R v. Immigration Appeal Tribunal, Ex parte Cheema; R v. Immigration Appeal Tribunal, Ex parte Ullah; R v. Immigration Appeal, Ex parte Kawol

Court of Appeal (Civil Division)

 

[1982] Imm AR 124

Hearing Date: 13 January 1983

13 January 1983

Index Terms:

Deportation - Marriage by non-patrial to obtain settlement without intention to live permanently with spouse not conducive to public good - No breach of rules of natural justice by Tribunal by Tribunal (in case of Cheema) - Immigration Act 1971 ss 3(5)(a), 3(5)(b).

Practise and Procedure - Deportation - no breach of rules of natural justice by Tribunal in not summoning witness upon request to do so had been made, on who's affidavit it very largely based its findings - Immigration Act 1971 ss 3(5)(a), 3(5)(b).

Held:

The three joint appeals were against the refusal by Mr Justice Woolf on 19 February 1982 of their respective applications for judicial review. The common features were the Secretary of State's notices of intention to deport under section 3(5)(b) of the Immigration Act 1971 on the ground that this was conducive to the public good as the appellant's marriages had been entered into primarily to obtain settlement on the United Kingdom with no intention that the parties should live together permanently as man and wife. The applications for judicial review followed the dismissal of the applicants' appeals against the decision of the Secretary of State by the Immigration Appeal Tribunal. Held: (i) There were proper grounds, in all three cases, upon which the Secretary of State could reasinably come to the conclusion that the continued presence of the appellants in the United Kingdom was not conducive to the public good. (ii) Sections 3(5)(a) and 3(5)(b) of the Immigration Act 1971 provided alternative remedies or methods and there was no reason why the Secretary of State should not use either. (iii) With regard to the appeal of Cheema the Tribunal had not acted in breach of the rules of natural justice by not summoning the appellant's wife (no request to do so had been made) to give oral evidence, yet basing its findings very largely on the contents of her affidavit.

Cases referred to in the Judgment:

Padfield [1968] A.C. 997 Hall v Shoreham Urban District Council [1964] 1 WLR 240 Bouchereau [1978] 1 QB 732

Counsel:

KS Nathan for the Appellant Cheema; Sir Charles Fletcher-Cooke QC & G Warr for the Appellants Ullah and Kawol; D Latham for the Respondent. PANEL: Lord Lane CJ, Ackner and Oliver LJJ

Judgment One:

Lord Lane LCJ: These three cases come to this Court on appeal from a determination by Mr. Justice Woolf on 19th February last year, whereby in each case he refused an application for judicial review, which was primarily for the remedy of certiorari. They are all immigration cases. They were heard, both before Mr. Justice Woolf and in this Court, together as a matter of convenience and by the request and with the consent of the parties. Their common feature is that they are cases involving allegations that each of the respective appellants entered into what is called as a "marriage of convenience": that is to say first of all a marriage the purpose of which was to avoid the provisions of the Immigration Act 1971 and the regulations made thereunder, and to enable the party to remain in the United Kingdom, when otherwise he would, under the Act and regulations, be precluded from staying here; and secondly, a marriage in which the applicant had no intention of living permanently with his wife. In each case the Secretary of State acted under the provisions of section 3(5)(b) of the Immigration Act 1971 in ordering deportation, and in each case the primary ground of the appeal is the Secretary of State's action under that subsection and the allegation that it was wrong so to act, and accordingly that the appellant in each case is entitled to succeed. It is therefore necessary to read at the outset the provisions of that subsection, which read as follows:

"A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) [which is the material provision] if the Secretary of State deems his deportation to be conducive to the public good; or (c) [which is not relevant in these cases] if another person to whose family he belongs is or has been ordered to be deported."

