Secretary of State for the Home Department v. Patel

SECRETARY OF STATE FOR THE HOME DEPARTMENT v PATEL

Court of Appeal (Civil Division)

[1992] Imm AR 486

Hearing Date: 30 April 1992

30 April 1992

Index Terms:

Refusal to leave to enter -- spouse -- previously granted limited leave following marriage -- visit abroad -- husband no longer intending to live with respondent -- immigration officer refused leave to enter to spouse on return to United Kingdom -- whether refusal of leave justified -- whether immigration officer had failed to take account of "all relevant circumstances" -- the extent of the discretion in paragraph 60 of HC 251. Immigration Act 1971 s 3; HC 66 paras 154, 158: HC 388 para 60; HC 251 paras 50, 60, 78.

Held:

Application by Secretary of State to have set aside, leave granted by another division of the Court of Appeal for the respondent to move for judicial review of the refusal by an immigration officer to grant leave to enter. The respondent in the proceedings was a citizen of India. She had been granted leave to enter following her marriage to a person settled in the United Kingdom: her initially limited leave on the basis of marriage had extended to December 1990. In June 1990 she made a visit to India. While she was in India her husband had told the immigration authorities that he no longer intended to live with the respondent and would initiate divorce proceedings. The immigration officer concluded that the respondent no longer qualified for admission as a spouse, and consequently refused leave to enter. She was at that time pregnant and her daughter was born in October 1990. Counsel for the respondent argued that the rule required that the immigration officer take into account "all the relevant circumstances". He had not done so. Counsel submitted that in the events which had happened the immigration officer ought to have granted leave to enter for the remaining portion of the original twelve months' leave so that the Secretary of State could have considered the case. Held 1. Although the immigration officer could have granted the respondent leave to enter, as counsel suggested, he was, in the light of the wording of paragraphs 60 and 78 of HC 251, entitled to refuse the respondent leave to enter. 2. Once it was shown that she and her husband would not be living together permanently as man and wife, there was no basis on which, within the rules, she could seek leave to enter. 3. There was no wider discretion given to an immigration officer in paragraph 60 of HC 251 than was given in the rest of the rules. A person seeking entry under that paragraph "had to satisfy the immigration officer that some reason for entry exists". 4. The court recognised that there were strong compassionate grounds on which the respondent might be allowed to remain in the United Kingdom to resolve her problems and those of her daughter, but they were not relevant to the issues raised on judicial review. 5. The application to set aside leave to move for judicial review would be granted.

Cases referred to in the Judgment:

Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88. R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] 1 WLR 910: [1986] Imm AR 352. R v Secretary of State for the Home Department ex parte Celik [1991] Imm AR 8.

Counsel:

D Pannick QC for the applicant; A Riza QC for the respondent PANEL: Dillon, Neill, Staughton LJJ

Judgment One:

DILLON LJ: This matter comes before the court on a motion on behalf of the Secretary of State for the Home Department seeking that leave granted to an applicant for judicial review by another division of this court on 15 May 1991 be set aside. The applicant for judicial review is a Mrs Veena Patel, who was formerly Veena Sharma. She was born a citizen of India in 1958, and she married a Mr Amrish Patel, who is settled in the United Kingdom and has been so for a considerable time, in India on 6 December 1989. She obtained entry clearance to enter this country as the spouse of Mr Patel with leave to enter for 12 months. She arrived on 16 December 1989 and therefore the leave granted on her entry would run from that date to 16 December 1990. That was leave under the predecessor of rule 50 in the current Immigration Rules HC 251 of 1990. In the course of that year, on 28 June 1990, she left the United Kingdom for a short visit to India. She returned on 22 August 1990 seeking re-entry and was refused re-entry by the chief immigration officer at Heathrow. It is common ground that under rule 60 of HC 251 of 1990, which was by then in force: "A passenger whose stay in the United Kingdom was subject to a time limit and who returns after a temporary absence abroad has no claim to admission as a returning resident." There has to be a claim for re-entry. The particular reason why it was refused was that the applicant's husband had been in touch with the immigration authorities and had stated that there was no future in the marriage and that he intended to exclude the applicant from the matrimonial home and would be starting divorce proceedings. But for the husband's intervention, there would no doubt have been no ground for the immigration officers to query the return of the applicant. She was at that time pregnant. The procedural history is that, after the refusal of leave to re-enter on 22 August 1990, notice of application for leave to move for judicial review was issued by solicitors on the applicant's behalf, but on 19 September leave to move for judicial review was refused on the papers by Simon Brown J, and on 6 December 1990 leave to move for judicial review was refused by Kennedy J in open court. The application for leave to move for judicial review was then renewed before this court. The application came before the court on 15 May 1991 when the court, then consisting of Neill, Mustill and Nourse, LJJ granted leave to apply for judicial review. So far as the procedural history after that is concerned, the application has not come on for hearing in the Divisional Court of the Queen's Bench Division. It was apparently duly set down in time after leave had been granted, but we were told that the state of the lists in the Crown Office is such that it normally takes 18 months for an application for which leave to move has been granted to come on for hearing. The Crown in this case issued its application to set aside the leave, which is supported by an affidavit of a lawyer in the office of the Treasury Solicitor sworn on 18 September 1991. So far as matters out of court are concerned, the applicant has remained in this country since she was refused leave to re-enter in August 1990 and is living normally in the community. She is not under detention or in custody. Her child which she was carrying at the time of her return was born on 26 October 1990, and is a daughter, Bhavna Patel. But so far as the marriage is concerned, it is plain that a divorce petition was issued by the husband which was served on the applicant, Mrs Veena Patel, in September 1990. That petition has proceeded without the applicant playing any part in the proceedings and it appears that a decree nisi was pronounced on 16 December 1991 in the applicant's absence, and that was made absolute by order of 30 January 1992 in the Principal Registry of the Family Division. The file in the Principal Registry includes a declaration, made by the judge on the occasion of making the decree nisi, that the court was satisfied that there were no children of the family to whom section 41 of the Matrimonial Causes Act 1973 applies. It appears that the husband's solicitors must have given the relevant certificate to enable that declaration to be made, notwithstanding that the applicant asserts that the husband was well aware that she was pregnant with the child of the family, Bhavna Patel, later born alive. The point on which the other division of this court granted leave to move for judicial review was a point put by Mr Riza, founded on the wording of rule 60 of the immigration rules and a passage in the speech of Lord Bridge of Harwich in a case of R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] 1 WLR 910. Rule 60 after stating in the first sentence that I have already read -- that the passenger whose stay was subject to a time limit and who returns after a temporary absence has no claim to admission as a returning resident -- goes on to say: "His application to re-enter should be dealt with in the light of all the relevant circumstances. The same time limit and any conditions attached will normally be reimposed if he meets the requirements of the rules unless he is seeking admission in a different capacity from the one in which he was last given leave to enter or remain." That last sentence is altered from an earlier version of rule 60 which appeared in earlier rules (The wording of paragraph 60 of HC 388 was: A passenger whose stay in the United Kingdom was subject to a time limit and who returns after a temporary absence abroad has no claim to admission as a returning resident. His application to re-enter should be dealt with in the light of all the relevant circumstances. The same time Iimit and any conditions attached may be re-imposed or it may be more appropriate to treat him as a new arrival. Identical wording appeared in the equivalent paragraph 58 of HC 394 and HC 55.) In the case of Bakhtaur Singh, the court was concerned with an appeal against the Secretary of State's decision to deport an overstayer. The appeal had come before an adjudicator who had held that there were certain matters put before him, which were favourable to the appellant, which he was not allowed to take into account. The relevant rule in that case was rule 154 of HC 66, the previous statement of changes in immigration rules which came into force on 1 January 1983. It provided 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." Then it is said in rule 158: "Deportation 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 . . . before a decision is reached." In his speech Lord Bridge at page 918E says this: ". . . there are formidable difficulties in imposing any limitation on the natural meaning of the phrases 'every relevant factor' and 'all the relevant circumstances' in paragraphs 156 and 158." and he goes on to deal with that and to refuse to accept that there is any limitation to be imposed on those general words. Mr Riza, for the applicant in the present case, submitted before the other division of this court last year and submits to us that the same reasoning applies to rule 60 where it is said that the application to re-enter should be dealt with "in the light of all the relevant circumstances". The other division of this court took the view that that was perhaps a matter to be looked into on the facts. An alternative course which might have been taken would have been to adjourn the renewed application for notice to be given to the Home Office so that they could be represented. As it is, the Home Office have applied to set aside the leave in the same way that, where ex parte relief is granted, there may be an application inter partes to set it aside. In the present case the Home Office founds on three particular grounds for setting the leave to move aside. One of those is that it has long since been held in the case of Swati that judicial review is normally not the appropriate remedy for a refusal of leave to enter because there is a right of appeal against refusal of leave to enter under the immigration legislation, albeit a right of appeal which can only be exercised by the appellant when he or she has returned to his or her own country and has left the United Kingdom. I do not consider it appropriate in the present case to examine whether or not it would be right to apply the Swati principle in this case at this juncture. It does not appear, and Mr Riza has said that he has no recollection, whether the other division of this court was referred to the case of Swati. But Mr Pannick also relies on there being no basis on a true appreciation for any leave to have been granted on the ground on which it was sought by Mr Riza on the ex parte application. The applicant is a person who is subject to immigration control, notwith- standing that she had been resident in this country under the limited leave granted under rule 50 for some months before her return to India in June 1990. Rule 60 makes it plain that she had no claim to admission as a returning resident. Therefore her application to re-enter had to be dealt with not only in the light of all the relevant circumstances but in the light of the immigration statute and rules. The final sentence of rule 60 in its present form -- "The same time limit and any conditions attached will normally be reimposed if he meets the requirements of the rules, unless he is seeking admission in a different capacity from the one in which he was last given leave to enter or remain" -- seems to me to underline this, and it is expressly provided in rule 78 that "A passenger who does not qualify for admission under the foregoing provisions of these rules is to be refused leave to enter". In the present case, on the material before us and bearing that approach in mind, no doubt the immigration officer would have had power, if he thought it appropriate, to admit the applicant for the remainder of the year for which she had originally been given leave or for some lesser period, as Mr Riza has suggested this morning, so that the case could be given further consideration by the Secretary of State. But to my mind he was equally entitled to refuse leave on the ground that it was plain that it was not the case, in view of the husband's attitude, that each of the parties had the intention of living permanently with the other as his or her spouse. It seems that, on the occasion when she was refused entry, the applicant herself was saying that she wanted the chance of seeking a reconciliation. From what has subsequently transpired, which is not of course directly relevant to the immigration officer's decision, it is plain that there is no chance of any reconciliation or of the marriage being continued by both parties living together. There is no other ground under the immigration rules on which the applicant could have sought entry, no other capacity which she fell into of persons who can claim admission. Looking at this case with the benefit of the arguments we have had from Mr Pannick, I hold on this ground that there is no basis at all to support the ground on which the other division of this court granted leave to move for judicial review. In the circumstances, therefore, it is, in my judgment, appropriate, as a matter of discretion, that the leave granted by this court last May should be now revoked, and I would so order. I add this. Subsequent circumstances and in particular the way the husband has apparently proceeded with the divorce proceedings, giving a certificate denying the existence of any child of the family, provide extremely strong compassionate grounds for allowing the applicant to remain and to sort out the affairs both of herself and of her daughter who is the child of a British subject settled here. But those are not factors relevant to the reconsideration on judicial review of the refusal of entry in August 1990 because at that date they lay well in the future. I would order accordingly.

