R v. Secretary of State for the Home Department, Ex parte Bucknor

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

Strand

London W2A 2LL

Monday, 13th July 1998

Before: MR JUSTICE DYSON

REGINA- v -SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex Parte Bucknor

MR F SELVIN (instructed by Messrs Nathan & Co., London SW9 1LX) appeared on behalf of the applicant.

MR S KOVATS (instructed by Treasury Solicitors) appeared on behalf of the respondent.

JUDGMENT

MR JUSTICE DYSON:

This is an application for judicial review of a deportation order made against the applicant by the Secretary of State on 15th December 1995 and served upon him on 26th February 1996, and of a decision of the Secretary of State of 18th October 1996 maintaining his refusal to grant leave to this applicant to remain.

Leave to apply was given by the full court on 10th March 1997. The relevant immigration history is as follows: The applicant is a Nigerian citizen who was born in 1960. On 18th August 1983 Olubusola Eunice Omonubi (who later married the applicant and to whom I will refer as Mrs Bucknor), herself a Nigerian citizen, arrived in the United Kingdom and was granted leave to enter. She was later given indefinite leave to remain.

On 30th December 1987 the applicant arrived in the United Kingdom and was given leave to enter for 6 months as a visitor. Subsequently he was given limited leave to remain as a business visitor. On 22nd August 1989 the Secretary of State refused an application for further leave to remain as a business visitor.

On 18th January 1990 the adjudicator dismissed his appeal against refusal of further leave to remain. On 27th April 1993 the applicant was arrested as an overstayer. He was interviewed on 18th May 1993 by immigration officers.

On the same day notice of intention to deport him as an overstayer was served. That constituted the commencement of enforcement proceedings and is a critical date for the purposes of the proceedings before me. On 30th April 1993 he applied for political asylum. That application was refused by the Secretary of State on 2nd February 1994. On 7th January 1995 he married Mrs Bucknor. On 19th April 1995 he applied for leave to remain on the basis of the marriage.

In April 1995 the special adjudicator dismissed his appeal against the refusal of his application for asylum, and shortly thereafter the Immigration Appeal Tribunal refused leave to appeal.

On 15th December 1995 the deportation order was signed. On 26th February 1996 the Secretary of State refused leave to remain on the basis of the marriage and the deportation order was served.

It is common ground that the applicant has no claim to remain in the United Kingdom under the Immigration Rules. The Secretary of State has also decided that the policy guidance document DP/2/93 does not avail the applicant. The issue in these proceedings is whether the decision of the Secretary of State on that point is challengeable on Wednesbury grounds.

Paragraph 2 of the policy document provides as follows: "As a general rule deportation action under section 3(5)(a) or section 3(5)(b) or illegal entry action should not be initiated or pursued where the subject has a genuine subsisting marriage to a person settled in the United Kingdom if:

(a)  the marriage pre-dates enforcement action; and

(b)  the marriage has lasted 2 years or more or, in the case of a common-law relationship (see paragraph 7 below), the couple have cohabited for 2 years or more".

I need not read the rest of paragraph 2.

Paragraph 7 is headed "common-law relationships" and provides:

"Where there is conclusive evidence that a genuine subsisting common-law relationship akin to marriage exists, it should be considered under this instruction as if it were a marriage. The onus rests firmly on the individual who seeks to benefit to provide conclusive evidence of the nature of the relationship".

The Secretary of State has decided that there was no conclusive evidence that at the material time, that is to say 18th May 1993, the applicant and Mrs Bucknor had a genuine subsisting common-law relationship akin to marriage. The question is whether the Secretary of State has reasonably concluded that the applicant has not discharged the burden of proving, by conclusive evidence, that such a relationship existed at that time.

On the facts of this case I do not find it necessary to decide whether the period of 2 years, required of the relationship by the policy document, is 2 years prior to the enforcement action, (18th May 1993) or, as I am inclined to think, 2 years prior to the date of the application for leave to remain on the basis of the relationship, (19th April 1995).

The starting point must, therefore, be to examine the evidence put forward by the applicant. Mr and Mrs Bucknor asserted that they cohabited at 394 Wendover House, Thurlow Street, London SE17 from about 1986 to 1993, at 34 Forresters Drive, Wallington from 1993 to 1994 and 145 Tildesley Road, Putney from 1994 to 1997. The documentary evidence in support of their claim included a lease in respect of 394 Wendover House in joint names dated 2nd May 1996, and a letter from the Minister in charge of the Christ Apostolic Church dated 26th March 1995, which stated inter alia:

"The Christ Apostolic Church recognize their relationship since its inception in 1988 when then Mr Kingsley Bucknor was ordained elder. As part of the ordinance of the CAC doctrines, an elder must be fully married or have a steady relationship."