In the cases before this Court of Ullah and Kawol, Sir Charles Fletcher-Cooke appears for the appellants, and his sole ground is that which I have already described. In the case of Cheema Mr. Nathan appears on behalf of the appellant. He adopts the grounds urged before this Court by Sir Charles, but he has in addition further grounds of his own. What I propose to do therefore as a matter of convenience is to deal first of all with the point which is common to all three cases, having given a brief resume of the facts of each case, and then subsequently to consider the separate submissions which have been made by Mr. Nathan which are relevant to his case, but are not relevant to the two cases in which Sir Charles appears. Dealing first of all with Ullah, this man came to the United Kingdom in 1974 to take a course in accountancy, which was destined, if all went well, to last for three years. His leave was extended from time to time to enable him to continue with that course of study. However about three months before his permission to stay expired, he married a girl who was a patrial, and some four weeks later application was made on his behalf to revoke the restrictive conditions which had been attached to his leave to stay. The Secretary of State gave him according to the rules on 28th November 1979 indefinite leave to stay. However later information apparently came into the hands of the Secretary of State, as a result of which he came to the conclusion that the marriage was one of convenience and not, if I may so put it, a genuine marriage, and he determined accordingly to make a deportation order. He did so in these terms: "To Zia Ullah. On 28th November 1979 you were granted leave to remain in the United Kingdom for an indefinite period on the grounds of your marriage on 3rd November 1978 to Julia Howarth. The Secretary of State has reason to believe that this marriage was one of convenience, entered into primarily to obtain settlement in the United Kingdom with no intention that you and Miss Howarth should live together permanently as man and wife. The Secretary of State therefore deems 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 section 3(5) of the Immigration Act 1971 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." Mr. Ullah appealed to the Tribunal, who came to the conclusion that the Secretary of State was correct in concluding that it was a marriage of convenience, and accordingly affirmed the decision. The facts in the case of Kawol are as follows. The appellant came from Mauritius and was accordingly a Commonwealth citizen. He arrived in the United Kingdom on 28th October 1975. His stay was extended until 2nd April 1976, finally as a student of English. On 26th May 1976 he married a United Kingdom born woman at a Register Office and accordingly was granted indefinite leave to remain in the United Kingdom on 9th July of that year. According to the evidence before the Tribunal, he had told a lady that he was going to marry, the object of the marriage being solely to obtain the right to be a resident of the United Kingdom. Indeed after the marriage he did not join his new wife but continued to live with another woman as her husband. It was not disputed, and it is not now disputed in this Court, that in these two cases the marriages were marriages of convenience. The case of Cheema was based on the following facts. Mr. Cheema came to the United Kingdom in September 1977. He was given permission to stay for one month. That was extended from December 1977 to 24th January 1978. Shortly before 24th January 1978 he applied for a further extension on medical grounds. Before any decision was reached upon that application based on medical grounds, he married a girl of Sikh religious persuasion, he also being a Sikh, the girl having been born in this country. The story is then taken up by Mr. Justice Woolf as follows: "On the 30th March 1978 he made application for removal of the conditions attached to his leave to be in this country. That application was refused by the Secretary of State, but Mr. Cheema then appealed to the adjudicator. The adjudicator having allowed his appeal on 2nd February 1979 the Secretary of State removed the limitation on his right to remain in this country on the 7th March 1979.

"As a result of information which was provided to the Secretary of State by the applicant's wife and thouse acting on her behalf, subsequently, on the 16th June 1980, the Secretary of State decided to make a deportation order against the applicant by virtue of section 3(5)(b) of the Immigration Act 1971, the Secretary of State taking the view that deportation was conducive to the public good because in his judgment the marriage was only entered into so as to enable the applicant to settle in this country - quoting from the decision of the tribunal, 'It was a ploy to this end, not motivated by the normal reasons for marriage, namely to live together permanently as man and wife'."

