R v. Immirgation Appeal Tribunal, Ex parte Kanchanial Ambaram Prajapati

R v IMMIGRATION APPEAL TRIBUNAL Ex parte KANCHANIAL AMBARAM PRAJAPATI, TH/40614/79(1918) DC/241/81

Queen's Bench Division

[1981] Imm AR 199

Hearing Date: 12 November 1981

12 November 1981

Index Terms:

Entry clearance -- Date of application -- Visit to High Commission Office in Bombay by newly married couple, accompanied by wife's father, few days after their arranged marriage in April 1976 -- No written record of this visit but appointment made for husband to be interviewed by entry clearance officer in July 1977 -- Return meanwhile of wife and her father to the United Kingdom, where they were settled -- Official application form for entry clearance as husband filled in and signed on appointed date of interview in July 1977 -- Entry clearance granted and husband given limited leave to enter for 12 months by immigration officer in August 1977 -- Whether on the evidence Tribunal and adjudicator could reasonably find that application for entry clearance was made on first visit to High Commission Office -- If application not made till July 1977 unlimited leave to enter should have been given by immigration officer at port -- Ruling in Brown v Entry Clearance Officer, Kingston, Jamaica, [1976] Imm. A.R. 119, approved -- HC 238, para 47.

Held:

P, a citizen of India, married in India a woman having the right of abode in the United Kingdom. It was an arranged marriage, and within a few days of its celebration P accompanied by his wife and his father-in-law visited the High Commission Office in Bombay. The exact date of the visit and its purpose were not (apparently) officially recorded, but P was given an appointment to attend for interview some 14 months later, and his wife and her father then returned to England. On the date of his appointed interview a form of application for an entry clearance was filled in (form IM2), and signed by P. Entry clearance was granted and a few days, later on his arrival in the United Kingdom P was given leave to enter for 12 months. In due course P applied for removal of the restriction on his leave to remain in the United Kingdom, and it was contended that he should on entry have been given unlimited leave to remain. Under para 47 of HC 238 this depended on the question whether his application for an entry clearance had been made when he and his wife called at the High Commission Office a few days after their marriage or not until the official application form was completed on the occasion of his interview more than 12 months later. n1 The Secretary of State refused P's application. The adjudicator to whom P appealed found on the facts in evidence that the application has been made orally on P's first visit to the High Commission and accordingly that he was properly granted only 12 months' leave to enter. The Tribunal confirmed the adjudicator's finding. n2 n1 Paragraph 47 of HC 238 is set out on p 201, post. n2 In the circumstances of the breakdown of P's marriage which the Secretary of State had considered under para 26A(e) of HC 239, P's appeal was dismissed. P applied to the Divisonal Court for judicial review of the Tribunal's decision. Held (dismissing the application): The Tribunal and the adjudicator could reasonably find in the circumstances of P's first visit to the High Commission Office that he had applied for an entry clearance on that date, because it was not necessary that, to fall within the immigration rules, an 'application' for entry clearance must be made in writing. Per curiam: The term 'application' must also include any request, in quite unambiguous terms, for an entry clearance to be issued to a particular person. Brown v Entry Clearance Officer, Kingston, Jamaica, ([1976] Imm. A.R. 119) approved and applied.

Counsel:

A. Scrivener, QC, and K. S. Nathan for the applicant. David Latham for the respondent. PANEL: Forbes J

Judgment One:

FORBES J: In this matter Mr Scrivener moves for judicial review in the form of an order for certiorari to bring up and quash a determination of the Immigration Appeal Tribunal, dated 5 February 1981, and an order of mandamus directed to the Tribunal to determine the appeal in accordance with the law, and to direct that the applicant's appeal should be allowed. The background, and indeed the whole case, is unfortunate and I want to say at the outset that I have the utmost sympathy for Mr Kanchanlal Ambaram Prajapati, the unfortunate applicant in this case. He is a citizen of India and he was born in February of 1950 in that country. There is a gentleman called Mr Bikabhai Mistry and he and his daughter were settled in this country. The story, which I have no reason to doubt in the least, was that Mr Mistry and his daughter went to India in order that a marriage might take place between his daughter and a suitable husband. The father found what he thought was a suitable husband, namely the applicant in this case, and on 2 April 1976 the applicant and Jaya Mistry were married, according to Hindu rights, in India. On 13 April 1976 the new bride and her father returned to England. In between those two dates and in all probability on 5 April, the three of them, father, daughter and new husband, went to Bombay, in the words of the father, "to get an entry clearance, and an appointment was made for an interview a long time ahead". On 29 July 1977, as far as one can make out, that interview took place and at that interview as one understands from the ordinary practice, a form called IM2 was filled in by, I think, the applicant himself, but it may have been by the interviewer on his behalf. He signed at the end the declaration that the information given was true and correct. Indeed, the information, as far as we know and we have no reason to doubt it, was true and correct. He was given an entry clearance and the entry clearance stamp appears on his passport. It is dated 3 August 1977. When he appeared at Heathrow he was interviewed by an immigration officer who stamped his passport with leave to enter the United Kingdom for 12 months. He applied to the Home Secretary for the variation of removal of that limit of 12 months because he wanted to settle permanently in this country. Either by inference from the letter which was sent on the applicant's behalf, or because of some internal matter, it is plain that the Home Secretary took into account when making up his mind to refuse the application the argument that the 12-month limitation was an error by the immigration officer and that Mr Prajapati should have been allowed settlement in this country. In other words, it was contended that he should not have had a restriction placed on the time he was entitled to remain. Against that decision, and indeed encouraged by the decision letter itself, Mr Prajapati appealed to an adjudicator. The adjudicator found against him and so did the Tribunal when he appealed to them. It is our task to see what was the point in issue at those appeals. Mr Prajapati's position was governed at the appropriate date by the 'Statement of Changes in Immigration Rules for Control on Entry of Commonwealth Citizens' laid before Parliament on 22 March 1977, No. 238. Paragraph 47 is in these terms:

"The husband of a woman who is settled in the United Kingdom, or who is on the same occasion being admitted for settlement, is to be admitted if he holds a current entry clearance granted to him for that purpose."

That was the position here. This was the husband of a woman settled in the United Kingdom, he held a current entry clearance, and so he was entitled to be admitted. The paragraph goes on (after a sentence not applicable in this case):

"A passenger who holds such an entry clearance should be admitted for an initial period of up to 12 months if the marriage took place within the 12 months immediately preceding the application for the entry clearance; otherwise the passenger is to be admitted for settlement."

If this applicant had made an application on 5 April 1976 he was a person whose marriage had taken place within the 12 months preceding his application; indeed it had taken place within three days. If, on the other hand, his application was on 29 July 1977, the other possible date, his marriage had not taken place within 12 months of his application and he should have been admitted for settlement and not admitted for a period of 12 months. That was the situation when he arrived in this country. The sole question, on the merits of this case as it has been argued, is whether what happened indicates that he made his application on 5 April 1976 or on 29 July 1977. I have over-simplified the point, it is not quite as easy as that. The real point is whether any reasonable Tribunal, either the adjudicator or the Tribunal of Appeal, could have come to the conclusion, on the evidence it had, that the application was made on 5 April 1976. ... if the application was made on 5 April 1976 there is no record of that as an application. There may be some suggestions and indeed there is a letter in the file from which one can deduce some suggestion, that there might have been some record at some stage, but it goes no higher than that. [The learned Judge then dealt with a matter going to the jurisdiction of the Divisional Court in connection with the possible exercise by the Secretary of State of his discretion outside the immigration rules, and having ruled that the court had jurisdiction, he continued:] I then turn to the substantive point and I remind myself that what we are dealing with here is the same situation as is governed by the Wednesbury case, n3 the well known principle that this court will not interfere, in circumstances of this kind, with a decision unless it is a decision to which no reasonable body could have come in the circumstances of the case. One has to approach this matter in that way. n3 Associated Provincial Picture Houses Ltd v Wednesbury Corpn, [1947] 2 All ER 680. I have been referred to an immigration case, Brown v Entry Clearance Officer, Kingston, Jamaica n4. I do not need to refer to the facts in that case at all. In the body of the case reference is made to a previous case, referred to as Sadler's case n5. The important point is that in the decision that I am referring to, that is Brown's case, the Tribunal said, and it is dealing with this very question of what is the appropriate date of an application for entry clearance:

"The legislation does not prescribe any form of application. The use of form IM2 is convenient as it ensures that the main particulars required for consideration of the application are before the entry clearance officer. Certainly if there has been a request for an entry certificate containing those particulars there will have been an application, even though they have not been put on that form and even if the request has been made verbally. It may be that a request might properly be held to be a valid application even though a number of the particulars needed for determining it had not yet been supplied. What is necessary is (as said in Sadler's case) a request 'in quite unambiguous terms for an entry certificate to be issued' to a particular person."

