R v. Immigration Appeal Tribunal, Ex parte Jarnail Singh Sandal

R v IMMIGRATION APPEAL TRIBUNAL Ex parte JARNAIL SINGH SANDAL, TH/57778/80

Queen's Bench Division

[1981] Imm AR 95

Hearing Date: 9 June 1981

9 June 1981

Index Terms:

Appeal -- Leave to appeal to Tribunal -- Leave refused by Tribunal -- Merits of case 'borderline' in adjudicator's opinion -- Refusal of application for leave to remain upheld by adjudicator 'on a narrow balance of probabilities' -- Applicant the husband in an arranged marriage which broke down through no fault on his part -- 'Normal' practice that leave to remain be refused in marriage breakdowns -- Discretion exercised by adjudicator on careful consideration of relevant facts affecting husband -- Whether incumbent on Tribunal to grant leave to appeal because of case's 'borderline' nature -- Immigration Appeal (Procedure) Rules 1972, rr 14(1)(c), 16(5), 42 -- HC 239, para 26A(e).

Marriage -- Settlement in the United Kingdom -- Arranged marriage for which husband given limited leave to enter the United Kingdom -- Breakdown of marriage -- Application for leave to remain -- Leave to remain 'normally' to be refused on break-down of marriage -- Discretion in adjudicator to decide on consideration of relevant circumstances that normal practice be not followed -- Dismissal of appeal with comment by adjudicator that he found it a 'borderline' case -- Whether incumbent on Tribunal to grant leave to appeal by reason of case's 'borderline' nature -- HC 239, para 26A(e) -- Immigration Appeals (Procedure) Rules 1972, r 14(1)(c), 16(5).

Held:

The applicant ('S'), a citizen of India, was given limited leave to enter the United Kingdom in April 1978 as the holder of an entry clearance granted to him as the fiancé in an arranged marriage with a young woman who was settled in this country. A civil ceremony of marriage duly took place but not the intended religious ceremony because the wife refused to live with her husband. In June 1978 S applied for the time limit on his stay to be removed by reason of his marriage; his application was refused by the Secretary of State on the ground that (after some family enquiries) he had reason to believe that the marriage had been one of convenience entered into primarily to obtain settlement with no intention that the couple should live together permanently as man and wife. S appealed to an adjudicator, and at the hearing the respondent put forward as an alternative case under sub-para (e) of para 26A of HC 239, with the leave of the adjudicator, that if it was not a marriage of convenience, nevertheless the parties no longer intended to live together and therefore S had properly been refused any extension of stay. n1 n1 Paragraph 26A of HC 239 provides, so far as here relevant: "An extension of stay or leave to remain will not be granted... 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. Furthermore, and extension of stay or leave to remain will not normally be granted to an applicant... and the time limit on his stay will not be removed... if... (e) the Secretary of State has reason to believe that one of the parties no longer has any intention of living with the other as his or her spouse." The adjudicator found that it had not been a marriage of convenience and that S was free of blame for its breakdown; but, on a consideration of the facts relevant to the exercise of his limited discretion under para 26A(e) to permit S to remain in this country he concluded that, on a narrow balance of probabilities, the circumstances were not so exceptional as to justify departure from the 'normal' course of refusing leave to remain. n2 Commenting further, however, the adjudicator said he found this to be a 'borderline' case in which he had very considerable sympathy for S. n2 The adjudicator considered, inter alia, the economic harm and the disturbance which resulted to S from coming to this country and finding that his marriage failed, also the position of S's family in India and noted that there was no evidence that it was in poor financial straits. Leave to appeal to the Tribunal was refused by the Tribunal, the notice of refusal stating that in the Tribunal's opinion there was sufficient evidence to support the adjudicator's findings of fact. On an application by S to the Divisional Court it was submitted, inter alia, (1) that, the adjudicator, having found the case to be a 'borderline' one, an obligation was imposed on the Tribunal to grant leave to appeal; (2) that the adjudicator had misdirected himself and that on the fast his decision was wholly unreasonable, and that the Tribunal should on this ground also have granted leave. Held (dismissing the application): (i) the proposition that there was an obligation on the Tribunal to grant leave to appeal because the adjudicator had found the case a 'borderline' one was an impossible one, and to hold otherwise would be a wholly unwarranted interference by the court in the running of these tribunals under the powers given by statute and the rules made thereunder (p 99, post); (ii) the adjudicator had directed himself correctly as to the nature of his discretion under para 26A(e) of HC 239 and had considered the relevant evidence, and his decision was one which, having regard to the terms of the immigration rules, most reasonable men would reach (pp 98 & 100, post); (iii) though a tribunal had power to grant leave even if it did not think an adjudicator's decision was unreasonable or perverse -- on the basis that the decision ought to be considered again having regard to the circumstances -- it did not follow that it must exercise that power or that it had gone wrong in law if it did not do so. Per curiam: There was clearly a carefully detailed and sympathetic consideration of the appellant's case by the adjudicator; and it would seem that it was clear to the Tribunal that, although there was much to be said for S, he had taken the risk of an arranged marriage; it had failed; there was nothing special about the case, and no further appeal was in any way likely to persuade the Tribunal that it was. For the Court's dicta on the Tribunal's notice of refusal of leave to appeal, citing the case of Motahir Ali (Divisional Court, 29.1.81, unreported), (see pp 100-101, post).