So much for the factual background of the three cases. It is now necessary first of all to consider the relevant provisions of the Immigration Act. But before I do that it is right to point out, as Sir Charles helpfully explained to the Court, that there are three ways in which deportation may come about in these circumstances. First, after a recommendation by a criminal court after a conviction of the applicant of some criminal offence; secondly, by reason of a breach of some of the conditions of immigration; and thirdly, which he described as a special power, if the Secretary of State deems deportation to be conducive to the public good. He helpfully sub-divides that final ground into two parts, namely, security matters and non-security matters. So far as the provisions are concerned, those of section 3(5) of the Immigration Act 1971 having already been read, it is necessary only to refer at this stage to very few of the further provisions of the Act. Section 3(6) of the Immigration Act 1971 reads as follows:

"Without prejudice to the operation of subsection (5) above, a person who is not patrial shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court emplowered by this Act to do so."

Section 15 of the Immigration Act 1971 reads as follows:

"(1) Subject to the provisions of this Part of this Act, a person may appeal to an adjudicator against --(a) a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5) above; or (b) a refusal by the Secretary of State to revoke a deportation order made against him."

"(3) A person shall not be entitled to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature."

"(4) A person shall not be entitled to appeal under this section against a refusal to revoke a deportation order, if the Secretary of State certifies that the appellant's exclusion from the United Kingdom is conducive to the public good or if revocation was refused on that ground by the Secretary of State (and not by a person acting under his authority)."

"(7) An appeal under this section shall be to the Appeal Tribunal in the first instance, instead of to an adjudicator, if -- (a) it is an appeal against a decision to make a deportation order and the ground of the decision was that the deportation of the appellant is donducive to the public good; or (b) it is an appeal against a decision to make a deportation order against a person as belonging to the family of another person, or an appeal against a refusal to revoke a deportation order so made; or (c) there is pending a related appeal to which paragraph (b) above applies."

