Hessing v. Secretary of State for the Home Department

HESSING v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX/126/71

Immigration Appeal Tribunal

[1972] Imm AR 134

Hearing Date: 5 October 1971

5 October 1971

Index Terms:

Wife -- Co-habitation of unmarried couple -- When woman may be treated as wife for immigration purposes -- Cmnd 4298, para 36.

Held:

For the purpose of the immigration rules relating to the entry of Commonwealth citizens, a woman who has been living in permanent association with a man may under para 36 of Cmnd 4298 be treated as his wife even if not married to him. This provision is apposite to cover not only single persons cohabiting as man and wife but also cases where one or other of the parties may already be married and therefore unable to contract a marriage with the other party. The Tribunal so held when allowing on its special facts the appeal here reported.

Introduction:

The facts appear in the Determination.

Counsel:

K.S. Nathan of the United Kingdom Immigrants Advisory Service, for the appellant. C.A. Bartley for the respondent. PANEL: Sir Derek Hilton (President), Mrs. L. Bonham-Carter, Sir John Rankine.

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr. D.L. Neve) dismissing the appellant's appeal against the refusal to grant her an entry certificate to enable her to accompany Mr. Samuel Theophilus to the United Kingdom as his wife. The appellant, who was born on 6 October 1932, is a citizen of India. She applied for an entry certificate at Calcutta on 19 May 1970. She told the entry certificate officer that Mr. S.T. Hessing had married a Miss Violet Rita Moore on 18 February 1950 in Calcutta. They had five children and had been separated since 1962. No divorce proceedings were pending. According to the Home Office statement Mr. Hessing claimed that his wife subsequently married a Mr. D. Robbins which left him free to marry the appellant. He and the appellant went through a form of marriage at Calcutta on 28 March 1970. The application was refused on the grounds that the marriage of Mr. Hessing and Miss V.R. Moore was still subsisting and that his marriage to the appellant was invalid. The appellant appealed. At the hearing of the appeal before the adjudicator Mr. S.T. Hessing gave evidence. He stated that after his wife, Violet Rita, left him in 1959 he came to the United Kingdom in June 1962 accompanied by two of his five children. The other children joined him later. He returned to India in 1969 with the intention of settling there to farm. He bought some land but was unable to make a living. He then went to Calcutta where he met the appellant (a friend of his wife) for the first time in February 1970 although he had been corresponding with her since 1963. He had heard that his wife had died Japan although he had no proof. He also had a 'separation' certificate from his priest. He therefore considered he could marry the appellant and they went through a form of marriage on 28 March 1970. They lived together for a year until Mr. Hessing returned to the United Kingdom in March 1971. Since the refusal to grant an entry certificate to the appellant he had instituted divorce proceedings against his wife. The adjudicator although expressing considerable sympathy for the appellant dismissed the appeal as he considered that the decision was in accordance with the regulations and the law. He concluded his determination in the following terms: -- "The regulations governing the admission of wives are contained in Cmnd 4298 at paragraphs 34 to 36. Paragraph 34 relates to the admission of wives proper, if I may use this term. In my view it is quite indisputable that Violet Rita is in fact thewife of the sponsor in this case, Mr. Hessing. There is no doubt whatsoever that they were validly married (in fact I do not think it is disputed) on 18 February 1950. This marriage has never in fact been dissolved although I am informed that divorce proceedings are pending. The sponsor is, therefore, still lawfully married to Violet Rita Moore, as the then was, and is unable to marry anybody else. The appellant is accordingly not his wife. However the matter does not really end there, because I have to consider the provisions of para 36, which reads as follows: --

'A woman who has been living in permanent association with a man, even if not married to him, may be treated as a wife, and due account is to be taken of any local custom or tradition tending to establish the permanence of the association.'

If I could be satisfied that Mr. Hessing has been living in permanent association with the appellant I would be only too happy to allow this appeal as I have considerable sympathy with him. He impressed me very favourably as a witness and I accept what he says. I accept that it would be his intention, if it ever became possible, to marry the appellant validly. But I have to consider what amounts to 'permanent association'. In this case it is a question of leter-writing from 1963 until 1970 and thereafter living together for one year. I may be wrong but I do not think that one year's co-habitation can properly be construed as permanent association. This being so, in my view he is unable to pray in aid the provisions of para 36. It follows that I consider that the decision of the entry certificate officer was in accordance with the regulations and the law and there is no question in this case of a wrong exercise of discretion. For these reasons this appeal is dismissed." At the conclusion of the hearing the adjudicator gave leave to appeal to the Tribunal as in his view the matter of 'permanent association' was arguable. The appellant's ground of appeal to the Tribunal is that she is unable to accept that the adjudicator correctly interpreted para 36 of Cmnd 4298. At the hearing of the appeal before us Mr. Nathan made the following submissions on behalf of the appellant: -- (1) The application of para 36 to a case involved the exercise of a discretion and it should be given a wide interpretation to cope with current social problems. (2) Mr. S.T. Hessing had served in the army during the last war until he was medically boarded out in 1944 with a good character, and under para 51 of Cmnd 4298 immigration officers are instructed to take into account in favour of applicants any periods of service in the armed forces. (3) There was no fraud or deceit in this case. All the facts had been desclosed and the appellant and Mr. Hessing did not realise that their marriage was invalid. Since the entry certificate was refused Mr. Hessing had commenced divorce proceedings against his wife and had been granted legal aid. (4) The appellant had lived with Mr. Hessing for one year but they had been in correspondence since 1963. She was in fact his common law wife. Mr. Bartley submitted to us: -- (1) He largely agreed with the points raised by Mr. Nathan and that para 36 involved entirely a question of discretion. (2) Paragraph 51 was irrelevant as Mr. Hessing was not the appellant. (3) The appellant and Mr. Hessing were not then living in permanent association. They had lived together for one year but the respondent was not prepared to accept this length of time as a permanent association. If they were endeavouring to establish a permanent association would Mr. Hessing have returned to the United Kingdom in March 1971? In reply Mr. Nathan pointed out that although Mr. Hessing was granted an entry certificate in Calcutta in March 1970 as a returning resident he did not in fact leave India until March 1971. If he had stayed longer he would not have been able to re-enter the United Kingdom as the two-year period laid down by the Commonwealth Immigrants Acts would have expired. In our view the original intention of the draftsman of para 36 of Cmnd 4298 may well have been to cover those cases where unmarried persons were living together as man and wife but we find it difficult and illogical not to construe the paragraph as also apposite to cases where one or other of the parties might be married and therefore unable to contract a marriage with the other party. In this case we are satisfied that the appellant and Mr. Hessing have a genuine desire to associate permanently. They have already (however misguidedly) been through a form of marriage, and efforts have been continued since they lived together to pursue the matter both through divorce and efforts to appeal. In the special circumstances of this particular case we consider that the intention to form a permanent association is evident. The cohabitation would have continued had it not been necessary for Mr. Hessing to return to the United Kingdom in March 1971 in order to gain readmittance. In so deciding we are not attempting to define any minimum time limit but rather looking at the intention of the parties on the evidence before us. We were impressed by Mr. Hessing and by the honesty and straightforwardness of both the appellant and Mr. Hessing. There was at no time any attempt to deceive. For these reasons we allowed the appeal.

DISPOSITION:

Appeal allowed.

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