Mohd Tariq Malik v. Secretary of State for the Home Department

MOHD TARIQ MALIK v SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/76367/81(2105)

Immigration Appeal Tribunal

[1981] Imm AR 134

Hearing Date: 14 August 1981

14 August 1981

Index Terms:

Marriage -- Arranged marriage -- Marriage 'of convenience' -- Entry of fiancé (aged 18) in 1975 as visitor for one month ostensibly 'to attend family wedding' -- Marriage to cousin at register office within 6 days -- Conditions on limited stay removed under current immigration rule -- Religious ceremony with resulting consummation of marriage contemplated to take place about 2 years later but never took place -- Husband's attention transferred to wife's younger sister -- No consummation of marriage -- Decree nisi of nullity granted to wife on judge finding wilful refusal by husband to consummate marriage -- Whether husband's deportation as being 'conducive to the public good' justified on ground that the civil ceremony of marriage was a device to enable him to remain in the United Kingdom after the expiry of his visitor's permit -- Whether this was a 'marriage of convenience' -- HC 82, para 23 (as amended by Cmnd 5718 d August 1974) -- Immigration Act 1971, s 3(5)(b).

Deportation -- Deportation 'conducive to the public good' -- 'Marriage of convenience' -- Arranged marriage -- Civil ceremony of marriage to cousin at register office within few days of admission as visitor in 1975 for one month ostensibly 'to attend family wedding' -- Conditions limiting leave as visitor removed on application within few days of civil ceremony of marriage -- Religious ceremony leading to consummation of marriage not contemplated to take place within period of 2 years -- Religious ceremony never taking place by reason of husband's amorous attention to wife's sister -- Decree nisi of nullity granted to wife on wilful refusal to husband to consummate marriage -- Whether deportation of husband justifiable in 1980 on ground that the civil marriage was simply a device to enable him to remain here after the expiry of his visitor's leave -- Discretion in decision to deport -- Public interest that immigration rules be not abused balanced against any compassionate circumstances and every relevant factor affecting husband -- Immigration Act 1971, s 3(5)(b) -- HC 394, paras 139, 141, 144.

Held:

The appellant was a Pakistan citizen who in 1975, when aged 18, was admitted to the United Kingdom as a visitor for one month ostensbily 'to attend a family wedding'. In fact a marriage had been arranged for him with a cousin here prior to his entry, and within six days of his arrival he went through a civil ceremony of marriage to that cousin. A few days after this register office wedding he applied for and obtained (under the immigration rule then in force, para 23 of HC 82 as amended by Cmnd 5718 n1) the removal of the time limit on his stay. According to custom a religious ceremony of marriage was necessary before the marriage could be consummated; and it was apparently not contemplated that this ceremony would take place till some two years later. In fact no such ceremony took place, because the appellant became amorously attached to the wife's younger sister. The wife petitioned for and was granted a decre nisi of nullity on the judge finding that there was a wilful refusal by the husband to consummate the marriage. In August, 1980 the Secretary of State decided to make a deportation order against the husband under s 3(5)(b) of the Immigration Act 1971 n2 on the ground that the civil ceremony of marriage had been a device used simply to enable the appellant to remain in this counry after the expiry of his visitor's leave, thus in effect his marriage was one 'of convenience' and an abuse of the immigration rules. n1 Paragraph 23 of HC 82, as amended in August 1974 by Cmnd 5718, provided that "a man admitted in a temporary capacity who marries a woman settled here should on application have the time limit on his stay removed". In March 1977 this provision was replaced by HC 241, paras 23, 24 and 24A. In the immigration rules which came into operation on 1 March 1980, "where a man admitted in a temporary capacity marries a woman settled here" the rule applicable is para 117, very much more restrictive that the earlier provisions. n2 Section 3(5)(b) of the Act provides that "a person who is not patrial shall be liable to deportation from the United Kingdom --... (b) if the Secretary of State deems his deportation to be conducive to the public good". On appeal to the Tribunal against the Secretary of State's decision, Held: The appeal would be dismissed for the following reasons: (i) the Secretary of State was justified in his decision that the appellant's deportation would be 'conducive to the public good' under s 3(5)(b) of the Immigration Act 1971, inasmuch as (ii) the civil ceremony of marriage had been a 'marriage of convenience' in the sense that it was on the evidence a device to enable the appellant to stay in this country after his visitor's leave expired, rather than the prelude to a religious ceremony enabling the appellant to live with his wife as her husband; and (iii) balancing the public interest, namely that the immigration rules be not abused, against any compassionate circumstances affecting the appellant and taking into account every relevant factor (see p 139, post), the Tribunal was of opinion that the Secretary of State's discretion under paras 239 et seq n3 of the immigration rules HC 394 should not have been exercised differently. n3 The paragraphs specifically relevant in HC 394 were paras 139, 141 and 144, the latter paragraph drawing particular attention to a number of specified relevant factors set out in para 141.