There was proof that Mr and Mrs Bucknor's names appeared on the electoral register with an address of 394 Wendover House "from 1987 and 1988".

There were doctors' letters showing that Mrs Bucknor's address in the early 1990s, so far as the doctors were concerned, was 394 Wendover House. This material included a letter from Guy's Hospital dated 1st March 1996. Which was addressed to Mrs Bucknor and which stated:

"... I am writing to confirm that according to our computer information you were an inpatient on Charles Symons Ward on the 20-21st May 1996."

"Your name was Bukky Omonubi Bucknor."

"Your address was 394 Wendover, Thurlow Street SE17 2UT."

The medical documents also show (at regular intervals) that she became pregnant by the applicant. Moreover there were letters from neighbours and caretakers, all showing that the couple resided at 394 Wendover House during the period ending 1993.

This evidence led the Court of Appeal to say:

"All of that evidence points in only one direction. The direction to which it points is one of permanent co-habitation akin to that as man and wife".

What led the Secretary of State not to regard this as conclusive evidence? First, he relies on answers given by the applicant at the interview on 18th May 1993. At the time of that interview Mr and Mr Bucknor were living at 34 Forresters Drive.

It is necessary to set out the questions and answers between question 43 and question 50, in what is now the agreed version of the interview.

"Q43: Are you married?

A. No I am not married.

Q44: Tribal marriage, customary marriage?

A. I have - I have a girlfriend, but I am not married.

Q45: Do you have a girlfriend in Britain?

A. Yes.

Q46: What is her name?

A. I have Omonubi as my girlfriend.

Q. Omonubi?

A. She's my friend - yes.

Q47: The lady we have just interviewed?

A. Yes.

Q48: She's girlfriend?

A. She's a friend of mine.

Q49: Is she your girlfriend?

A. Not really - no.

Q50: Do you have a girlfriend - do you have a girlfriend here?

A. No - no - na - no."

Mrs Bucknor was also interviewed at that time but there is no record of that interview.

Of these answers the Secretary of State says that they are inconsistent with the applicant's claim to have had a relationship akin to marriage with Mrs Bucknor since 1987/1988. As to this the applicant says in his first affidavit:

"I answered the questions asked by the Immigration Officer. When the officer asked if I had family in the United Kingdom I told him that I had Fiancee who I was living with. The officer told me that my fiancee is not part of my family unless I am married. The Immigration Officer who attended the police station was aware that I was arrested in the same room as my fiancee at 34 Forresters Drive, Wallington."

In his second affidavit he says this:

"3. When I was seen by the Immigration Officers at our home I declared that I was living with my wife who at that time was referred to as my Fiancee. We made it known to the Immigration Officers who visited our home in 1993 that we were sharing the same bedroom where they observed that there was only one double bed."

"4. The alleged Interview Record of 18th May gives an inaccurate record of some of the answers to the questions said to have been given by me on 18th May 1993. When I replied to the questions from the Immigration Officer I always referred to my Wife as my fiancee".

The applicant swore these affidavits at a time when he had not heard the tapes and was asking the court to disregard the notes of interview. The notes of interview are, as I have said, now agreed.

The Secretary of State also relies on the residential history of Mrs Bucknor as disclosed by various documents which came into existence in connection with her immigration history which he says are inconsistent with the claims of Mr and Mrs Bucknor that they lived together at 394 Wendover House between 1986/7 and 1993.

Thus correspondence between the Home Office and Mrs Bucknor shows that between 1986 and about March 1987 the address she gave was Flat 80 Totteridge House, Yelverton Road SW11. On 18th March 1897 the Home Office were informed in a telephone call from her college of a change of address to 156 Cortis Road, London, SW15.

Subsequent correspondence shows her living at that address until about December 1989. From 30th September 1990 until May 1993 she gave her address to the Home Office as 145 Tildesley Road Putney SW15.

She has explained in her second affidavit as follows:

"6. I have had sight of the letters exhibited in Mr Cockerel's affidavit and I accept that I was using my sister's home as my correspondence address with the Immigration Department and my college. My sister's home was used as my correspondence address in order to maintain consistency because the Applicant had always agreed that one day we would share a home with my sister as we had lived together until I went to live with the Applicant. We eventually joined my sister in 1993 and we are presently residing at her home at 145 Tildesley Road SW15."

