R v. Immigration Appeal Tribunal, Ex parte Chaudhry

R v Immigration Appeal Tribunal ex parte Chaudhry

Queen's Bench Division

[1983] Imm AR 208

Hearing Date: 20 December 1983

20 December 1983

Index Terms:

Marriage -- Applicant given limited leave of entry for -- Granted extension of stay for twelve months from date of marriage -- Applicant visited and returned from Pakistan during this twelve months of permitted stay -- On his return the immigration officer refused him entry as he was not satisfied applicant and wife intended to live together permanently -- Whether applicant should be treated as a new arrival or as having existing leave of entry -- Extent to which existence of right of appeal within the United Kingdom should be considered -- HC 169 para 58.

Held:

The applicant, a citizen of Pakistan, arrived with an entry certificate for marriage on 12 August 1982 and was married on 29 October 1982. His temporary leave to stay was extended until 29 October 1983. He went to Pakistan shortly before his mother's death, in September 1983, in order to be with her, and returned to the United Kingdom on 26 October 1983. Meanwhile the Home Office had received information from his wife that the marriage was really one of convenience, and in consequence he and his wife were interviewed. For the reasons which he set out in his affidavit the immigration officer was not satisfied that the parties to the marriage intended living together permanently, and refused the applicant entry. The present matter arose from an application for judicial review of that decision. Held: (i) The immigration officer had gone about the matter in a proper manner. (ii) It could not be said that, on the facts before him, the immigration officer could not reasonably have come to the decision he did.

Cases referred to in the Judgment:

R v The Secretary of State for the Home Department, ex parte Ramnial. Unreported, dated 22 September 1982. DC.

Counsel:

N Blake for the applicant; A Collins for the respondent. PANEL: Woolf J

Judgment One:

WOOLF J: This is an application for judicial review. It has come on as a matter of urgency and it is right I should make that clear, because the applicant has not had all the time that he would normally have had to file evidence in reply because it has come on so quickly. The reason for that is that the applicant was seeking bail and it seemed to me that this was not one of those cases where bail would be appropriate and the way to achieve a satisfactory solution was to have the matter brought on quickly and in that way determined once and for all. If the applicant was right in the submissions he made he would then not need to obtain an order for bail. The decision which is under challenge is a decision of an immigration officer which was made on 27 October 1983, who refused the applicant leave to enter the United Kingdom in the following terms:

"You have asked for leave to enter the United Kingdom as the husband of Mohd Jan Chaudhry, but I am not satisfied that you or your wife have the intention of living permanently together."

