R v. Immigration Appeal Tribunal, Ex parte Ajaib Singh

R v IMMIGRATION APPEAL TRIBUNAL Ex parte AJAIB SINGH, TH/17956/77 (1022)

Queen's Bench Division

[1978] Imm AR 59

Hearing Date: 2 November 1977

2 November 1977

Index Terms:

Leave to enter -- Refusal -- "Exclusion conducive to the public good" -- Entry certificate granted under rule applicable to fiancés of women settled in the United Kingdom -- Purported bride only 14 1/2 years old at time entry certificate granted -- Misrepresentation by applicant for entry certificate not found by Tribunal -- Administrative error by entry clearance officer -- Finding by Tribunal that immigration procedures deliberately manipulated by relatives who knew girl could not marry under age of 16 -- Decision of Tribunal that exclusion was "conducive to public good" reasonably reached -- HC 79, paras 12, 48 (as amended by Cmnd 238), 63(b).

Held:

'AS' applied for and obtained an entry certificate as a fiancé under HC 79 para 48 (as amended by Cmnd 238). This entitled him to enter the United Kingdom for the purpose of marrying within 3 months a Miss GK, who was settled in this country. n1 To obtain entry clearance AS had lodged a number of documents including a birth certificate showing Miss GK to be only 14 1/2 years old. The entry certificate had, therefore, apparently been granted by administrative error, and leave to enter was only duly refused on AS's arrival, for at the time Miss GK was still not even 15 years old. AS appealed to an adjudicator and, from the adjudicators adverse determination, to the Appeal Tribunal. The Tribunal found that AS had not obtained his entry certificate by misrepresentation which, under para 12(a) of HC 79, would have precluded his entry, n2 but that the immigration procedures had been improperly manipulated by relatives who knew that Miss GK could not marry before she was 16 years old. The Tribunal dismissed AS's appeal by invoking para 63(b) of HC 79, under which leave to enter may be refused (with a few exceptions) if refusal seems right on the ground that the person's "exclusion is conducive to the public good" if, "for example, in the light of (his) character, conduct or associations it is undesirable to give him leave to enter" n3. n1 Paragraph 48 (as amended with effect from 22 March 1977) provides, so far as material, as follows: "A man seeking to enter for marriage to a woman settled here, and intending to settle himself, should not be admitted unless he holds a current entry clearance issued for that purpose. An entry clearance will be refused if the officer to whom application is made has reason to believe that the proposed marriage would be one of convenience entered into primarily to obtain admission here with no intention that the parties should live together permanently as man and wife. The holder of such a clearance should, subject to paragraph 12, be admitted for 3 months and advised to apply to the Home Office once the marriage has taken place for an extension to stay. It will normally be appropriate to impose a prohibition on employment." n2 Paragraph 12 is set out on p 61, post. n3 Paragraph 63 is set out on p 61, post. AS moved in the Divisional Court for Orders of Certiorari and Mandamus. Held: The decision of the Tribunal to invoke para 63(b) of HC 79 was reasonably reached, for, as the Tribunal stated, the examples given in that paragraph were not exclusive, and if AS were to be admitted it would be in contravention of immigration regulations made by the Secretary of State and approved by Parliament and it was clearly in the public interest that this should not happen.

Counsel:

Harjit Singh for the applicant. Harry Woolf for the respondent. PANEL: Lord Widgery CJ, Talbot and Boreham JJ.

