R v. Immigration Appeal Tribunal, Ex parte Khan (Mahmud)

REGINA v. IMMIGRATION APPEAL TRIBUNAL, Ex parte KHAN (MAHMUD)

COURT OF APPEAL (CIVIL DIVISION)

[1983] 1 QB 790, [1983] 2 All ER 420, [1983] 2 WLR 759, [1982] Imm AR 176

Hearing Date: 13 January 1983

13 January 1983

Index Terms:

Immigration -- Immigration Appeal Tribunal -- Reasons for decision -- Finding of marriage of convenience by tribunal -- No reference in findings to elements constituting marriage of convenience -- No reference to evidential basis of decision -- Whether necessary to give reasons

Held:

In June 1975 the applicant, a citizen of Pakistan, married a citizen of the United Kingdom with a number of convictions for prostitution, and was subsequently given indefinite leave to stay in the United Kingdom. He later applied to be registered as a citizen of the United Kingdom and, as a result of inquiries made pursuant to that application, the Secretary of State decided that the marriage of 1975 was a marriage of convenience and served a decision to deport on the ground, under section 3 (5) (b) of the Immigration Act 1971, that the applicant was a man whose presence in the country was not conductive to the public good. The applicant appealed to the Immigration Appeal Tribunal who held that the marriage was entered into for the primary purpose of evading the immigration law and rules and dismissed the appeal. The applicant applied for judicial review to quash the decision on the ground that the tribunal misdirected themselves in failing to consider whether there had been an intention by the parties to live together as man and wife. Stephen Brown J. dismissed the application. On appeal by the applicant: -- Held, allowing the appeal, that the question whether a marriage was one of convenience entered into in order to obtain settlement in the United Kingdom involved two elements, that the marriage was entered into for the primary purpose of evading the immigration law and, further, a lack of intention to live together permanently as man and wife; that tribunals considering immigration matters, in giving reasons for their decision, were under a duty to set out directly or by inference the issue which the tribunal was determining and the evidential basis upon which they had reached their determination of that issue; and that since in the present case the tribunal neither made reference to the two elements of an alleged marriage of convenience to be considered nor showed that it had addressed its mind to the necessity to prove lack of intention to live together permanently, it followed that the necessary basis for the upholding of the decision was absent and the matter should be remitted for hearing by a differently constituted tribunal (post, pp. 761E-F, 762G -- 763E). Alexander Machinery (Dudley) Ltd. v. Crabtree [1974] I.C.R. 120, N.I.R.C. considered. Decision of Stephen Brown J. reversed.

Cases referred to in the Judgment:

Alexander Machinery (Dudley) Ltd. v. Crabtree [1974] I.C.R. 120, N.I.R.C.

Introduction:

APPEAL from Stephen Brown J. The applicant, Mahmud Khan, appealed against the decision of Stephen Brown J. on April 20, 1982, dismissing his application for judicial review seeking an order to quash the decision of the Immigration Appeal Tribunal notified on March 23, 1981, to remove the applicant from the United Kingdom. The grounds of the appeal were (1) that the judge, having correctly decided that a marriage of convenience involved two elements, an intention to use the marriage to obtain settlement and no intention to live permanently together as man and wife, erred in finding that the tribunal had properly directed themselves on the issue of the genuineness of the marriage; (2) that the judge erred in failing to find that the tribunal erred in law and misdirected themselves in that they only considered the first of the two elements and failed to consider the second element or make the necessary findings of fact; (3) that where a tribunal was bound to give a reasoned decision, as was the case under paragraph 39 of the Immigration Appeals (Procedure) Rules 1972 (S.I. 1972 No. 1684), the decision of the tribunal should set out the issues to be determined and the findings of fact relating to those issues, and the judge erred in failing to find that the decision of the tribunal failed to set out any finding of fact with regard to the second element of a marriage of convenience; and (4) that the judge erred in law in finding that there was no indication that the tribunal had failed to give proper weight to the evidence and his conclusion was not merited on any reading of the determination of the tribunal. The facts are stated in the judgment.

