Inayat Begum and Others v. Visa Officer, Islamabad

INAYAT BEGUM AND OTHERS v VISA OFFICER, ISLAMABAD, TH/20537/77(1338)

Immigration Appeal Tribunal

[1978] Imm AR 174

Hearing Date: 13 September 1978

13 September 1978

Index Terms:

Marriage -- Presumption of marriage -- Mahomedan Law -- "prolonged and continual cohabitation" -- Acknowledgment" of relationships -- Immigration appellate authorities may in proper case take account of Mahomedan Law, but onus always upon applicants for entry clearance as relatives to satisfy immigration authority as to the relationship claimed -- MULLA: Principles of Mahomedan law (16th Edn), Ch XIV, s 268.

Held:

The immigration appellate authority may properly in some cases take account of Mahomedan Law but is not bound by it; and where a presumption of marriage is claimed by reason of "prolonged and continual cohabitation as husband and wife" (under s 268 in MULLA's Principles of Mahomedan Law, 16th Edn) such cohabitation must be shown to have existed; similarly the onus is always on applicants relying on the "acknowledgments" referred to in subparas (b) and (c) of s 268 to satisfy entry clearance officers as to the relationship claimed. n1 n1 Section 268 is set out on p 175, post. The Tribunal so held in the determination reported below. The facts are set out in the determination.

Counsel:

N. A. Solaimani, counsel for the appellants. K. E. R. Rogers for the respondent. PANEL: D. L. Neve Esq (President), A. J. Coles Esq, Sir Gordon Whitteridge

Judgment One:

THE TRIBUNAL: The appellants are citizens of Pakistan. They applied to the visa officer in Islamabad on 1 March 1976 for entry clearance to enable them to join a Mr Mohd Shafi for settlement in this country as his wife and minor children. The visa officer was not satisfied that they were his wife and children and refused the application. They appealed against the refusal and their appeal was heard by an adjudicator (Mr J. K. Brownlees) and dismissed on 13 April this year. Against Mr Brownlees' determination they now appeal to the Tribunal. At the hearing of the appeal before the adjudicator the appellants started under something of a handicap because it was not in dispute that in January 1973 the appellants together with two other boys had made a similar application. This had been refused and the refusal on that occasion had been appealed against. The appeal, however, had to be withdrawn, as at the hearing the sponsor admitted that the two other boys were not his sons but were those of his dead brother. In respect of the present application the visa officer was not satisfied that the claimed relationship was genuine because of numerous and substantial discrepancies in the accounts given by the sponsor and the appellants with regard to family relationships and everyday family matters. When the appeal went before the adjudicator he heard evidence from the sponsor and three other witnesses. It appears from the record of proceedings that one of these witnesses -- Mahbut Khan -- came to this country in 1966. He told the adjudicator that he is the son of the first appellant's brother. His evidence and the evidence of the sponsor, however, provide strong reason for suspecting that he obtained entry to this country as the son of the sponsor. Various documents were produced before the adjudicator, including an affidavit sworn for income tax purposes in 1969, a group photograph purporting to be a photograph of the sponsor's family, and other documents of more recent date and consequently of less value evidentially. In his address, Mr Solaimani endeavoured to persuade us (a) that the adjudicator's findings were against the weight of the evidence, and (b) that he misdirected himself as to the law. With regard to (a) the adjudicator reviewed the evidence before him most conscientiously and took proper note of such evidence as was in the appellants' favour. In coming to the conclusion which he reached, however, we are of opinion that such conclusion was abundantly supported by the evidence and a conclusion which we ourselves would have come to. With regard to (b) Mr Solaimani referred us to the case of Nazir Begum n2. The determination in that case included a quotation from MULLA'S Principal of Mahomedan Law (16th Edn), section 268, as follows: n2 Nazir Begum v Entry Clearance Officer, Islamabad, [1976] Imm A R 31. "Presumption of marriage -- Marriage will be presumed in the absence of direct proof, from -- (a) prolonged and continual cohabitation as husband and wife; or (b) the fact of the acknowledgment by the man of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgment mentioned in section 344 below are fulfilled; or (c) the fact of the acknowledgment by the man of the woman as his wife." It would appear from an examination of the case cited that the Tribunal were satisfied in that instance that "prolonged and continual cohabitation" had taken place. In the present case we would make it clear that this Tribunal is not bound by Mahomedan Law -- although no doubt in some cases it would be proper to take account of it. In this case the question of the appellants' identity was involved and there was no evidence of any -- let alone prolonged and continual -- cohabitation between the sponsor and the woman who presented herself to the visa officer as his wife. The immigration authority is most certainly not bound by Mahomedan Law in regard to the acknowledgment of family relationships mentioned in (b) and (c) in the quotation above. The onus is always upon applicants to satisfy entry clearance officers as to the relationship which they claim. This being so, we are satisfied that the adjudicator did not misdirect himself as claimed or indeed in any other way.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Duckney & Co, Southall.

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