Hawa Bidi Uddin v. Immigration Appeal Tribunal

HAWA BIDI UDDIN v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1991] Imm AR 134

Hearing Date: 30 October 1990

30 October 1990

Index Terms:

Appeals -- ambit of appellate authorities' powers and obligations to consider all relevant rules -- variation of leave refused on basis of invalidity of marriage - appeals dismissed -- validity of marriage only issue pleaded before appellate authorities -- application for judicial review -- assertion that appellate authorities should have considered appellant's entitlement to lease as sponsor's mistress -- whether the appellate authorities were obliged to consider rules not relied on by the parties or under which no application for leave had been made -- the ambit of s 19(1) of the 1971 Act. Immigration Act 1971 ss 13(1), 19: HC169 paras 49, 124, 133

Held:

Appeal from Simon Brown J who had refused an application for judicial review of the dismissal by the Tribunal of an appeal against the refusal of the Secretary of State to grant the appellants indefinite leave. The appellant was a citizen of India who married in the United Kingdom while enjoying limited leave as a visitor. The Secretary of State had concluded that the marriage was invalid. Before both the adjudicator and the Tribunal the appeals were conducted solely on the basis that the marriage was valid. On application for judicial review it was argued that if the marriage was invalid, the appellate authorities should of their own motion have considered the case under paragraph 49 of HC169 (the "mistress rule"). The learned judge dismissed the application, relying on but distinguishing Tohur Ali. Before the Court of Appeal it was argued that the duty of the appellate authorities, under section 19(1) of the 1971 Act, extended to considering all the immigration rules that could be relevant to an appeal, where the necessary evidential base had been established, and where there was an obvious link between those rules and the appellant's circumstances. Held 1. On the facts the case was to be distinguished from those cases referred to in Tohur Ali where "the same rule could be relied upon in two different ways by an applicant but he only relies on it in one way". 2. On the facts, it could not be said that the evidential basis for an application under paragraph 49 of the rules had been established. The relevance of paragraph 49 had not in any event been appreciated by the applicant's legally qualified representatives before either the adjudicator and the Tribunal, which was strange if it were obvious. 3. Moreover the powers and duties of the appellate authorities under section 19(1)(a) were limited to considering the immigration rules "applicable to the case": following Ashraf the appeal had been against the refusal of leave to remain as the wife of the sponsor. No application had been made to the Secretary of State on the basis of paragraph 49 of HC169: he had made no decision on such an application, nor had he exercised the discretion given to him in that rule. Thus no issue which might have arisen under paragraph 49 of the rules had been before the appellate authorities. The adjudicator had had regard to the immigration rules "applicable to the decision before him". He needed do no more: "indeed he ought not to embark on any roving expedition among the rules to see if there is anything which might be of assistance to one side or another".

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 L Ron Hubbard [1985] Imm AR 110. Immigration Appeal Tribunal v Tohur Ali [1988] Imm AR 237. Nadeem Tahir v Immigration Appeal Tribunal [1989] Imm AR 98. Jamaldeen Muhammed Ashraf v Immigration Appeal Tribunal [1990] Imm AR 234. R v Immigration Appeal Tribunal ex parte Hawa Bibi Uddin [1990] Imm AR 309.

Counsel:

I Macdonald QC and R de Mello for the appellant; J Laws and Miss A Foster for the respondent PANEL: Sir Stephen Brown, (P), Staughton, McCowan LJJ Judgment By-1: McCOWAN LJ

Judgment One:

McCOWAN LJ: This is an appeal from the order of Simon Brown J of 31 January 1990 dismissing the appellant's application for judicial review to quash a decision of the Immigration Appeal Tribunal dated 28 November 1988. The appellant is a citizen of India now aged 36. She arrived in this country on 19 August 1984 and was granted two months' leave to enter as a visitor, that leave being subsequently extended to 19 February 1985. During its currency, on 30 January 1985 she went through a form of marriage with Mr Sharif Uddin (the sponsor). He came to this country as a citizen of Bangladesh in 1963, but in 1970 he was granted British citizenship. He is aged 58. On the day that she went through that marriage ceremony, the appellant applied to the Home Department for indefinite leave to remain under rule 124 of HC169. These are the terms in which she wrote to the Department. She said (omitting any unnecessary material): "On 30 January 1985 I married Mr Sharif Uddin. I therefore enclose the marriage certificate which was issued on the registration of our marriage. I request your Honour to kindly revoke the condition on my passport". That application was considered by the Department. For that purpose the appellant and the sponsor were called for interview in January 1986 and, on 23 September 1986, her application was refused in the following terms: "You have applied for indefinite leave to remain in the United Kingdom on the basis of your marriage to Sharif Uddin, a British citizen, but the Secretary of State is not satisfied that Mr Uddin was free to marry, nor therefore that you have contracted a valid marriage. "The Secretary of State therefore refuses your application". The appellant appealed and that appeal came before an adjudicator. On 12 July 1988 the adjudicator dismissed that appeal. During the course of it no fewer than four previous marriages of the sponsor were under consideration. The adjudicator found that the sponsor had a total disregard for the truth. He concluded that the sponsor was still married to at least one and possibly two of his earlier wives, that he remained domiciled in Bangladesh and, accordingly, that he had not been free to marry the appellant in January 1985. The appellant again appealed. That appeal was dismissed by the Immigration Appeal Tribunal on 28 November 1988, the Tribunal coming to the same conclusions as the adjudicator. The judicial review challenge as initially launched raised a number of grounds all addressed to showing that the marriage was in fact valid. The application for leave was first considered on paper and refused by Roch J on 24 May 1989, on the basis that none of the grounds then pleaded was properly arguable. On 24 July 1989 the matter came before Kennedy J at an oral hearing. At that stage there was advanced an entirely new basis of challenge. It was, for the first time, said: "The adjudicator should have allowed the applicant's appeal under section 19 of the Immigration Act 1971 on the basis that the Secretary of State's decision was not in accordance with the law and/or the immigration rules". Certain particulars were pleaded and I take them up in the middle of sub-paragraph (ii): "Therefore paragraph 49 HC169 ought to have been considered in the applicant's wife's case as on the date of the decision. "(iii) Had paragraph 49 been applied to the applicant's wife's application for entry then it is submitted that pursuant to paragraph 133 HC169 the wife would have been granted indefinite leave to remain as a co-habitee because as on the date of the decision it was evidence that the association between the parties was permanent. Further, the evidence given by the applicant was that his previous marriages had broken down. No enquiry was made as to the application of paragraph 49 to the present case. The evidence suggests that the applicant's wife could rely successfully on paragraph 49". It was that ground alone which was canvassed before Simon Brown J, all the earlier ones being abandoned. I turn to consider the terms of section 19 of the Immigration Act 1971. It reads: "(1) subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this 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. (2) 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; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so. (3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite, and may also make recommendations with respect to any other action which the adjudicator considers should be taken in the case under this Act; and, subject to section 20(2) below, it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them". Subsection (4) I need not read, as it is not relevant. Next I consider the paragraphs of HC169, which have been relied on before us. First, there is paragraph 124, which reads: "A woman admitted in a temporary capacity who marries a man settled here should on application be given indefinite leave to remain. If she marries a person who has only limited leave to enter her leave should, if necessary, be varied by extending its duration so as to coincide with his". This plainly was the paragraph under which the appellant sought indefinite leave to remain and under which the Secretary of State considered and, after investigation, refused her application. The point now taken on behalf of the appellant, however, depends on two other paragraphs of HC169. The first of these is paragraph 133. This begins: "This paragraph applies to persons who were admitted or allowed to remain for one of the following purposes". None of these purposes apply here, so I do not read them. In fact I am able to pass to the penultimate sentence of this paragraph, which reads: "Applications for variation of leave to enter or remain with a view to settlement may also be received from persons given leave to enter or remain otherwise than for the purposes set out above . . . but permission in such cases has to be limited to close relatives of persons who are settled in the United Kingdom. Particulars are set out in paragraphs 46 to 53." That takes me on to paragraph 49, which reads: "A woman who has been living in permanent association with a man has no claim to enter but may be admitted subject to the requirements of paragraphs 46 and 47 as if she were his wife, due account being taken of any local custom or tradition tending to establish the permanence of the association. A woman is not, however, to be admitted under this provision unless any previous marriage by either party has permanently broken down, nor may she be admitted if the man has already been joined by his wife or another woman admitted under this paragraph, whether or not the relationship still subsists". Mr Macdonald, for the appellant, has relied on a number of