Latif Baskurt v. Immigration Appeal Adjudicator

LATIF BASKURT v IMMIGRATION APPEAL ADJUDICATOR

Court of Appeal (Civil Division)

[1987] Imm AR 511

Hearing Date: 11 June 1987

11 June 1987

Index Terms:

Deportation -- overstayer -- following refusal of variation of leave on basis of marriage -- leave refused because Secretary of State concluded that marriage was a marriage of convenience -- marriage prayed in aid as compassionate circumstances in deportation appeal -- whether burden of proof showing marriage was genuine was on the appellant. Immigration Act 1971 ss 3(5)(a), 19: Immigration Appeals (Procedure) Rules 1972 r 13(2)HC 169 paras 126, 154, 156, 158.

Held:

Appeal from Macpherson J The appellant was admitted to the United Kingdom as a visitor. He applied for an extension of leave which was refused. He withdrew an appeal against that decision and subsequently married a British citizen. On the basis of that marriage he sought leave to remain. That was also refused, the Secretary of State believing that the marriage was entered into for the appellant to achieve settlement and the parties did not intend to live together as man and wife. That refusal (under paragraph 126 of HC 169) did not in the circumstances, attract a right of appeal. The appellant then became an overstayer and the Secretary of State initiated deportation proceedings against him under s 3(5)(a) of the 1971 Act. On appeal to an adjudicator the marriage, asserted to be genuine, was prayed in aid as a compassionate circumstance. The appeal was dismissed. An application for judicial review was dismissed. On appeal to the Court of Appeal it was contended by counsel that albeit the burden of proof under paragraphs 126 of HC169, as to the genuineness of the marriage was on the appellant, in depertation proceedings, by the nature and seriousness of the issues, the burden shifted to the Secretary of State to show that the marriage was not genuine: procedure rule 13(2) would not apply. Held: 1. Where the appellant made an assertion it was upon him to prove it. Procedure rule 13(2) applied in deportation appeals where paragraphs 156 and 158 applied, as it did to paragraph 126. 2. Per Woolf LJ, "It is important that that should be the position because in the administration of the Immigration Act 1971 there should be consistency between the treatment of one immigrant and another: and if on an appeal in relation to a decision to deport a different standard were to be adopted from that which was adopted on an appeal from a decision to refuse leave to remain . . . that would lead to inconsistencly.

Cases referred to in the Judgment:

No cases are referred to in the judgments.

Counsel:

A Riza for the appellant; GR Sankey for the respondent PANEL: Dillon, Woolf, Bingham LJJ

Judgment One:

