R v. Immigration Appeal Tribunal, Ex parte Dipak Kumar Nathwani

R v IMMIGRATION APPEAL TRIBUNAL Ex parte DIPAK KUMAR NATHWANI, TH/21176/77

Queen's Bench Division

[1979-80] Imm AR 9

Hearing Date: 23 February 1979

23 February 1979

Index Terms:

Immigration rules -- Control after Entry -- Amendment of rules -- Application for variation/revocation of conditions of stay on marriage -- Operative rule at date of application amended before Secretary of State's decision on the application -- Refusal of application under the rule as amended (less favourable to applicant) -- Whether Secretary of State entitled to decide the application under the rule operating at the time of his decision -- Retrospectivity -- Whether principle against retrospective operation of statutory law applicable to immigration rules, these not being Statutory Instruments -- Whether any rights acquired by applicant under the rules operating at the time of his application -- HC 239, paras 26 & 26A -- Cmnd 5716, para 25 -- HC 80, para 4.

Appeal -- Leave to appeal to Tribunal -- Arguable point of law -- Whether application for revocation of conditions of stay on marriage was wrongly refused by Secretary of State under a rule which had superseded the rule operating at the date of application -- Tribunal wrongly of opinion that the later rule was inapplicable (because of principle against retrospective laws) -- Tribunal also of opinion that result of appeal would (on the facts found by the adjudicator) have been the same if the earlier rule had been applied subject to the 'general considerations' governing applications for variation of conditions -- Tribunal entitled then to hold that the determination of the appeal did not depend on an arguable point of law -- Immigration Appeals (Procedure) Rules 1972, r 14(2)(a) -- HC 239 paras 26 & 26A -- Cmnd 5716, para 25 -- HC 80, para 4.

Practice and procedure -- Reference of cases for further consideration -- Application to Secretary of State by unsuccessful appellant that case be referred to adjudicator for consideration of evidence of witnesses present but not called by appellant at hearing before adjudicator -- Application refused by Secretary of State -- Reference of cases for further consideration a matter entirely within Secretary of State's discretion -- Refusal not open to challenge or review -- Immigration Act 1971, s 21(1)(a) & (b).

Marriage -- Settlement in United Kingdom -- 'Marriage of convenience' -- Application by recently married man for removal of conditions on his leave to enter -- Change in immigration rules after application made and before decision of Secretary of State -- Refusal of application under the later rules on Secretary of State's finding that the marriage was one of convenience entered into in order to obtain settlement -- Refusal properly made under rule operating at time of Secretary of State's decision -- HC 80 para 4 -- Cmnd 5716, para 25 -- HC 239, paras 26, 26A.

Held:

