Sharufa Begum v. Entry Clearance Officer, Dhaka

SHARUFA BEGUM V ENTRY CLEARANCE OFFICER, DHAKA

Immigration Appeal Tribunal

[1987] Imm AR271

Hearing Date: 19 February 1987

19 February 1987

Index Terms:

Practice and Procedure -- whether the representative of the Secretary of State could call an appellant's sponsor as a witness -- whether it would be desirable for an adjudicator in his discretion to issue a witness summons to allow that to occur. Immigration Appeals (Procedure) Rules 1972, 1984, r 27.

Evidence -- whether where there is evidence of a marriage, the burden of proof of showing that there has been a subsequent divorce lies on the parties to the marriage.

Evidence -- whether it is proper to include in an explanatory statement matters prejudicial to a sponsor but irrelevant to issues raised in an appeal.

Held:

The appellant was refused entry clearance to join the sponsor as his wife because the entry clearance officer was not satisfied she was related to him as claimed. Before the adjudicator a new point was taken. It was asserted that the sponsor, at the date of his marriage to the appellant (which by then was accepted) had acquired a domicile of choice in the United Kingdom. There was no evidence that the first wife had been divorced and the adjudicator held that the second marriage was invalid. The representative of the entry clearance officer, before the adjudicator, had sought to call the sponsor as a witness which the adjudicator had not permitted. Before the Tribunal it was argued that there was no sufficient evidence to show that there had ever been a previous marriage. There was evidence that the marriage had ended, if it ever subsisted, because a witness had stated that the alleged first wife was married now to another person. Before the adjudicator exception had also been taken to the inclusion, in the explanatory statement, of criminal convictions of the sponsor not relevant to the issues raised in the appeal. Held: 1. Under the Procedure Rules an adjudicator had discretion, on application by a party, to issue a witness summons. Thus the Secretary of State's representative could apply to call a sponsor as a witness. 2. It was impossible however to envisage circumstances in which it would be right and proper for an adjudicator, in his discretion, to accede to such an application. 3. On the facts there was evidence of a previous marriage by the sponsor. No evidence had been produced to show there had been any legally recognisable form of divorce: by inference such evidence would have had to be produced by the sponsor. 4. The Tribunal deprecated the inclusion in an explanatory statement of any matters prejudicial to a sponsor and not relevant to issues raised in an appeal.

Cases referred to in the Judgment:

No cases are referred to in the determination.

Counsel:

G Haque for the appellant; R Parsons for the respondent PANEL: DL Neve Esq (President), GW Farmer Esq (Vice-President), Dr LP De Souza MC JP

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Bangladesh. She applied to the entry clearance officer in Dhaka for entry clearance to enable her to accompany a Mr Reyasat Ullah to this country as his wife. Her application was refused. She appealed to an adjudicator against the refusal. Her appeal was heard by Mr EJT Housden and dismissed on 9 October last. Against Mr Housden's determination the appellant now appeals to the Tribunal. The appellant's application was refused because, to quote the notice of refusal:

"You have applied for Entry Clearance with a view to admission to the United Kingdom as the dependent wife of REYASAT ULLAH but I am not satisfied that you are stated (sic) as claimed."