Counsel:

John Macdonald Q.C. and Kathryn Cronin for the applicant. David Latham for the Immigration Appeal Tribunal. PANEL: Lord Lane C.J., Ackner and Oliver L.JJ.

Judgment One:

LORD LANE C.J. This is another immigration appeal. It arises from a decision by Stephen Brown J., and concerns a man called Mahmud Khan. The case is yet another case of alleged marriage of convenience, and the chronology of events leading up to the hearing before the tribunal and then before Stephen Brown J. are these. The applicant married Cynthia Mitchell on June 30, 1975. She was at that time a prositute with a number of convictions for prostitution and kindred offences in her past. The applicant on September 10, was given indefinite leave to stay in this country. He is a citizen of Pakistan, and he is now some 37 or 38 years of age. In July 1977 he returned to Pakistan and came back to this country on June 11, 1978, with his parents, who were admitted as dependents. Consequently in this country were his father, his mother, his two sisters and their children and his brother, all of them being lawfully here. On July 9, 1980, as a result of inquiries which had been made, he was served with a decision to deport under section 3 (5) (b) of the Immigration Act 1971. The reasons for the inquiries being made were that he had applied to be registered as a citizen of the United Kingdom. Inquiries followed as a matter of course, and the result of those inquiries, for reasons which will emerge in a moment, were to raise a suspicion, certainly in the mind of the Secretary of State, that this was a man whose presence in the country was not conductive to the public good. On July 21, 1980, the applicant set out his side of the matter, where the first ground of appeal reads:

"That the marriage of Mahmud Khan to Cynthia Mitchell on June 30, 1975, was not a marriage of convenience, the parties at the time of the marriage intended to live together permanently as man and wife."

The Secretary of State's grounds for deportation read:

"To Mahmud Khan: The Secretary of State has reason to believe that your marriage to Cynthia Mitchell at Bradford Register Office on June 30, 1975, was one of convenience entered into to obtain your settlement in the United Kingdom with no intention that you should live together permanently as man and wife. Having regard to this the Secretary of State considers it conducive to the public good to make a deportation order against you."

There you have the Secretary of State setting out accurately and in concise form the two ingredients of a marriage of convenience: first of all the marriage is entered into for the primary purpose of evading the immigration law and rules, and secondly, the necessity of there being no intention, or a lack of intention to live together permanently as man and wife. I emphasise that, if one may say so, by drawing attention to the ground of appeal which I have already read, which confines the issue simply to the latter part of the definition of the marriage of convenience, namely, no intention to live together permanently as man and wife. Consequently when, as in due course, the matter came before the appeal tribunal, one would have expected the issue to be perfectly plain and to have been set out perfectly plainly by the tribunal in their reasons. Of course there was only one issue here. It was apparent that the primary reason for the marriage when it took place had been to try to escape from the tentacles of the immigration laws. The real question was, or should have been, whether this marriage was one in which the husband had intended permanently to live with his wife after the marriage had taken place. We have been referred by Mr. Macdonald, whose submissions have been accurate, helpful and extremely concise, to a decision of the National Industrial Relations Court under the Presidency of Sir John Donaldson, Alexander Machinery (Dudley) Ltd. v. Crabtree [1974] I.C.R. 120, and to the following passage, at p. 112: "We have already said that it is unsatisfactory and amounts to an error of law for a tribunal simply to state the amount of compensation which is to be awarded without showing how that figure has been arrived at: see Norton Tool Co. Ltd. v. Tewson [1972] I.C.R. 501. The basis of this proposition is that in the absence of reasons it is impossible to determine whether or not there has been an error of law. Failure to give reasons therefore amounts to a denial of justice and is itself an error of law. "In the present case it is clear that the whole argument which the employers wish to address to us depends upon the tribunal's evaluation of the evidence relating to the reasons for the employee's dismissal and the reasonableness of the employers' conduct in all the circumstances in dismissing him on the basis of those reasons. The tribunal said that they were not satisfied with the reasons set out but give no detailed explanation of why they were not satisfied. "Whilst there can be no appeal from findings of fact, the absence of evidence to support a particular finding is an error of law. Similarly a finding of fact or a refusal to find a fact will involve an error of law if the finding or refusal is a conclusion which no tribunal, properly directing itself, could reach on the basis of the evidence which has been given had accepted by it. It stress the word 'accepted' because it is important that tribunals, in reaching findings of fact, should set out in substance what evidence they do or do not accept.

