Girishkumar Somabhai Patel v. Secretary of State for the Home Department

GIRISHKUMAR SOMABHAI PATEL v SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/36190/87 (6208)

Immigration Appeal Tribunal

[1989] Imm AR 246

Hearing Date: 20 December 1988

20 December 1988

Index Terms:

Husband -- primary purpose of marriage -- history of deceit in immigration interviews -- marriage had subsisted for three years -- daughter born of the union -- whether evidence of intervening devotion necessarily outweighed all other factors in the case: HC 169 para 126.

Held:

The appellant was a citizen of India who was refused settlement in the United Kingdom following his marriage to a British citizen. An appeal was dismissed by an adjudicator. He found there had been a history of deceit in material immigration interviews and indeed, he concluded that neither the appellant nor his wife had been truthful when they had appeared before him as witnesses. He considered all the evidence before him including that going to show intervening devotion but was not satisfied that the burden of proof had been discharged. On appeal to the Tribunal it was argued that the untruths told had been largely immaterial: that the evidence of intervening devotion was such as to overcome the adverse affect of the admitted deceit. It was also argued that in the light of the provisions of the 1988 Act where no appeal would lie in respect of a future notice of intention to deport, the Tribunal should pay particular attention, as a compassionate circumstance, to the position of the infant daughter. The interests of the child should be paramount: the inability of the appellant, if deported to maintain close family ties with his child would be a breach of the European Convention on Human Rights, following Berrehab. Held: 1. The adjudicator had taken full account of the matter of intervening devotion: if he had not, the Tribunal was able to correct that error on its review of the case. 2. The evidence of intervening devotion was strong, albeit it was the only factor in the case in favour of the appellant. Nevertheless there was no authority for the proposition that cohabitation and the birth of a child was sufficient by itself to justify the grant of settlement by discharging the burden of proof on primary purpose. 3. The interests of the child were paramount in matrimonial proceedings: in immigration cases albeit they had to be taken into account, they carried less weight. The European Convention on Human Rights was no part of English law and the case of Berrehab was therefore not conclusive. 4. On reviewing the evidence as a whole, the Tribunal came to the same conclusion as had the adjudicator.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Kumar [1986] Imm AR 446. R v Immigration Appeal Tribunal ex parte Saranjit Singh Atwal (unreported, QBD, 14 October 1987). Immigration Appeal Tribunal v Amirul Hoque [1988] Imm AR 216. Re KD (a minor) [1988] 2 FLR 139: 1988 1 All ER 577. Berrehab v The Netherlands (3/1987/126/177): ECHR series A, 138: The Times 30 June 1988. Amirul Hoque (unreported) (5896). Munfur Ali (unreported) (6075).

Counsel:

V Kothari for the appellant; A Gammons for the respondent PANEL: DL Neve Esq (President), Mrs A Weitzman JP, RE Hunte Esq JP

Judgment One:

