Visa Officer, Islamabad v. Channo Bi and Others

VISA OFFICER, ISLAMABAD v CHANNO BI AND OTHERS, TH/21304/77(1352)

Immigration Appeal Tribunal

[1978] Imm AR 182

Hearing Date: 11 October 1978

11 October 1978

Index Terms:

Estoppel -- Re-admission to United Kingdom -- Previous grant of entry clearance to woman as wife of sponsor -- Application for re-admission in same capacity some years later -- Whether immigration authority estopped from refusing entry clearance -- Whether to justify refusal immigration authority must show entry clearance was previously obtained by deception or that change of circumstances removed applicant's right to admission -- Doctrine of estoppel not applicable -- Onus of showing relationship claimed still on applicant for entry -- Previous grant of entry clearance to be regarded as evidence tendered to support the present application.

Marriage -- Presumption of marriage -- Mahomedan Law -- Cohabitation by Muslim couple in United Kingdom -- Fact of cohabitation to be taken into account as evidence in support of woman's later application for readmission to this country for settlement as wife of same man -- MULLA: Principles of Mahomedan Law (16th Edn) Ch XIV, s 268.

Practice and procedure -- Evidence -- Burden of proof -- Application for re-admission to United Kingdom after previous admission for settlement as wife of sponsor -- Whether previous admission as wife raised an estoppel precluding later refusal to admit as wife of sponsor -- Whether previous admission part of evidence, and burden of proof still on applicant to show relationship claimed.

Held:

CB and three minor children, citizens of Pakistan, applied in 1976 for entry clearance to enable them to join their sponsor in the United Kingdom for settlement as his wife and children. In 1970 CB had been admitted for settlement as the sponsor's wife with the eldest of those children. The 1976 application for re-admission was refused because the visa officer was not satisfied as to the relationship claimed, by reason of substantial discrepancies in the accounts of family matters given to him by CB and another person claiming to be her eldest son. The adjudicator to whom CB and the three children appealed allowed their appeals, holding that, although the evidence before him was insufficient to satisfy him that the applicants were related as claimed, the immigration authority was estopped from refusing entry clearance unless it showed either that the earlier entry clearance had been obtained by deception or that since that time there had been such a change of circumstances as would make CB ineligible for admission n1. n1 The immigration authority did not apparently tender any such evidence. On the visa officer's appeal to the Tribunal, Held: (i) the adjudicator had confused the issue by invoking the doctrine of estoppel, for the previous grant of entry clearance was not something which had to be considered in addition to the evidence, but was a part of the evidence, and the onus remained on the applicants to establish their claimed relationship; (ii) the adjudicator's misdirection had not, however, led to a wrong result, because the uncontradicted evidence of independent witnesses at the hearing had tended to establish that CB and the second applicant had while previously in the United Kingdom lived with the sponsor as his wife and child; had that evidence been before the visa officer he might well have granted entry clearance, for in view of Muslim custom such cohabitation by CB would have been inconceivable if she were not the sponsor's wife n2. Accordingly, the visa officer's appeal would be dismissed. n2 See MULLA: Principles of Mahomedan Law (16th Edn) Ch XIV, s 268.

Counsel:

W. G. Chalmers for the appellant visa officer. M. Hussain, counsel for the respondents. PANEL: D. L. Neve Esq (President), E. A. Lewis Esq, A. S. W. Newman Esq

Judgment One:

THE TRIBUNAL:

The respondents in this appeal (to whom we shall refer as 'the applicants') are citizens of Pakistan. The first applicant (Channo Bi) is said to be the mother of the other three. They applied to the visa officer in Islamabad in July 1976 for entry clearance to enable them to join the sponsor -- Mr Alam Hussain -- for settlement in this country as his wife and minor children. Their applications were refused. They appealed to an adjudicator against the refusals and their appeals were heard and allowed on 30 June 1978. Against the adjudicator's determination the visa officer now appeals to the Tribunal. The facts of this case are a little unusual and can briefly be set out as follows. On 23 September 1970 the first applicant was issued with an entry certificate, in respect of herself and the second applicant (Mohamed Tasarat) endorsed "to join husband". They arrived in this country and were admitted on 16 December 1970. In May 1971 they returned to Pakistan. In 1976, together with the two further applicants, they made the applications which are the subject of this appeal. Mr Chalmers tried to claim before us that the persons who obtained the entry clearance in 1970 might not have been the first two applicants, but it appeared to us that it had clearly been conceded before the adjudicator (and, indeed, accepted by the visa officer) that they were the same persons, and he therefore did not pursue this line of argument. When the four applicants attended the British Embassy in 1976 they were accompanied by one Sabir Hussain, an adult who the first applicant said was her eldest son. She and Sabir Hussain were interviewed, and serious and substantial discrepancies in their accounts of family relationships and circumstances came to light. As a result of these discrepancies the visa officer was not satisfied that the applicants were related to Alam Hussain as they claimed and his refusals followed. At the hearing before the adjudicator he heard evidence from the sponsor and two English (or possibly Irish) women. The sponsor gave evidence as to his wife and family and their movements. The two other witnesses gave evidence that they knew the first applicant by sight (they identified her from a photograph) and used to see her when she was living with the sponsor in this country. One said this was in 1970, the other was less specific. One of them was able to identify the second applicant's photograph also, as being the first applicant's child whom she had seen living with the first applicant and the sponsor, and who went back to Pakistan with her. There was also evidence before the adjudicator of regular remittances from the sponsor to "Channo Bi" (the first applicant's name) covering the time when she was not in this country -- such evidence having been submitted to the Inland Revenue and bearing their stamp. There was also a photograph of the sponsor and the first applicant together, evidently taken when they were younger. For the visa officer Mr Chalmers has submitted that the adjudicator's determination contains mistakes and misdirections. For example, he records "The principal appellant was said to be the sponsor's second wife by whom he had had seven children". It is not disputed that there was no evidence to support this statement (and Mr Hussain was quick to suggest that this mistake is an example of how the discrepancies referred to by visa officers can occur). More important, perhaps, was the adjudicator's approach to the evidence. He records "notwithstanding the documents, the evidence before me was insufficient to satisfy me on the balance of probabilities that the sponsor and the appellants were related as claimed". Mr Chalmers submits that having made this finding he should have dismissed the appeal. This is to ignore a later passage in the determination

"In addition to the evidence, however, I have to consider the fact that the principal and second appellants have previously been granted entry clearances as the sponsor's wife and son... I feel that the grant of the initial entry clearance must raise what is in effect an estoppel. On a subsequent application the burden must lie on the Home Office to show that the first entry clearance was obtained by deception or that there has been a change in the circumstances..."

The adjudicator then went on to allow the appeals. Neither before the adjudicator nor before us did Mr Hussain seek to rely upon the doctrine of estoppel, and we think that the adjudicator confused the issue by invoking it. The previous granting of entry clearances was not -- as the adjudicator remarks -- something which he had to consider "in addition to the evidence" -- it was part of the evidence, and no doubt an important part. In the opinion of the Tribunal the onus is always upon applicants to establish their claim and does not shift in the manner described by the adjudicator; although no doubt the fact of a previous successful application by them would be powerful evidence in their favour. We therefore agree with Mr Chalmers that the adjudicator misdirected himself, but we have to consider whether this led to a wrong result. We can well understand the visa officer's refusals, which were not surprising in view of the discrepancies before him: but the adjudicator had further evidence tending to establish that the first and second applicants lived with the sponsor as his wife and child whilst they were in England in 1970/71. This evidence was uncontradicted, and the adjudicator does not appear to have rejected it. In view of Muslim custom it would have been inconceivable for the first applicant to have lived with the sponsor if she were not his wife, n3 and had the visa officer had the benefit of this evidence we think it very possible that he would have granted the applications. n3 See MULLA: "Principles of Mahomedan Law" (16th Edn), Ch XIV, s 268, according to which "Marriage will be presumed, in the absence of direct proof, from -- (a) prolonged and continual cohabitation as husband and wife..." For these reasons we consider that the applicants were entitled to succeed before the adjudicator, and this appeal is dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Brody, Goodwin & Co, Rochdale.