Mohammed Ashraf v. Immigration Appeal Tribunal
- Author: Court of Appeal (Civil Division)
- Document source:
-
Date:
19 October 1987
MOHAMMED ASHRAF v IMMIGRATION APPEAL TRIBUNAL
Court of Appeal (Civil Division)
[1988] Imm AR 101
Hearing Date: 19 October 1987
19 October 1987
Index Terms:
Evidence -- deportation proceedings -- admission for marriage -- civil but no religious ceremony -- marriage subsequently dissolved -- Secretary of State concluded marriage entered into for settlement -- Immigration Appeal Tribunal declined to take into account post-decision facts relating to a second marriage -- whether that evidence should have been received -- whether alleged failure by advisers to lead other material evidence before the Tribunal would justify interfering with its decision. Immigration Act 1971 s 3(5)(b).
Held:
Appeal from Farquharson J The appellant was admitted to the United Kingdom for marriage. There was a civil ceremony but no religious rites: the marriage was not consummated: the parties did not live together: there was a conflict of evidence as to which party was responsible for the breakdown. The Secretary of State concluded that the marriage had been entered into to secure settlement. He decided to initiate deportation proceedings. Before the Tribunal no new evidence relating to the marriage was led: counsel, however, relied on a second post-decision marriage to contend that the Secretary of State's discretion ought to have been exercised differently. The Tribunal, following Kotecha, refused to entertain evidence relating to the post-decision marriage. In Queen's Bench and before the Court of Appeal it was argued that following Amirbeaggi such evidence ought to have been admitted, in particular because the alleged genuine and stable nature of that second marriage suggested that the appellant could not have been guilty of the conduct which it had been asserted, made him responsible for the breakdown of the first marriage. As to that first marriage through the fault of the appellant's legal advisers, material facts had not been made known, and that evidence also ought not to be shut out to the appellant's detriment. Held: 1. Following Kotecha the Tribunal and the learned judge at first instance had been correct in holding that the post-decision facts, in the circumstances, could not be brought into the case: Kwok on Tong and Amirbeaggi distinguished. 2. Looking at the record, the Court did not accept that the appellant's case had been prejudiced by any oversight by his advisers in the conduct of his case before the Tribunal.Cases referred to in the Judgment:
R v Immigration Appeal Tribunal ex parte Kwok on Tong [1981] Imm AR 214 R v Immigration Appeal Tribunal ex parte Kotecha [1982] Imm AR 88: [1983] 1 WLR 487. R v Immigration Appeal Tribunal ex parte Amirbeaggi [1982] The Times, 25 May. R v Immigration Appeal Tribunal ex parte Mohammed Ashraf (unreported, QBD, 29 October 1985).Counsel:
JFF Platts-Mills QC and SA Khan for the appellant; GF Pulman for the respondent PANEL: Sir John Donaldson MR, Neill, Ralph Gibson LJJJudgment One:
RALPH GIBSON LJ: This is an appeal by Mohammed Ashraf from a dismissal by Farquharson J on 29 October 1985 of the appellant's application for judicial review. By his application the appellant sought orders to quash three decisions firstly the decision of the Immigration Appeal Tribunal dated 25 January 1984; secondly a deportation order signed by the Secretary of State on 5 March 1984; and thirdly a decision of the Secretary of State dated 30 May 1984 in which the Secretary of State in effect refused to set aside the deportation order. There is thus almost two years between the ruling of the learned judge and the matter reaching this court. This court understands that there has been some error in the court office in failing to get the matter brought on, but it is to be noted also that there has been no attempt, not surprisingly, by this appellant to have the case in this court earlier than the sequence of events has caused it to get here. The story which led to the appellant's appeal to the Immigration Appeal Tribunal, which was dismissed, is as follows. He is now aged twenty-nine. He entered this country on 4 February 1979, having permission to do so for a period of three months. The purpose of his entry was to marry a young woman called Bushra who, as he, is a Moslem. Bushra was his sponsor. On 14 March the parties went through a civil form of marriage. Following that, in June 1979 and March 1980 his leave to be in this country was extended. Finally, on 22 April 1980, he was granted indefinite leave to remain. No doubt it was supposed when that was done that the marriage, for the purpose of which he was admitted to this country, was in being in the normal way. In fact it was not. Although the civil marriage had been performed the religious ceremony, without which the parties would not consummate the marriage, had not been performed. The parties never set up home together. In December 1980 the appellant ceased to live in the accommodation provided by his father-in-law, known in these papers as Malik. Bushra commenced proceedings for a decree of nullity on the grounds of wilful refusal by this appellant to consummate the marriage. A decree was made which became absolute on 14 March 1983. The immigration authorities had been informed of the breakdown of the marriage and had made investigations. They discovered that there were two very different accounts of what had happened. They were told by Bushra and her father, Malik, that the appellant had refused to go through the religious ceremony despite efforts on the part of Malik to arrange it and that the appellant had stated that, having got indefinite leave to remain in this country on the basis of the marriage, he had no intention of going through the ceremony or consummating the marriage. By the appellant the immigration officer was told that it was