THE TRIBUNAL. The appellant is a citizen of India. Whilst in this country as a visitor he married a woman settled here and applied to the Secretary of State for leave to remain in this country on the basis of his marriage. His application was refused. He appealed to an adjudicator against the refusal. His appeal was heard by Mr PB Rose and was dismissed on 22 April this year. Against Mr Rose's determination the appellant now appeals to the Tribunal. We reserved our determination and the parties agreed to postal delivery of it. On 7 April 1982 the appellant applied for entry clearance to enable him to come to this country from India to marry a Miss Tarulata Patel -- the lady who is now his wife -- and subsequent settlement. His application was refused because the Secretary of State was not satisfied that she was a citizen of the United Kingdom and Colonies, who had been born in the United Kingdom or one of whose parents had been born in the United Kingdom; neither was he satisfied that the appellant and Tarulata had met; and he had reason to believe that the primary purpose of the intended marriage was to obtain admission to the United Kingdom. The appellant appealed to an adjudicator against this refusal but his appeal was withdrawn on 23 June 1983. On 12 July 1985 the appellant arrived in this country and said that he had come on a visit to visit family friends and to attend the Festival of Light at Alexandra Palace as he was a follower of Guru Pramuk Swami. He was granted leave to enter for two months. On 22 August 1985 an organisation applied on his behalf for leave to remain in the country for a further twelve months on the basis of his marriage to Tarulata on 15 August 1985. The appellant and his wife were interviewed, and they claimed that following the failure of the appellant's entry clearance application they had had no contact with each other at all until they happened to have met entirely by accident at the Festival of Light at Alexandra Palace. Furthermore, Tarulata said that she had proposed marriage to the appellant two days after they met: the appellant said that she had proposed to him on the day that they had met. There were also substantial discrepancies in the accounts given by the appellant as to his circumstances in India when he had been interviewed in 1982 and when he was interviewed on this later ocasion. The Secretary of State was not satisfied that the primary purpose of the appellant's marriage had not been to obtain settlement in the United Kingdom and refused his application on 15 May 1987. The appellant appealed to an adjudicator against this refusal, and his appeal went before Mrs DA Friedman on 7 December 1987. Counsel on the appellant's behalf stated that he had not had an opportunity to have a conference with the appellant, and Mrs Friedman accordingly adjourned the appeal. On 22 December 1987 the appellant's solicitors wrote to the Secretary of State pointing out that a daughter had been born to the appellant and his wife on 20 March 1986, and that the appellant and his wife were still happily married. The letter admitted that untrue statements had been made by the appellant and his wife when they had been interviewed because of improper advice given to them by their previous advisers. The letter continued: "2. In summary, the Appellant and his wife instruct us that the following is the true version of events leading up to their decision to marry. When the Appellant came to the UK on 12th July 1985 he planned a genuine visit for 2 months during which time he wished to attend the Festival of India at Alexandra Palance and in particular the ceremonial weighing in gold of Guru Pramuk Swami. As a devotee of the Swami he and others from his home town of Borsad, Gujrat had read of the event in their local papers and had decided to make the trip some time before. 3. By July 1985 the Appellant had ceased to correspond or in any way communicate with his former fiancée, Miss Tarulata Patel. His appeal against the refusal to permit him to come to the UK to marry her had been withdrawn on legal advice in June 1983 and shortly thereafter the couple had decided that it was in the best interests of both of them if they terminated their engagament. Nevertheless when the Appellant came to the UK for this visit in July 1985 he still had Mrs Patel's family address and telephone number. In view of their past connection and the fact that Mrs Patel's family also came from Borsad he telephoned her shortly after his arrival to let her know that he had come for the Festival of India and to find out how she was. 4. Mrs Patel invited the Appellant for dinner at her family's home and a few days later he attended for dinner. Mrs Patel's parents were present together with elder figures in the community who were friends of Mrs Patel's family. While Mr Patel was present it was suggested that Mr and Mrs Patel might consider marriage. Both parties were single and free to marry and after discussing the matter at great length, they decided a few days later to get married while Mr Patel was in the UK. The civil ceremony took place on 15th August 1985 and the religious ceremony on 1st September 1985. 5. It follows that the description given to the Immigration officer on 7th December 1985 of the couple having met by pure chance at Alexandra Palace was untrue. The truth is that based on their past relationship the Appellant had taken the initiative in contacting Mrs Patel though he is adamant that there was no pre-conceived plan to marry prior to leaving India. Nevertheless this was clearly not a wedding between two complete strangers who rushed into marriage with no real knowledge of each other's backgrounds. The couple's original engagement had been a traditional arranged one and the decision to marry also arose from the involvement of Mrs Patel's family and community elders. It is clearly unfortunate in the extreme that the truth about their meeting in 1985 and the circumstances of their decision to marry was not told to the Home Office. We submit however that the true version now revealed casts a wholly different light on the purpose of the marriage. When that is combined with the subsequent evidence of proved devotion between the couple already referred to above, we would urge you to conclude that the original decision to refuse the Appellant's application can no longer be sustained." However the Secretary of State maintained his decision and so informed the solicitors on 3 