Yanus Suleman Patel v. Immigration Appeal Tribunal

Yanus Suleman Patel v Immigration Appeal Tribunal

Court of Appeal (Civil Division)

[1989] Imm AR 416

Hearing Date: 15 March 1989

15 March 1989

Index Terms:

Deportation -- conducive to the public good -- application for variation of leave -- all statements in application letter correct -- material fact omitted -- leave granted by Secretary of State because ignorant of that fact -- whether that deception could ground decision to deport under s 3(5)(b) of the 1971 Act -- whether Tribunal entitled to find application for leave had been fraudulent -- whether the lack of a positive duty of candour made that finding unreasonable; Immigration Act 1971 s 3(5)(b): HC 169 paras 42, 126.

Held:

Appeal from McCullogh J, who had refused judicial review of the dismissal by the Tribunal of the appellant's appeal against the decision of the Secretary of State to initiate deportation proceedings against him, pursuant to s 3(5)(b) of the 1971 Act. A citizen of India, the appellant had been granted limited leave to enter the United Kingdom in 1983 for marriage. The marriage took place, and at the end of twelve months the appellant applied for indefinite leave. The letter of application (which is set out in the judgments) only contained facts which were true: it omitted however any mention of the fact that the appellant and his wife were not living and never had lived together and the marriage had not been consummated. Indefinite leave was granted. When the whole truth became known, the Secretary of State decided to initiate deportation proceedings. Before the Tribunal the Secretary of State's representative relied on the deception in the letter of application. The Tribunal found that there had been fraud. The learned judge at first instance, following Choudhry, found that it was not a case of mere non-disclosure but there was a positive deception in the letter, and dismissed the application for judicial review. Before the Court of Appeal counsel repeated the substance of the arguments deployed below: relying on Khawaja and the fact that none of the details in the material letter was untrue, it was argued that the Tribunal misdirected itself in its approach, and its findings could not be supported. Held: 1. The issue before the court was simply whether as a matter of construction, the terms of the material letter were capable of being construed as constituting fraud. It was clear that this was a case of fraud and the Secretary of State was deceived. 2. Every case however depended on its own facts and it was unnecessary to rely on Choudhry.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] 1 AC 74: [1982] Imm AR 139. Abdul Rashid Choudhry v Commissioner for the Metropolis (unreported, DC, 24 November 1984). R v Immigration Appeal Tribunal ex parte Yanus Suleman Patel [1988] Imm AR 338.

Counsel:

I Macdonald QC and A Riza for the appellant; J Laws for the respondent PANEL: Sir Stephen Brown, President, Neill, Butler-Sloss LJJ Judgment By-1: SIR STEPHEN BROWN (P)

Judgment One:

SIR STEPHEN BROWN (P): This is an appeal by Mr Yanus Suleman Patel from the decision of McCullough J who on 18 February 1988 dismissed his application for judicial review of the decision of the Immigration Appeal Tribunal of 2 September 1986, which in turn dismissed his appeal against notice of intention to deport him given by the Secretary of State on 21 August 1985. The notice of intention to deport the appellant was given under the terms of section 3(5) of the Immigration Act 1971, which provides: "A person who is not a British citizen shall be liable to deportation from the United Kingdom . . . (b) if the Secretary of State deems his deportation to be conducive to the public good". The facts giving rise to the giving of that notice may be shortly stated. They are set out clearly in detail in the judgment of McCullough J. Mr Patel, the appellant, is an Indian by birth, having been born in India on 12 October 1963. On 21 April 1983 he was granted an entry clearance certificate enabling him to enter the United Kingdom in order to marry a woman who was settled in the United Kingdom named Salmabanu Valli. The appellant arrived in the United Kingdom on 7 June 1983 and, in accordance with the provisions of paragraph 42 of House of Commons Paper 169, he was granted admission to the United Kingdom for a period of 3 months. He duly went through both a religious ceremony of marriage and subsequently a civil ceremony in a Registry Office in July 1983. On 18 August 1983 he applied for an extension of his stay in the United Kingdom for a period of 12 months, as provided for by paragraph 126 of House of Commons Paper 169. That paragraph reads: "Where a man admitted in a temporary capacity marries a woman 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: (a) that the marriage was not entered into primarily to obtain settlement here; and (b) that the parties to the marriage have met; and (c) that the husband has not remained in breach of the immigration laws before the marriage; and (d) that the marriage has not taken place after a decision has been made to deport him or he has been recommended for deportation or been given notice under section 6(2) of the Immigration Act 1971; and (e) that the marriage has not been terminated; and (f) that each of the parties has the intention of living permanently with the other as his or her spouse. Where the Secretary of State is satisfied that all the conditions of (a) to (f) above apply, the husband will be allowed to remain, for 12 months in the first instance, provided that the wife is a British citizen. At the end of the 12 months' period the time limit on the husband's stay may, subject to (a) to (f) above, be removed". The Secretary of State duly gave a 12 months' extension which would have terminated on 13 September 1984. The appellant, as that date approached, wrote a letter to the Secretary of State on 5 September 1984. That letter is, as the learned judge said, at the heart of this case. The letter read: "I am writing to inform you that I wish to extend my stay in the United Kingdom for perminantly. I have my own house and I am married, therefore I am sending you both passports of myself and my wife and also our marriage certificates. I would be very grateful to hear from you soon. Thank you. Yours faithfully". That was addressed to the Under Secretary of State at the Home Office and was headed with the full names and the dates of birth of both himself and his wife and, as the letter indicated, their passports and the two marriage certificates (that is of the religious and the civil ceremonies) were enclosed. In point of fact the Secretary of State duly removed the limit to his stay in the United Kingdom on 6 November 1984, granting the appellant indefinite leave to remain on account of his marriage to the woman who was settled here. However, the marriage had never been consummated and the appellant and the lady with whom he had gone through a ceremony of marriage had never lived together. These facts came to light after the Secretary of State had granted indefinite leave to the appellant to remain in the United Kingdom on 6 November 1984. It is not in dispute that the matters came to light because the appellant's father-in-law, the father of the lady with whom he had gone through the ceremonies of marriage, complained to the immigration office at Preston in Lancashire that the appellant and his daughter had never in fact lived together. When he first raised this matter he had not got the full details of his son-in-law's name and other particulars and so it was not until 27 November 1984 (some three weeks after indefinite leave to remain had been granted to Mr Patel) that the Home Office realised that the subject of Mr Valli's information was this appellant. Thereafter the appellant was interviewed by immigration officers on 26 January 1985 at the Preston immigration office. He was accompanied by a man who was known as Ahmed Suleyman Patel, described as a friend, but as the Immigration Appeal Tribunal eventually considered, the appellant's brother. At that interview the appellant in due course admitted that he had not lived with his wife but claimed that he had visited her father's house and that she had refused to join him. He also said that he used to take some monies from his wages to his wife and that he saw her on the occasions when he did so every fortnight. He told the immigration officer that he had bought a house in the previous September and that it was in the joint names of his wife and himself; that his wife had signed the deeds of the house