Ka Prajapati v. Immigration Appeal Tribunal

KA Prajapati v Immigration Appeal Tribunal (TH/40614/79(1918))

Court of Appeal (Civil Division)

[1982] Imm AR 56

Hearing Date: 13 July 1982

13 July 1982

Index Terms:

Entry Clearance - Application to join husband - Whether application made within twelve months of marriage - What constitutes an application for entry clearance - Immigration Act 1971 s 13(2) - HC 79 paras 10,12,13. HC 238 para 47.

Held:

The appellant, a citizen of India, married there on 2 April 1976 a woman settled in the United Kingdom. On 5 April 1976 he, she and her father went to the British High Commission in Bombay where he was given a date, 29 July 1977, to attend: but there was no clerical record kept of what happened. He duly attended on 29 July 1977 and filled in the printed applications for entry clearance to join his wife permanently. The passport was later stamped "28.8.77" and Leave to enter is herby given for twelve months". He was admitted for that period. However, within a very short time of his arrival in the United Kingdom, his wife having returned here ten or eleven days after the marriage, it broke down. The issue then arose under HC 238 para 47 whether the appellant should have been admitted for settlement, and not for only twelve months: i.e. was his application for entry clearance made on 2 April 1976, or on 29 July 1977. Held: That application for entry clearance to join his wife was made by the appellant on 5 April 1976, three days after his marriage.

Cases referred to in the Judgment:

Brown and another v The Entry Clearance Officer, Kingston [1976] Imm. A.R. 119. Sadler's Case TH/4384/73.

Counsel:

A Scrivener QC and KS Nathan for Appellant; D Latham for Respondent. PANEL: Lord Lane CJ, Watkins JL and Peter Pain J

Judgment One:

LORD LANE CJ: This is an appeal by Karamchand Ambaram Prajapati from a determination by Mr. Justice Forbes on 12th November last year. The learned Judge had been asked to quash a decision of the Immigration Appeal Tribunal in respect of this man. The appeal raises the question, easy to state like so many of these questions but by no means easy to decide, when can it be said that a true application is made for an entry clearance certificate? Before I turn to the law on the matter, let me first of all get out of the way the facts, a large proportion of which are not in dispute. The appellant is an Indian. He was married on 2nd April 1976. It was an arranged marriage, as they so often are in these circumstances. His wife was living and settled in the United Kingdom immediately before the marriage and she had gone with her father to India for the purpose of finding a husband. It seems that there were about five or six young men on the short list. She selected the one whom she fancied most. The wedding, as I say, took place on 2nd April. Although there is a dispute on the facts, which is immaterial, it seems perfectly clear that three days later, on 5th April 1976, the wife, her father and the appellant, all went to the British High Commission in Bombay, with a view -- I put this neutrally -- to obtain an entry clearance certificate, or for making the necessary arrangements for one to be obtained in the future. The distance from Bombay to where they lived was some eight hours by train. So it was a substantial journey and a substantial trek for the three of them. There is no clerical record of what happened on that particular occasion. There is a suggestion in the documents that a clerical record is kept, as indeed one must be, but such record as there was has now perished or been destroyed. What is quite clear is this, that on that occasion the appellant was given a date upon which he should attend for an interview for particulars to be taken, and for investigations to be made as to whether he was a proper person to whom an entry clearance certificate should be granted or not. The way in which the father described the journey to Bombay and its reason was as follows:

"Mr. Bhikabhai Mistry.... I brought my daughter back here with about 10 days after her marriage. Her husband stayed behind to wait for his entry clearance. I went to Bombay with my son in law and daughter to get an entry clearance. An appointment was made for him a long time ahead."