This was clearly meant to read "related as claimed", but in any event at the appeal before the adjudicator the Home Office representative stated that he did not press this as a reason for refusal. In order to support the refusal he relied rather on the submission that Reyasat Ullah already had an existing wife; that he had acquired a domicile of choice in the United Kingdom at the time of his "marriage" to the appellant; and consequently that his marriage was not recognised by the laws of this country. This being a reason for refusal not previously relied upon, the adjudicator very properly adjourned the case to enable this matter to receive adequate consideration by the parties. Mr Haque also represented the appellant before the adjudicator, and on resumption the following passage from the adjudicator's determination records: "Mr Haque said (and I agree) that it was for the respondent to prove that the sponsor had a domicile of choice in England, and added that he would not call Reyasat Ullah as a witness. I commented that if Mrs Mack wished to do so she could call the sponsor to give evidence and on Mr Haque objecting to this I discussed the matter briefly with the Chief Adjudicator, as a result of which I came to the conclusion that the better course would be to say that Mrs Mack could not call the sponsor. If I proved to be wrong in this, the Immigration Appeal tribunal could in in due course remit the case to me so that Reyasat Ullah could be heard. Pausing there, my initial view was that it is open to either party to an appeal to call as a witness anyone whose testimony is considered to be useful and relevant. I cannot find anything in the rules of procedure which conflicts with that view. However, by analogy with the rule of evidence against self-incrimination, it could be argued that it would be improper to allow the respondent to call the appellant as a witness, if the latter did not wish to give evidence; and by an extension of the same argument it could be said that the sponsor -- whose interests are likely to be those of the appellant -- should not be called against his will, either. I would welcome some guidance from the Immigration Appeal Tribunal on this point." In our view this matter raises no difficulty. If requested by either party an adjudicator may at his discretion issue a witness summons to compel the attendance of a relevant witness (Rule 27, Immigration appeals (Procedure) Rules 1972 and 1984). In theory it would be possible for a Home Office representative to apply to the adjudicator for a witness summons to compel the attendance of the sponsor in an appeal to give evidence but we can envisage no circumstances in which such an application would be granted in view of the fact that: 1. an adjudicator has a discretion whether to grant such an application or not; and 2. if a sponsor were called to give evidence in such circumstances, he would be the Home Office representative's witness and the Home Office representative would not be entitled to cross-examine him or to ask him any leading questions. This is quite apart from the fact that, although technically the sponsor in an appeal is not the appellant, he is usually the person who is pursuing the appeal and, so to speak, stands in the appellant's shoes as a party to the appeal: and in our view it would be quite wrong to compel a party to the appeal to give evidence against his will. The failure of a sponsor to give evidence is of course a matter which an adjudicator is fully entitled to take into account, and the conclusions which can be drawn from such a refusal will probably -- although not necessarily -- be adverse to the appellant's interests. As the appeal before the adjudicator proceeded it was eventually conceded by the Home Office representative that a marriage ceremony had taken place between the parties, and only two matters remained for determination: 1. whether the sponsor's first wife was alive and still married to him; and 2. his domicile As to the first of these questions, the adjudicator records: "Mr Haque argues that in view of the conflicting evidence about the first wife (Sitara Begum) I must find -- as (he says) I would have to find in any 'family' case, on this evidence -- that it has not been proved to the balance of probabilities that Sitara Begum is or ever was the first wife of the sponsor. I do not agree. When the sponsor was interviewed in May 1982 he told the Entry Clearance Officer that Sitara Begum had died in 1977 of a heart attack. He did not say that he had divorced her, and the domicile questionnaire (Appendix F) records that his answers to item 5(b) ("the date of your divorce from your first wife") was "not divorced". However, the discrepancies between the information given by the various people interviewed at Daudpur Villlage in January 1984 go mainly to whether Sitara Begum was divorced, not whether she was alive or dead. All agreed that there had been a first wife. Her daughter, Aflatun Nessa, said that her mother was still married to and living with her father, the sponsor. One must ask why she would have volunteered this information if it were not true. What had she to gain by making a false statement about her mother? This must be contrasted with the giving of information which is clearly in the interest of the sponsor or appellant in a 'family' case. The sponsor's brother, Jofor Ullah, was interviewed and said that Reyasat Ullah's first wife had died before the sponsor went to the United Kingdom for the first time, that is 1963; clearly the information given by this brother conflicts with that given by the sponsor, that Sitara Begum died in 1977. Three other people were interviewed by another team of Entry Clearance Officers. Villager 'A' named the first wife as Sharufa Begum and said that the sponsor had two wives. Villager 'B' said that the first wife had been divorced 8 or 9 years previously and had remarried. As to the children (whom other people had been able to name more fully) he knew of only one, Aflatun. Villager 'C' said that the sponsor had had 2 wives, the first being named Shita Bibi, who had been divorced and had remarried about two years previously. From this conflicting evidence it emerges clearly that the sponsor had a first wife; what is not clear is when and how the marriage ended. I therefore find that he was already married prior to 1982 but that it has not been proved, to the balance of probabilities, that the first marriage has ended. In coming to this conclusion I apply the same principles as I would to any 'family' case where a relationship is in dispute. Where there is general agreement on a particular point -- in this instance, whether the first wife ever existed -- and the informants have no ascertainable reason for telling lies about the