"When the matter is reconsidered by this tribunal, no further evidence should be called, but the parties will be entitled, if they wish, to elaborate their contentions based on the evidence which has been given. We trust that the tribunal will record those contentions and make all necessary findings of fact in relation to them. The tribunal should also state briefly, if appropriate, why they find or do not find a particular fact -- stating, for example, that they are not satisfied in relation to the evidence given by a particular witness, or that they are satisfied, and so on. It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact? We do not think that the brief reasons set out here suffice for that purpose."

Those final remarks in the last two sentences that I have read are proper guidelines for tribunals dealing with immigration matters. Speaking for myself, I would not go so far as to endorse the proposition set forth by Sir John Donaldson that any failure to give reasons means a denial of justice and is itself an error of law.The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions. Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not. Turning to the circumstances in the present case, there is no necessity for me to read the findings of the tribunal. We have been helped by Mr. Macdonald and also by the submissions of Mr. Latham on behalf of the tribunal by the concession, which is obvious if one reads the reasons, that the tribunal nowhere states the two legs of a marriage of convenience. It nowhere states that it is addressing its mind to the important leg in this case, namely, the necessity to prove that the applicant had no intention of living permanently with the woman Cynthia Mitchell. Consequently that necessary basis for the upholding of the decision is absent. It cannot be read inferentially from their decision. It is true that both the notice of appeal and the deportation order by the Secretary of State contained the ingredients. It is perfectly true that these two documents would of necessity be before the tribunal when they were considering this matter. But it is by no means certain from the language that they used in their findings that the tribunal considered anything other than the other leg, namely, the use of the marriage in an endeavour to evade the provisions of the immigration law and rules. Consequently on that basis alone it seems to me that this appeal should be allowed. Secondly, although I am, speaking for myself, less impressed by this ground, they do not satisfactorily delineate those parts of the evidence of the applicant, and indeed of Cynthia Mitchell, which they accept and those parts which they do not. The tribunal state:

"We regret to say that there are aspects of the appellant's evidence which we are unable to believe -- notably that he was unaware of Cynthia Mitchell's character when he married her, and that he had no idea that the marriage would facilitate his remaining in this country."

But that remark is pregnant with the suggestion that there are other aspects of his evidence, and indeed that of the other witnesses, which they did believe and they do not vouchsafe which is which. It is arguable, and may very well be the case, that the tribunal, once they came to the conclusion, as they apparently did, that this man knew from the start, certainly before they got married, that this woman Cynthia Mitchell was a prostitute, considered that to be the end of the matter and that no further discussion was required. That is speculation. I myself am not prepared to base my decision upon the assumption that that was so. Therefore without going any further, it seems to me that these reasons are unsatisfactory. The tribunal's decision should be quashed. It should go back to be dealt with again, either by this tribunal or preferably, one imagines, by a differently constituted tribunal, so that the matter can be reconsidered. One hopes on this occasion the basis of the decision both in law and in fact will be properly expressed one way or the other. I accordingly would allow this appeal.

Judgment Two:

ACKNER L.J. I agree.

Judgment Three:

OLIVER L.J. I also agree.

DISPOSITION:

Appeal allowed. Matter remitted to be heard by differently constituted tribunal. Legal aid taxation of applicant's costs.

SOLICITORS:

Young Jones Hair & Co. for Dunn Connell & Co., Bradford; Treasury Solicitor.