February 1988. The substantive appeal then went before Mr Rose on 28 March 1988. At the hearing before Mr Rose the appellant and his wife both gave evidence. He said he had first met Tarulata after his engagement in 1979. Their respective parents had arranged the engagement but he had not seen her before, although she only lived half a mile away. He did not remember when the engagement had taken place. Tarulata had left India in 1979 (in the middle of the year) after the engagement. He applied for entry clearance to enable him to join her in this country and had appealed against the subsequent refusal. He said his appeal had been withdrawn but he did not know why. After his application had been refused he had corresponded with Tarulata for about three months and then stopped. In 1985 he had come here as a visitor. He just wanted to visit the country and look around. He went to the Festival of Light and met some people he knew. He said that "they advised me because I was engaged I should marry. I rang Mrs Patel. I had the telephone number in one of her letters". He spoke to her brother who invited him to dinner. He went there two or three days later and there were several people there from Tarulata's community. They discussed the marriage and said that he should marry Tarulata. He agreed. He admitted that he had told a lot of lies but said that this was because he had been advised to do so by the Sangam Advice Bureau, who were his advisers at that time. When his wife Tarulata gave evidence she agreed that her engagement to the appellant in 1979 had been arranged by their parents. After the appellant had been refused entry clearance and his appeal withdrawn, she did not think much about it. She had not planned anything and left her parents to decide. She and the appellant had written to one another for a short period of time after the appeal had been withdrawn. She had no idea that the appellant was coming to this country in 1985. The first she heard about it was when her brother had told her. Regarding the earlier statement that she had met the appellant at the Festival of Light, she knew this was all lies but it was because she had been told to say this by the Sangam people. Having reviewed the evidence before him and the authorities, and having accepted that the appellant and his wife had been living together for three years and had had a daughter born to them the adjudicator, referring to paragraph 126 of HC 169, concludes his determination: "In this case I am quite satisfied that the appellant has not shown on the balance of probability that requirement (a) is satisfied. Indeed, I must go further in saying that I doubt the credibility of both the sponsor and the appellant who have lied throughout, and in my view have lied at the hearing. This is a case more akin to that of Iqbal where Mr Justice McCowan used the phrase "by hook or by crook". Indeed by hook or by crook this appellant was attempting to enter the UK for settlement, firstly in that the alleged fiancé who had never been to the UK before, left for the UK allowing him to apply to enter as a fiancé. When that method had failed the appellant, on his own admission, did not continue correspondence and did not continue to take any interest in the matter until he found the opportunity to come in as a visitor on a new passport which did not bear the imprint of the previous refusal, and having done so was within one week in touch with the sponsor although he said that he had not brought a letter with him but remembered her telephone number. Within a day or two after they had agreed to marry. I find this wholly unconvincing. I take the view that this was arranged in advance in order to circumvent the previous refusal and present me with a fait accompli. I note that at page 29 of Lord Justice Slade's judgment in Hogue and Singh he stated if the available evidence were to indicate that the parties intend to live together permanently as husband and wife after marriage, the primary purpose of the intended marriage is nevertheless to obtain settlement in this country, the ECO would still have to refuse leave to enter under Rule 41. The appellant circumvented this by marrying in the UK, having ostensibly entered into the UK as a visitor and having lied with regard to his chance meeting with the sponsor. It seems to me that by hook or by crook this appellant was going to attempt to obtain settlement, although the couple might well have married in India where they both lived before the sponsor left for the first time to come to the UK. I have throughout been presented with a tissue of lies and deceptions which throw doubt upon the credibility of the appellant and sponsor, but I am firmly of the view that the primary purpose of this marriage was to obtain settlement in the UK and that is why the appellant used the subterfuge of a visit following the initial rejection of his application and the withdrawal of his appeal. I have no doubt that applying the law as set out in the most recent authority to the facts of this case, this is a marriage, the primary purpose of which is transparently to obtain settlement in this country for the appellant. The appeal is dismissed." At the appeal before us Mr Kothari stressed that the appellant and his wife had now been living together as man and wife for over three years. Their daughter had been born on 20 March 1986. It was conceded that what Mr Kothari referred to as "misstatements" had been made by the appellant, but these had now been corrected by the letter from the solicitors which we have mentioned. Mr Kothari stressed that this was not a marriage of convenience. The lies told by the appellant and his wife should not of themselves disqualify them from satisfying the immigration rules -- particularly in view of the strong evidence of intervening devotion between the appellant and his wife. This was evidence that matrimonial relationship had not been only of subsidiary importance in leading to their marriage. The parties had now "come clean" and should be forgiven. In any event the lies which they had told had not been relevant to the matters in issue. He referred us to a number of cases in which lies had been told, but the appeals had succeeded -- notably the Tribunal determinations in the cases of Amirul Hoque (5896) and Monfur Ali (6075). He referred us to the cases of Hoque and Singh [1988] Imm Ar 216 and Kumar [1986] Imm Ar 446. A passage in the judgment in the Kumar case was cited, with