Bahadur Singh v. Immigration Appeal Tribunal

BAHADUR SINGH v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1988] Imm AR 582

Hearing Date: 29 June 1988

29 June 1988

Index Terms:

Deportation -- overstayer -- Commonwealth citizen, husband of woman settled in the United Kingdom -- whether husbands enjoy the immunity derived from s 1(5) of the 1971 Act -- whether "wives" includes "husbands". Immigration Act 1971 s 1(5). Cmnd Paper 4298, para 8.

Held:

Appeal from Macpherson J. The appellant was admitted to the United Kingdom for marriage. The marriage broke down. His application for further leave to remain was refused. In due course a deportation order was signed. The appellant then married another woman settled in the United Kingdom. On application for judicial review it was submitted that as the husband of a Commonwealth citizen settled in the United Kingdom on 1 January 1973 he was immune from deportation because of the provisions of s 1(5) of the 1971 Act. The application was refused, the learned judge declining to accept the proposition that 'wives' could or in s 1(5) did include husbands. On appeal the same argument was repeated. Held: 1. "Wives" was not a common noun. The use of the word did not include "husbands" those words were to be contrasted with "spouse" which could apply to either sex. s 1(5) of the 1971 Act had therefore no application to the case. 2. Even if the appeal did not fail on that point, the pre-1971 rules which would have applied to the appellant would not have made him immune from deportation: Ruhul followed.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Ruhul (CA) [1987] 1 WLR 1538: [1987] Imm AR 587. R v Immigration Appeal Tribunal ex parte Bahadur Singh (QBD) [1988] Imm AR 372.

Counsel:

Harjit Singh for the appellant; D Pannick for the respondent PANEL: Lord Donaldson Mr, Glidewell, Staughton LJJ

Judgment One:

LORD DONALDSON MR: This is an appeal from the refusal of Macpherson J on 26 February of this year to grant judicial review of a decision of the Immigration Appeal Tribunal given on 19 June 1985 and of a decision of the Secretary of State that Mr Bahadur Singh should be deported, the deportation order having been signed on 22 October 1986. Mr Singh, who has appeared on behalf of the applicant and has, if I may say so, put forward this argument with conspicuous clarity and attractiveness, frankly and realistically says that he does not rely upon the earlier history of his client in this country. It may be irrelevant to the legal issues raised, but it is nevertheless part of the background which should be recorded. I take it from the judgment of the learned judge. He said this: "The short history of the matter is as follows. On 4 May 1980, Singh arrived in this country and was admitted for three months as the fiancé of a woman called Balwinder Kaur. On 30 May 1980 there was a civil marriage followed by a religious ceremony in September 1980. The applicant was granted leave to remain until September 1981 on the basis of that marriage. Thereafter, in 1982, the couple were seen and were interviewed. Eventually, on 8 September 1982 an application for indefinite leave to remain in this country was refused. There was an appeal to the adjudicator but that appeal was withdrawn. The applicant was advised by the Home Office to leave this country on 5 September 1983. Representations were made by politicians on the applicant's behalf but by that time it was apparent that the marriage was on the rocks since [the wife] wrote, for example, a letter in November . . . 1983 indicating that her husband was violent and intimidating and that the marriage had never been successful. On 22 May 1984 a decision was made to deport the applicant who had no right to remain since he had not had his right to stay extended. There was an appeal to the adjudicator in September 1984. The adjudicator gave his decision dismissing the appeal in November 1984. Leave was granted to appeal to the Tribunal and, in due course, there was a hearing before the Tribunal. The Tribunal dismissed the applicant's appeal on 19 June 1985." There were then further representations and, adding to the applicant's misfortunes, it appears that he had to plead guilty to a charge of assault occasioning actual bodily harm in June 1986. "On 1 August 1986 the applicant's marriage to his wife was dissolved by decree absolute." I can omit the next sentence and the judgment continued, "Furthermore the matters raised before the adjudicator and before the Tribunal concerning the availability of a young girl who would marry the applicant concerned, the person who has been called 'Woman Number 2' . . . She disappeared from the scene and, in my judgment, there is no possible basis upon which the balancing exercise of public interest against deportation could be properly or satisfactorily argued in this court by Mr Singh in the applicant's behalf." So I go on, leaving "Woman Number 2" behind, to "Wife Number 2". She arrived in these circumstances, and again I quote from the judgment. The learned judge said: "What happened thereafter does, however, raise a problem since on 13 October 1986 the applicant married Paramjit Kaur. He did not notify that matter to the Home Office; perhaps for good reasons. On 22 October 1986 the deportation order was signed. There was then some more contact with politicans and on 11th November 1986 solicitors wrote to the Home Office requesting leave to remain for the applicant on the basis of his marriage to Paramjit Kaur. It transpired later that the wife had not been previously aware of the applicant's immigration status and history so, if that is true, he had concealed from her the fact that he had been before the adjudicator and before the Tribunal and that all the decisions to date had been firmly against him. Furthermore, he may well have concealed from her that there had been a decision to deport him which was simply awaiting the signature of the Home Secretary." Then the leared judge turned to the only real point in this appeal in these terms: He said: "The applicant now claims that because of the marriage to Paramjit he is entitled to remain in this country. As a matter of pure common sense, it seems to me that such a suggestion is bizarre, but it is made and Mr Singh argues that whatever the court's reaction may be to such a proposition, he is protected by law and is entitled to argue that his client should be allowed to remain here as the husband of Paramjit Kaur. He relies upon section 1(5) of the Immigration Act 1971. That reads as follows: 'The rules' . . . ' shall be so framed that commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed.'" That is the section upon which primary reliance is placed in this appeal, and indeed, as Mr Singh very frankly admits, unless he can take advantage of section 1(5), he cannot possibly succeed. His client is an overstayer and the Home Secretary is fully entitled to deport him. So I look again at section 1(5). It says that "The rules" (that is the Immigration Rules) "shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act . . ." Well, that is not the applicant. He is a Commonwealth citizen -- he comes from India -- but he was not settled in the United Kingdom at the coming into force of this Act, so I go on with the section, " . . . and their wives . . ." Whatever else may be said for or against the applicant, he is not the wife of a Commonwealth citizen, and the section goes on to refer to children. He is, presumably, the child of a Commonwealth citizen, but not of a Commonwealth citizen settled in the United Kingdom at the coming into force of the Act. So what Mr Singh says is that "wives" in this context must include husbands. Quite why it has to include husbands is not clear. The Interpretation Act certainly says that the words importing the feminine gender include the masculine, but this is subject to the important qualification "unless the contrary intention appears". "Wife" is a word which can only refer to females, and similarly with the plural. "Spouse" is the obvious word to use if Parliament meant to include husbands. "Commonwealth citizens", on the other hand, of course applies to both men and women. Immigration law has, until very recently, often treated males differently from females, possibly because, again until recently, it was accepted that on marriage the woman joined the man rather than vice versa. So I see no reason at all why this section should be construed to include husbands of Commonwealth citizens settled in the United Kingdom, which is the status of this gentleman. It is said by Mr Pannick, on behalf of the Secretary of State and the Tribunal -- probably rightly, but it is not essential for the decision of this matter -- that, even if Mr Singh was right about this and that "their wives" must be construed as including "their husbands", even so the applicant would not be protected because he would be liable, or would have been liable if the 1971 Act had never been passed, to deportation under section 6 of the Commonwealth Immigrants Act 1962 read with section 16(1) of the Immigration Appeals Act 1969. That prima facie appears to be right, but we never get to that stage because in my judgment, as I say, I can see no possible basis for construing "wives" to include husbands in the context of Section 1(5) of the Immigration Act 1971. Accordingly, I would dismiss the appeal.