The point of reading those provisions is this. As Sir Charles rightly points out, it is plain that the result of the Secretary of State acting under section 3(5)(a) of the Immigration Act 1971 is different from the result if he acts under section 3(5)(b). The difference is in the matter of appeal. If he acts under section 3(5)(a), there is an appeal available both to the adjudicator and to the tribunal. If on the other hand action is taken under section 3(5)(b) of the Immigration Act 1971 the appeal to the adjudicator is eliminated, and the only appeal available is that to the tribunal. To that extent it is perfectly true, as Sir Charles points out, that action under section 3(5)(b) is to some extent less advantageous to the applicant than that under section 3(5)(a). Sir Charles also points out that an entrant, a person wishing to come to this country as an immigrant, is treated in many respects differently from someone who is already here. As he points out, the burden of proof may be different and the rights of appeal may be different. This argument was put forward as a foundation for his later submission that a number of decisions of the Divisional Court on this matter, which are plainly contrary to his submission, are distinguishable on the basis that those were cases dealing with entrants to the country, whereas the present cases are dealing with people already resident here. Sir Charles's submissions on this first point, submissions which were adopted by Mr. Nathan, are essentially these. If one looks, he suggests, at the history of the section and the earlier regulations and the pronouncements made by the Secretary of State of that time, who was Mr. Reginald Maudling, it is clear that the intention was, on the part of the Home Secretary, to operate section 3(5)(b) of the Immigration Act 1971 as a special power, to be used rarely and then only in cases where it could be shown that the applicant was a highly undesirable person, a racketeer, for example, or an importer of drugs or the like: someone who could be described as coming within the useful and compendious phrase used by Sir Charles as a "menace to society". The result is that Sir Charles asks this rhetorical question with regard to the two cases with which he is concerned: Can it properly be said that on the facts of these cases, the proved existence of a marriage entered into for the purpose of defeating the immigration rules by deceit, that it was conducive to the public good that the appellant in each case should be deported? He submits, both respectfully and, if I may say so, persuasively, that the element of deceit is not enough on its own to bring in that power contained in section 3(5)(b) of the Immigration Act 1971. If there is no suggestion that the behaviour is going to be repeated, he submits that that is not enough. For example, a single false tax return would not be enough. He points out that almost every overstayer has practised some sort of deceit upon the authorities in order to enable himself to stay without apprehension. There must, he suggests, be some greater perturbation of society than that exhibited in these cases by entering into a marriage of convenience. In support of his argument he refers us helpfully to Professor H.W.R. Wade's book on Administrative Law (Fifth Edition). He read out two passages to us. I propose to confine myself to the latter of the two, at page 348, which reads as follows: "Discretion is an element in all power, as opposed to duty, so that 'abuse of discretion' could be made to include most of administrative law. But it is more convenient to confine this rubric to a central group of rules which are difficult to separate from one another, leaving aside what can readily be classified under other headings. This has the advantage of emphasising the policy of the courts in the area where they have to come closest to sitting in judgment on the merits, as such, of governmental acts and decisions. It is an area where wide choices are open to them. If they choose to shelter behind literal interpretation, and take the words of each Act at face value, they could absolve themselves from many difficult problems. By insisting, as they do, that the implications of an enactment are as significant as its express provisions, and that powers given for public purposes are as it were held upon trust, they embroil themselves with the policy, motives and merits of administrative action. At the same time they must confine themselves to applying recognisable principles of law, since at all costs they must not expose themselves to the charge of usurping executive power. The literal interpretation of section 3(5)(b) of the Immigration Act 1971 in the present case is plainly so wide, as Sir Charles concedes, that it could not be said to be an abuse of the Act to do what the Secretary of State did here, if one adopts that literal interpretation. But there is a duty, he says, even where the terms are so wide, to exercise the power, as Professor Wade says, reasonably. Sir Charles suggests that it has not been so used here. It has been used as an administratively convenient method of getting rid, so to speak, of the two appellants -- three appellants if one includes Mr. Nathan's client -- by means which provide less redress to the appellant than give under section 3(5)(a). It is a quicker method, he suggests, a more convenient method, and was used by the Secretary of State for that purpose. He draws our attention to the well known decision in Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997, [1968] 1 All ER 694 as an example showing that this is a wrong action by the Secretary of State, if such is the case, namely to use his power simply as an administratively convenient method of dealing with the problem. Next Sir