relationship, considerable weight must be given to their evidence." The adjudicator went on to consider the question of the sponsor's domicile and found that at the relevant time the sponsor had acquired a domicile in England. Upon the appeal coming before us Mr Haque informed us that he did not challenge the adjudicator's finding on the question of domicile, and relied on the submission that there was no sufficient evidence to lead to the conclusion that the sponsor's first marriage was still subsisting when he "married" the appellant. Mr Parsons confirmed that it was not challenged that the sponsor and the appellant had gone through a form of marriage. The appellant had now been granted temporary admission and Mr Haque applied for leave to call her as a witness, which application we granted. We informed Mr Haque that we were also prepared to hear Reyasat Ullah should he wish to call him. Mr Haque said that he did not intend to do so. The matters relating to the sponsor's first wife which concerned the immigration officer are summarised in his explanatory statement as follows: "i) At his first interview in Dhaka with Mr Holmes the sponsor stated that he had 2 grown sons and 2 grown daughters from his first wife, Sitara Begum. The sponsor stated that Sitara died of a heart attack in 1977 (para 3) and produced an affidavit to that effect (Appendix 'D'). He made no mention of her leaving or divorcing him. ii) At the sponsor's home in Sylhet the sponsor's brother, Jofor Ullah, told an Entry Certificate Officer, that the sponsor's first wife died before the sponsor first went to the United Kingdom (and that was in 1963). Jofor told the Entry Clearance Officer that the sponsor had 3 sons and one daughter and an apparent discrepancy occurred regarding Asman/Ayub Ali and his real and 'call' names (see para 7). iii) Also at the sponsor's home in January 1984, Aflatun Nessa, who stated that she was the sponsor's daughter, told the Entry Certificate Officer that her mother, the sponsor's first wife, was still alive and married to the sponsor. She told the Entry Certificate Officer that when the sponsor was in Bangladesh her mother still lived with the sponsor at his home (para 9). iv) Three close neighbours of the sponsor (one of whom claimed to be his nephew) had also been interviewed during the village visit and their evidence had been somewhat conflicting regarding the sponsor's marital status. However, none of these individuals mentioned that the sponsor's first wife was dead (paras 11, 12 and 13). v) When the sponsor was re-interviewed by Mr Williams in the United Kingdom in April 1984, he told the Interviewing Officer that he had 3 duaghters only and that 2 were deceased. He was, it would seem, unable to offer any reason why he had told Mr Holmes that he had 2 sons and 2 daughters. (c) Furthermore, the sponsor was apparently unable to furnish any evidence of his actually having been in Bangladesh at the time of his stated marriage to the applicant on 10 May 1982. (d) Although, perhaps, understandable, due to short time of their claimed union, the applicant had been almost completely ignorant of the sponsor's close family affairs (Appendix 'E')." In her evidence to us the appellant told us that she arrived in this country on 21 September last when she was granted temporary admission. In 1982 she had a miscarriage but she is now again pregnant. Her husband's first wife, Sitara Begum, is not dead but they are divorced. She (Sitara Begum) had remarried somebody else before the appellant's marriage to Reyasat Ullah. There was a daughter of Reyasat Ullah's marriage to Sitara Begum called Aflatun Nessa. Sharufa Begum says that she knows that her husband divorced Sitara Begum because, if he had not done so, she could not have remarried. The appellant said: "My husband was divorced many years ago when he was living in London. He did not write to her (Sitara Begum) or take any notice of her. She was kept waiting indefinitely. A young person cannot be kept waiting too long and she was married off. One needs to go to Court for a decree of divorce. I know about Talaq. My husband said he had divorced her although he had not been to Court, as they had not lived together. It makes no difference who divorced who. He divorced her -- I know this because I've been to their village and they haven't lived together for 20 years. ReX Unless a talaq has been announced one cannot re-marry." Mr Haque submitted that there had been no adequate documentary evidence to establish that Reyasat Ullah had ever married Sitara Begum. Sitara Begum had not been interviewed. Contradictory statements had been made by the persons interviewed relating to the marriage. It was not possible for a Bengali woman to have two husbands, the evidence was that Sitara Begum had remarried. In short there was no sufficient evidence that the first marriage had existed, but even if there was, there was evidence that it was finished. Mr Parsons relied upon the findings of the adjudicator, which he submitted were reasonable and fully supported by the evidence before him. We have considered these submissions in the light of the evidence contained in the file and the evidence given to us by the appellant. For the reasons we have stated, we are only concerned with the question of Reyasat Ullah's first marriage to Sitara Begum. In our view the evidence that they were married is strong and, upon a balance of probabilities, we consider that it is established. The appellant herself in evidence agrees that the marriage did exist, and indeed there is a daughter of the marriage -- Aflatun Nessa. Furthermore the appellant in evidence states that the first wife, Sitara Begum, is still alive, and this we also find to be established on the balance of probabilities. The only question remaining is whether they were ever divorced. It seems clear that they have been separated for many years and it seems probable that Sitara Begum has gone through another ceremony of marriage. However there is really no evidence whatsoever that there has ever been any form of divorce which is legally recognisable. This being so, and the sponsor being domiciled in this country, his marriage to the appellant cannot be recognised, and the appeal was properly dismissed by the adjudicator. The appeal to the Tribunal is likewise also dismissed. There is one other matter which we should mention. The Home Office statement contains a list of criminal convictions against the sponsor. This was strongly objected to by one of the appellant's representatives before the adjudicator (Mr Moss of the UKIAS) as being prejudicial and irrelevant, and he applied for the explanatory statement to be re-written omitting the offending paragraph. This matter was dealt with by Mr Housden in a separate ruling as follows:

