R v. Immigration Appeal Tribunal, Ex parte Ghazi Zubalir Alikhan

R v IMMIGRATION APPEAL TRIBUNAL Ex parte GHAZI ZUBALIR ALI KHAN TH/84276/81

Queen's Bench Division

[1983] Imm AR 32

Hearing Date: 18 May 1983

18 May 1983

Index Terms:

Deportation -- Marriage -- Visitor -- Granted leave to stay for one year following marriage and then indefinite leave -- Whether deportation order could be issued in the case of a person who gained entry by deception but behaved respectably and properly afterwards -- Whether the deception material to the decision to permit entry -- Matters required to establish marriage of convenience -- Immigration Act 1971 s 3(5)(b) -- HC 394 paras 139, 141 and 144.

Held:

The applicant, a citizen of Pakistan, was admitted on 30 April 1978 as a visitor for one month although the immigration authorities had knowledge that he had concealed a material fact. Shortly after entry he married and applied for removal of conditions on that ground: he was granted leave to remain until 31 May 1979, and on 12 July 1979 indefinite leave of stay. Following two letters from his wife to the Home Office concerning his treatment of her, and a further interview by an immigration officer, the Secretary of State served notice on the applicant that he considered it conducive to the public good to deport him. He appealed and in their determination of 5 August 1982 the Immigration Appeal Tribunal stated that the applicant's wife might well bear some of the responsibility for the break-up of the marriage. However, the Tribunal went on to say that they were satisfied that the applicant had in turn concealed matters from, and lied to, the immigration authorities when admitted, and when questioned on his marriage. Also they were satisfied that his intention upon arrival was to remain in the United Kingdom permanently, and that his marriage was entered into for that purpose. The appeal was dismissed. Held: (i) The matters which were concealed and the subject of lies at the time of entry could not found the power to issue a deportation order under s 3(5)(b) of the Immigration Act 1971: although deceptions after entry could justify proceedings under s 3(5)(b). (ii) The matter of complaint, on which the notice of intention to deport was based, was the allegation of a "marriage of convenience". The two matters required to establish such a marriage were that it had been entered into for the purpose of obtaining the right to remain in the United Kingdom and, secondly, that there had been no intention to live permanently together as man and wife. The Immigration Appeal Tribunal had not made any finding as to whether or not the applicant had any intention or conversely, no intention, to live permanently with his wife. Per curiam: The power given to the Secretary of State to deem deportation to be conducive to the public good appeared to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground.

Cases referred to in the Judgment:

Khawaja (and Khera) v Secretary of State for the Home Department [1983] 1 All ER 765, [1983] 2 WLR 321, [1982, Appendix] Imm AR 139, HL. R v Secretary of State for the Home Department, ex parte Jayakody [1982] 1 All ER 461, [1982] 1 WLR 405, [1981] Imm AR 205, CA. R Immigration Appeal Tribunal, ex parte Khan (Mahmud) [1983] 2 All ER 420, [1983] 2 WLR 759, [1982, Appendix] Imm AR 134, CA.

Counsel:

D Pannick for the applicant; D Latham for the respondent. PANEL: Stephen Brown J

Judgment One:

STEPHEN BROWN J. This is an application for judicial review by Mr Ghazi Zubair Ali Khan who seeks an order of certiorari to quash the decision of the Immigration Appeal Tribunal of 5 August 1982. The Tribunal then dismissed the Applicant's appeal against a deportation order made by the Secretary of State on 14 August 1981, which ordered that "Having regard to the circumstances of your marriage to Shameemara Rehman on 31 May 1978, the Secretary of State considers that it is conducive to the public good to deport you." The relevant history of the matter is this. Mr Ali Khan, the applicant, is a citizen of Pakistan. He arrived at Heathrow airport on 30 April 1978, from Pakistan in possession of an entry clearance certificate permitting him to enter as a visitor. He told the immigration officer who interviewed him that he had come to visit his brother in the United Kingdom, that he would stay for a maximum of one month and that he had no intention whatsoever of living or working in the United Kingdom as he could earn far more money working in Dubai. In fact he had been working in Dubai and documents in his baggage included a reference from a shipping company. It was discovered that, although the applicant had not told the immigration authorities, he had in fact left that employment because the company was closed. That fact emerged from an examination of the documents in his baggage. It was regarded as a material fact which he had concealed from the entry clearance officer. However, he was admitted after some hesitation on the part of the immigration authorities, but with the knowledge that that material fact had been concealed. It appears that in point of fact, he had applied for a further work permit in Dubai, but that was pending. The version that he gave to the immigration authorities on his arrival was that he intended to go back after his visit to Dubai where he had previously worked and where he could earn a good deal of money. However, shortly after his arrival in the United Kingdom on 30 April 1978, on 1 June 1978, he wrote to the Home Office applying for the removal of the conditions limiting his right to remain in the United Kingdom on the grounds of his marriage to a Miss Rehman. He enclosed the marriage certificate. He had married very shortly after his entry into the United Kingdom. He duly went through a religious ceremony on 16 July 1978. He was granted leave to remain until 31 May 1979, on the grounds of his marriage. That had regard to the provisions which provide that if a marriage takes place within 12 months of arrival in the United Kingdom, the 12 month period may be granted. On 12 May 1979, he applied for indefinite leave to remain on the grounds of his marriage and following this both he and his wife were interviewed. They told the interviewing officer that their parents had always intended that they should marry and that in fact they had met in Pakistan four years previously. It appears that the marriage appeared to the interviewing officer to be a stable one and also that they were living together. Accordingly, the applicant was granted indefinite leave to remain in this country on 12 July 1979. On 20 July 1980, the applicant's wife wrote to the Home Office alleging that the applicant had married her solely to enable him to remain in the United Kingdom; secondly, that the marriage had been arranged after the applicant's brother had registered his name at a marriage bureau in Southhall; thirdly, that she had not met the applicant before 14 May 1978, when he visited her; fourthly, that after one week of marriage the applicant had said he did not like her and changed his mind when she told him she would leave him; Fifthly, she claimed that he had threatened her, telling her that she must make a good impression with the Home Office representative who interviewed them. She also complained that he frequently left her alone and in October 1979, had gone to live in London with his brother, but after certain arguments and fights he had returned to her at the end of February 1980. Since then he had beaten her and had refused to let her go out or to meet people. She also alleged that as a result of physical ill-treatment she had had to seek medical treatment. She said that he told her he was going to divorce her and was seeing another woman. All those matters were alleged by the wife and accordingly the Home Office ordered certain enquiries. After a further letter from his wife in January, 1981, claiming that they had only lived together for three months, the applicant was interviewed by an immigration officer. At that interview he admitted that he had produced a letter to the entry clearance officer in order to obtain an entry clearance which misrepresented his true position, but he still maintained he had only intended to remain for one month when he actually arrived in the country. He denied saying to the immigration officer that he had savings of 60,000 rupees in Pakistan. He admitted that he in fact had very little savings. He admitted he had met his wife through the marriage bureau and that he had said previously that he had known his wife for four years, but would not give any explanation for having made that statement. He agreed that he had registered with the marriage bureau within a week of his arrival after deciding that he wished to remain in the country indefinitely and to seek employment. He agreed that he knew that marriage to a resident of the United Kingdom was a means of being able to remain in this country. He claimed that although he had married as a matter of convenience, he had later fallen in love with his wife. The matters which I have briefly related led the Secretary of State, after due consideration, to make the deportation order in the terms which I have already stated, that is to say:

"Having regard to the circumstances of your marriage to Shameemara Rehman on 31 May 1978, the Secretary of State considers that it is conducive to the public good to deport you."

