Visa Officer, Islamabad v. Kalsoom Begum and Another

VISA OFFICER, ISLAMABAD v KALSOOM BEGUM AND ANOTHER, TH/23788/78/1412)

Immigration Appeal Tribunal

[1978] Imm AR 206

Hearing Date: 7 December 1978

7 December 1978

Index Terms:

Entry Clearance -- Notice of refusal -- Ground for refusal defective and/or inadequate -- Purported wife's application to join husband for settlement -- Doubtful validity of her purported child marriage in Pakistan the sole ground of refusal -- No information in explanatory statement that the family relationship and domestic circumstances were investigated -- Whether appeal should be allowed by adjudicator solely because the decision of the visa officer was 'unsafe' -- Immigration Act 1971, s 19(1)(a) -- HC 81, paras 36, 37.

Practice and procedure -- Notice refusing application for entry clearance -- Ground given in notice defective -- Purported wife's application to join husband for settlement -- Ground of refusal only the doubtful validity of the purported child marriage in Pakistan -- Relationship and family living circumstances of couple not investigated by visa officer -- Whether appeal should be allowed by adjudicator solely because the decision of the visa officer was 'unsafe' -- Immigration Act 1971, s 19(1)(a) -- HC 81, paras 36, 37.

Held:

Entry clearance to enable a purported wife and child, citizens of Pakistan, to join their sponsor in the United Kingdom was refused by the visa officer in Islamabad on the ground that he was "not satisfied that a valid marriage [had] taken place", and in the notice of refusal addressed to the first applicant he added, "medical evidence suggests that you were 8 or 9 years old in 1962 when you claim to have married". No reference was made by the visa officer in his explanatory statement to any investigation of the claimed relationship, e.g. by enquiry into the domestic circumstances of the persons concerned, but he repeated that he had refused the application because he doubted whether a ceremony of marriage (evidenced by a marriage certificate as having taken place in December 1962 "would be performed in respect of an eight- or nine-year-old child" and even if so executed whether he could accept it as valid. When the applicants' appeal came before an adjudicator the sponsor did not appear but in a letter to the adjudicator he stated that he had married the principal applicant in 1962 and that the marriage was consummated in 1975; further, that the marriage was recognised by Pakistan law. The adjudicator considered the documentary evidence and relevant provisions in Pakistan law n1, and he concluded that the visa officer erred in his view that under Pakistan law child marriages were necessarily invalid; this erroneous view made the visa officer's decision 'unsafe', and the adjudicator held that the appeal must be allowed, following (as he believed) a principal enunciated by the Tribunal in 1975 in Doshi's case n2. At the same time, however, the adjudicator found that it had not been shown on the balance of probabilities that the applicants were related to the sponsor as claimed. n1 Inter alia MULLA Prinicples of Mohammedan Law (16th Edn), s 270 on the 'marriage of minors', and the Child Marriage Restraint Age 1929 (as amended by the Muslim Family Laws Ordinance 1961). n2 Doshi v Entry Clearance Officer, Dar-es-Salaam TH/6564/74(567) See footnote 4, post. The visa officer appealed to the Tribunal. Held (allowing the visa officer's appeal): The case of Doshi n2 on which the adjudicator relied when allowing the applicants' appeal -- notwithstanding his finding that they had failed to discharge the burden of proof upon them to show the relationship claimed -- was of little assistance inasmuch as its facts were widely different, the case being an application for entry as a student which turned largely on the applicant's intentions at the end of his proposed course, a question which the entry clearance officer had not considered. Per curiam: The alleged relationship between the applicants and their sponsor had never been adequately investigated and, should the applicants renew their application, the Tribunal hoped that this determination -- which made no finding on that relationship -- would not be held against them.

Counsel:

W. G. Chalmers for the appellant visa officer. Z. H. Chishti of the United Kingdom Immigrants Advisory Service, for the respondents. PANEL: D. L. Neve Esq (President), Miss M. F. Hardie, Dr S. Torrance

Judgment One:

THE TRIBUNAL: The respondents in this appeal Kalsoom Begum and Mohammad Asif (to whom we shall refer as 'the applicants') are citizens of Pakistan. In March 1977 they applied to the visa officer, Islamabad, for entry clearance to enable them to join a Mr Mohammed Ashraf for settlement in this country as his wife and 11-months old child. Their applications were refused. Against the refusals they appealed. Their appeal was heard by an adjudicator and was allowed on 26 July this year. Against the adjudicator's determination the visa officer now appeals to the Tribunal. The applicants' application was refused in the following terms:

"You have applied for entry clearance in order to join Mohammed Ashraf in the United Kingdom as his wife and son, but I am not satisfied that a valid marriage has taken place. Medical evidence suggests that you were 8 or 9 years old in 1962 when you claim to have married."