Judgment One:

BOREHAM J (giving the first judgment at the invitation of Lord Widgery CJ): Mr Harjit Singh moves on behalf of the applicant Ajaib Singh for Orders of Certiorari and Mandamus in the following circumstances. On 11 July 1977 the applicant Ajaib Singh (then aged 19) obtained in Delhi an entry clearance certificate valid for six months entitling him to enter this country for the purpose of marrying a Miss Gurdial Kaur. n4 n4 The entry certificate was granted under the provisions of HC 79, para 48 (as amended). The paragraph is set out in footnote 1. In order to obtain that certificate a number of documents were lodged with the British High Commission in Delhi. They included a birth certificate, or a copy of the birth certificate, of the young lady in question, which showed her date of birth to be 13 December 1962. Therefore, at the time of this application she was about 14 1/2 years old. There were also two sponsorship declarations with which it is unnecessary for me to deal in any detail. Finally, there was a declaration by the young lady, first, that she would marry this applicant within a period of three months from the date of his disembarkation in Britain -- an impossibility having regard to her age -- and finally, to the best of her knowledge and belief, that there was no legal impediment to her being married within that period of time. Armed with entry clearance certificate the applicant arrived at Heathrow on 1 August 1977. There he was to be met by his young apparent bride-to-be. After a number of interviews with various immigration officers, and after immigration officers had interviewed, amongst others, Miss Gurdial Kaur, the applicant was refused entry. It is right to observe at this stage that during the course of her interview Miss Gurdial Kaur now said that she intended to marry the applicant when she had finished her studies in 1979, by which time she would have been of an age where she might marry. The grounds upon which entry was refused by the immigration officer were substantially these: first, that the certificate had been obtained by false representations; secondly, because of Miss Gurdial Kaur's assertion that the marriage would not take place until 1979 or after, that there had been a change of circumstance; and, thirdly, that it was thought in the circumstances that his exclusion would be conducive to the public good. n5 n5 The immigration officer acted under paras 12 and 63(b) of HC 79, both of which are set out later in the judgment. The applicant appealed to an adjudicator, who gave his decision on 15 August 1977. It is unnecessary, in my judgment, to dwell upon that, save to say this. Amongst the findings of the adjudicator was a finding that the applicant had in effect been a party to a conspiracy to deceive those in Delhi who had the duty to issue entry certificates. His appeal being dismissed by the adjudicator, the applicant then appealed to the Immigration Appeal Tribunal, and the decision of that Tribunal was given on 21 September 1977. The Tribunal found (and this is to the applicant's advantage) first of all that it was impossible to hold that there had been any misrepresentation so far as the age of Miss Gurdial Kaur was concerned. It was also found by the Tribunal that the alleged change of circumstance based upon Miss Gurdial Kaur's apparent change of heart when interviewed by the immigration officer had not been established. In those circumstances, says Mr Harjit Singh, it is necessary to pause and look at para 12 of HC 79, which reads (in part) in this way:

"Entry certificates are issued in accordance with the rules contained in this statement: they are to be taken as evidence of the holder's eligibility for entry to the United Kingdom, and accordingly accepted as 'entry clearances' within the meaning of the Act. A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the Immigration Officer is satisfied that: (a) false representations were employd or material facts were concealed, whether or not to the holder's knowledge, for the purpose of obtaining the clearance, or (b) a change of circumstances since it was issued has removed the basis of the holder's claim to admission."

Pausing there, counsel says -- and I, for my part accept his contention thus far -- that the findings of the Tribunal to which I have recently referred indicate that neither the immigration officer nor in fact the Tribunal could have been satisfied as to the false representations or change of circumstance. He says, therefore, that he is over those two hurdles, and I agree with him. But para 12 continues with further possibilities, and one of them is this "because exclusion would be conducive to the public good". In other words, if the immigration officer or the Tribunal considered that "exclusion would be conducive to the public good", then the certificate does not avail. In order to understand that aspect of the matter, it is now necessary to turn to para 63 of the same document. It provides thus:

"Any passenger except the wife or child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conducive to the public good, where -- (a) the Secretary of State has personally so directed" -- I say at once that does not, in my judgment, apply here -- "or (b) from information available to the Immigration Officer it seems right to refuse leave to enter on that ground -- if, for example, in the light of the passenger's character, conduct or associations it is undesirable to give him leave to enter."