authorities. The first of these in date is R v Immigration Appeal Tribunal, ex parte Kwok On Tong which is reported in [1981] Imm AR 214. It is sufficient if I read from the headnote these words: "In the present case concerning an appeal against a decision of the Secretary of State refusing an application for leave to set up a businessman the Divisional Court held that the adjudicator and the Tribunal were entitled to take into account a reason which might have justified refusal of that application under paragraph 21 of HC80, though that reason had not figured in the statutory notice of refusal which had specified a number of other reasons for refusal contained in that relevant rule". In his judgment, at page 219, Glidewell J (as he then was) said: "Mr Collins (counsel for the Tribunal) says that since both the Tribunal and the adjudicator are to consider whether the decision is not in accordance with any immigration rules applicable to the case, they are not merely entitled but actually obliged to look at all the immigration rules to decide which is relevant, and to look at the whole of any relevant rule. In this case, that is para 21. The adjudicator and the Tribunal are both perfectly entitled to look at matters and to consider and make decisions upon matters which were within para 21 but not within the notice of refusal originally issued. "In my judgment, that is correct. I take the view that both the adjudicator and the Appeal Tribunal are required to look at the whole of any relevant rule to see whether or not the circumstances of a particular case appear to comply with it. If some part of it has not been specifically referred to in the immigration officer's notice of reasons that does not remove that duty or right on the adjudicator or the Tribunal". In my judgment, when Glidewell J said that the proposition put to him was correct, I do not believe that he intended to say that the whole of it was correct; in other words, I do not believe that he was entitled to say that the Tribunal or the adjudicator was obliged to look at all the immigration rules to decide which is relevant. The next case which is relied upon is R v Immigration Appeal Tribunal ex parte L Ron Hubbard, which is reported in [1985] Imm AR 110. The facts do not matter. It is only necessary to read a passage from the judgment of Woolf J (as he then was), which appears at page 118: "In the course of an appeal, in reviewing the facts on evidence wholly different from that which was before the Secretary of State, the adjudicator can be faced with a situation where the effect of the facts as found by him is clear and unequivocal: leave should be refused. This is not a situation where the applicant is entitled to enter this country. However, because on the facts which were before him, the Secretary of State based his decision upon a different part of a rule, he could have come to a decision which was the right decision, for the wrong reasons, having regard to the facts found by the adjudicator. If the adjudicator was then to be circumscribed by the reasons for the decision given by the Secretary of State, because the case did not, on his findings of fact, fall within the grounds relied upon by the Secretary of State, he would have no option but to come to a decision which was contrary to the rules when viewed as a whole, although it would accord with a particular rule or part of a rule relied upon by the Secretary of State. That would clearly be a result quite contrary to the intent of the Act. Furthermore, I regard it as one which would be contrary to the wording of section 19(1)(a)(i) which refers to any immigration rules applicable to the case. A preferable interpretation of the Act is one which leads to the result that the adjudicator, having found the facts, is entitled to apply the immigration rules as applicable to the case, having regard to the facts that he has found, subject to important provisos". Those provisos are not relevant and I do not read them. This decision was followed by the Court of Appeal in the case of Nadeem Tahir v Immigration Appeal Tribunal, which is reported in [1989] Imm AR 98, but I do not think that anything would be gained by referring to it. Of considerable importance, however, is the decision in R v Immigration Appeal Tribunal, ex parte Tohur Ali, which is reported in [1988] Imm AR 237. This is the closest in point to the present case, in that it considered the converse situation to that existing in the other two cases, namely, whether the appellate body could or should look elsewhere in the rules to the immigrant's advantage. For the purpose of understanding that authority, it is necessary to have regard to a small part of rule 50. So far as relevant, that provides: ". . . children under 18, provided that they are unmarried, are to be admitted for settlement: "(f) if one parent or a relative other than a parent is settled . . . in the United Kingdom . . . "In this paragraph 'parent' . . . includes an adoptive parent . . .". According to the headnote of that case: "On application for judicial review, the learned judge quashed the determination of the Tribunal: he held that a de facto adoption brought a child within the provisions of HC169 paragraph 50. Even if on the facts a de facto adoption was not established, the appellate authorities ought to have considered the case under HC169, 50(f), there being a claimed relationship between the sponsor and the child, albeit neither party before the adjudicator or the Tribunal had relied on that particular rule. "On appeal both findings of the learned judge at first instance were challenged. "Held: "(1) By a majority (May LJ dissenting), that the term 'adoptive parent' in HC169 paragraph 50 included the adoptive parent in a de facto adoption. "(2) There being evidence led as to relationship, the appellate authorities should have considered the case under the alternative section of paragraph 50. The court made no general ruling on the extent, if at all, to which the appellate authorities were bound to consider an appeal, generally, under rules not relied on by the parties appearing before them. "(3) In the events which had happened, the learned judge had not erred in granting the discretionary remedy of judicial review". At page 243, on the relevant issue, May LJ said: "However, I respectfully agree with the learned judge that as there was evidence before the adjudicator and the Tribunal that the respondent was a relative of the sponsor, the Tribunal ought to have considered his case on this basis was well as upon the basis that the sponsor was his 'adoptive parent'. It is sufficient if I say that I respectfully wholly agree with the decision of Glidewell J (as he then was)", and then there is the reference to