Judgment Two:

GLIDEWELL LJ: I agree with all that my Lord has said and for those reasons I too would dismiss the appeal. It seems to me there is yet a further reason why, even if Mr Singh had got over the impossible hurdle presented by the wording of section 1(5), this appeal would fail. In the recent decision of this court in R v Immigration Appeal Tribunal, ex parte Ruhul [1987] 1 WLR 1538, Slade LJ, giving the judgment of the court, said (at page 1550G-H): "The first reason stems from the words 'free to come into the United Kingdom.' In our judgment, on the ordinary meaning of words, a person could not be said to be 'free to come into the United Kingdom' under the law in force before the Act of 1971 unless under such law either (a) he did not require leave to enter, or (b) he had a right to be given leave to enter, which did not depend on the exercise of any other person's discretion, or (c) he had actually been given leave to enter. In our judgment, a person whose hopes and expectations of being given leave to enter this country depended on the exercise of their discretion by immigration officers, in accordance with instructions given by the Secretary of State from time to time, could not be said to be 'free to come into the United Kingdom' on any ordinary use of language." Mr Singh has shown us the rule which was in force before the 1971 Act came into force relating to the admission for settlement of male Commonwealth citizens who were seeking to enter this country for settlement as the husbands or fiancés of women resident here. That rule, which was contained in paragraph 8 of Command Paper 4298, expressly required such persons to be in possession of entry certificates. That of itself imported the necessity of the exercise of discretion by an entry clearance officer or an immigration officer and thus would fail Slade LJ's test, if one ever got to that point; and I respectfully agree with my Lord that one does not. But for that reason also, in my view, this appeal should be dismissed.

Judgment Three:

STAUGHTON LJ: I agree that this appeal should be dismissed for the reasons given by the Master of the Rols and Glidewell LJ. The word "wives" in section 1(5) of the Immigration Act 1971 can only refer to married women. In Latin, as I recall, Common are sacerdos, dux vates, parens and conjunx. The English equivalent to "conjunx" is "spouse". The word "wife" is not in English a common noun.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Mandla & Co, Birmingham: Treasury Solicitor