N was a citizen of India. On 10 December 1976 he was given leave to enter the United Kingdom as a visitor for one month. On 1 January 1977 he married a [1979-80] Imm AR 9 British subject settled in this country. On 3 January, invoking para 25 of Cmnd 5716 which was then in operation n1, he applied for a variation of his conditions of entry to enable him to remain permanently in the United Kingdom having regard to his marriage. On 27 May 1977 the Secretary of State refused N's application, stating that he had reason to believe that the marriage was one of convenience entered into primarily to obtain settlement here with no intention that the parties should live together permanently as man and wife. In his refusal the Secretary of State applied the provisions of para 26 and 26A of HC 239 which had come into operation on 22 March 1977 (superseding para 25 of Cmnd 5716) n2. n1 Paragraph 25 of Cmnd 5716, which had come into effect on 27 June 1974, superseding para 25 of HC 80, is set out on p 12 post. n2 Paragraphs 26 and 26A of HC 239 are set out on pp 12 and 13, post. The adjudicator to whom N appealed upheld the Secretary of State's decision under HC 239. N sought leave to appeal to the Tribunal. Refusing leave, the Tribunal stated that whilst the adjudicator had applied the wrong rules -- because in the Tribunal's opinion HC 239 did not operate retrospectively -- the result on the facts found would have been the same if the adjudicator had applied para 25 of Cmnd 5716 together with the 'general provisions' of para 4 of HC 80 to which para 25 was subject; and in those circumstances the Tribunal held that there was no arguable point of law before it n3. n3 See r 14(2)(a) of the Immigration Appeals (Procedure) Rules 1972, set out on p 15 post. On N's application to the Divisional Court for an Order of Certiorari to quash the Tribunal's determination and an Order of Mandamus requiring the Tribunal's President to grant leave to appeal from the adjudicator's determination. Held (refusing Orders of Certiorari and Mandamus): (i) the Secretary of State acted correctly in considering N's application in the light of the rules which were in force (paras 26 and 26A of HC 239) at the time when he considered the matter and made his decision; and the adjudicator was correct in proceeding on that basis; Per STEPHEN BROWN J: The rules not being statutes or statutory instruments which give rights to any person, there could be no question here of retrospectivity applying to the time of the application as distinct from the time of the Secretary of State's consideration of the application and his decision. Per EVELEIGH LJ (citing LORD DENNING MR in Hosenball's Case n4): Bearing in mind that the immigration rules were not rules of law but rules of practice laid down for the guidance of immigration officers and tribunals, there was no right in the applicant to dictate to the Secretary of State which set of rules should be applied at the time of the decision of his case. The rules were essentially rules which had to be regarded at the time of a decision. n4 R v Secretary of State for the Home Department, ex p Hosenball, [1977] 1 WLR 766 at p 780; [1977] 3 All ER 452 at p 459. [1979-80] Imm AR 9 The rules and their statutory interpretation depended very largely on vested rights, and there were no such rights in this case (pp 14 - 15). (ii) there was abundant evidence, as the adjudicator found, to support the Secretary of State's finding that he had (under para 26A of HC 239) "reason to believe" that the marriage was "one of convenience" and consequently that the refusal of N's application had been fully justified; (iii) the Tribunal was wrong in holding that para 26A of HC 239 had no application, but having held that if the adjudicator had applied the provisions of para 4 of HC 80 and para 25 of Cmnd 5716 the result would have been the same, the Tribunal was entitled to be satisfied (in accordance with r 14(2) of the Immigration (Procedure) Rules 1972 n5) that the determination of the appeal did not turn upon an arguable point of law (see p 15, post). n5 Rule 14(2)(a) is set out on p 15, post. As to the requested further and alternative Orders of Certiorari and Mandamus directed to the Secretary of State in respect of his refusal to refer N's case to an adjudicator for further consideration and opinion pursuant to s 21(1) of the Immigration Act 1971 n6, n6 Section 21(1) provides as follows: 'Where in any case -- (a) an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal, or the Tribunal has dismissed an appeal made to them in the first instance by virtue of section 15 above; or (b) the Appeal Tribunal has affirmed the determination of an adjudicator allowing an appeal; the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal." Held: the power given to the Secretary of State under s 21(1) was a matter entirely within his discretion and was not open to challenge by N, nor indeed open to review (see p 14, post).

Counsel:

K. S. Nathan for the applicant. Harry Woolf & Rodger Bell for the respondent. PANEL: Lord Widgery CJ, Eveleigh LJ, Stephen Brown J.

Judgment One:

STEPHEN BROWN J (delivering the first judgment at the invitation of LORD WIDGERY CJ): This is an application by Dipak Kumar Narottamdas Nathwani for an Order of Certiorari to quash the determination of the President of the Immigration Appeal Tribunal of 14 July 1978, refusing him leave to appeal from the decision of the adjudicator of 8 June 1978 dismissing his appeal against the Secretary of State's decision to refuse to vary the conditions upon which he had been allowed to enter the United Kingdom. He also seeks an Order of Mandamus directed to the President of the Tribunal to grant leave to hear the appeal, and further and alternatively seeks an Order of Certiorari to remove into this court and quash the refusal of the Secretary [1979-80] Imm AR 9 of State for the Home Department to refer his case to an adjudicator for further consideration pursuant to s 21 of the Immigration Act 1971, and for an Order of Mandamus directed to the Secretary of State to refer his case to an adjudicator for further consideration and opinion. The applicant is a citizen of India, and at all material times held an Indian passport. On 10 December 1976 he was given leave to enter the United Kingdom as a visitor for one month on condition that he did not enter employment or engage in any profession. The adjudicator in fact found that he arrived at London Airport and stated that he was on his way to Canada to visit cousins there, and desired only to stay in the United Kingdom for two days for sight-seeing purposes. The adjudicator also found that he specifically denied knowing or having any relatives here. On 1 January 1977 he married a Miss Popat at the register office in Leicester. Miss Popat is a British subject settled in the United Kingdom. On 3 January 1977 the applicant applied to the Home Office to vary the conditions of entry to permit him to stay permanently in the United Kingdom having regard to his marriage. On 27 May 1977 the Secretary of State refused the application, stating

"the Secretary of State has reason to believe that the marriage is one of convenience, entered into primarily to obtain settlement in the United Kingdom with no intention that you should live together permanently as man and wife."