Malik, the father of Bushra, who had prevented the appellant from being with his wife and, by refusing to arrange the religious ceremony, from consummating the marriage. After these investigations the Secretary of State considered the matter and reached the conclusion which is recorded at page 35 of the bundle before the court: ". . . that the appellant had contracted the marriage purely to gain settlement in the United Kingdom, and after taking account of all the relevant factors, including those listed in HC 169 paragraph 156, the Secretary of State decided to deport the appellant by virtue of section 3(5)(b) of the Immigration Act 1971 and to give directions for his removal to Pakistan . . . Notice of this decision, together with the appropriate appeal forms, was sent to the appellant on 21 February 1983." The appellant appealed to the Immigration Appeal Tribunal on 28 February 1983. Before dealing with the course of that appeal it is necessary to refer to certain matters which we are told happened after the decision of the Secretary of State of 21 February which was the subject of the appeal to the Tribunal. The appellant says that in January 1983 he met a young lady who is referred to in the papers as Zebunnissa, a woman from Malawi who had obtained a British passport in 1982. In January 1983 he proposed to her. As I understand it he says that he was accepted. She knew of his immigration position when the decision to deport was notified. On 3 May, very shortly after his first marriage had been ended by decree of the court, the appellant went through a civil ceremony of marriage with Zebunnissa. That second marriage occurred after a formal betrothal which had been transacted in March 1983. In June 1983 the appellant requested leave to stay in this country on the grounds of his second marriage. Before the hearing in the Immigration Appeal Tribunal the immigration authorities carried out further investigations. They interviewed the appellant and his new wife and a supplementary statement was lodged which is before the court and is at page 36 of our bundle. That was dated October 1983. A more detailed account was given and recorded of the appellant's account of his "maltreatment", as he described it, by Malik, with allegations of similar treatment of prospective sons-in-law whose admission to this country had been similarly obtained. The Secretary of State reviewed his decision of 21 February 1983, and, as appears from page 38 of the bundle, he reached the conclusion that he was not satisfied "that the appellant had not also contracted this second marriage purely to gain settlement in the United Kingdom and he was therefore not prepared to reverse his decision of 21 February 1983". The hearing before the Immigration Appeal Tribunal took place on 9 January 1984. It is important to note that this appellant was then represented by Mr S Khan of counsel. The course of that hearing is described in the decision of the Tribunal at page 44 as follows: "At the hearing before us Mr Khan put in evidence a medical certificate showing that Zebunnissa" (the second wife) "is now pregnant and expecting a baby in May. Mr Khan called no witnesses but submitted that the Secretary of State's discretion should have been exercised differently in view of the matterrs which had transpired since his original decision was taken on 21 February 1983." "In reply Mr Hunter" (who appeared for the Secretary of State) "submitted that we had to look at the facts as they stood at the time the decision was taken, 21 February 1983, and that we should not be influenced by matters which had occurred subsequently." The Tribunal added that if they had had regard to the subsequent events to which their attention was drawn they would still have been of the view that the discretion had not been wrongly exercised. The course of the hearing before the Immigration Appeal Tribunal was such that Farquharson J in his judgment below summarised it (at page 12 of his judgment), after noting that no witnesses had been called, in the following words: ". . . the thrust of the appellant's case before the tribunal was not to justify his own behaviour in the period 1979 and 1980, but because of the celebration of his subsequent marriage to urge upon the tribunal that this discretion should have been differently exercised." Before Farquharson J the case for the appellant was put by Mr Platts-Mills, who of course did not appear before the Immigration Appeal Tribunal, on the basis that the decision of the Secretary of State to deport made in February 1983 was faulted by his misapprehension of certain facts. Reference was made to certain aspects of the evidence which it is said the Secretary of State should have evaluated differently or to which he should have given more force. I will summarise those matters urged before this court briefly as follows: 1 There was a document which was shown to an immigration officer at the first interview of the appellant which required the appellant to leave Malik's property. It was mistakenly referred to as a writ -- it was in fact a notice to quit. It is said that the error lay in thinking that that document in any way rendered the general account given by the appellant less credible than that of Malik, in other words as to who was responsible for the breakdown of the first marriage for the purposes of which the appellant had obtained permission to enter this country. 2 It is said that there was acceptance by the Secretary of State of an inference from the decision of the court which dealt with Bushra's proceedings for nullity, the inference being that the marriage had not been consummated as a result of the wilful refusal of the appellant, as Malik and Bushra said, and not the other way round, as he contended. It is said to have been unfair for attention to have been paid to the decision of the court in that matter because the appellant had not been told of the significance which the Secretary of State attached to the decision, although there had been some reference to that in a letter sent to the solicitors acting for Bushra. It is said and was sought to be said before the learned judge below that this appellant had behaved as he did with reference to those proceedings in not contesting the issue because he had accepted the advice of his solicitors and he did not wish to be tied to a marriage which plainly had no future. 