At the hearing before the Tribunal the applicant gave evidence. In succinct findings in the course of their determination the president of the Tribunal said: "We have considered these submissions and the evidence before us. We did not find the appellant to be a very credible witness and we do not believe him when he denies having made the statements attributed to him in the Home Office statement. It may well be that the breakup of his marriage was not entirely due to his conduct and that his wife may well bear some responsibility for this. However we are satisfied that he concealed matters from the entry clearance officer, that he lied to the immigration officers on arrival, and that he subsequently lied to immigration officers who interviewed him as to his marriage. We are satisfied likewise that he registered with a marriage bureau within a week or so of his arrival in this country and that his intention upon arrival was to remain in this country permanently. We have no doubt that his marriage was entered into for this purpose. "Persons who attempt to make a mockery of the immigration regulations should not be surprised if the Secretary of State considers it conducive to the public good that they should be removed from this country; and it is not disputed that the Secretary of State had power under Section 3(5)(b) to make the decision now appealed against. We consider that he was justified in coming to the conclusion that the need to maintain an effective immigration control made it conducive to the public good to deport the appellant and that this need was not outweighed by such compassionate circumstances as there were in this case." The appeal was then dismissed. Mr Pannick, who appears for the applicant, has made two main submissions. Firstly, he submits that following opinions expressed by their Lordships in the appeal of R v Home Secretary, Ex parte Khawaja (HL (E)) [1983] 2 WLR 321, it is not open to the Secretary of State to issue a deportation order on the ground that it is considered conducive to the public good to deport a person unders Section 3(5)(b) of the Immigration Act, 1971, and that matters which may have been concealed and lies told upon entry cannot provide the necessary basis for a deportation order to be issued on that particular ground. That is the principle ground of appeal in this case. The foundation for this argument rests upon a passage in the speech of Lord Bridge of Harwich which is to be found at page 348 H of the report of the decision in Khawaja. Lord Bridge said this: "Mr Blom-Cooper, QC, for the appellant Khera, challenges this principle. He submits that the only resident non-patrial who can be removed summarily as an illegal entrant is one who, having entered clandestinely, has never passed through immigration control and has thus succeeded in entering without the grant of any leave whatever. When leave to enter has been obtained by fraud, that leave, he contends, is not void but voidable.

"If it is desired to expel one who has obtained leave to enter by fraud, this, says Mr Blom-Cooper, can be achieved in one of two ways, viz: (i) by securing a conviction coupled with a recommendation for deportation under section 26(1)(c) by which a person is guilty of an offence punishable with a fine or imprisonment if 'he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true'; or (ii) by deportation under section 3(5)(b) on the ground that the Secretary of State deems his deportation to be conducive to the public good. Both these procedures, Mr Blom-Cooper points out, incorporate suitable safeguards for the person alleged to have entered by fraud."

He then went on to refer to the appeal provisions in such cases. At page 349 E Lord Bridge continued:

"I see great force in the contention that the illegal entrant proposed to be removed by the summary procedure requires the protection of some effective judicial process before removal. But I shall return to this when considering the second main question raised by these appeals to which, in my view, it is primarily relevant. I do not find it persuasive in considering who is an illegal entrant. On the contrary, if the only procedure available to secure the expulsion of a non-patrial who has obtained leave to enter by fraud are those suggested by Mr Blom-Cooper, it seems to me that there is a startling lacuna in the Act. A conviction under section 26(1)(c) would not necessarily lead to a recommendation for deportation; moreover, being a summary offence, it must normally be prosecuted within six months of commission, though, exceptionally, this time limit may be extended to a maximum of three years: section 28. Those who have obtained leave to enter by fraud are frequently not exposed until after three years from their arrival. On the other hand, the power given to the Secretary of State to deem deportation to be conducive to the public good seems to me to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground. The examples given in section 15(3) -- 'that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature' -- although clearly not exhaustive, nevertheless illustrate the kind of objection contemplated. I cannot suppose that this power was ever intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry. On the other hand, no one has suggested in argument that a non-patrial who has obtained leave to enter by fraud should not be liable to expulsion when the fraud is exposed, nor doubted that one would expect the Act to provide for such a case. That provision, I conclude, has to be found, if anywhere, in the statutory machinery for the removal of an illegal entrant."