Charles suggests that the two methods available to the Secretary of State under section 3(5)(a) of the Immigration Act 1971 and section 3(5)(b) are alternative, and it is wrong for the Secretary of State in those circumstances to use the alternative which is less favourable to the appellant, when the use of the other method would have been equally efficacious so far as the Secretary of State was concerned. To that end he draws our attention to yet another decision, Hall v Shoreham Urban District Council [1964] [1964] 1 All ER 1, 1 WLR 240, a planning case, in which the question of alternatives was raised and he cites the judgment in that case as support for his argument on this point. But in the end his whole argument comes down to the proposition that section 3(5)(b) of the Immigration Act 1971 is intended for public menaces and not for people who "merely" enter into marriages of convenience in order to evade the Immigration Rules. He draws our attention to a number of cases, most of them unreported, on this type of immigration situation, dealing with marriages of convenience, and I personally do not find them particularly helpful. They are not very helpful to Sir Charles, with the possible exception of Ex parte Kohli, which was plainly decided upon an entirely different point. Finally he refers us to the well known case of R v Bouchereau [1978] 1 QB 732, which was a decision on the rights of free movement of citisens of members of the European Community, with which I shall have to deal in a moment. What we have to determine in the present cases is whether there were proper grounds upon which the Secretary of State could reasonably come to the conclusion that the continued presence of these men in the United Kingdom was not conducive to the public good; and secondly, whether the Secretary of State exercised his powers under the Act genuinely for that reason, or whether on the other hand his actions under section 3(5)(b) of the Immigration Act 1971 were dictated by an oblique purpose, namely the desire to adopt an administratively convenient method, or a method which would deprive the appellant one of his avenues of appeal, a method which would greatly be more expeditious from the Secretary of State's point of view. As to the latter point, the suggestion that the Secretary of State was using the section 3(5)(b) of the Immigration Act 1971 procedure as an administrative convenience, there is to my mind no shred of evidence and I would reject that contention out of hand. As to the former point, this is expressed by Sir Charles in the way that I have indicated, namely that it is clear from the remarks of the then Home Secretary and observations in various cases that the section 3(5)(b) of the Immigration Act 1971 power is a special one. Indeed he goes so far as to say that that much is made apparent by the sections of the Act which I have read. The subsection is aimed, he says, at public menace and should not and cannot be used to catch a mere deceiver. I disagree. Marriage is still, like it or not, one of the cornerstones of our society, despite recent trends of behaviour. If a person chooses to use a ceremony of marriage or the status simply as a dishonest and deceitful way of evading the law -- the immigration law or any other law -- then I consider it properly open for the Secretary of State to come to the conclusion that that person's continued presence in this country is not conducive to the public good, and that conclusion is well within not only the literal meaning of the Act, but also within the spirit of the Act which Professor Wade suggests rightly, if I may respectfully say so, which the actions of the Secretary of State should be. I find it unnecessary to cite the various cases which I have mentioned, some of deportation of residents, which have reached the same conclusion. None of them, as I read them, is inconsistent with the view that I have expressed. So far as the question of the alternative remedy is concerned, in the shape of section 3(5)(a), of the Immigration Act 1971 the suggestion being that it is wrong to use the more draconian method of section 3(5)(b), that is almost the same argument to my mind in a different guise. If the two methods are truly alternative, then there is no reason why the Secretary of State should not use either. They can only be shown not to be alternative if the "public menace" argument is correct. So far as the case of R v Bouchereau [1978] QB 132, [1981] 2 All ER 924 is concerned, I myself do not find decisions about free movement of citizens of member states of the European Economic Community helpful in considering the meaning of the Immigration Act 1971. That is sufficient to dispose of the cases of Ullah and Kawol, and also to deal with the first part of the appeal in Cheema. That leaves us then with the subsidiary arguments put forward by Mr. Nathan in respect of Cheema's appeal. He propunds three arguments. They are these. First of all, that when the Tribunal came to determine the question of whether or not Mr. Cheema's marriage was one of convenience, the issue before them was one that had already been decided between the parties by the Adjudicator at the earlier hearing before the Adjudicator and by the Adjudicator's adjudication. Secondly, that the Tribunal acted in breach of the rules of natural justice. Thirdly that there was no evidence before the Tribunal on which they could properly come to the conclusion that the marriage was one of convenience. I propose to deal with each of those three grounds separately. First of all the question of res judicata. The Adjudicator was considering the facts of the case against the background of HC239, paragraph 26A. It is necessary that I should read paragraphs 26 and 26A in order to make the matter clear.