"I do not think that the prejudicial effect of the sponsor's convictions is so great that (as Mr Moss put in a letter to the Chief Adjudicator dated 31 July 1985 which is on the case file) "Any adjudicator would be confronted with an almost impossible task" of determining the appeal fairly. I am confident that I or any of my colleagues will be able to determine the appeal without being prejudiced against the appellant by the sponsor's convictions. As regards the public relations aspect of what Mr Moss has argued, while I would probably not have included the matters set out in the first part of paragraph 6 had I been the entry certificate officer, I cannot say that he was so wrong in including those convictions that the matter ought to be returned to him for the re-writing of the explanatory statement."

The first ground of appeal to the Tribunal complains that the adjudicator erred in law in so ruling. Although Mr Haque has not sought to rely on this ground, we should perhaps mention it. In our view the criminal convictions of the sponsor were not a matter which had any relevance to the question of whether he was married to the appellant or not. This being so, it was wrong to include them in the explanatory statement and unless the convictions have some relevance to the matter in issue in an appeal this practice should be avoided in future. If the sponsor had pleaded 'not guilty' to the offences of which he was convicted, and if he had given evidence before the adjudicator, it would have been open to the Home Office Presenting Officer to put the matter to the sponsor in cross-examination as going to the question of credibility. Mr Housden, an experienced adjudicator, evidently ignored the question of the sponsor's convictions in considering the appeal, as we have.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Zaman Choudhury & Co, London N15

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