A similar explanation is given by the applicant at paragraph 6 of his second affidavit.

The applicant has to satisfy me that, faced with this material and his explanations, no reasonable Secretary of State could have failed to be satisfied that the evidence relied on by the applicant showed conclusively that there was a relationship akin to marriage in May 1993. Conclusive evidence is evidence which is determinative of the issue. The Court of Appeal was impressed by the quality of the evidence put forward by the applicant. The two points relied on by the Secretary of State before me were also relied on before the Court of Appeal, but material has been placed before me which was not available it.

In giving the principal judgment of the court the Vice Chancellor referred to the reliance placed by the Secretary of State on the interview in May 1993, in which the court was told that when the applicant was interviewed "he denied any relationship in this country".

The Vice Chancellor said that:

"The context in which the question was asked of Mr Bucknor and in which he answered is nowhere stated."

He went on to say:

"Mr Kovats [who appeared for the Secretary of State then as today] has made the point that it was up to Mr Bucknor to challenge the particular objections raised by the Secretary of State in this letter."

The suggestion was that the applicant should have asked for details of the questions and answers that led to the denial of any relationship in this country. The Vice Chancellor went on to refer to paragraph 5 of Mr Bucknor's first affidavit which I have already cited.

He concluded:

"Mr Bucknor's sworn evidence of the course that the interview took on this important matter has not been contradicted by any evidence sworn on behalf of the Home Secretary."

As regards the reliance placed by the Secretary of State on the inconsistent addresses given by Mrs Bucknor, the Vice Chancellor dealt with that point in this way:

"... the documents in question in which a different address is given have not been placed before the court. We have no means of knowing whether the documents relied on are documents emanating from the lady, which might give them weight, or are documents prepared by Home Office officials from earlier information which would be of very little weight."

I must remind myself that the question for me is not whether I would regard the evidence put forward by the applicant as conclusive, but whether it is unreasonable in the Wednesbury sense for the Secretary of State not so to regard it.

I cannot say that the decision of the Secretary of State was unreasonable in this sense. Although the applicant did refer to Mrs Bucknor as his girlfriend three times during the course of the interview, he then twice denied that she was his girlfriend. It is difficult to see why, if she was his fiancee and/or they were cohabiting, he did not say so and why he twice denied that she was his girlfriend.

He gave the Secretary of State and has given the court no acceptable explanation. His purported explanation at paragraph 5 of his first affidavit was plainly incorrect as the agreed notes of interview demonstrate. In these circumstances, the Secretary of State was entitled to regard the applicant's answers at interview as casting some doubt on a claim that at the time of the interview Mr and Mrs Bucknor had a relationship akin to marriage.

He was also in my view entitled to conclude that the addresses given by Mrs Bucknor, contained in documents within the immigration file and which in relation to the period 1987 to 1993 did not include 394 Wendover House, cast some doubt on the applicant's case. I have seen the documents. The Court of Appeal had not. Some of them at least do emanate from Mrs Bucknor herself.

An explanation was given for the use of 154 Tildesley Road, Putney to which I have earlier referred. That is an explanation which might have convinced some Secretaries of State, but I cannot persuade myself that no reasonable Secretary of State could fail to accept the explanation. In any event, that explanation may not account for giving other addresses between 1987 and 1989.

To summarise, although the body of evidence put forward by the applicant appears to be impressive, it was not irrational or perverse for the Secretary of State to consider that the matters relied upon by him cast sufficient doubt about that evidence as to rob it of the necessary quality of being conclusive.

At first sight perhaps the most significant evidence on which the applicant relies is that emanating from the hospital. As Mr Cockerell points out at paragraph 7 of his first affirmation:

"It is understandable that Mrs [Bucknor] may have wished to give the impression to her doctors that she was in a stable relationship with the Applicant."

She was consulting the medical profession in connection with pregnancy problems.

In my view the Secretary of State was entitled to take the view that, on closer consideration, this evidence was not as powerful as it might at first blush be thought to be. I have great sympathy for the applicant. But I cannot quash the decision of the Secretary of State unless I am satisfied that it is unreasonable in the Wednesbury sense. For the reasons given I consider that it is not.

For all of these reasons, this application must be dismissed.

MR SELVIN: My Lord, the applicant is legally aided.

MR JUSTICE DYSON: Yes, you are entitled to legal aid taxation.

MR SELVIN: Thank you, my Lord.

MR JUSTICE DYSON: Thank you both very much. Mr Kovats, can I pass down the document which you extracted from your file.