It is a well known fact that regrettably there are very great delays in the granting of these entry clearance certificates, owing to the pressure of numbers upon the system. On the due day, 29th July 1977, the appellant attended before the High Commission and there a form, known as "I.M.2 (1970)", a printed form, was filled in by him setting out his circumstances, the name of his father, the reason for his journey to the United Kingdom -- "To join my wife" -- the proposed date of departure -- "13.8.77" -- "How long do you propose to stay? A. Permanently." and so on. That was coupled with a declaration by the sponsor, his wife, and a further declaration was appended to it of the wife's father, which sets out the accommodation which will be available in England, his address and so on, to enable those who decide upon the matter to determine whether there is a proper genuine application or not. No prescribed form is contained in the Act or Regulations. It is, so to speak, a home made form, which is used by those adjudicating upon these matters for their own convenience. The result is, if the application is successful, a stamp is impressed upon the applicant's passport. At page 43 of our bundle we see on the left hand side the entry certificate, which has a number upon it handwritten in. Under the words "Entry Certificate" is handwritten "360/Husband", an entry which will have to be investigated a little more closely in a minute, and then it says "Valid for presentation at a United Kingdom port...", and is signed by someone whose name is Langley, date 3.8.77. On the other side of the same page of the passport is "Leave to enter the United Kingdom is hereby given for twelve months. This will apply, unless superseded, to any subsequent leave the holder may obtain after an absence from the United Kingdom with the period limited as above". It is dated 28th August 1977. Mr. Prajapati's name appears below that. The appellant, as will emerge is a moment, submits to this Court, as he has submitted to the Adjudicator, the Immigration Appeal Tribunal and to Mr. Justice Forbes before he came to this Court, that there should not have been a limitation of twelve months placed upon the passport, and that he should have been allowed to enter for settlement without any limitation imposed. The facts thereafter are not in dispute. It is admitted on all hands that this was not a marriage of convenience. It was a marraige which was arranged in the customary form. But unhappily, when this man arrived back in England, it was quite plain that the wife's mother took an instant dislike to him and she enlisted the support, it seems, of other female members of her family. So the unfortunate father, who had taken the girl to India to find a husband, has been banished to the box room and the appellant has been banished to a bedsitting room some little distance away. The wife sided with her mother. It is quite plain that she does not want to see the appellant again. The situation now therefore is that this marriage, which really had lasted ten or eleven days whilst the parties were in India, has to all intents and purposes come to an end. The Secretary of State in a determination dated 24th January 1979, considered the application, and it his letter says this:

"The appellant had been granted leave to enter the United Kingdom for 12 months as the husband of a woman settled here, but although this period had now expired, his wife had refused to join him and he had spent none of this time living with her as his spouse. Paragraph 26A(e) of HC 239 states, inter alia, that leave to remain will not normally be granted nor any time limit removed if the Secretary of State has reason to believe that one of the parties no longer has any intention of living with the other as his or her spouse."

At this stage it is necessary to examine the legal position which relates to these circumstances. It starts with the Immigration Act 1971. Section 13(2) of the Act reads as follows: "Subject to the provisions of this Part of this Act, a person who, on an application duly made, is refused a certificate of patriality or an entry clearance may appeal to an adjudicator against the refusal." "Entry clearance" is defined in section 33(1) as follows: "'entry clearance' means a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence of a person's eligibility, though not patrial, for entry into the United Kingdom (but does not include a work permit)" It is quite plain from those matters, if it needed making plain, that an entry clearance certificate is of course a very important document. We turn now to the rules which govern the activities of the Immigration Officers in these circumstances. Rule 10 of HC 79 reads:

"A Commonwealth citizen who wishes to ascertain in advance whether he is eligible for admission to the United Kingdom can apply to the appropriate British representative in the country in which he is living for the issue of an entry certificate. This procedure is of particular value when the claim to admission depends on proof of facts entailing enquiries in this country or overseas."

Rule 12: "Entry certificates are issued in accordance with the rules contained in this statement: they are to be taken as evidence of the holder's eligibility for entry to the United Kingdom, and accordingly accepted as 'entry clearances' within the meaning of the Act. A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the Immigration Officer is satisfied that: (a) false representations were employed or material facts were concealed, whether or not to the holder's knowledge, for the purpose of obtaining the clearance, or (b) a change of circumstances since it was issued has removed the basis of the holder's claim to admission...". Finally, rule 13 of these Rules: "An Immigration Officer may examine the holder of an entry clearance so far as is necessary to determine whether any of the exceptions mentioned in paragraph 12 applies, and in determining this question may act on reasonable inferences from the results of that examination and any other information available to him. But the examination should not be carried further than is necessary for this purpose and for the purpose of deciding whether leave to enter should be given for a limited period and subject to any conditions." I turn now to rule 47 of HC 238, which reads:

"The husband of a woman who is settled in the United Kingdom or who is on the same occasion being admitted for settlement, is to be admitted if he holds a current entry clearance granted to him for that purpose. An entry clearance will be refused if the officer to whom application is made has reason to believe that the marriage was one of convenience entered into primarily to obtain admission here with no intention that the parties should live together permanently as man and wife;" -- that does not apply here -- "or that one of the parties no longer has any intention of living with the other as his or her spouse.A passenger who holds such an entry clearance should be admitted for an initial period of up to 12 months if the marriage took place within the 12 months immediately preceding the application for the entry clearance; otherwise the passenger is to be admitted for settlement."