3 It was said that the Secretary of State was wrong to conclude that the second marriage was not shown to have been contracted for the purpose of gaining settlement, in particular by reference to certain dates from which the Minister or his advisers had drawn an inference, that is the proximity in time between notification of the decision to deport and the putting in hand of the arrangements for the marriage starting with the formal betrothal in March 1983. 4 It was said that the Minister was wrong to infer that the second marriage was for purposes of settlement because, as Mr Platts-Mills urged upon this court, it is clear that for a long time this appellant had lived in this country unaware that his status was in question. That is a reference to the fact that he had obtained indefinite leave to remain in April 1980 and he first received notice of intention to deport in February 1983, although of course he had known that the matter was being investigated because he had been interviewed. 5 It was said that the Secretary of State is shown effectively to have conceded that his first investigation of the appellant's answer to Malik's accusations was inaccurate because, as was stated above, after the appeal proceedings had commenced the appellant was interviewed again after notice had been given of his second marriage, and fuller details, as it turned out, were obtained from him with the assistance of an interpreter and a more detailed statement was taken. 6 Finally it was suggested that many investigations could have been made by the Home Office as to Malik's treatment both of this and of other sons-in-law which would or might have supported the version of events which this appellant had put before the Secretary of State. For my part, with all respect to Mr Platts-Mills, who has said everything that can possibly be said for this appellant, I do not find it necessary or useful to investigate these complaints or points in any detail. The decision of the Minister of 21 February 1983 was not the subject of these proceedings, nor, I add, was his repetition of that decision in October 1983 to which I have referred. The appellant appealed the decision of 21 February 1983 to the Immigration Appeal Tribunal. He chose to put no further evidence before the Tribunal. I have already referred to the description by the learned judge of what he saw as the thrust of the appellant's case before the tribunal, and in my view the judge was plainly right in so describing it. At page 9 of the judgment the learned judge commented: ". . . Quite plainly it was an opportunity for the applicant to place before the Immigration Appeal Tribunal -- which, be it noted, was the Tribunal that reviewed questions of fact and the correctness of the Secretary of State's decision -- those matters which could be properly raised by him to support his case. It would have been appropriate not only to inform the Tribunal of the real circumstances in which the notice to quit had been served upon him, but to explain the reason why the petition of nullity was uncontested and thus, no doubt, to emphasise to the Tribunal that the finding of the court for that reason was not one of great importance." That comment applies in my view with equal force to all the points which have been canvassed before this court. Mr Platts-Mills has asked this court to intervene on the basis that the decision not to put further evidence before the Tribunal and to explain further the appellant's case with reference to those earlier events was an apparent error for which the appellant should not suffer. It is said that the error must have been on the part of his legal advisers. For my part I am not able to approach this case on that basis. We simply do not know why the case was conducted as it was. It may well have been a proper and sensible course for counsel to have taken on the instructions which he had received. I find it more probable that that is the explanation than that some error not to call relevant evidence and to submit this appellant to cross-examination before the Tribunal was committed by counsel. On the information and evidence before the Immigration Appeal Tribunal I can see no ground upon which it can be said that the Tribunal was in any sense wrong to take the course which it did by dismissing the appeal with reference to the Secretary of State's decision so far as concerns the apprehension of the evidence by the Secretary of State or by the Tribunal as to the events relating to the appellant's marriage to Bushra. Farquharson J, after considering all the matters raised by Mr Platts-Mills, finally asked himself whether the decision of the Immigration Appeal Tribunal could be impugned on what he called "the well-known Wednesbury principles" as being unreasonable. He held that it could not be, and for my part I would agree with him. In the court below Mr Platts-Mills argued that a wholly different view of the facts of this case would have been, and should now be, taken if evidence of subsequent facts were taken into account. Farquharson J looked at the evidence tendered but accepted the submission made by the respondent that evidence relating to other events which were not before the Secretary of State at the time when he made his decision was not admissible. For my part I have no doubt that the learned judge was correct in that view. Mr Platts-Mills in this court has concentrated his submissions upon one aspect of the further