With those references let me now return to the Tribunal's findings. Having excluded any change of circumstances or any deliberate misrepresentations (under para 12 of HC 79), the Tribunal proceeds:

"We are left to consider the provisions of para 63." (That is the paragraph 1 have just read. They continue:) "Having regard to the fact that the appellant's application was engineered by those who must have known Gurdial Kaur's true age and that she could not marry the appellant until she was 16, and having regard to the fact that the appellant is not admissible under any immigration rule, it seems to us that this paragraph can properly be invoked."

There then follows a reference to a prior decision of the Tribunal in the case of one Scheele in which it had been emphasised that the power to exclude under para 63 should not be lightly used, and I paraphrase, or used in trivial circumstances. n6 n6 Scheele v Immigration Officer, Harwich, [1976] Imm A R 1 at p 3; TH/2646/74 (411), d 7.1.75. In Scheele's case the relevant rule was provided in HC 81 at para 65(b), an identical rule applicable to non-Commonwealth nationals. The Tribunal proceeds: "However, we do not consider the circumstances of this case to be trivial. It is true that the examples given in para 63(b) relate to the passenger's character, conduct or associations, but these are only examples and clearly not intended to be exclusive of other possibilities.

"If the appellant in this case were to be admitted he would be admitted in contravention of immigration regulations made by the Secretary of State and approved by Parliament. In our view it is clearly in the public interest that this should not happen. This appeal is consequently dismissed."

Mr Harjit Singh's basic contention, as I understand it, is this. Subparagraph (b) of para 63 is much more restrictive than is sub-para (a), which gives the Home Secretary a complete discretion. Counsel emphasises that the examples given as to character, conduct or associations, though accepted by him as only examples, should give us an indication of the sort of thing which should be looked for before discretion is exercised under this particular paragraph. He has argued faintly, and I mention it merely to dismiss it, that there were in the circumstances of this case circumstances which created an estoppel against the immigration officer or the Tribunal from ordering as they did. It is right to say that there is no mention in his grounds of an estoppel; nor, in my judgment at all events, is there any substance in that particular ground. In the end, counsel contends that here the Tribunal is merely using para 63 (b) in order to correct what was an executive or administrative error in Delhi, and he says that the paragraph, dealing with human beings and eligibility for entry into this country, ought not to be used for that purpose. To that extent, for my part, I agree with him, and if I thought it was merely being used to overcome the effects of an executive or administrative error in Delhi, then I would think there was some force in this argument. Mr Woolf on behalf of the Secretary of State says this. He says that the decision which was made was a decision which was properly open to the Tribunal on the facts which the Tribunal found. He points out that the question left for the immigration officer, namely, whether it is "conducive to the public good", is deliberately left in wide terms so that he may exercise a wide discretion. His contention is that the question that this Court must ask itself is this: Was this a decision which a Tribunal, properly instructing itself, could reasonably and sensibly reach in the circumstances? He has pointed to the frequency of the use of this expression "public good" in immigration legislation and in rules, and he emphasises the fact that acceptance of the applicant's contentions in this case would have, in particular, this effect. Those who are awaiting entry into this country on proper grounds will be delayed and will be left with a feeling of grievance, if not of dissent, if we were to accede to the sort of argument put forward on behalf of this applicant, for he contends, when all is said and done, though the applicant has been acquitted of deliberate misrepresentation himself, nevertheless to admit him now would be an abuse of the immigration procedures, for the Tribunal have found that, though the applicant himself was not involved, there were persons who, knowing this young woman's age and knowing the impossibility of her marrying within the three months' period or anything like that, quite deliberately manipulated the immigration procedures. At the end of the day I accept the contention put forward by Mr Woolf. I think that the question we have to ask ourselves is this: Was this a decision which a Tribunal, properly instructed, could reasonably have reached? For the reasons that the Tribunal gave I am left in no doubt that it was such a decision. In those circumstances I would refuse this motion.

Judgment Two:

TALBOT: I agree.

Judgment Three:

LORD WIDGERY CJ: I agree also.

DISPOSITION:

Application refused.

SOLICITORS:

Hatten, Wyatt & Co, Gravesend; Treasury Solicitor.

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