Judgment Two:

NEILL LJ: I agree, and I also agree with what has fallen from my Lord with regard to the compassionate circumstances of this case. I only add a few words because I was party to the decision of the court on 15 May 1991 when it was decided that leave to apply for judicial review should be granted. We have been reminded by Mr Pannick of the circumstances in which an order made ex parte, as that order was made, can be overturned on a later hearing inter partes; and the test is set out conveniently in the judgment of my lord, Staughton LJ, in R v Secretary of State for the Home Department ex parte Celik, reported in [1991] Imm AR at page 8. At page 11 of that report the test was put in this form: "whether the court is satisfied, inter partes, that there is no properly arguable point for judicial review". The facts of the matter very shortly are these. The applicant wife arrived in this country originally on 16 December 1989 with an entry clearance. She was given leave to enter the United Kingdom for 12 months; that leave expired on 16 December 1990. In June 1990 she left the United Kingdom for a short visit to India. She returned on 28 July, that is exactly a month later, and she was then allowed to enter for a short period while the matter was further investigated. On 22 August 1990, after a further interview with the immigration authorities, the notice of refusal of leave to enter was given and the notice, which is before us, was in these terms: "You have asked for leave to re-enter the United Kingdom as the spouse of Mr Amrish Patel. You were previously granted leave to enter on this basis on 16.12.89, valid until 16.12.90, but I am not satisfied that each of the parties has the intention of living permanently with each other as their spouse. Furthermore you do not qualify for entry under any immigration rule." In the course of his argument in May 1991 -- though I have no detailed recollection of the argument, I have had an opportunity of considering my notes -- Mr Riza referred the court to section 3 of the Immigration Act 1971 and other provisions of that statute, and more particularly he referred us to HC 251 which is the relevant statement of changes to the immigration rules which applies in this case. Mr Riza's submission was that the immigration officer's duties, on the return of Mrs Patel to this country after her visit to India, were governed by rule 60 and that the immigration officer's duty therefore was to consider all the relevant circumstances. That imposed on him a very wide duty which was not limited to questions of considering the rights of entry under paragraph 50 or any other paragraph. Mr Riza referred us in addition to the passage in the speech of Lord Bridge in Singh to which my lord has already earlier referred. I have now had an opportunity, with the assistance of Mr Pannick's argument, of considering further the full effect of rule 60. It seems to me quite clear that rule 60 does not give a wider discretion to the immigration officer than that which is contained in the rest of the rules; in other words it is necessary for a passenger seeking admission, if entry is to be granted, to satisfy the immigration officer that some reason for entry exists. That is made quite clear by paragraph 78. The immigration officer was therefore entitled to come to the conclusion, as he did, that entry should be refused in accordance with rule 50 because he was not satisfied that each of the parties had the intention of living permanently with the other as his or her spouse. Therefore, on more detailed consideration of this matter and in accordance with the passage in Celik, to which I have referred, it seems to me that this is a case where it would be right to set aside the earlier order on the basis that there is no properly arguable point for judicial review. Accordingly, for the reasons given by my lord and for the two additional reasons I have added, I too would allow this application.

Judgment Three:

STAUGHTON LJ: I agree that the application for leave to apply for judicial review should be set aside.

DISPOSITION:

Leave to move for judicial review set aside

SOLICITORS:

Fatima Thobani & Co; Treasury Solicitor.

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