Counsel:

A. Padman for the applicant. Andrew Collins for the respondent. PANEL: Ralph Gibson J

Judgment One:

RALPH GIBSON J: This is an application by Jarnail Singh Sandal, presently living in Birmingham. The relief which he seeks from the Court is the quashing of a determination of the Immigration Appeal Tribunal given on 14 October 1980. That Appeal Tribunal refused him leave to appeal against the refusal of an adjudicator to allow his appeal from the decision of the Secretary of State which, putting it shortly, meant that his leave to remain in this country would not be extended. Mr Padman, who was not previously concerned in this case, in a neat and powerful submission invited the Court to start by looking at the determination by the adjudicator and I think that is a convenient place to begin, because it sets out the history of this matter. Mr Sandal, who is a citizen of India and was born in India in 1956, arrived in the United Kingdom on 1 April 1978 with an entry clearance granted in order to enable him to marry a young woman in Birmingham. He was pursuant to the rules, because of that intended marriage, given leave to enter for three months, on condition that he did not enter employment. This was an arranged marriage and no doubt, without entering upon the details of communal arrangements, it is perfectly clear that an arranged marriage, at least with a young woman in this country, may succeed and it may fail. There is no question of this being, within the meaning of the rules and of the decisions, a marriage of convenience. It was a perfectly genuine marriage, but it was an arranged marriage and, as the history reveals, it did not work out. The adjudicator found that the breakdown of the marriage was the fault of the young woman. He sets out in detail the complicated family background of a quarrel. I need not go any further than to note that his finding was that it was not the fault of this applicant. He found that the applicant came here intending to marry his sponsor, that is the young woman, and he never relinquished the intention of living with her permanently if she had been willing to do so. In the event the religious marriage, which should have followed the civil marriage, did not take place and in substance no real marriage occurred thereafter at all. The adjudicator found that it was not a marriage of convenience within para 26A of the Immigration Rules HC 239. If it had been, of course the rule would require that any permission to remain be withdrawn and there is in that rule, on such a finding, no discretion. He then went on to consider and to state the limited discretion available to him under para 26A. He in fact set out the terms of the paragraph and he noted that the purpose of the rule was to indicate how cases, in which permission to remain in this country was granted for the purpose of a genuine marriage, and the marriage thereafter failed to work out as it was hoped it would, should be handled. The sub-paragraph is where "the Secretary of State has reason to believe that one of the parties no longer has any intention of living with the other as his or her spouse". This marriage not only did not effectively start, because of the young woman's attitude, but there is now no question whatever of it having any future. Paragraph 26A(e) therefore applies, and the discretion, which the adjudicator correctly referred to as limited, is to be described in these terms: because of the language of the rule, which says that in such circumstances "an extension of stay or leave to remain will not normally be granted", it is clear that the discretion to permit the applicant to remain depends upon a consideration of all the circumstances. Some of the relevant factors include hardship, whether or not it is the fault of the applicant that the marriage has broken down, the circumstances in which he came to this country in order to contract the marriage, how long the marriage lasted, etc. The adjudicator, having directed himself quite plainly in correct terms as to the existence of the discretion and the nature of it, then considered the evidence which had been put before him. He considered the economic harm and the disturbance which resulted to this applicant from coming to this country and finding that the marriage failed. He considered a number of previous Tribunal decisions, listing them in his own decision: Chauhan, Subash, P. R. Patel and Panesar n3. He considered the position of the family in India. He said that there was no evidence that it was in poor financial straits. He reached a conclusion as to the extent of any financial hardship. He then ended his consideration in the following terms:

"I find this a borderline case, but, although I have very considerable sympathy for the appellant, on a narrow balance of probabilities, I find his circumstances not to be so exceptional as to justify departure from the normal course of refusing leave to remain."