n4 [1976] Imm. A.R. 119 n5 TH/4384/73, unreported. I am content to accept that formulation. In doing so, it seems to me, I do not accept Mr Scrivener's first submission. His first submission was that for an application to fall within the rules it must be a written application on form IM2. That is a formulation, I may say, which quite clearly the Tribunal rejected in Brown's case. I quite accept that it would be very convenient if Mr Scrivener's view were right. The document is there, it is dated, it is a piece of paper which ought to be on file somewhere and, for all I know, it might be sent from the entry clearance officer to the Home Office in this country. It is a piece of paper with details on it, and a date. If anybody wants to find out what the date of it was, it is there and you only have to look at it. On the other hand, if you are accepting the situation that an application is made by any request in quite unambiguous terms, you do not necessarily get a recorded date. Indeed, as I understand it, there is no date in this case. There is no suggestion that the entry clearance officer had a date before him. I do not know what information (and nobody has supplied me with the answer) the immigration officer has in front of him in order to be able to determine, as he must do under para 47 of HC 238, whether the leave he is going to give to the intending entrant is one for 12 months or one for settlement. That seems to me to be an atrocious lacuna in a case of this kind. It is one which I hope will be cleared up because otherwise, as Mr Scrivener has pointed out, one is going to find cases depending on this very point being litigated and questions of fact having to be investigated. Not only that, but the facts involved may be matters taking place in India and so on, the establishment of which would clearly upset the smooth process of these matters in this country. I can only say I am very disturbed to find that, apparently, no such information is given to the immigration officer, and, if no such information is given, then it is not surprising that he makes mistakes. However, that does not deal with the main point. I am satisfied that an application for entry clearance may include an application on form IM2 but the term "application" must also include, as I have indicated, any request, in quite unambiguous terms, for an entry clearance to be issued to a particular person. Now one has got to look at the evidence in this case in relation to the application for entry clearance. The date, of course, is vitally important, but that date itself is a matter of some doubt... As far as the evidence goes there were two attendances; one in 1976, by the applicant accompanied by his wife and Mr Mistry, which must have been between 2 -- 13 April because it was only between those two dates that one could have said, both that the applicant was married, and that his wife and father-in-law were in India; and the other date is 29 July 1977, which is the date on form IM2 and which, as far as the evidence goes, is quite clearly also the date of the interview... The adjudicator went on to record the father-in-law's evidence in this way: "I went to Bombay with my son-in-law and daughter to get an entry clearance. An appointment was made for him a long time ahead." The question is whether, on that evidence, a reasonable adjudicator could have come to the conclusion that an unambiguous request for an entry clearance had been made at that date, which was in all probability 5 April 1976. At one stage I thought, perhaps, it was not possible to spell that out on that evidence, but one has to remember one is considering whether it would be wholly unreasonable to spell it out, not whether I myself would have been prepared to accept that that was the proper inference. When one looks at it, here are the three of them going to Bombay to get an entry clearance, and the result of them going to get an entry clearance is that an appointment was made for the son-in-law a long time ahead. It seems to me that I could not say that an adjudicator was acting unreasonably if he came to the conclusion on that evidence that the sensible explanation was that an unambiguous request for an entry clearance was made on that date, and that as a result the applicant was told he had to have an interview and needed an appointment which would be a very long time ahead. It seems to me a not unreasonable deduction, from those two sentences, that an appointment would not have been made unless what was asked for was an entry clearance certificate. Mr Scrivener has addressed me at some length on the suggestion that this might, as it were, have been a preliminary inquiry, or something of that kind, and that you would have to be certain that you qualified for an entry clearance certificate before you could make an application. I do not think that is so at all. I know of no rule which prohibits anybody from applying for an entry clearance. Whether they will get it, of course, is another matter. What we are concerned with here is an application, not an application which has some prospect of success. As I say, I cannot turn round and say that the adjudicator in this case came to a conclusion that no reasonable adjudicator could come to, and that really is an end to the matter. [The learned Judge then referred to the marriage as being an arranged marriage, not a 'marriage of convenience' and to the fact that the wife no longer had any intention of living with the husband, and that in those circumstances, the Secretary of State in the exercise of his discretion had refused Mr Prajapati's application.] It is a sorry tale and my sympathies are entirely with Mr Prajapati, but despite the fact that I feel I have jurisdiction to deal with a case of this kind, I cannot find that the adjudicator, in this case, nor the appellate Tribunal, when they were considering it, fell into the sort of error which this Court will correct, in finding that an unambiguous request for an entry clearance to be issued to Mr Prajapati was made at some date in early April 1976. I fear this motion must be dismissed. n6 n6 Mr Prajapati appealed to the Court of Appeal, and on 13.7.82 the Court (Lord Lane LCJ, Watkins LJ and Peter Pain J), dismissing the appeal, upheld the finding of Forbes J that the application for an entry clearance was made in April 1976.

DISPOSITION:

Order accordingly.

SOLICITORS:

Stocken & Lambert, EC4; Treasury Solicitor.