That passage received approval from Lord Fraser of Tullybelton at page 330C to D of the report; Lord Scarman at page 340A to B and Lord Templeman at page 357H. On that foundation Mr Pannick submits that the procedure of issuing a deportation order under Section 3(5)(b) is inappropriate and wrong in the case of a person who has gained entry by deception, but who has since lived a respectable and proper life in the community. So Mr Pannick's submission is that the deportation order was issued under the wrong procedure. It would have been, and may still be, open to the Secretary of State if he thinks it proper to seek to proceed under Section 33(1) which provides for illegal immigrants. On the findings of the tribunal it may well be that if the Home Secretary were to be satisfied that those matters were properly established, the ground for viewing this applicant as an illegal immigrant would exist. But that is not the procedure which the Secretary of State has adopted in the present instance. Mr Pannick submits that the fact that the applicant on the findings of the Tribunal, which have to be accepted for the purposes of this appeal, did lie and make deceptions in order to gain the initial entry, cannot at this stage support or give rise to a deportation order under this particular provision. These matters may be relevant in considering whether or not he is an illegal immigrant. This is the first principle submission. It is right that I should say at this stage that of course the decision of the House of Lords in Khawaja was substantially subsequent to the proceedings before the Appeal Tribunal in this case. It would appear that there was no issue about the question as to whether Section 3(5)(b) was apt to give the Secretary of State power to issue a deportation order during the hearing of that appeal. However, the point is open to Mr Pannick to take now as a matter of law and of course he has made those submissions. His second limb is that in any event if he were wrong about that, the deceptions and lies were not material to the decision to permit entry. In relation to two of the lies or deceptions, he claims that the entry was permitted when the immigration officers had discovered the fact that deceptions were made. Firstly, he says, the fact that the applicant did not disclose to the entry clearance officer that he had in fact had his employment terminated because the employers' company had closed down in Dubai was discovered by the immigration officers before permitting him to enter as a visitor. Secondly, in relation to the matter about his savings of 60,000 repuees in Pakistan, although that was not in fact discovered, Mr Pannick submits, it was not a matter which was regarded, so it would appear from the Home Office statement, as being a matter of materiality. It appears that the immigration officer noted at the time of entry that no evidence was produced to support that claim. So far as the point about materiality is concerned, Mr Pannick relies upon the case of R v Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 WLR 405. In particular he relies upon the acceptances by Dunn LJ and Fox LJ at page 409B of the report of the formulation of the principle by Mr Simon Brown for the Secretary of State. Mr Pannick concedes that so far as deceptions after entry are concerned, Section 3(5)(b) may provide a proper ground for the Secretary of State to issue a deportation order. It is to be noted that this deportation order was framed in these terms: "Having regard to the circumstances of your marriage to Shameemara Rehman on 31 May 1978, the Secretary of State considers that it is conducive to the public good to deport you." The two particular branches of deception after entry appear to be, firstly, the fact that the applicant lied to immigration officers who interviewed him as to his marriage (that is to say, in particular stating that he had known his wife for four years beforehand, having met her in Pakistan) and, secondly, the deception that he had entered into the marriage for the purpose of remaining in the country. Mr Pannick submits that taken together those matters can only be relevant to an allegation that this was a marriage of convenience. Although the deportation order was not framed in accordance with the ordinary format employed where a "marriage of convenience" is alleged under paragraph 26A of the rules, nonetheless the deportation order was stated to be based upon "the circumstances of your marriage to Shameemara Rehman on 31 May 1978". So far as that is concerned, Mr Pannick submits that the tribunal did not in fact find that it was a marriage of convenience. Whilst they found and expressed the view that: "We are satisfied that he registered with a marriage bureau within a week or so of his arrival in this country and that his intention upon arrival was to remain in this country permanently. We have no doubt that his marriage was entered into for this purpose", they did not go on to make any finding as to whether he had had any intention or lack of intention to live with his wife. Having regard to the decision of the Court of Appeal in R v Immigration Appeal Tribunal, Ex parte Khan (Mahmud) [1983] 2 WLR 759, it is not a marriage of convenience within the requirements of the law. That was a case in which the Court of Appeal held and made plain that there were two matters which had to be established in order to prove a marriage of convenience, that is to say, the marriage had been entered into for the purpose of obtaining the right to remain in the country and, secondly, that there should have been no intention to live permanently together as man and wife. It is quite clear from the judgment of the Lord Chief Justice that both those matters have to be established. In that case the second limb had not been established and the Court of Appeal held that that was an error of law and remitted the matter to the Appeal Tribunal so that they might consider the matter. In this case, Mr Pannick points out that the tribunal did not make any finding as to whether or not the applicant had any intention or, conversely, no intention to live permanently with his wife. Indeed, referring to their decision at page 41 of the bundle, the president of the tribunal said:

"It may well be that the breakup of his marriage was not entirely due to his conduct and that his wife may well bear some responsibility for this."