When the appeal went before the adjudicator the sponsor, Mohammed Ashraf, did not attend and his representative -- Mr Hannan of the UKIAS -- was unable to make any submissions on his behalf because the sponsor had not contacted him. However, the sponsor did write a letter to the adjudicator in which he stated that he had married the principal applicant in 1962 and that the marriage was consummated in 1975; his marriage was recognised by Pakistan law, and if it was not recognised in this country he requested that the principal applicant be allowed to join him as a fiancée. Having considered the evidence before him and the provisions relating to the marriage of minors in Mohammedan law n3, the adjudicator concluded his determination in the following way: n3 See footnote 1, ante. "There is no doubt in my mind that the visa office was unduly influenced by his erroneous view of the law of Pakistan that child marriages are necessarily invalid. He was also in error in accepting without any reservation the age assessment report of Dr Malik. The marriage certificate which has been produced is clearly a false document but this fact in itself does not, in my view, indicate that necessarily there is no substance in the appellant's claim to be married to the sponsor. Moreover there is some evidence to suggest that the appellants are genuinely related to Mohd Ashraf as his wife and child respectively. The presenting officer has stated that the application form for British Nationality completed by Mohd Ashraf on 27 July 1973 records his wife as Kalsoom Begum. Mohd Ashraf's visit to Pakistan in 1974 and the birth of a child in April 1976, following his return to the United Kingdom in October 1975, further supports the claim of the appellants that they are Mohd Ashraf's wife and child respectively. For the reasons which I have stated the decision of the visa officer must be regarded as unsafe. The burden of proof rests on the appellants and has not been discharged, as it is not possible to say on the basis of the evidence before me that, on a balance of probabilities, the appellants are related to Mohd Ashraf as they claim. Where a decision of an Entry Clearance Officer is unsafe, the Tribunal have made it clear in Rajenda Laxmichand Doshi n4 that the appeal should be allowed. Accordingly I allow the appeals of Kalsoom Begum and Mohd Asif." n4 Doshi v Entry Clearance Officer, Dar-es-Salaam TH/6564/74(567) In this case a citizen of Tanzania of Asian origin had applied (in July 1974) for a student entry certificate and his application had been refused by an entry clearance officer on the ground that the ECO was not satisfied that the proposed course was "a realistic one in view of the Tanzanian Government's recent decision to withdraw computer services"; there was, moreover, no indication in the explanatory statement that the ECO had addressed himself to the question whether the applicant intended to leave the United Kingdom at the end of his proposed course, either to return to his family in Tanzania or to go elsewhere -- he had four siblings in India. The Tribunal, allowing Mr Doshi's appeal from the decision of an adjudicator, concluded their determination (d 18.12.75) with these words: "We agree with the adjudicator that the reason for refusal was not by itself a valid one under paragraph 19 of HC 79. Reading the explanatory statement we do not consider that the respondent fully applied his mind to the intentions of the appellant at the end of the course: rather did he consider the aspirations of East African Asians in general.

"Reviewing all the facts now before us we do not find any evidence to show that the appellant does not intend to leave this country on the completion of his proposed course of studies. There may well be suspicions strengthened no doubt by the recent settlement of his father in this country but the Tribunal has held in similar cases that mere suspicion is not enough. For this reason and bearing in mind the reason for refusal of an entry certificate we do not consider that it is safe to allow the adjudicator's decision to stand and on the balance of probabilities we are of opinion that the appellant intends to leave the country on completion of the course."

Upon the appeal coming before us we did not consider it necessary to call upon Mr Chalmers. Mr Chishti, for the respondents, stressed that the application had been refused, not upon the grounds of disputed relationship, but upon the grounds of the invalidity of the alleged marriage. He drew our attention to para 37 of HC 81, which provides that "a woman who has been living in permanent association with a man" may be admitted "as if she were his wife". Unfortunately in this case the domestic circumstances in which the applicants and the sponsor have been living have never really been investigated because, as has already been mentioned, the refusal was upon the grounds of the supposed invalidity of the alleged marriage. However, the adjudicator found as a fact that the applicants had failed to discharge the burden of proof which was upon them, and he found that they had failed to establish, upon a balance of probabilities, that they were related to Mohammed Ashraf as they claimed. This being so, with respect to the adjudicator, the Tribunal is unable to understand how he could have allowed this appeal. He says that it is because the Tribunal has made it clear that where the decision of an entry clearance is "unsafe" an appeal against the decision must be allowed. In support of this proposition he quotes the case of Rajenda Doshi n4. The Tribunal has considered the determination in that case, which concerned the refusal of "student" entry clearance and turned largely upon the question of the appellant's intentions. The facts were thus widely different from the facts of this case and we consider it to be of little assistance. For the above reasons this appeal is allowed. However, in allowing the appeal we wish to emphasise that we have made no finding as to the alleged relationship between the applicants and the sponsor. This is a matter which, it appears to us, has never been adequately investigated and we express the hope that, should the applicants renew this application, our determination of this appeal will not be held against them. We also hope that, should the application be renewed, it will be dealt with as expeditiously as may be.

DISPOSITION:

Appeal allowed.