R v. Immigration Appeal Tribunal, Ex parte Mahendra Singh

R v Immigration Appeal Tribunal Ex parte Mahendra Singh

Queen's Bench Division

[1984] Imm AR 1

Hearing Date: 8 February 1984

8 February 1984

Index Terms:

Practise and procedure -- Deportation -- Compassionate circumstances -- Immigration Appeal Tribunal's approach to findings of fact based on oral evidence given before an Adjudicator from whose decison the appeal was mounted -- Procedure to be adopted by Immigration Appeal Tribunal when re-assessing on appeal from Adjudicator the balance between the public interest and the compassionate circumstances -- Immigration Appeals (Procedure) Rules 1972 r 18(3)(a) -- HC 80 para 38 -- HC 239 para 26.

Held:

The applicant was admitted for a two months' visit on 18 February 1975. He was granted extensions of stay in the same capacity until 20 October 1975, but a further application was refused by the Secretary of State in July 1976. The applicant neither appealed against this decision nor left the United Kingdom, and on 22 March 1978 married. On the basis of the marriage he applied on 3 April 1978 to remain here: the application was refused and on 30 November 1978 the Secretary of State made a decision to deport him. On appeal the Adjudicator, whilst finding that there was no compassionate circumstances in respect of the applicant, held that those relating to his wife outbalanced the public interest, and allowed the appeal. The Secretary of State appealed against this decision. The Tribunal, whilst rejecting the submission that only the applicant's, and not his wife's, compassionate circumstances should be considered, found without hearing oral evidence that on balance deportation was the right course on the merits. The present application for judicial review was in respect of the Tribunal's decision. Held: (i) Where the Tribunal did not hear evidence their approach to findings of fact based on oral evidence given before the Adjudicator should be very similar to that of the Court of Appeal in relation to findings of fact in an inferior court. (ii) Where leave to appeal had been granted for the Tribunal to re-assess the balance between the public interest and the compassionate circumstances, and in the course of the hearing it became obvious they were taking a different view as to the impact on the individual concerned, they should require oral evidence. If the opportunity was not taken there could be no complaint if the Tribunal acted without that evidence. (iii) It would appear that, where the Tribunal had not heard such evidence, the cases in which they could interfere with the Adjudicator's exercise of his discretion in striking a balance between the public interest and the compassionate circumstances would be rare. LJ Blom-Cooper QC and VC Kothari for the applicant. A Collins for the respondent.

Cases referred to in the Judgment:

Alam Bi & ors v Immigration Appeal Tribunal [1979-80] Imm AR 146, CA>.%R v Immigration Appeal Tribunal ex parte Kwok on Tong [1981] Imm AR 214, DC. PANEL: Woolf J

Judgment One:

WOOLF J: This is an application for judicial review in respect of a decision by an Immigration Appeal Tribunal. The decision arose out of a hearing which took place on 22 February 1983 and referred to a determination which was notified on 17 March 1983. The background facts are as follows. The applicant came into this country on 18 February 1975 for a two months' visit. He sought extensions of his leave and was granted an extension up to 20 October 1975. A further application for extension was refused by the Secretary of State in July 1976. There was no appeal against that decision, so that since 1976 the applicant has had no leave to be in this country. On 22 March 1978 he went through a ceremony marriage with a Miss Bhagratt. On the basis of that marriage, on 3 April 1978, he applied for leave to remain in this country and that was refused. On 30 November 1978 the Secretary of State made a decision to deport the applicant. That decision gave rise to an appeal to an adjudicator who gave a decision on 28 December 1979. One of the issues very much at the forefront of the hearing before the adjudicator was whether or not the marriage to which I have referred was a valid marriage, or whether or not at the time of that marriage the applicant was already married, so that he was not free to marry the lady to whom I have referred. In that connection the adjudicator stated that while he did not consider, so far as the applicant's wife was concerned, that the marriage was for the purpose of enabling the applicant to remain in the United Kingdom, he could not be at all certain that the applicant was free to marry in the United Kingdom. The adjudicator recorded the fact that the applicant admitted having given false evidence on other matters to the entry clearance officer and that he found him lacking in credibility. In particular, he came to the conclusion that the way the applicant described his previous association with another woman was one which would be against local custom and, because of this, he remained unconvinced that the marriage to the lady to whom I have referred was the applicant's first marriage. Having come to that conclusion, the adjudicator went on to say: "Although certain factors in mitigation have been put forward I regard the appellant's disregard for immigration control to have been sufficiently serious to have justified the making of a deportation order in the public interest, but under para 38 of HC80 I am required to take into account any compassionate circumstances. So far as the appellant himself is concerned I am unable to find any." Having dealt with the applicant, the adjudicator went on to consider the position of the lady whom the applicant had married in this country. He says that she was born in Kenya in 1940 with British nationality, that she had been in the United Kingdom since 1965, qualifying as a state registered nurse and as a midwife, that her mother was in the United Kingdom and that she had impressed him as a completely responsible, independent and mature person. He described the precaution she took to ensure that the applicant was free to marry her. He goes on to say: "She describes her marriage as a happy one and says that her husband had not worked for wages whilst she had known him. Apart from her visit in 1976 she has never lived in India. To use her own words: 'I hate India and don't want to live there.'" The adjudicator then goes on to say: "In ordinary circumstances my attitude would have been that Mrs Singh had married the appellant with her eyes open and would have had to accept the consequences of his deportation. In this case, however, there are unusual considerations. Mrs Singh is not the type of person to have entered matrimony lightly and this is apparent from the enquiries she made of the appellant's parents and of Messrs Cooke & Sons. I am of the opinion that if she had been properly advised on the immigration law she would not have jeopardised her position in the UK by marrying the appellant. "Whether or not her marriage is valid it would seem hard if, having acted on faulty legal advice, she should now be faced with the alternative of living separately from the appellant or giving up her nursing career and at the age of almost 40 taking up a completely different way of life in an alien land where she has never previously lived and where she has no wish to live.

"This is one of the few instances where in my view compassionate circumstances outbalance the public interest. I allow the appeal and direct that the time limit and restrictions on the appellant's stay be removed in accordance with para 26 of HC239."