n3 See Secretary of State for the Home Department v Subhash, [1979-80] imm. A.R. 97, TH/44146/79(1676), in which Chauhan's case, TH/31206/78(1449) and Panesar's case, TH/40011/79(1643), were cited. P. R. Patel's case TH/43141/79(1766) is referred to in a footnote on p 102 of Subhash's case. After that decision notice of appeal was given to the Immigration Appeal Tribunal and the appeal form set forward grounds to which I will refer at length, but it also showed that the appellant did not wish to adduce further evidence before the Tribunal and intended to argue his case upon the evidence that had been given. His grounds are set out as follows: "1. The original ground of the Secretary of State's decision namely 'marriage of convenience' was found to be without justification. 2. The findings of fact by the adjudicator were such that he should have allowed the appeal and so followed the decisions in the previous Tribunal cases cited to him." After those grounds of appeal were lodged, it is clear from the document "Determination and Reasons" that Mr Neve, the president of the Tribunal, considered the matter and on 14 October 1980 set out his conclusion in writing. There was no hearing. Under the Immigration Appeals (Procedure) Rules 1972 the Tribunal is entitled to entertain an application for leave to appeal without a hearing, r 16(5). Further under the rules, in order to consider such an application, the Tribunal is entitled to act by one member only, "the president or a chairman acting alone" (r 42). The president, after setting out the formal parts of the grounds of appeal, gave the reasons for refusing leave to appeal as follows: "In the opinion of the Tribunal there was sufficient evidence to support the adjudicator's findings of fact and he does not appear to have misdirected himself in any way as to the law or immigration rules. No arguable point of law is before the Tribunal and in its opinion there are no other circumstances which would merit the granting of leave to appeal. Leave to appeal to the Tribunal is refused." This application, which Mr Padman has supported in his submissions, appears to rely on two main grounds. The first ground, in order to dispose of it, is not the Tribunal did not reject or dismiss the first of the applicant's grounds of appeal, namely that the Secretary of State's decision that there was a marriage of convenience was without justification. That requires a short explanation. The original ground of refusal of leave to remain was the belief on some evidence by the Secretary of State that the marriage was a marriage of convenience. If that had been right, under the rules (HC 239, para 26A) there would have been no discretion for the applicant to remain. n4 n4 The relevant provision in para 26A is set out in footnote 1, ante. When the matter came before the adjudicator the respondent put forward a case based upon sub-para (e), that is to say an alternative case on the basis that if it was not a marriage of convenience, nevertheless the parties no longer intended to live together. The adjudicator permitted that case to be advanced. His decision so to do has not been criticised in this Court and it appears to me, and it is self-evident, that he was right when he permitted that alternative case to be put forward. For my part I do not understand the reference in the grounds of appeal to that matter; still less do I understand the reason for putting it forward to this Court. Mr Padman fid not refer to it or rely upon it in his submission. So that ground disappears. The second ground put forward is that the Tribunal erred when it refused leave to appeal in holding that there was no arguable point of law and no other circumstances which would merit the granting of leave to appeal. There is a reference to the findings of fact by the adjudicator in favour of the applicant, namely that he was free of blame for the breakdown of the marriage etc, and it concludes with the assertion that as a matter of law those findings of that should have been considered by the Tribunal. Mr Padman puts his case in two ways. Firstly he says that, since the adjudicator found the case to be a borderline case, that imposed an obligation upon the Tribunal to grant leave to appeal. Mr Padman did not pursue the matter with any enthusiasm. In my judgment the proposition is impossible. In some cases it may be perfectly clear that, although such cases are on the borderline (in other words the applicant may have substantial merit, that he has told his case truthfully, that there is much to be said on his side, etc), nevertheless the appellant must fail in the proper exercise of the discretion entrusted to that Tribunal. For this Court to say in every case where an adjudicator finds that there is much to be said on both sides, or that it is a borderline case, that the Tribunal must grant leave to appeal would be wholly unwarranted interference in the running of these Tribunals under the rules as made by statute and the powers given by statute. I reject that first submission. The next matter is put forward in this way. It is said that the facts, as they appear and as they were found, were such that the adjudicator, if he directed himself correctly in law and with reference to the immigration rules, could not as a reasonable man have reached any other conclusion than that the appeal should be allowed, so that the applicant be permitted to remain in this country. It is perfectly clear to me that if that submission were made out, it would be a point of law, which should have been obvious to the Appeal Tribunal and he should have been granted leave to appeal in order that the matter could be considered. As I have indicated in the course of argument however, it seems to me quite impossible for this