evidence. He relies on the subsequent conduct of the appellant in and with reference to his second marriage as tending to show that the Secretary of State's conclusion with reference to that second marriage and with reference to the breakdown of the first marriage was wrong. It is said that the second marriage is stable and that Zebunnissa has now had a second child. It is said that that evidence of seriousness of purpose shows that the appellant could not have behaved with reference to his first marriage as he was said by Bushra and Malik to have behaved. In support of this last submission Mr Platts-Mills relies upon a decision of Woolf J (as he then was) given on 21 May 1982 in Amirbeaggi, an unreported decision of which we have a transcript. The issue in that case was concerned with leave to remain in this country for the purposes of establishing a business. One of the aspects of the matter which arose for consideration was the forecast of the success of the business at the date when it was before the Immigration Appeal Tribunal and evidence tendered after that date to show what had in fact been the course of the business. The passage in the judgment of Woolf J relied upon by Mr Platts-Mills reads as follows: "It seems to me that, although the events took place subsequent to the date of the decision, they would not necessarily be irrelevant as to that factual matter, namely, the evaluation as to the prospects of the business. Indeed, subsequent events may throw the most revealing light on that issue. I do not understand Mr Justice Glidewell's decision as saying that you have to disregard all subsequent events. What I understand Mr Justice Glidewell to be saying is that before you look at subsequent events, you must first of all decide what are the relevant issues which were before the Secretary of State at the time that he made his decision, and if, and only if, subsequent events are material and therefore relevant in assessing whether or not that evaluation was correct, can regard be had to them." Farquharson J refused to extend that special circumstance with reference to evidence of subsequent events to the facts of this case. In so doing he was referred to and relied upon a decision of this court in Kotecha [1983] 1 WLR 487. The Lord Chief Justice, sitting in this court, said (I cite the passage in the judgment of Farquharson J where he cites the authority itself): ". . . What that case" -- Amirbeaggi -- "and the earlier case of . . . ex parte Tong . . . seem to decide is this, that the situation may be different where the original decision involves making an inspired guess as to the future prospects of, for example, a business. It may be that within a very limited sphere it is proper in these limited circumstances to have regard to what happened subsequent to the original hearing. That is, as I say, very far from the present case." Farquharson J continued: "In my judgment, it too is very far from this present case. It is a different class of case altogether. What the Secretary of State was being obliged to consider here was whether, in February of 1983, the marriage was a valid one in the sense that it was a marriage entered into genuinely rather than one that had been entered into for immigration purposes, if I may use that shorthand. In other words, it was a finding as to an existing fact. It was in no sense a forecast." For my part I am not persuaded that the learned judge was wrong in his approach in any way. I think that he correctly applied the law to the facts of this case. I see no reason to dissent from the conclusion which he reached, and I would dismiss this appeal.Judgment Two:
NEILL LJ: I agree that this appeal should be dismissed for the reasons given by my Lord.Judgment Three:
SIR JOHN DONALDSON MR: I also agree. I only want to add one word on the question of delay. The delay in this appeal has been quite appalling. Notice of appeal to this court was given on 26 November 1985. I need hardly say that when that came to light there was an internal investigation to find out how this had happened, since this court has said that it will do its best to expedite immigration appeals in the general public interest. It has emerged that there was a computer error in relation to this case and, I think, to one or two others. As my Lord has pointed out, it is perhaps asking too much to expect an immigrant whose deportation is being delayed by the pendency of legal proceedings to be very active in trying to bring those proceedings on, at any rate unless he is very sure that he is going to succeed. But I really do not understand why there has been, as far as I know, no complaint from the Home Office whatever about this delay. Whether it is a matter of policy not to intervene or whether it has been overlooked I know not, but certainly for my part I would think that it was an important part of the function of the Home Office in relation to immigration matters to apply to the court for a speedy hearing, if that is required, and to monitor the progress of these appeals so that if any appeal is delayed for any reason -- it may be through inadvertence, because infallibility has never been one of the claims of this or any other court -- they will remind us that there is a pending appeal which seems to have been overlooked. At all events I am happy to say that this delay is exceptional, if not unique, and further steps are now being taken administratively to try and ensure that it does not happen again. But I should have very much greater confidence that it never would happen again if I had greater confidence that the Home Office would remind us if there was any particular delay in any particular appeals. Apart from that I say no more other than that I agree with the result of this appeal.DISPOSITION:
Appeal dismissedSOLICITORS:
BC Mascarenhas; Treasury SolicitorDisclaimer: Crown Copyright
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.