Tribunal ex parte Singh [1986] 2 All ER 72l, at p729, per Lord Bridge of Harwich, with whose opinion all the others of their Lordships agreed. In that case their Lordships appear to have expressed the view that the adjudicator's decision had been vitiated by misdirection, but it cannot, I think, be necessary to go that far. In this case I would prefer only to say that it is one in which leave to appeal ought to have been granted and then to leave the actual decision to the tribunal.

I would accede to this application.

Judgment Two:

MUSTILL LJ: I agree with each of the judgments delivered and have nothing to add.

Judgment Three:

SIR JOHN DONALDSON MR: I agree that the adjudicator misdirected himself in law and that leave to appeal should have been given by the Immigration Appeal Tribunal.

It is well settled that the Immigration Rules are not to be construed with the technicality appropriate in the case of a taxing statute. They are intended to give guidance to entry clearance and immigration officers and, which is just as important, to aspiring visitors and immigrants. They should therefore receive a broad common sense construction according to the natural meaning of the language which is employed (R v Immigration Appeal Tribunal ex parte Alexander [1982] 1 WLR 1076, 1080, HL).

So construed, the purpose of both rules 41 (fiancés) and 54 (husbands) is I think clear. First, it is for the applicant for entry clearance to satisfy the entry clearance officer that he qualifies. This is understandable, because although the entry clearance officer may have some information about the application from, for example, previous applications, on the whole it is only the applicant, his friends and relations who really know the basic facts upon which his qualification, if any, is based. Hence the second sentence of each rule. However, although the burden lies on the applicant, these are immigration rules dealing with matters which are civil rather than criminal in character and the appropriate standard of proof is that of the balance of probabilites (R v Immigration Appeal Tribunal ex parte Bhatia [1985] Imm AR 50. Second, an engagement or marriage which is so far removed from the English concept of engagement and marriage that the parties have not even met at the time of application provides no basis for an application for entry clearance. This is provided for by para (c) in each rule. Third, it is one thing to give entry clearance to a fiancé or husband who is likely to live permanently with, and as the spouse of, a woman who is settled here and quite another to do so if this is not likely to occur. Hence para (b) in each rule. In each case the inention must be mutual, as otherwise the desired object is unlikely to be achieved. The difference between rule 41 (fiancés) and rule 54 (husbands) is simply that the former is looking at the intentions of the parties before marriage and the latter afterwards. Thus, in the case of husbands, the entry clearance officer will be concerned to be satisfied that however good the intentions of the parties when they married, the mutual intention to live together permanently as husband and wife still persists and that the marriage shows no signs of breaking up. Fourth, it is one thing to admit men who are genuine fiancés or husbands and quite another to do so in the case of 'immigration' fiancés or husbands. Hence para (a) in each rule. Determining which applicants are genuine and which are 'immigration' fiancés or husbands is the most difficult part of the entry clearance officer's duties when applying rules 41 and 54.

In my judgment the adjudicator misdirected himself in compartmentalizing the questions which he had to ask himself under paras (a) and (b). They are, of course, separate questions. A marriage entered into witho ut thought of entry to the UK, and so undoubtedly satisfying the requirement of para (a), may be on the point of breaking up and so fail to satisfy that of para (b). And a couple may theoretically decide to marry primarily in order to enable the husband to gain a right of entry into the UK, whilst at the same time conclusing that if they were to be married for this purpose, they might as well live together permanently. In such a case para (b) would be satisfied, but not para (a). That said, evidence bearing on one question will often cast a flood of light on the other. Whilst the adjudicator was right to say that under the rules a marriage primarily entered into in order to obtain admission to the UK would still retain its non-qualifying character whatever happened afterwards, 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.

I am also disturbed at the adjudicator's reference to the Indian arranged marriage system, although I think that it may be that he has not expressed himself as clearly as he would hve wished. Where the applicant belongs to a community in which arranged marriages are the norm, the fact that the marriage concerned is an arranged marriage is of itself without significance. All that an entry clearance officer can legitimately bear in mind is that it is less difficult to achieve an 'immigration' marriage under this system than under the Western system, since the personal feelings of the parties to the marriage, and in particular the wife who already has a right of entry, can more easily be set aside or bypassed.

Any attempt to achieve a delicate and detailed analysis of the motives for the marriage is more likely to obfuscate than enlighten. The motives will often and perhaps usually, be complex and defy such analysis. Detailed analysis also introduces a 'Catch 22' element. If neither party to the marriage wishes to live in the UK, cadit quaestio. If however, the wife is already settled here, is a British citizen and wishes to continue to live here, it is idle for her to marry a man who does not wish to obtain admission to the UK. Yet it is fatally easy to treat his admission that he does indeed wish to obtain admission as evidence that this is the primary purpose of the marriage. The proper approach is for the entry clearance officer to consider the question as would a jury, that is to say by impression based on the evidence as a whole, rather than on legalistic analysis. Mentally using the language which might be appropriate when directing a jury, he should ask himself, 'What is or was the real, the primary, the basic object of the exercise in this couple agreeing to get or getting married? Was it to live together as man and wife, preferably in the UK, or was it to enable the fiancé or husband to obtain entry to the UK, the matrimonial relationship being of subsidiary importance?' It is only if the answer is that the matrimonial relationship was or may have been of subsidiary importance that the entry clearance officer will fail to be satisfied that it was not an 'immigration' marriage and will therefore conclude that the requirements of para (a) are not met.

I too would accede to this application.

DISPOSITION:

Application allowed with costs. Order of Immigration Appeal Tribunal refusing to grant leave quashed. Application for leave to appeal to the House of Lords refused.

SOLICITORS:

Vereena Jones for the applicant; Treasury Solicitor.