at her father's home, and he stated that the deeds had been deposited with the Skipton Building Society. During that interview he apologised for trying to deceive the immigration officer in respect of certain of the statements he had made. But it was not admitted by him at that stage that the information about the house was untrue. Indeed, he made the assertion that he had bought the house in joint names and that his wife had signed the deeds. That itself was untrue, as it later became clear when further investigations were set on foot. As a result of the fact that Mr Patel had not in fact lived with his wife she took proceedings to have the marriage annulled and a decree of nullity was made absolute on 15 November 1985. Meanwhile the Secretary of State had decided that the appellant should be deported. The decision of his intention to deport him was notified to him on 21 August 1985. A letter was written to the appellant in the terms which appear in the decision of the Immigration Appeal Tribunal. I need not read it in full. It set out the facts of the date of his marriage and the granting of indefinite leave to remain on the ground of his marriage, and then continued: "The Secretary of State now has reason to believe that your marriage was entered into primarily to obtain your settlement in the United Kingdom with no intention that you should live permanently as man and wife. Having regard to this the Secretary of State considers it to be conducive to the public good to make a deportation order against you". Together with a copy of that letter there was sent to the appellant's solicitor a letter which dealt with the enquiries made into the legal charge on the house owned by the appellant. It was pointed out that the document which had been sent to the Home Office did not support the claim which the appellant had made that the house had been purchased in the joint names of his wife and himself. That letter continued in these terms: "Mr Patel's immigration status has been reviewed, and having regard to all the relevant circumstances, in particular that he appears to have obtained settlement by misrepresenting that he had entered into a genuine and subsisting marriage, it has been decided in principle to deport him". The letter enclosed the copy of the notice of intention to deport which had been sent to the appellant himself. When the matter came before the Immigration Appeal Tribunal which heard the appellant's appeal against the decision to deport him, the legal representative of the Home Office said that he was not intending to rely upon the allegation that the Secretary of State believed that the appellant's marriage had been entered into primarily to obtain settlement in the United Kingdom, but to rely upon the fact that he had misrepresented to the Secretary of State that he had entered into a genuine and subsisting marriage; that is to say, one to which the provisions of sub-paragraph (f) of paragraph 126 of House of Commons Paper 169 applied: "that each of the parties had the intention of living permanently with the other as his or her spouse". The Secretary of State's case at the hearing before the Tribunal was based upon the letter which the appellant had written on 5 September 1984 seeking an extension of his stay in the United Kingdom permanently. The Immigration Appeal Tribunal heard evidence which included the evidence of the "wife" and her father but it heard no evidence from the appellant himself because his counsel did not call him to give evidence. It came to the conclusion which was expressed in the following terms (which are to be found at page 31 of the decision): "We are satisfied to a high standard of probability that the letter in question was written by the appellant with the deliberate intention of creating the impression that his marriage to Salmabanu was subsisting and that they intended to live together as man and wife. We are satisfied to the same degree that it was a deliberate misrepresentation with the aim of circumventing the provisions of the immigration regulations". It is that finding which was challenged before McCullogh J and which forms the substance of this appeal. The submission made by Mr Macdonald, on behalf of the appellant, is that the issue is as follows -- and I quote his words: "Do the words in the letter, properly construed, contain an express or implied representation, which was false when it was made to the knowledge of the applicant and which was the effective cause of his obtaining leave to remain?" Mr Macdonald submits that three questions are involved: (1) What representations (if any) are to be implied on a proper construction of the letter? (2) Are they false to the knowledge of the applicant? (3) Were they the effective cause of his getting leave? If the answer is "Yes" and the view formed by the Immigration Appeal Tribunal and expressed by them in the words which I have recited, is correct, then it is not contended that the Secretary of State was not within his powers in notifying the appellant of his intention to deport him pursuant to the provisions of section 3(5) of the Immigration Act 1971. Mr Macdonald makes that concession in the light of recent authority. (See Immigration Appeal Tribunal v Anilkumar Ravindrabhai Patel (HL) [1988] Imm AR 434 and the cases there considered.) So the issue which the Immigration Appeal Tribunal had to consider and the issue which the learned judge had to consider and the matter which has formed the sole basis of this appeal is what is the proper construction of the letter? It is, as the Immigration