DILLON LJ: This is an appeal by Mr Latif Baskurt against a decision of Macpherson J, who on 7 July 1986 refused to quash by way of judicial review a of an adjudicator under the Immigration Act 1971, who on 8 August 1984 had dismissed an appeal by Baskurt against a decision by the Secretary of State of 17 February 1984 to make a deportation order against Mr Baskurt under the Immigration Act 1971. The facts are as follows. Mr Baskurt is a Turkish subject who was born in September 1937 and is therefore nearly 50 years old. On 12 May 1982 he came to the United Kingdom and was given a limited leave to enter for two months on condition that he did not enter employment and did not engage in any business or profession. That was of course leave to enter as a visitor. On 5 July 1982 he applied for an extension of stay for a period of four months. That was ultimately refused and he gave notice of appeal against the refusal, but he withdrew that appeal because on 12 February 1983 he married an English girl, a Miss Wendy Stacey, who was aged 19, and born and bred here; and, in reliance on that marriage, application was on 1 March 1983 made to vary his leave to enter to allow him to remain permanently in the United Kingdom as the husband of Miss Stacey. That application fell within rule 126 of the relevant Immigration Rules, HC 169 of 1983. That provides that: "Where a man admitted in a temporary capacity marries a women settled here, an extension of stay or leave to remain will not be granted, nor will any time limit on stay be removed, unless the Secretary of State is satisfied." and then six criteria, (a) to (f) are set out. Sub-paragraph (a) is "that the marriage was not entered into primarily to obtain settlement here". Sub-paragraph (f) is "that each of the parties has the intention of living permanently with the other as his or her spouse." These are separate and cumulative requirements. The Secretary of State made investigations and came across a number of features of the case which struck him as suspicious. For instance, the applicant speaks no English and his wife spoke no Turkish; another was the difference between their ages; another was that the wife was not at the applicant's address but at her own parent's address and had no written record of having done anything to adopt her husband's name, for instance, on a driving licence or in respect of a bank account, since her marriage. The conclusion of the Secretary of State was that he was not satisfied that the marriage was not entered into primarily to obtain settlement in this country, nor that the applicant and his wife had the intention of living together permanently as man and wife. That conclusion rejecting the application for an extension of leave to remain in this country was communicated to the applicant on 16 August 1983, and it was pointed out, correctly, in the notice that, as his limited leave had expired, he had noright of appeal against the Secretary of State's decision. Had he had a right of appeal against he decision, it is quite clear that the onus would have been on him to satisfy the appellant authority that the marriage was not entered into primarily to obtain settlement and that he and his wife had the intention of living together permanently as man and wife. That follows from regulation 31 of the Immigration Appeals (Procedure) Rules 1972, sub-rule (2) of which provides as follows: "If in any proceedings before an appellate authority a party thereto asserts any fact of such a kind that, if the assertion were made to the Secretary of State or any officer for the purposes of any of the provisions of the Act or any immigration rules, it would by virtue of those provisions or rules be for him to satisfy the Secretary of State or officer of the truth thereof, it shall lie on that party to prove that the assertion is true." The effect of the refusal of leave to remain was to leave the applicant liable to deportation under section 3(5)(a) of the 1971 Act as being a person who, having only a limited leave to enter or remain in the United Kingdom, remains beyond the time limited by the leave. Consequently, the Secretary of State made the decision which I have mentioned of 17 February 1984 to make adeportation order in his case. He was entitled to appeal to an adjudicator against that decision, and he did so. The relevant provision is section 19 of the 1971 Act. Subsection (1) of section 19 provides that: "an adjudicator on an appeal to him under [the relevant] Part of this Act -- (a) shall allow the appeal if he considers (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal. Then subsection (2) of section 19 provides by its opening words that, "For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based". The adjudicator's decision is not normally the subject of judicial review because an adverse decision of an adjudicator is usually followed either by an appeal to the Immigration Appeal Tribunal or at least by an application for leave to appeal to that Tribunal, and in the normal case it is the decision of the Tribunal, or the refusal by the Tribunal to grant leave to appeal to it, which is the subject of an application for judicial review. The present case is different simply because, by an oversight on the part of the Immigration Advisory Service who were acting for the appellant, no notice of appeal or of application for leave to appeal to the Immigration Appeal Tribunal was given in time. As matters have turned out, that aspect of the matter, which could provide discretionary grounds for refusing judicial review in some cases, has not had to be considered in this particular case. The adjudicator set out in her decision the history of the appellant, the evidence which he and his wife had given before the adjudicator and a letter from the wife's mother supporting the giving of a chance for the marriage to stick. The adjudicator then set out the relevant rules governing deportation. These are rules 156 and 158 in HC 169 of 1983. Rule 156 is concerned with recommendations for deportation made by a court on conviction. It sets out various factors which the Secretary of State must take into account, including strength of connection with the United Kingdom, personal history, domestic circumstances and compassionate circumstances, and representations received on the person's behalf. Rule 158 provides that: "Depotration will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached." The adjudicator then set out her determination. Paragraph 1 starts as follows: "Settlement here had attractions for Mr Baskurt because he had left Turkey to ease problems with his wife" (that is his former wife)" and had given her his share of the family grocery business." On the whole of the evidence it was not proved that Mr Baskurt did not enter into the marriage primarily to obtain settlement, despite the fact that Mrs Wendy Baskurt probably did intend (at the date of the decision and thereafter) to live with him permanently. The adjudicator then goes on to consider what may be enerally summarised as compassionate circumstances, including in particular the effect of a deportation on the wife, given the finding that she did intend to live with the applicant permanently. The adjudicator then concluded: "The ambit of the power to deport . . . indicates that the Secretary of State may decide to deport where a person remains in the United Kingdom beyond the authorised time. It was not shown on the balance of probabilities that the decision was inappropriate in this case. The appeal must be dismissed." So far as the Secretary of State was concerned, the decision to deport was made on the basis, which was conceded, that the appellant was an overstayer without authority to remain in this country. It was the appellant who set out that there were compassionate circumstances and that, despite the findings of the Secretary of State, his marriage was what may be called a genuine marriage and did not merit the findings that the Secretary of State had reached on the application for leave to remain in the United Kingdom because of the marriage. But the adjudicator, in dealing with that, approached it on the footing that the onus was on the appellant, as it would have been on an application under rule 126 or on an appeal against a refusal of an extension of stay under rule 126, to show that the marriage had not been entered into primarily to obtain settlement and also to show that each of the parties had the intention of living permanently with the other as his or her spouse. The submissions succeeded only to the extent that the genuineness of the intentions of the wife were accepted, but it was not proved that the appellant did not enter into the marriage primarily to obtain settlement. Mr Riza said that that was a misdirection by the adjudicator because deportation is so serious that rule 31 must be treated as not applicable; it is the Secretary of State who is asserting his power to deport, which is fettered by the need to consider the relevant factors under rules 156 and 158, and so the onus was not, so Mr Riza says, on the appellant. I am bound to say that I do not agree with that submission. The Secretary of State considers the matter; he decides to make the deportation order; there is an appeal, which under section 19 can only succeed if the adjudicator is satisfied on one or other of the points under (a) in 19(1) of the Act; the adjudicator may then review any determination by the Secretary of State of a question of fact, but it seems to me that the onus must still lie on the appellant, where he is making an assertion as to which the onus would be on him if he were making it under the rules to the Secretary of State or any officer of the Secretary of State. That would have been the case under rule 126. I do not see that the onus is any different on the appeal against a decision to make a deportation order as a consequence of a refusal of leave to remain after an application under rule 126. I take the view, therefore, that there was no misdirection of herself by the adjudicator. Her approach was correct in accordance with section 19 and the rules, and I would therefore dismiss this appeal.