The appellant appealed against that refusal of the Secretary of State, and the appeal was heard by an adjudicator in Birmingham on 17 February 1978 when the applicant was represented by the United Kingdom Immigrants Advisory Service. The applicant and his wife gave evidence, but four other close relatives who were in attendance prepared to give evidence were not called and did not give evidence. On 8 June 1978 the adjudicator dismissed the appeal, and in dismissing the appeal stated that he relied upon para 26 and para 26A of HC 80 as amended by HC 239. The applicant appealed to the Immigration Appeal Tribunal, and in his notice of appeal contended that paras 26 and 26A, particularly para 26A, of HC 239 had not been in force at the time of his application to the Secretary of State for a variation of his conditions of entry, and that accordingly the appeal to the adjudicator had been wrongly decided by him and that he had in fact applied the wrong rules. The Tribunal dismissed the application for leave to appeal but stated apparently that para 26A of HC 239 had no application in this case as it is not retrospective. However, since the Tribunal had in previous "marriage of convenience" cases held that para 25 of Cmnd 5716 is subject to the general provisions of para 4 of HC 80, the President stated that, if the adjudicator had applied the provisions of those two paragraphs to his findings, the result of the appeal would have been the same. He stated that no arguable point of law was before the Tribunal; and in its opinion, said the President, "there are no other circumstances which would merit the granting of leave to appeal". Accordingly leave to appeal to the Tribunal was refused. [1979-80] Imm AR 9 It is against that determination that the applicant now moves for Certiorari. The rules which were referred to ought to be considered in sequence. Paragraph 25 of Cmnd 5716 provides:

"A man admitted in a temporary capacity who marries a woman settled here should on application have the time limit on his stay removed."

That rule had come into effect on 27 June 1974, and it was in due course superseded with effect from 22 March 1977 by the rules in HC 239, paragraphs 26 and 26A. Paragraph 26 provides:

"Subject to paragraph 26A, a man admitted in a temporary capacity who marries a woman settled here should have the time limit on his stay removed unless the marriage took place within the 12 months immediately preceding his application, in which event his stay should be extended for a further period not exceeding 12 months. Where an extension is granted any restriction on the taking of employment should be removed and, subject to paragraph 26A, the time limit may be removed at the end of that period."

Paragraph 26A goes on to provide:

"An extension of stay or leave to remain will not be granted, and any time limit will not be removed, under paragraph 25 or 26 if the Secretary of State has reason to believe that the marriage is one of convenience entered into primarily to obtain settlement here, with no intention that the parties should live together permanently as man and wife."

In point of fact, there was abundant evidence, as the adjudicator found, to support the Secretary of State's finding that he had reason to believe that the marriage in this instance was one of convenience, entered into primarily to obtain settlement in the United Kingdom with no intention that the applicant should live together with his wife permanently as man and wife. In fact of course the time factor was a vital matter in that consideration: entry on 10 December 1976 and marriage on 1 January 1977 to a woman who previously had been a total stranger. When visited by the Home Office investigator it was found that they were not in fact living together at that time. The marriage had been a civil ceremony only at that time. There was an abundance of evidence to support the Secretary of State's finding that he had reason to believe that this marriage was one of convenience. On behalf of the applicant Mr Nathan nevertheless contends that the adjudicator should have applied para 25 of Cmnd 5716 and that in fact he proceeded wrongly under paras 26 and 26A of HC 239. In my judgment, it is necessary to consider what the position was at the time when the Secretary of State made his decision on 27 May 1977. It is quite apparent that at that time -- at the time of his decision -- the effective rules were paras 26 and 26A of HC 239 which had come into effect as from 22 March 1977. It would seem abundantly clear to me that the Secretary of State was quite correct in considering this application in the light of the rules which were in force at the time when he considered the application, and that accordingly he was quite correct in considering the matter under paras 26 and [1979-80] Imm AR 9 26A of HC 239; and, furthermore, that the adjudicator was quite correct in proceeding upon that particular basis. The Tribunal seems to have overlooked the essential relevance of the dates, when finding, as apparently it did find, or expressed the view at any rate, that the adjudicator had proceeded under the wrong rule. It seems to me that, bearing in mind that the rules are not statutes or statutory instruments which give rights to any person, there can be no question here of retrospectivity applying certainly to the time of the application as distinct from the time of the Secretary of State's consideration of the application and his decision. This is a matter, in my judgment, which is so abundantly clear that no arguable point of law can arise upon it. Furthermore, it would appear that the Tribunal, when referring to para 25 of Cmnd 5716 and para 4, of HC 80, was in fact stating that the same result would have followed from the findings of fact of the adjudicator if the rules previously operative had been applied. But, in my judgment, the decisive factor in this instance is that it could not for one moment be supposed upon the ordinary and proper consideration of the matter that any rules other than paras 26 and 26A of HC 239 were applicable at the relevant time. In my judgment, there is in fact no arguable point of law. The findings of fact of the adjudicator cannot be challenged at this stage, and upon those findings the Secretary of State was fully justified in refusing the applicant the variation of his conditions of stay which he sought. A further submission has been made by Mr Nathan on behalf of this applicant, and that is that the Secretary of State was wrong to refuse to refer the case of this applicant to an adjudicator for further consideration pursuant to s 21 of the Immigration Act 1971. The matter arises, because following the refusal of leave to appeal by the President of the Immigration Appeal Tribunal, solicitors acting for the applicant wrote to the Home Office on 7 September 1978 asking that a reference should be made to an adjudicator for his further consideration under s 21 of the Immigration Act, 1971 on the ground that evidence of the relatives of the applicant who were present at the hearing by the adjudicator in Birmingham had not been called and that their evidence was not before the adjudicator. The applicant has submitted through his counsel that he was entitled to ask the Secretary of State to refer the matter for further consideration. It is important to bear in mind that s 21 of the Act falls within that part of the Act -- Part II of the Act -- which deals with appeals and the review of decisions. Section 21 in fact gives power to the Secretary of State to refer the matter for consideration to an adjudicator in the circumstances set out in sub-s (1)(a) and (b). However, it is important to bear in mind that this is at the discretion of the Secretary of State, and may be exercised by him in order to give the Tribunal or an adjudicator jurisdiction to act after the ordinary appeal process has been exhausted. This is a matter, in my judgment, which is entirely within the discretion of the Secretary of State and is not open to challenge by this applicant and indeed is not open to review. In my judgment, the applications under both heads fail, and I would refuse them. [1979-80] Imm AR 9