Appeal Tribunal stated, to be construed in the context of the facts surrounding the situation when it was written. It seems to be an irresistible inference that the letter was written quite deliberately in order to gain a permanent extension of leave to remain in the United Kingdom. Did it contain, expressly or by necessary implication, a false representation known to the appellant to be false? The Secretary of State and now counsel on behalf of the Tribunal has argued that plainly it did and that, as a matter of construction, it deliberately concealed the fundamentally material fact that Mr Patel and the lady with whom he had gone through the ceremonies of marriage had never lived together, were not living together at the time when the letter was written, and did not intend to live together. Mr Laws, for the Tribunal, says expressly that that is the very matter to which sub-paragraph (f) of paragraph 126 of House of Commons Paper 169 is directed and of which the Secretary of State must be satisfied if he is to grant the extension sought. Mr Macdonald says that although he is not able to go behind the finding of fact that the appellant had what he described as "deceptive intentions" and that he had told a number of lies, nevertheless the letter must be looked at in the light of its ordinary terms. It must not be construed suspiciously. It must be looked at simply as it is in fact written. He argues the letter merely states that he has his own house, which is true; that he is married, which again Mr Macdonald says is true; that he was sending both passports of himself and his wife, and also "our marriage certificates". All those matters taken at face value, says counsel, were true. But, says Mr Laws for the Tribunal, it is quite clear that the letter left out -- and the Tribunal came to the conclusion that it deliberately left out -- the vital fact that the two had never in fact lived together and were not living together. If those facts had been made clear to the Under Secretary of State, then, says Mr Laws, the Secretary of State could not have been satisfied, as he had to be satisfied, that each of the parties had the intention of living permanently with the other as his or her spouse. The matter does not give rise, in my judgment, to very detailed arguments. It is clear to me that the Tribunal applied the correct test. Mr Macdonald has argued that the Tribunal asked the wrong questions; adopted the wrong approach, and reached the wrong answer. He asserts that the Tribunal did not give effect to Lord Scarman's words in the well-known case of Khawaja [1984] AC page 74 at page 108, when he said: "The Immigration Act does impose a duty not to deceive the Immigration Officer. It makes no express provision for any hard or more comprehensive duty, nor is it possible, in my view, to impose any such duty. Accordingly, I reject the view that there is a duty of positive candour imposed by the immigration laws and that mere non-disclosure by an entrant of material facts in the absence of fraud is a breach of the immigration laws". Mr Macdonald argues that the attitude taken by the Secretary of State, and endorsed by the Tribunal, involves imposing a positive duty of candour, and that this is a case, and should have been viewed as a case, of the mere non-disclosure by the appellant of material facts in the absence of fraud. But, of course, in this case the Tribunal found fraud, and, in my judgment, it was fully open to the Tribunal, in the light of all the facts, and the evidence which it heard, to make that finding. The issue before this court is simply whether, as a matter of construction, the terms of the letter are capable of being construed in that light. It is clear to me, as Mr Laws has submitted, that the Secretary of State, or the Under Secretary to whom it was addressed, took it at its face value, because the Secretary of State granted the extension of leave which was sought. But it is also clear, on the findings of the Immigration Appeal Tribunal, that had the Secretary of State been made aware of the fact that the parties had never in fact lived together, then he would not have granted leave. I am clearly of the view that this was a case of fraud and that the Secretary of State was deceived, and that this was amply demonstrated. The Tribunal came to a correct conclusion in its carefully expressed decision, and the learned judge, McCullough J, also came to a correct evaluation of the status of that letter and was correct in dismissing the application for judicial review. In the course of his judgment the learned judge referred to the case of Choudhry v Commissioner of Police for the Metropolis, which was decided in 1984 by the Divisional Court of the Queen's Bench Division presided over by Goff LJ (as he then was) and of which a transcript has been made available to this court. The case of Choudhry also concerned a letter which was in remarkably similar terms. However, it is not necessary, in my judgment, to place reliance upon the case of Choudhry in this case. As the learned judge pointed out and as the Immigration Tribunal made clear, each case must be decided upon its own facts. I am quite clear in this case that the Tribunal and the learned judge were correct in coming to the conclusions to which they came and that this appeal must be dismissed.

Judgment Two:

NEILL LJ: I agree.

Judgment Three:

BUTLER-SLOSS LJ: I agree.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused

SOLICITORS:

Norton & Coker: Treasury Solicitor.

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