I will say a word about that last direction. It is agreed on all sides that the adjudicator there made slip and when he talks about directions he means recommendations. His decision should be read as though there had been a clerical error in it and that the word "direct" should be the word "recommend." Having been faced with that decision the Home Office considered their position and duly made an application for leave to appeal. The position with regard to leave is that it is required in any case where there is not a point of law involved. The grounds of appeal in this case were: "That the adjudicator allowed the appeal solely because of compassionate circumstances arising from the appellant's marriage with Miss HK Bhagratt. However, this marriage took place while the appellant was in the United Kingdom without authority. Moreover, the adjudicator was not satisfied that the appellant was free to marry Miss Bhagratt. Thus, having found that there were no compassionate circumstances so far as the appellant himself was concerned, the adjudicator erred in concluding that the Secretary of State's discretion should have been exercised differently." As I understand thar argument -- and I hope I am not doing any injustice to it -- it was primarily based on the fact that what the adjudicator should have concerned himself with was not Miss Bhagratt's compassionate circumstances, but the applicant's compassionate circumstances. The second ground dealt with the clerical error in the adjudicator's decision to which I have already made reference. At any rate, having considered the matter the tribunal gave leave to appeal. I apprehend that the tribunal probably took the view that this was one of those cases where there was certainly a matter of law to be considered, quite apart from any other question that might arise in consequence of leave being granted. The matter then came before the tribunal but did not do so until February 1983. Normally one would be appalled by a delay of that period in a case of this sort between the decision of the adjudicator and the decision of the tribunal. That delay in this case is explained by the fact that at one time the applicant was contemplating obtaining a declaration in the Family Division as to the validity of his marriage to Miss Bhagratt. At any rate, it is an undoubted fact that there was this period of delay. The tribunal, in a very carefully worded decision, first of all dealt with the argument about Miss Bhagratt's compassionate circumstances being taken into account by the adjudicator. With regard to that, the tribunal undoubtedly properly rejected the contention of the Home Office that it was exclusively the applicant's compassionate circumstances that had to be considered. Mr Collins properly pointed out in the course of his submissions that if you are living with someone your compassionate circumstances must be affected by the consequences to the person you are living with and, on that basis alone, he would concede that the argument that you cannot look at the lady's compassionate circumstances in a case of this sort would be wrong. I agree with that approach. I consider that when the relevant wording of the rule is looked at, which at that time was Rule 38 of HC80, one finds that the wording of the rule is very wide. It says: "In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances, apart from what is said in the concluding sentence of the rule: "While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects." In my view that rule is certainly wide enough to justify the adjudicator adopting the approach that he did in this case of looking at the compassionate circumstances of Miss Bhagratt, now Mrs Singh. The tribunal then went on to consider the validity of the marriage. With regard to that they came to the conclusion that on the evidence before them, which was the identical evidence to that which had been before the adjudicator, the respondent was legally married to Mrs Singh and it was a happy marriage. It followed, therefore, that the adjudicator had misdirected himself, and the tribunal so found, when it said there were no compassionate circumstances so far as Mr Singh was concerned. The tribunal also noted that the adjudicator had regarded Mrs Singh as a completely responsible, independent and mature person. They specifically say that they accepted the adjudicator's finding on that point. They also mentioned his finding that Mrs Singh does not wish to go to India to live. Having dealt with those matters the tribunal then went on to say: "It is then necessary to consider paragraph 38 of HC80. We accept that Mrs Singh is happily married in this country and does not wish to go to India. We note the following matters, however." They then list those six matters. Those six matters were considerations which would have to be weighed in the balance by the tribunal in coming to its conclusion and were matters which were adverse to the applicant's case. They certainly were not exhaustive and, in my view, they did not purport to be exhaustive considerations. They were listing matters which could be put against the applicant's case or the adjudicator's decision. They did, however, include a statement that, on the balance of probabilities, it was unlikely that Mrs Singh would have any children. Mr Blom-Cooper justifiably criticises that finding because the lady had said in evidence that she wanted the decision as to whether to have children deferred, pending the resolution of this position. There was no reason for saying that she could not still have children. As Mr Blom-Cooper pointed out, she could, if she wanted to, adopt children. They also recorded the fact that the respondent had very close relatives in India and that Mrs Singh had relatives in India with whom she stayed not long ago. Bearing in mind that her visits were very short visits back in 1976, I do find the comment, "not long ago", made in 1983 rather surprising. In addition, it is fair to say that the points, when viewed in the context of the whole facts of the case, were not very strong because there were substantial arguments which could be advanced against each one of them in the applicant's favour. The tribunal went on to say: "The respondent originally obtained entry to this country after pretending that he had a wife to return to in India. Subsequently he went to ground. The maintenance of an effective immigration control is in the public interest and it is necessary that the power of deportation is exercised in a manner which is consistent and fair between one person and another. When