the Kwok On Tong case. At page 247 Balcombe LJ said: "I would wish to reserve for further consideration, in an appropriate case, the extent of the duty of the adjudicator, under section 19(1), to consider any immigration rule applicable to the case, and the corresponding duty of the Tribunal under section 20(1), notwithstanding the failure of the applicant or his legal representative to take the point. Certainly a judge asked to grant the remedy of judicial review for an alleged failure of this duty has a discretion to refuse relief. However, in the present case the rule in question was the one under consideration by the adjudicator and the Tibunal, and the relevant facts had been adduced in evidence. In these circumstances, I am not prepared to say that the judge erred in law in granting the applicant relief by way of judicial review under this head". The words to be stressed there are: "the rule in question was the one under consideration by the adjudicator and the Tribunal, and the relevant facts had been adduced in evidence". At page 255, Woolf LJ said: "Adjudicators and the Tribunal have considerable expertise in immigration law and, of course, are very familiar with the rules. They are used to having to cope with appeals on behalf of immigrants who are either not represented or who are inadequately represented and where, as in this case, they are faced with a situation where the same rule could be relied upon in two different ways by an applicant but he only relies on it in one way, then, in my view, they should at least drawn the appellant's attention to this alternative in the course of conducting the appeal. "Where there is not such an obvious link between the different ways in which the case can be put on behalf of an appellant, I would not necessarily take the same view. In such circumstances no criticism may be able to be made of the appellate authorities in not considering the alternative, particularly as the immigration appeal procedure rules made it clear that an appellant is required to set out the grounds upon which he relies in his notice of appeal (see Immigration Appeals (Procedure) Rules 1984, rule 6(3))". Having considered those authorities Simon Brown J said (and I am looking at page 10 at letter B of the transcript of his judgment): "This is no occasion and I am not the tribunal to attempt any definitive resolution of the wide question expressly reserved for further consideration in Tohur Ali. In my judgment, however, the present case plainly falls at the extreme end of the spectrum of cases in which it could be contended that there was an alternative, but wrongly unconsidered basis for granting the immigrant the leave desired. It seems to me quite absurd on the facts of the present case, having regard to the not merely strikingly different but wholly inconsistent bases of suggested entitlement to leave here, to suggest that the appellate authorities should themselves have devised, introduced and considered this imaginative new route to eligibility that Mr de Mello lays before me". Returning to the words of Woolf LJ in the Tohur Ali case and applying them to the present case, it is to be noted, first, that the appellant in this case was legally represented both before the adjudicator and the Immigration Appeal Tribunal; secondly, this is not a case where the adjudicator was faced "with a situation where the same rule could be relied upon in two different ways by an applicant but he only relies on it in one way"; and, thirdly, if the link between the different ways in which the case could be put on behalf of the appellant was so obvious, it is strange that it never occurred to any of her legal advisers when presenting her case before the adjudicator or before the Immigration Appeal Tribunal, she being represented by a solicitor before the former and a barrister experienced in immigration cases before the latter, or when initially advancing her case for judicial review. The submission made on behalf of the appellant may be summarised as follows. Having received the application, the Secretary of State was bound to investigate and reach a conclusion on the domicile of the sponsor and the validity of his marriage to the appellant, but also it was his duty to take into account and determine whether the match was genuine and subsisting and to apply any relevant immigration rules before reaching a decision. That duty, it is said, arises out of a general duty on a Minister to take into account all relevant matters as well as from the terms of section 19(1) of the 1971 Act. It is submitted that an adjudicator or the IAT should allow an appeal if they consider that the decision or action against which the appeal was brought was not in accordance with any immigration rules applicable to the case. The appellate authorities are not restricted on appeal to considering only those reasons specified in the notice of refusal or those relied upon by the parties appearing before them. The submission is that the appellate authorities are bound to consider a relevant immigration rule not relied on by the parties, subject to the following: (1) there must be sufficient evidence before the authority to bring the case within the alternative rules; and (2) there must be an obvious link between the two rules or the two parts of the same rule. In the premises, it is argued that the adjudicator and/or the Immigration Appeal Tribunal ought here to have considered and applied paragraph 49 and, if satisfied that it was applicable to the appellant's case, then it should have allowed the appeal under section 19(1)(a)(i) of the 1971 Act or, in the alternative, remitted the matter to the Secretary of State for reconsideration under section 19(3) of that Act. It is further argued by Mr Macdonald that the evidential basis for the application of paragraph 49 was established in this case. From a consideration of paragraph 49 it is apparent that what must be established is the following: first, that the woman has been living in permanent association with the man; secondly, that any previous marriage by either has permanently broken down; and, thirdly, that the man has not already been joined by his wife or another woman admitted under this paragraph, whether or not the relationship still subsists. If all that is shown, and subject to the requirements of paragraphs 46 and 47, the Secretary of State may admit the woman as if she were the man's wife. It is to be emphasised that admission under this paragraph is discretionary, unlike paragraph 124. As Mr Laws has pointed out to us, this is a radical difference between the two paragraphs. For the appellant it is submitted that these facts were established: (1) the appellant and sponsor went through a ceremony of marriage