Judgment Two:

EVELEIGH LJ: I agree. I think it is important to bear in mind the words of LORD DENNING MR in R v The Secretary of State Ex p Hosenball where he said n7: n7 [1977] 1 WLR 766 at p 780; [1977] 3 All ER 452 at p 459. The passage above was cited in the case of A.D. Patel & ors (C.A. d 7.7.77); see [1977] Imm. A.R. at p 117.

"They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act. They can be, and often are, prayed in aid by applicants before the courts in immigration cases."

When one bears that in mind, there is no right in the applicant to dictate to the Secretary of State which set of rules shall be applied at the time of the decision of a case. The rules are essentially rules which have to be regarded at the time of a decision. The argument of Mr Nathan that in effect this is giving retrospective effect to the rules, and then by analogy to the interpretation of statutes contending that that was not permissible, is, in my view, a mistaken approach. The rules and their statutory interpretation depend very largely on vested rights. There were no such rights in the present case. I, therefore, agree that there was no arguable point of law, but I would also be prepared to decide this case on another basis. One has to have in mind the Immigration Appeals (Procedure) Rules 1972, and r 14(2) reads as follows:

"In addition to the circumstances in which leave to appeal must be granted by virtue of s 22(5) of the Act... an appellate authority to whom application for leave to appeal as aforesaid is duly made shall grant it -- (a) if the authority is satisfied that the determination of the appeal turns upon an arguable point of law..."

The Tribunal stated the following:

"Whilst the Tribunal agrees that para 26A of HC 239 had no application in this case (as it is not retrospective), the Tribunal has in previous 'marriage of convenience' cases held that para 25 of Cmnd 5716 is subject to the general provisions of para 4 of HC 80."

In holding that para 26A of HC 239 had no application, the Tribunal, in my opinion, were wrong. But they went on to say:

"In the Tribunal's opinion the adjudicator's findings of fact were supported by the evidence, and had he applied the provisions of para 4 of HC 80 and para 25 of Cmnd 5716 to them, the result of the appeal would have been -- and should have been -- no different."

They then said, "No arguable point of law is before the Tribunal". That was, of course, shorthand for saying that they were not satisfied (as required by r 14(2)(a)) that the determination of the appeal turned upon an arguable point of law. In other words, whatever conclusion is reached upon the arguments of law [1979-80] Imm AR 9 before the Tribunal, the result will be the same. In my judgment, they were entitled to approach the matter in that way. I agree that this application should be refused.

Judgment Three:

LORD WIDGERY CJ: I agree with both judgments, and the applications accordingly will be refused.

DISPOSITION:

Applications refused.

SOLICITORS:

Radia & Co; Treasury Solicitor.