"26. Subject to paragraph 26A, a man admitted in a temporary capacity who marries a woman settled here should have the time limit on his stay removed unless the marriage took place within the 12 months immediately preceding his application, in which event his stay should be extended for a further period not exceeding 12 months. Where an extension is granted any restriction on the taking of employment should be removed and, subject to paragraph 26A, the time limit may be removed at the end of that period."

"26A. An extension of stay or leave to remain will not be granted, and any time limit will not be removed, under paragraph 25 or 26 if the Secretary of State has reason to believe that the marriage is one of convenience entered into primarily to obtain settlement here, with no intention that the parties should live together permanently as man and wife. Furthermore, an extension of stay or leave to remain will not normally be granted to an applicant under paragraph 25 or 26, and the time limit on his stay will not normally be removed under those paragraphs, if: ... (e) 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.

"In deciding whether to exercise his discretion to grant an extension of stay or leave to remain to an applicant who comes within sub-paragraph (a), (b) or (c) above the Secretary of State will take account of any evidence which shows that the marriage is not one of convenience despite the circumstances in which it was contracted."

The Adjudicator reached his conclusion on the assumption that the marriage was not one of convenience and, having made that assumption, he came to the further conclusion. It seems to me very doubtful whether it could properly be said that there was before the Adjudicator any issue as to the marriage of convenience or not. The issues were, were the parties living together, and secondly, if not, should discretion be exercised in his favour. If that is the case, that that issue did not exist, then the argument on res judicata fails in limine. Assuming however, as Mr. Justice Woolf considered, that the marriage of convenience point was an issue before the Adjudicator, in my judgment the argument as to res judicata still fails and for two reasons, which are these. First of all in this field of administrative action on questions of immigration, the specialised doctrine of res judicata has no place.Secondly, the true issue before the Tribunal was this, whether it was conducive to public good that Mr. Cheema should leave the United Kingdom and that was certainly not the issue before the Adjudicator. Consequently in my judgment the argument as to res judicata fails. Secondly, the argument on natural justice. The submission by Mr. Nathan is this, that the Tribunal should have summoned the wife and the wife's father to give oral evidence, and by failing to do so were in breach of the rules of natural justice. The situation is this, that the evidence upon which the Tribunal based its findings was very largely that of the wife which was contained in an affidavit. The wife did not give oral evidence. The suggestion is that the Tribunal themselves should have summoned the wife, and indeed the wife's father, before them in order to give oral evidence. By failing so to do, they acted unfairly, and were consequently in breach of the rules of natural justice. But no application was made to the Tribunal by the representative appearing on behalf of Mr. Cheema to act in that way, and it is quite impossible to suggest that in those circumstances there was any breach of the rules of natural justice by the Tribunal. But it is fair to add this. If in future there is any dispute as to the contents of an affidavit, quite plainly it would be proper and advantageous for application to be made to the Tribunal for the attendance of the deponent before the Tribunal in order to enable the deponent to be cross-examined as to the contents of the affidavit. Speaking for myself I can see no reason why that should not be done. There must be many cases in which it would be highly desirable for that to take place. So far as the submission is concerned in this particular case as to the rules of natural justice, that must fail. Finally the submission that there was no evidence upon which the Tribunal could properly come to the conclusion which they did. There were two aspects upon which the Tribunal had to be satisfied, as was plain from what I have said at the beginning of this judgment: first, that a ceremony of marriage was entered into by the appellant primarily in order to evade the immigration laws, and secondly, that the appellant had no intention at the time of the marriage of living with his wife permanently. As to the first question, there can be no doubt at all. It was clear from the whole of the story that this man was using every possible device in order to secure his continued stay in the United Kingdom and to avoid having to leave and go back to Pakistan. It is equally clear that the marriage was one of those devices which he employed. The second question does cause me much more difficulty. It is important therefore to determine what it is we have to decide. We do not have to determine whether we ourselves would have found the matter proved, but whether there was evidence on which the Tribunal could reach the conclusion that they did and reach it properly. I have, with some hesitation, decided that there was such evidence: the way in which the wife was allegedly treated, the coincidence between the dates of threatened action by the immigration authorities and those of defensive action by the appellant, the obvious untruthfulness of the appellant and his brother who gave evidence on his behalf, and finally the events after the arrival of the brown envelope from the Adjudicator, so to speak indicating that this man's appeal to the Adjudicator has been successful, whereupon the wife herself was forced to leave never to return, make it plain to me that there was evidence upon which the Tribunal could reach the conclusion they did, whatever the result of that evidence upon my mind might have been. I would accordingly dismiss this appeal by Mr. Cheema, as well as the appeals in the other two cases.

Judgment Two:

ACKNER LJ: I agree.

Judgment Three:

OLIVER LJ: I also agree.

DISPOSITION:

Appeals dismissed, legal aid taxation, leave to appeal to the House of Lords refused.

SOLICITORS:

Maurice Nadeem & Co; The Treasury Solicitor.

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