in the UK on 30 January 1985; (2) since then they have lived together as husband and wife at 19 George Arthur Road, Saltley, Birmingham; (3) the sponsor has not been joined in the UK by any of his previous wives; (4) even if any of the earlier marriages still subsisted at the date of the purported marriage of the sponsor and appellant in 1985, by 23 September 1986, the date of the decision: (a) the sponsor had not been back to Bangladesh for about ten years and (b) the evidence suggested that the earlier marriages had permanently broken down. As to (1), that undoubtedly was established, but were all the other matters established as facts before the adjudicator? As to whether his previous marriages had broken down, it is interesting to have regard to what he said to the immigration officer in April 1986 about two of his wives. First of all, dealing with one called Rashida, he said that he had no plans to bring Rashida and the children here, as his wife was looking after their farm in Bangladesh. As to another wife called Aftera, he confirmed that he was still married to her but could not recall the year of the wedding. He agreed that he had applied to bring her here but she had not been well. He agreed that the application was still pending but was not sure whether he still wanted her here. The Immigration Appeal Tribunal recorded this about the sponsor: "In his determination the adjudicator summarises Mr Uddin's evidence and finds that he had a 'total disregard for the truth'. And in the report of Mr Graham Smith which was commissioned by the sponsor's sometime solicitors, Mr Smith had recorded 'It is very easy to describe Mr Sharif Uddin as an egregious liar, and the evidence against him is enormous; it is a rather more difficult question to find out exactly where the truth lies"'. "The adjudicator records 'after carefully reading all the evidence in this appeal and listening to the sponsor's evidence I find him totally unreliable and I am satisfied on the balance of probabilities, that he is still married to at least Rashida and possibly Aftera"'. In the light of those findings, I do not think it could be said with any confidence that the adjudicator did find or should have found that the sponsor's earlier marriages had permanently broken down. As to whether the appellant and the sponsor have been living in permanent association, when the immigration officer interviewed the appellant on 25 January 1986, he reported that: "she could not, or would not, give me many details of her life". What she did say did not touch on the question I am now considering. It seems that, on the same day, the sponsor "confirmed that Hawabibi lived with him at 19 George Arthur Road, Saltley". Before the adjudicator, the appellant did not give evidence, the sponsor did and on this subject said no more than that he lived at 19 George Arthur Road, Birmingham, with the appellant. Assuming that is true, in my judgment it falls well short of showing that he had been living in permanent association with her. For all we know, they could be living at the same address but occupying separate rooms and in no sense living as husband and wife. Their association, whatever its nature, may not be permanent. Mr Macdonald relied on something that was said, at the beginning of the hearing before the adjudicator, by Mr Thomson, who was then appearing for the Secretary of State. This is the passage he relies on: "Mr Thomson conceded that if the marriage is found to be valid then Home Office will not pursue primary purpose". Clearly that was entirely conditional upon the marriage being found to be valid. In any event, in my judgment, it added nothing to the evidence which was before the adjudicator. Accordingly, I am not persuaded that the evidential basis for the application of paragraph 49 was established. Indeed, having regard to the commonly held view as to the sponsor's veracity, if an application ever had been made to the Secretary of State under paragraph 49 or if an argument had been advanced to either appellate authority under that paragraph, I have no doubt that it would have been subject to the closest scrutiny and its chances of success would have been highly problematical. However, in my judgment, there is another answer to the appellant's argument and that is to be found in section 19(1)(a) itself. By that the adjudicator is to 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". The case put forward by the appellant to the Secretary of State was, as I have said, that she had married the sponsor and that was the case in respect of which he had given a decision. The adjudicator did indeed have regard to the immigration rules applicable to that case. I am supported in that view by the words of Nourse LJ in the case of Ashraf v Immigration Appeal Tribunal [1989] Imm AR 234, the passage in question coming on page 238, where it is said: "All these provisions especially section 19(1)(a)(i), by referring to the decision or action, confirm that it is against the particular decision or action and against none other that the right of appeal is given". Mr Macdonald for the appellant submitted that the words "the case", which are found at the end of section 19(1)(a)(i) are wide enough to permit the adjudicator to consider the case as a whole and thus to go beyond the ground or grounds on which an application for leave to enter was made by considering other grounds which had been raised in the course of the decision-making process as a whole, but I agree with Mr Laws and the Tribunal that those words are only a more stylish means of avoiding a repetition of the words "decision or action". They certainly cannot have the effect, as it were, by a side-wind, of extending the right of appeal given by section 13(1). In my judgment, if one of the appellate authorities, be it the adjudicator or the Tribunal, has regard to and applies the rules applicable to the decision which is before him, he need do no more. Indeed he ought not to embark on any roving expedition among the rules to see if there is anything which might be of assistance to one side or another. The alternative ground on which the adjudicator could have allowed the appeal falls under section 19(1)(a)(ii), which reads: "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". The adjudicator, having formed the view that the marriage of the appellant and the sponsor was invalid, could not possibly have considered that the Secretary of State should have exercised his discretion differently. As to the discretion under paragraph 49, that had never been exercised at all by the Secretary of State, so the adjudicator could not have said that he should have exercised it differently. For all these reasons, I would dismiss this appeal.