Judgment Two:

WOOLF LJ: I entirely agree with my Lord, and for the reasons given by him I would also dismiss this appeal. Iwould, however, just add a short footnote to his judgment. Section 19(1) and (2) set out the powers of an adjudicator on an appeal in relation to a decision in respect of a deportation order and in respect of many other appeals under the Immigration Act 1971. The powers of an adjudicator are specifically confined by the terms of section 19(1) which sets out the two grounds on which the adjudicator shall allow the appeal. It then provides specifically that "in any other case, [the adjudicator] shall dismiss the appeal." One of the two grounds is, where the decision involves "the exercise of a discretion by the Secretary of State or an officer, that . . . discretion should have been exercised differently". For the purposes of coming to a conclusion with regard to such a case, subsection (2) requires the adjudicator to "review any determination of a question of fact". Where evidence is called before him, he will have to redetermine the facts. Having found the facts, he will then decide whether the discretion should have been exercised differently. If he comes to any other conclusion than that the discretion should have been exercised differently, he has to dismiss the appeal. With regard to his reconsideration of the facts, he must bear in mind the provisions of rule 32 of the Immigration Appeals (Procedure) Rules 1972 (now replaced by the current rules which are to a similar effect). One of the matters to which those rules are directed are situations where a person is seeking to contend that he should not be deported on the grounds that he has contracted a marriage to a person settled in this country. The provisions of rule 31(2) then apply. They provide that: "If in any proceedings before an appellate authority a party thereto asserts any fact of such a kind that, if the assertion were made to the Secretary of State or any officer for the purposes of any of the provisions of the Act or any immigration rules, it would by virtue of those provisions or rules be for him to satisfy the Secretary of State or officer of the truth thereof, it shall lie on that party to prove that the assertion is true." If the person who has contracted a marriage of the sort to which I have referred wishes to seek leave to remain on that basis, then he would have to comply with the requirements of rule 126 of HC 169. Under rule 126 the onus would be on him to satisfy the Secretary of State of the matters there referred to. Likewise, if he is contending that because of his marriage he should not be the subject of a decision to deport, the same onus rests upon him, which would rest upon him under rule 126 by virtue of Procedure Rule 31(2). It is important that that should be the position, because in the administration of the Immigration Act 1971 there should be consistency between the treatment of one immigrant and another; and if on the appeal in relation to a decision to deport a different standard were to be adopted from that which was adopted on an appeal from a decision to refuse leave to remain where the application for leave to remain was on the basis of the immigrant having contracted a marriage, that would lead to inconsistency. The need for consistency is reflected in rule 154 of HC 169 which also appears in the part of HC 169 which deals with deportation. It provides that: "In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects." The need for consistency is also reflected in the restricted rights of appeal given in section 19(1) and (2) of the 1971 Act. If the situation was one where, on an appeal from the adjudicator, the tribunal's discretion was not to be fettered in the way which is required by the rule and the section, there would be a considerable danger of one immigrant being treated in a wholly different way from another. The initial policy is laid down by the Secretary of State. That policy is reflected in the immigration rules. Both the Secretary of State and the immigration appeal bodies are thereafter required to exercise their powers in accordance with the rules with a view to immigrants being dealt with fairly with regard to their individual circumstances and with regard to their circumstances when considered with those of other immigrants who are also seeking to be allowed to remain in this country in accordance with the provisions of the Acts and the rules. It is for those reasons, in addition to those indicated by my Lord, that I would dismiss this appeal.

Judgment Three:

BINGHAM LJ: I agree with both judgments that have been delivered.

DISPOSITION:

Appeal dismissed

SOLICITORS:

SE Tarlin; Treasury Solicitor.