approval by McCullough J in the case of Saranjit Singh Atwal (Divisional Court, 14th October 1987). McCullough J's judgment brought to our notice by Mr Kothari contains the following passage: "It is clear from Kumar, and I think from a reading of the judgment of the Master of the Rolls in particular, that what has been called "intervening devotion", in other words, devotion manifest between the date of the marriage and the hearing is an important factor to be taken into consideration. Further, it is a very serious step for a woman to decide to marry a man and live with him for the rest of their joint lives when she knows that his primary purpose in marrying her is not that he wants her for herself, nor the desire to forge an alliance or connection between their families but simply so that he can settle in the United Kingdom. No doubt this is why it has been said that once a genuine intention to live together as a married couple for the rest of one's days is satisfied, one is pretty far along the road to establishing that the marriage was not entered into primarily for the purpose of settlement." Lastly, Mr Kothari reminded us of the importance of considering the question of family unity, and suggested that the welfare of the child should be a paramount consideration. In this connection he referred us to the case of Re KD [1988] 2 FLR 139, heard by the House of Lords in wardship proceedings. He also referred us to the case of Berrehab v Netherlands, a case heard by the European Court of Human Rights and reported in The Times of 30 June 1988, in which it was held that the refusal to grant a residence permit to a Moroccan national after his divorce from a Dutch national and expulsion from the Netherlands, resulting in his inability to maintain close family ties with his child, were measures which violated Article 8 of the European Convention on Human Rights. In reply Mr Gammons conceded that there was evidence of intervening devotion between the parties, having regard to the fact that they were living together and a child had been born to them. However, Mr Gammons pointed out that there was no authority for the proposition that intervening devotion alone without more was enough to justify the grant of settlement within the immigration rules. Intervening devotion had not been ignored by the adjudicator, who had taken all the relevant factors into account. He had considered the guidance afforded by the judgments in Hoque and Singh. The appellant and his wife had not "come clean" as suggested by Mr Kothari, because the adjudicator had found that both the appellant and his wife had lied throughout and had lied at the hearing before him. In the Kumar case the Master of the Rolls had recognised that although their intention to live permanently together would often cast a flood of light on the purpose of the marriage, it was correct to say that a marriage primarily entered into in order to obtain admission to the United Kingdom would still retain its non-qualifying character whatever happened afterwards and even if the husband applied for entry on their Golden Wedding Day. This had never been disapproved and, in Mr Gammons' submission, was particularly apposite in this case. We have carefully considered the submissions and in particular the submission by Mr Kothari that the adjudicator misdirected himself because he did not give sufficient consideration to the interaction between sub-paragraphs (a) and (b) of paragraph 126 -- another way of saying that he had not attached sufficient importance to the evidence of intervening devotion and the intention to live permanently together as man and wife. We regret we are unable to accede to this argument. The adjudicator clearly recognised that the appellant and his wife had been married for three years and had a child, and that this was proof of devotion. However he clearly considered that this aspect was outweighed by the deceit practised by the appellant and his wife. In any event, even if he did not properly consider what Mr Kothari refers to as the interaction between sub-paragraphs (a) and (b), it is open to us to do so. Mr Kothari has asked us to take into account the compassionate circumstances in this case, because should the appeal be dismissed and the Secretary of State decide to make a deportation order against the appellant under the provisions of the Immigration Act 1988, he will have no appeal against such decision, having been here for less than seven years. In his submission the position of the child has to be considered because she is a British citizen and has the right to remain in this country and to be educated here. We have had regard to this aspect of the case. The paramount interest of the child is a concept applicable to matrimonial proceedings and we consider that it carries less weight -- although it is undoubtedly a matter which must be considered -- in immigration cases. With regard to the Berrehab case sited by Mr Kothari, it is of course the case that the European Convention on Human Rights forms no part of the law of this country. If the appellant and his wife have to return to India and to take their child with them, she is now ony two years old and in her eyes this should cause no particular upheaval. With regard to the appellant's wife, she has lived in this country for only nine years, having come here in 1979, so that a return to India would not be so traumatic as is the cse in appeals such as this when the girl has been born and brought up here. Returning to the matter directly in issue, we recognise that the appellant and his wife's cohabitation and the birth of the daughter to them is evidence of devotion which goes a long way to establishing that the primary purpose of the marriage was not to obtain settlement in this counry. However in our view it is really the only aspect of the case which they can pray in aid. No judge has yet gone so far as to hold that cohabitation and the birth of a child is sufficient by itself to justify the grant of settlement in this country by discharging the onus which is upon the appellant to satisfy the requirements of sub-paragraph (a). In this case it has to be judged against the evidence of a continuing and sustained effort to defeat the immigration regulations -- a conclusion reached by the adjudicator on what we consider ample material and from which we see no reason to differ. For these reasons this appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Suchak & Co