Mr Latham, for the tribunal, concedes that in point of fact they made no finding that he had no intention to live with his wife as man and wife permanently. Mr Latham frankly and fairly concedes that that was not the basis upon which the tribunal made their finding. As a result Mr Pannick submits, firstly, that in so far as the tribunal purported to make their decision upon the basis of a deception to obtain entry having regard to the decision of the House of Lords in Khawaja and I should say more particularly having regard to the opinions of Lord Bridge and the other three Lords of Appeal relating to the question of the applicability of Section 3(5)(b), it is not a matter which can properly give rise to the making of a deportation order under that section. It is right that I should say that the case of Khawaja was concerned specifically with an illegal entrant and that the opinions of Lord Bridge and the other Lords of Appeal relate to a matter which was not specifically before the House for decision. However, it is urged upon me that it is a very powerful dictum indeed and is something that this court would have to have regard to. I accept that submission and upon the basis of Lord Bridge's dictum to which I have referred I feel bound to hold that the matters which were concealed and which were the subject of lies at the time of entry, cannot found the power to issue a deportation order under this particular provision of the Immigration Act, Section 3(5)(b). So far as deceptions after entry are concerned, I am satisfied that they can in law justify proceeding under Section 3(5)(b). However, I am satisfied that when analysed the matter of complaint comes down to an allegation of a "marriage of convenience". Although the phrase is not used as a term of art, in my judgment the wording of the deportation order, ("having regard to the circumstances of your marriage to Shameemara Rehman on 31 May 1978, the Secretary of State considers that it is conducive to the public good to deport you") can have no other meaning. In my judgment it is not open to the Secretary of State to issue a deportation order because a man may have entered into a marriage simply with improper motives. It would be very strange indeed if, when the "marriage of convenience" is considered as a ground for making a deportation order and one of the limbs stated to be necessary as an ingredient of that matter is not present, the finding should be held to be valid. It would be very strange indeed if the second branch of the "marriage of convenience" did not have to be established at all and that really is what the statements of the Tribunal in this case amount to. Mr Latham has argued with great ability, but under some difficulty as I perceive it, the case for saying that if a man enters the country as a visitor and decieves the immigration officer, because all the time he is intending if he can to find a wife who will enable him to remain, and if that is revealed subsequently it would give grounds for a deportation order under Section 3(5)(b). I find that very difficult to accept on the present state of the law. It is quite plain to me that in point of fact the Tribunal (and indeed, no doubt, the Secretary of State) had consideredd the facts of this particular case before the House of Lords had suggested that Section 3(5)(b) should be reserved as a procedure for deporting persons whose presence for some immediate reason is deemed to be not conducive to the public good. Until this decision and until Lord Bridge's opinion was given it would appear that deception on entry was treated as giving rise to deportation orders upon this ground. In my judgment it is not in fact open to the Secretary of State, having regard to the state of the law as it has now been defined. Accordingly, I have to find that in this case there was no ground for making a deportation order under Section 3(5)(b). that means that the decision of the Immigration Appeal Tribunal cannot stand and I must allow the appeal and order certiorari to go to quash their decision. This is not a case in which I can properly refer this matter back to the Appeal Tribunal. They have not made findings or stated such findings as they have made, in terms which would enable a lacuna to be remedied if they considered it proper so to do. I have had to find that they proceeded upon a wrong view of the law. That is not to blame them, because it was before the House of Lords had decided the case of Khawaja. Whether or not the Secretary of State proceeds further on the basis of illegal entry is not a matter which I should express any view about. No doubt it is a matter which he will have to consider.

DISPOSITION:

Appeal allowed accordingly

SOLICITORS:

Daniel P Debidin & Co; Treasury Solicitor.

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