Judgment Two:

STAUGHTON LJ: I agree that this appeal should be dismissed and, in view of the lateness of the hour, I shall give my reasons very briefly. The decision of the Secretary of State in this case was that the application of Mrs Uddin, as she was called, for indefinite leave to remain in the United Kingdom on the ground of her marriage to Mr Uddin, should be refused. It was for the adjudicator to consider, in terms of section 19, first of all, whether that decision was not in accordance with the law or with any immigration rules applicable to the case. It seems to me that the decision was in accordance with the law and in accordance with the applicable immigration rules. Secondly, the adjudicator had to consider whether the decision or action involved the exercise of a discretion by the Secretary of State; but it plainly did not. Accordingly, the adjudicator was not only entitled but also bound to dismiss the appeal, and the Immigration Appeal Tribunal committed no error of law in upholding his decision. I can at present see no reason why an adjudicator should not consider all the rules in the book, if they are relevant to the task which he has to perform. He can also consider the date, the time of day and the day of the week, if they are relevant to the task which he has to perform. But that task is to see whether the decisions fails under grounds (i) or (ii) of section 19(1)(a). There may, I suppose, be cases where it is difficult to define the ambit and nature of the decision which the Secretary of State has made. In such a case, one would have to rely on common sense to identify what the decision should be taken to include. But there is no such difficulty here. It is as plain as can be that the Secretary of State never made any decision as to a right to remain under rule 49, because he was never asked to do so. What he did make was a decision on a right to remain indefinitely by reason of a marriage which he found to have been invalid. I too dismiss the appeal. Judgment By-3: SIR STEPHEN BROWN (P)

Judgment Three:

SIR STEPHEN BROWN (P): I agree. I would dismiss this appeal for the reasons given by my Lords. I would only add this. It is quite clear that the Immigration Appeal Tribunal committed no error of law -- neither did the adjudicator. There was no basis upon which a judicial review could properly be sought of the decision of the Immigration Appeal Tribunal. If the appellant wished or wishes to put forward another ground upon which she might ask for leave to enter or to remain in the United Kingdom this should be done by making a fresh application to the Secretary of State. Although albeit somewhat tentatively the court has been invited to consider laying down general principles in this particular sphere the facts of these cases vary so widely that it would not be appropriate to do so on the special facts of this particular case.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Tyndallwoods, Birmingham; Treasury Solicitor