"139. In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects."

"141. In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including: age length of residence in the United Kingdom personal history, including character, conduct and employment record domestic circumstances compassionate circumstances any representations received on the person's behalf."

"144. The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 141."

Counsel:

G. Yazdani, counsel for the appellant. B. Hunter for the respondent Secretary of State PANEL: A. Hooton Esq (Vice-President), Mrs. J. M. Abrahams, A. S. Newman Esq

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Pakistan, appeals against the decision of the respondent to make a deportation order against him by virtue of 3(5)(b) of the Immigration Act 1971. The Tribunal has considered the documentary evidence, including the Home Office statement, and the transcript of the shorthand note of the judgment, dated 21 September 1979, of STEPHEN BROWN J in the case of Reyana Malik v Mohammed Tariq Ur Rayman Malik, the oral evidence tendered to it by the appellant and the submissions of Mr G. Yazdani, counsel, on behalf of the appellant and those of Mr B. Hunter representing the respondent. The notice of the decision of the Secretary of State served on the appellant on 18 August 1980 reads as follows: "To Mohammed Tariq Ur Rehman Malik The Secretary of State is satisfied that your marriage to Rehana Begum at Manchester Register Office on 28 November 1978 was one of convenience to secure your settlement in the United Kingdom with no intention that you should live permanently with your wife and having regard to this, the Secretary of State considers it to be conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of s 3(5) of the Immigration Act 1971 n4 requiring you to leave the United Kingdom and prohibiting you from entering while the order is in force. He proposes to give directions for your removal to Pakistan." n4 See footnote 2, ante. There is a typographical error in the notice. The marriage between the appellant and Rehana Begum was celebrated on 28 November in the year 1975 and not in the year 1978. The Tribunal finds the following facts, which are mostly set out in the judgment of STEPHEN BROWN J, referred to above, who heard the evidence of both the appellant and Rehana Begum. The appellant was born in Pakistan on 14 February 1957. Rehana is his first cousin and was born in Pakistan one day earlier. Rehana came to this country with her parents when she was two years of age and has lived here ever since. It was arranged between the families that the appellant and Rehana should marry. The appellant arrived in this country on 22 November 1975. He did not ostensibly come to marry Rehana. He had no entry clearance as a fiancé. He told the immigration officer who interviewed him that he was coming to attend a family wedding. He was admitted as a visitor for one month with a condition prohibiting employment. On 28 November 1975 the appellant and Rehana were married at the Register Office in Manchester. This was only six days after the appellant's arrival in this country, so clearly plans for the marriage were at an advanced stage when he arrived. Although the appellant told us in evidence that he would not have gone through with the ceremony had they not liked each other when they met -- in which case he would have returned to Pakistan -- he said that his purpose in coming to this country was to marry Rehana, since they were already engaged. The appellant claimed in evidence that after the civil ceremony there was a religious ceremony, according to Islamic rites, in his father-in-law's house and that he and Rehana then lived together as man and wife sharing a bedroom in her father's house. The Tribunal does not accept, any more than STEPHEN BROWN J accepted, that there ever was a religious ceremony or that they ever lived together as man and wife. He slept in a room with her brother and she slept in a different room with her sisters. Until a religious ceremony was performed it would not have been acceptable under their religious law for them to live together as man and wife. On 12 December 1975 application was made for the removal of the conditions attached to the appellant's stay in this country by reason of his marriage to a woman settled here. The application was granted on 9 February 1976, the relevant immigration rule then in force (para 23 of HC 82 as amended by Cmnd 5718) reading: "23. A man admitted in a temporary capacity who marries a woman settled here should on application have the time limit on his stay removed". n5 n5 This rule was replaced by a more onerous provision in March 1977, and again in March 1980. See footnote 1, ante. The appellant continued to live in his father-in-law's house. He went to work. It was contemplated that a religious ceremony of marriage would take place when a firm basis had been established for their married life. A house was purchased and vacant possession obtained early in 1978. STEPHEN BROWN J accepted the evidence of the appellant's father-in-law that it was planned that the religious ceremony would take place in April or May of that