There is an affidavit of the immigration officer, Mr Loxton, which explains those reasons. The background facts of the matter can be shortly stated as follows. The applicant first came to this country from Pakistan on 22 August 1982. Both he and his wife are Pakistani. At that time he had already got entry clearance to come to this country for the purpose of marriage. He in fact married his wife in this country on 29 October 1982. Apparently, he had known the wife's family for a long time. He said that he had met his wife while she was holidaying in Pakistan five or six years previously and they had been engaged for three years. He says that after he came to the United Kingdom and after their marriage, they moved to his wife's house and he found employment, but unfortunately he did not keep that employment and was declared redundant. There have been no children of the marriage, but in the case of their marriage, for people of the applicant and his wife's background there is the unusual feature that the wife (who had never previously been married) had a two year old daughter by a previous relationship with another man who is described in the papers as Charley. On 4 February 1983, the applicant received an extension of his leave until 29 October 1983, which is 12 months from the date of the marriage. They in fact lived apart, or so it appears on the evidence which is before me, from about March 1983. In September 1983, the applicant's mother died. He had gone back to Pakistan shortly before that because of her state of health, but he returned to this country within the period of his leave on 26 October and it was his returning on that occasion that caused the immigration officer the following day to give the decision to which I have referred. The immigration authorities had received information suggesting that this really was a marriage of convenience. The applicant's wife had written to the Home Office in March 1983, saying that the marriage had broken down and there was no chance of reconciliation. In October 1983 she telephoned the Home Office to ask when her husband would be sent back to Pakistan and she said that the marriage was one of convenience and that she and her husband did not live together. However, as I have indicated, I am assuming that in fact they did so far after the marriage until March 1983. When the husband returned the wife was contacted by telephone and she then said that a reconciliation had been effected. She said her mother-in-law had been the cause of problems between herself and her husband, but she had died and therefore there was no reason now why they should not be reconciled. When the husband was interviewed by the immigration officer, a full history was extracted. He gave an account of matters, however, which was not entirely accurate. During the course of the interviews, a person describing himself as a friend of Mrs Chaudhry's brother telephoned the immigration officer and said that the applicant's brother had paid Mrs Chaudhry to marry the applicant, that before that she had been living with this man Charley (who is a white man) and after the wife and the applicant had married they only co-habited together for a couple of weeks for the sake of appearance. It was suggested by the telephone caller that the applicant's wife was again being paid to say that a reconciliation had been arranged. The applicant's wife was then interviewed and she gave her account. She said that she had in fact known the applicant for a considerable period of time. She said that when the applicant arrived in the United Kingdom she had not been called for interview. She said that they lived together until March 1983, when they quarrelled after the marriage and the reason for that was the suggestion that the mother should come from Pakistan to live with them. She expressed the hope to the immigration officer that there should be a reconciliation. She was asked about who had lived with her previously and she mentioned a female colleague, but she felt that whether anyone else had shared the house was none of the immigration officer's business. The applicant was then interviewed at some length and certain discrepancies were put to him. He then agreed that he had lied about their separation earlier for fear that the truth might affect his status in this country. He said that he wished to remain in the United Kingdom and he was prepared to be reconciled with his wife if she was no longer seeing her child's father. The immigration officer checked the voters lists and obtained certain information which he has set out in his affidavit. He then says he reviewed the case. He reviewed the basis upon which the wife and the husband had originally been able to marry in this country, the fact that the marriage took place, the circumstances in which the applicant had left to attend thefuneral, the telephone call that had been received in October 1983, from the wife and other information which was put before him. He says that the further evidence led him to the conclusion that the marriage in fact broke down very shortly after it was celebrated and the parties had not lived together again until the applicant had left for Pakistan. He said that neither party in the course of the interviews had been frank as to the cause and duration of the separation, but he came to the conclusion that he could not be satisfied that the applicant and his wife intended to live together permanently. He says that he considered the applicant fell to be dealt with pursuant to paragraph 58 of HC 169 which required him to take into account all the relevant circumstances. He goes on to say:

"I considered the circumstances relevant to my decision to be those set out above. Having come to the clear conclusion that I could not be satisfied that the applicant and his wife intended to live together permanently, and acting with the authority of the Chief Immigration Officer, the applicant was refused entry."

The affidavit then goes on to deal with certain information which was received as a result of the police calling at the wife's address. That information confirmed that Mrs Chaudhry in fact was living with this other man. According to the information available to the immigration officer the police had reported that the applicant was to be paid off by the brothers, that she hated the sight of the applicant, that she planned to divorce him, but she was concerned about the pressure from her family who wished him to remain here. Mrs Chaudhry subsequently confirmed these details, but she asked that the applicant should be admitted for five to seven days so that the paying-off arrangements could be completed. I emphasise that that last information is very much in dispute in this matter and if the applicant's wife had decided to file an affidavit she would have challenged that account. It is only of limited importance because it came into existence after the decision had been made and, speaking for myself, I do not regard it in the circumstances as material which I will or should take into account in considering this application. I propose to consider the issues on the basis of the information which was available to the immigration officer at the time that he took his decision. There can be no doubt, in my view, that the immigration officer was right in approaching the matter as one he had to consider under HC 169, rule 58. That requires the immigration officer to deal with the matter in this way:

"A passenger whose stay in the United Kingdom was subject to a time limit and who returns after a temporary absence abroad has no claim to admission as a returning resident. His application to re-enter should be dealt with in the light of all the relevant circumstances. The same time limit and any conditions attached may be re-imposed or it may be more appropriate to treat him as a new arrival."