That brings the problem which faces the Court into sharp relief. There were two visits by the appellant to Bombay in connection with his entry clearance certificate. The first was on 5th April 1976, which was certainly within twelve months after the wedding, it was three days after the wedding and the second one was in July 1977, which was plainly well outside the twelve months embargo, if I may use that word. The question that remains therefore is, was there evidence upon which those who were concerned with this problem could properly come to the conclusion that this was a twelve-month limitation case, namely that the application for the entry certificate was made not in July 1977 but in April 1976? Round that problem the arguments have gathered. Mr. Scrivener, in his as usual helpful and concise submissions to this Court srresses, as I feel myself would accept, that an entry clearance certificate is a very important document that confers all sorts of rights upon the holder which are no doubt very much sought after in India and are worth waiting a very long time for in circumstances which exist there. He suggests secondly that to be a true application, the application so called must contain enough information to enable the appropriate officer to make a decision on the matter one way or the other. He agrees that it is not necessarily the completion of the form which I have already described, the I.M.2 (1970). He agrees that it is not necessary that that form should be filled in, but he emphasises that there must be something more than an idle, or temporary or preliminary inquiry before it can be dignified by the appellation application. We have been referred, albeit at secondhand through the judgment of Mr. Justice Forbes, to the words which have apparently acted as guide lines to Immigration Officers and others over the years, culled from two cases. The first is Brown and Another v The Entry Clearance Officer, Kingston [1976] Imm AR and the second is Sadler. They are words which are adopted by Mr. Justice Forbes and are certainly helpful. They are to be found in the judgment of Mr. Justice Forbes, where he says: "What is necessary is (as is said in Sadler's case) a request 'in quite unambiguous terms for an entry certificate to be issued to a particular person." Mr. Scrivener submits to us that it is quite impossible, on the information before us, or upon the information which would have been before any of the officials in this case, to say that there was any unambiguous request for an entry clearance certificate upon the visit to Bombay on April 5th 1976. Mr. Scrivener says that that is because there is no record, as there cannot be, of what was said on that occasion. We do not know what the appellant, or the father or the new bride said to the officials who saw them at the High Commission in Bombay. That being the case, the submission is, it is quite unsafe and improper to say that there was a proper foundation in fact for coming to the conclusion that was reached all the way down the line by the various people, which the Court will consider in a moment. I respectfully disagree with these contentions whilst recognising the force which they have. It seems to me that no one is going to undertake an eight-hour journey from the village where they lived to Bombay, and an eight-hour journey back again, all three taking part in it, the father, the son-in-law and the daughter newly wed, unless they were going to make, if they could, an application, and a firm application for an entry clearance certificate. This young bride and her father were going back to the United Kingdom after a week. Plainly what they were wishing to do, and there can be no other reason for it, was to make as certain as they could at that stage that in due course the husband would be able to come to England to join his wife, she being settled here, having been so for some considerable time. Moreover we know that in fact an appointment was made for him to take place albeit some considerable time ahead. It seems again to me that unless there had been a firm application or request in quite unambiguous terms for an entry certificate to be issued, no one in the High Commission in Bombay would have dreamt of giving this man an appointment. They would not have given him an appointment merely to inquire into his circumstances, preparatory to an application for an entry clearance certificate.So treated as a matter of fact, which in the end it probably is, there was in my judgment ample basis for the conclusion which was reached. The one matter which puzzled this Court is what appeared to be a lacuna in the story. There was no indication of how it was that the Immigration Officer at Heathrow came to put the twelve-month limitation upon the passport which I have already described. But it now emerges, though it is not in evidence, from something which Mr. Latham on behalf of the Secretary of State was able to tell us, that the clue is the entry certificate to which I have already referred, namely "360/Husband" which appears on the entry certificate put on the passport in Bombay. That is an indication, to those who care to inspect the passport thereafter, in code so to speak, that this is a man to whom twelve-month limitation proper applies. Thus we have an extra piece of information, apart from filling in an obvious gap in the story, which has no relevance, and certainly no relevance or help to the appellant's case. In the result, for the reasons which I have tried to indicate, I consider that this appeal should be dismissed.

Judgment Two:

WATKINS LJ: I agree and have nothing to add.

Judgment Three:

PETER PAIN J: I also agree and I too have nothing to add.

DISPOSITION:

The appeal was dismissed with no order as to costs, legal aid taxation.

SOLICITORS:

Stocken & Lambert; The Treasury Solicitor.

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