Court to say that Mr Gilbert, the adjudicator, reached a decision which no reasonable man or adjudicator, directing himself properly, could have reached. In my view this is not a case in which it can be said that it is a strange or a peculiar decision, but that it does not quite reach that degree of unreasonableness. I wish to make it perfectly plain that in my opinion it was a decision which not only any reasonable man would reach, but, having regard to the terms of the immigration rules one which most reasonable men would reach. I do not wish to dwell much on this, but I must express my view about it because of the submissions that have been made. The rule permitting those in charge of immigration to admit to this country people to live here because of marriage is designed to permit someone to arrive and stay in order that the freedom of people to marry should operate. In the judgement of those who make the law, that permission should not normally continue if the purpose and reason for which it was given has failed. This arranged marriage failed almost at once and it seems to be fairly described as a normal case. Of course there is some hardship in it. There always is when a person is disappointed in his hopes and then is disappointed in his desire to remain in one country or another when he has no permission to remain there. I am quite unable to say that the decision of Mr Gilbert is capable of criticism according to the law which it was his duty to apply. One matter and one matter alone has concerned me in this case and I invited Mr Padman to deal with it. It is this. As is apparent from the judgment of Glidewell J in Ex parte Motahir Ali, given on 29 January 1981, when the Tribunal considers an application for leave to appeal it must grant leave if there is a point of law and in some other instances which are relevant. It would certainly be a point of law if there appeared to be no material in fact upon which the adjudicator could have reached the conclusion which he expressed. But Glidewell J makes it plain, and I respectfully agree with his judgment, that that is not the limit of the Tribunal's power. The Tribunal may, even if it does not think that the adjudicator was unreasonable or perverse, and even though it does not think there was no evidence to support his decision, grant leave to appeal on the basis that it was a decision which ought to be considered again, having regard to the circumstances: perhaps because the weight of the evidence one way is very great, and that other minds thinking about it might reach a different conclusion. n5 n5 R v Immigration Appeal Tribunal, ex p Motahir Ali 29.1.81 (TH/47375/79 sub nom Sorobun Nessa & ors), unreported. That undoubtedly, as it seems to me, is one of the powers which the Appellate Tribunal has. Because it has the power, it does not mean that it has to exercise it, nor does it mean it has gone wrong in law if it does not. What has been my concern, as I think it was of Glidewell J, is that the disposal of this application for leave to appeal appears perhaps to fall into a form of language which has become standard and which might suggest that consideration has not been given to the nature of the particular case. The language "In the opinion of the Tribunal there was sufficient evidence to support the adjudicator's findings of fact and he does not appear to have misdirected himself in any way as to the law or immigration rules" is a convenient rubric or phrase to show that the Tribunal has considered the matters which it plainly must consider. It concerned me whether it might reasonably be suggested that the use of such language, particularly in a case of this nature, indicated that the Tribunal had not gone on to consider whether it was a case in which they should exericse their discretion to permit the matter to be heard. n6 n6 Since Glidewell J's decision in Motahir Ali's case (29.1.81), when a pro forma notice of refusal has appeared appropriate the Tribunal has inserted, between commas, the words "which were not unreasonable" after the words "findings of fact", the additional words being designed to make it clearer that the facts of the particular case have received the Tribunal's due consideration. However, I have heard Mr Collins on the matter and I think his submissions are right. Any tribunal that has to deal with a large number of applications has got to find convenient language to deal with the matters which it must consider, and for this reason it goes on to say "there are no other circumstances which would merit the granting of leave to appeal". There was, it is perfectly clear, a carefully detailed and sympathetic consideration by the adjudicator. The Tribunal had his determination in front of it and must have read it. It seems to me quite impossible to suppose that the Tribunal was not aware that it could have granted leave for the matter to be re-argued if it thought that it was an appropriate case in which to grant that leave. It seems to me that it was clear to the Tribunal that, although there was much to be said for Mr Sandal, he had taken the risk of an arranged marriage; it had failed; there was nothing special about the case, and that no further appeal was in any way likely to persuade the Tribunal that it was. For all those reasons it is clear to me that there is no ground upon which this Court can interfere. If members of the family are listening, I would emphasise that there is no appeal to this Court. I have no discretion. My task is to see whether this Tribunal has followed the law. It appears to me that this application must be dismissed.

DISPOSITION:

Order accordingly, with costs limited to @250 payable by the applicant.

SOLICITORS:

Haynes Duffell Arnold & Co, Birmingham; Treasury Solicitor.