Mr Blake accepts that rule 58 is the applicable rule, but he says that in the circumstances which exist here certainly it would be quite wrong to treat the applicant as a new arrival; it would be much more appropriate to treat him as a person who should be regarded as having an existing leave and he should have been allowed to enter on that basis for a further limited period. If the immigration officer had doubts about the matter, then the period could be short. The purpose would be two-fold. First of all, the genuineness or otherwise of the husband's atittude could then be tested by the facts that would emerge over the lapse of time and, secondly, because if that course was taken (and this was a matter that Mr Blake particularly relies upon) there would be a right of appeal in this country, whereas if the applicant is not allowed into this country he loses his right of appeal. Mr Blake says with some force, particularly on the background of this case, that being someone who was originally allowed entry into this country with entry clerance, he was the sort of person who would be entitled in the normal way, if he had not left the country, to a right of appeal, and it is hard that he should be in a worse position because he leaves, particularly (as in this case) when the reason for his leaving is one which could be due to compassionate reasons, namely, the severe illness of his mother followed by her death. I recognise the strength of those submissions, but it seems to me it is important in relation to an application of this sort to bear in mind the following -- First of all, a distinction must be drawn between the matters that the immigration officer is required to consider as a matter of law so that he will be contravening his legal duty if he does not consider them, and those matters which are ones which he may consider if he wishes to do so and which it cannot be said he is contravening the law if he does not consider. Secondly, that quite apart from his obligation in law to consider those matters which the law requires him to consider, there is an obligation for him to come to a decision which is reasonable in all the circumstances. If the decision is one which is such that no reasonable immigration officer could come to it, no matter how much consideration he may have given to that decision, this court will interfere. The second type of situation is the sort of situation which McNeill J considered in the case of R v The Secretary of State for the Home Department, Ex parte Nimewonty Anita Ramnial. That case is unreported, but I have a transcript. It was given on 22 September 1982. McNeill J interfered with a decision of an immigration officer in somewhat similar circumstances to those in this case. On the facts then before him the learned Judge was rightly taking the view that where the issue may be in the end whether or not a marriage was consumated or was a sham, great care should be taken. He thought that the decision should have involved further investigation, because he was not satisfied that proper investigation had taken place. He said it was a very unusual case and he felt the matter should be quashed so that the authorities would have a proper opportunity to investigate the matter. He referred to the fact that the basis of the refusal was that the applicant's entry would not be in the interests of the public good and rightly indicated that that was a further indication that the decision which the immigration officer reached should only have been reached with a considerable degree of caution. On the facts that were before this immigration officer, it is my view that nobody could say that he could not reasonably have come to the conclusion which he did. The question therefore is one which has to be considered under the first of the approaches that I indicated, that is to say: Did the immigration officer go about the matter in a proper manner? I have no doubt at all that the immigration officer conducted satisfactory invstigations. He investigated the matter very thoroughly indeed. Furthermore, I have come to the conclusion that he did not fail to consider the material considerations. If this was a case where this man had married abroad and come to this country as the husband of a woman who is settled in the United Kingdom then his right to come in would be dealt with under rule 54 of the same rules. That requires the immigration officer to be satisfied that each part of the party had the intention of living permanently with the other as his or her spouse. I mention that, because that is a specific matter to which the immigration officer had referred. It was contended on behalf of the applicant that the more satisfactory way of dealing with the applicant's case was to treat him as somebody who was already admitted in a temporary capacity and was seeking in the circumstances to have his right to stay in this country prolonged. He would then have been considered under rules 125 and 126 of HC 66 of 1982. It is important to bear in mind that rule 126 provides inter alia: "Where a man admitted in a temporary capacity marries a woman settled here, an extension of stay or leave to remain will not be granted, nor will any time limit on stay be removed, unless the Secretary of State is satisfied: . . . (f) that each of the parties has the intention of living permanently with the other as his or her spouse." A very similar provision is contained in HC 169 rule 54. Mr Blake stresses that if the matter was considered under rules 125 and 126 then the person who would have to be satisfied of those matters would be the Secretary of State and he would carry out a wholly different form of investigation than that which would be carried out by the immigration officer. Furthermore, if the matter had been dealt with by entry clearance, the investigation would be carried out by the entry clearance officer. On the facts of this case he submits that to approach the matter in the way the immigration officer approached it as being a case of somebody seeking to come to this country has led to injustice. I am afraid I do not agree. So far as people seeking entry to this country who are not settled here are concerned, the situation is that while burdens are placed upon the immigration officer, he must face up to problems and tackle them to the best of his ability. Although he may have regard to the fact that if he took a particular course it would result in the applicant having a right of appeal, as Mr Blake indicates, this is something which, while he may have regard to, he is not required as a matter of law to have regard to. It really is putting far too heavy a burden on the immigration officer to say that if he does not consider the situations in which the right to appeal in this country could arise that he is not performing his duty as the law requires. It is my view that whereas the immigration officer no doubt could have taken into account certain matters which he did not take into account, I cannot say on the material before me that he did not consider and have regard to the circumstances he was required to have regard to as a matter of law. I therefore dismiss the application.

DISPOSITION:

Application refused.

SOLICITORS:

Messrs Bowling; Treasury Solicitor.

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.