year, some 2 1/2 years after the register office marriage. This ceremony has never taken place. The reason for this is that the appellant became attached to Rehana's younger sister. He wrote her love letters. When this state of affairs became known to Rehana's father he was very shocked; so shocked that he required the appellant to leave his house. Rehana petitioned for nullity on the ground that the appellant had refused to consummate the marriage, and the judgment of STEPHEN BROWN J to which reference has been made is the judgment of the Court in that case. A decree nisi was granted. Stephen Brown J expressed himself as satisfied that the marriage between the appellant and Rehana was never consummated. He further held that the appellant by his conduct and transfer of his affections to his wife's younger sister made it clear that he did not wish to go through with the religious ceremony and thereby put himself in a position where his marriage could be consummated; this amounted to a wilful refusal to consummate the marriage. The Secretary of State's case that it is 'conducive to the public good' that the appellant should be deported is based upon a contention that there was an abuse of the immigration rules by all parties, including of course the appellant. The rules which permit settlement on the basis of marriage are designed to enable persons who intend to live together as man and wife so to do. If the primary object of the ceremony of marriage is to obtain settlement and not to live together as man and wife, the marriage is normally described as one of convenience, being a device to achieve a settled status in this country. Mr Hunter submits that at the date of the civil ceremony of marriage at Manchester the parties had no intention to live together as man and wife at that time. Their purpose in going through the ceremony was to provide a means for the appellant to be allowed to stay on in this country after his leave expired until such time as a religious ceremony took place. Although the appellant became nominally the husband of Rehana, their personal relationship subsequent to the marriage was no deeper than that of a couple who are betrothed. No arrangements were made for a religious ceremony until more than two years after the civil ceremony. Counsel on behalf of the appellants has submitted that the facts of this case are very different from those in which a marriage has been held to be one of convenience. Mr Yazdani's point has substance. In the majority of such cases the evidence has shown that the parties, at the time of marriage, had no intention whatsoever to live together on a permanent basis as man and wife. In the present instance STEPHEN BROWN J accepted that it was the plan that the appellant and Rehana should ultimately become man and wife in the fullest sense of the term. STEPHEN BROWN J also found that the purpose of the civil ceremony was primarily to enable the appellant to remain in this country after the expiration of his visitor's permit. There is nothing in the further evidence before the Tribunal which would warrant it coming to a different conclusion. The Tribunal accepts Mr Hunter's submission that the appellant was, in going through the civil ceremony, party to an abuse of immigration rules -- that ceremony was a device to enable him to stay on in this country after his leave expired rather than the prelude to a religious ceremony enabling him to live with Rehana as her husband. It was in this sense a marriage of convenience. The Tribunal finds that the Secretary of State was justified in considering it to be conducive to the public good that the appellant should be deported. There remains the question whether the Secretary of State's discretion should have been exercised differently. Is deportation the right course on the merits? The public interest must be balanced against any compassionate circumstances and all the relevant factors be taken into account. (Paragraphs 139 and seq of HC 394) n6. n6 See footnote 3, ante. Mr Yazdani has emphasised that the appellant has shown himself to be a hardworking and law-abiding citizen during his residence of nearly six years in this country -- nearly five years at the time of the Secretary of State's decision. He was only 18 years old when he arrived in this country and is still only 24. The break-up of the marriage was unfortunate. The case differs from the normal "marriage of convenience" case. It must, however, not be forgotten that the majority of the period spent by the appellant in this country has followed upon the removal of his conditions consequent upon the marriage ceremony at the register office; but for that ceremony he would have had no leave to be in this country, nor would he have been permitted to work here. His family ties, now that his marriage no longer subsists, are in Pakistan. He is young enough to re-adapt to life in his home country and to forge a career for himself there. In the circumstances the Tribunal is of opinion that the Secretary of State's discretion should not have been exercised differently. His decision was in accordance with the law and immigration rules and is affirmed.

DISPOSITION:

Appeal dismissed.