these compassionate circumstances of this appeal are balanced against the public interest it is our judgment that deportation of the respondent is the right course on the merits." They therefore allowed the appeal. I would say straight away that, but for the matters which I am going to refer to hereafter, that was a decision which the tribunal were perfectly entitled to come to on the evidence which was before them. The situation with regard to appeals is that in the normal way an adjudicator hears the evidence of fact and hears oral evidence as to the facts. Sometimes, however, there can be no oral evidence. In the normal way the tribunal hears no oral evidence though they have power to do so. That power is contained in the Immigration Appeals (Procedure) Rules 1972, Rule 18. I draw attention particularly to Rule 18(3)(a), which provides: "The Tribunal may, in its discretion, receive or define further evidence of which notice has been given in accordance with paragraph (2) above", and (d) in particular: "if, to enable it to arrive at a proper determination of the appeal, the Tribunal requests the furnishing of further evidence relating to specified matters it shall receive such further evidence." In cases where the tribunal does not hear evidence and the adjudicator had done so it is now clearly established that the tribunal's approach to findings of fact based on oral evidence given before the adjudicator, should be very similar to the approach which the Court of Appeal adopts in relation to findings of fact of an inferior court. The matter has been considered in particular by the Court of Appeal in Alam Bi [1979-1980] Imm AR 146, which was actually referred to in the tribunal's decision and, more recently, in Kwok on Tong (1981) Imm AR 214. I would respectfully adopt what Glidewell J said in that case on this subject. In support of his submissions Mr Blom-Cooper draws a distinction between what he calls "hard data" and "soft data". I am not sure that I rejoice in the introduction into this sphere of the words, "hard data" and "soft data", which I associate more with computers than with evidence given in a court of law, but the distinction which he makes is a real one and reflects the approach of Glidewell J in the case to which I have just referred. This case, however, involved a feature which was not directly considered in the cases to which I have made reference; that is that when one is weighing up compassionate circumstances it is important to bear in mind that the impact of a particular matrix of facts can be greater on one individual than another. If a tribunal has an opportunity to hear a witness describe what will be the consequences to him of a particular course of action being taken, then that tribunal will be in a much better position to assess what the true effect of the course of action will be than if the tribunal is confined to reading a record of the evidence which was given and has to deal with the matter otherwise than by seeing the persons concerned. In this case, clearly, the tribunal were aware that Mrs Singh had made a very favourable impression, so far as credibility was concerned, upon the adjudicator. The tribunal did not interfere with the findings of fact of the adjudicator. However, the adjudicator heard Mrs Singh describe what would be the consequences to her of going to live in India and the tribunal could only read her evidence about that. I take, for example, the phrase that was recorded in the adjudicator's decision, which related to the evidence of Mrs Singh, that she hated India and did not want to live there. The impact of evidence of that sort can differ very much depending on the manner in which it is expressed. The tribunal in this case did not have the advantage of the adjudicator of hearing that evidence being given. The Court of Appeal and Glidewell J have indicated the care which a tribunal, who have not seen the witnesses, should exercise before interfering with a finding of fact made by an adjudicator based on oral evidence which he has heard -- the sort of situation which Mr Blom-Cooper would describe as a "soft data" situation. It seems to me that the same caution should be exercised by a tribunal which has not seen the witnesses when it is trying to assess the weight of compassionate circumstances. The uprooting which will be involved in moving one's home from this country to India will inevitably be something which, in general terms, a tribunal can appreciate, but what a tribunal will not be able to appreciate as well as an adjudicator who has heard the evidence, wil be the particular impact on the individuals concerned of such a move. This is the sort of feature which is similar to the features which cause a tribunal to be at a disadvantage when assessing the credibility of a witness. That being so, it seems to me that in the ordinary way where it is being alleged in a case where leave to appeal has been granted that a tribunal should re-assess the balance between the demands of the public interest in favour of deportation and the compassionate circumstances of the individual, then the tribunal should exercise its undoubted discretion to require oral evidence to be given. If an immigrant is not prepared to give evidence, or make evidence available, then, of course, he cannot complain if the tribunal act without that evidence. If they are prepared to co-operate -- and there is certainly no suggestion in this case that the applicant and his wife would not have co-operated -- then it seems to me that the tribunal should approach the matter on the basis that if they had not heard the evidence, the cases in which they can interfere with an adjudicator's exercise of the balancing act will be very rare. In this case there is nothing to suggest that the tribunal were conscious of the dangers of departing from the view of the adjudicator as to where the balance lay. Indeed, I have little doubt that if the tribunal had been conscious of that danger they would either have taken the course which I regard as the preferable course, of inviting the giving of evidence, or have expressly referred to this danger before coming to the conclusion which they did. If they had referred to the danger and clearly taken it into account I am not saying that it would not have been open to them to have come to this decision, but their not having done so, having regard to the form their reasoning took, which indicated they were applying a general view as to cases of this sort, I have come to the conclusion that they did not approach the matter in the correct manner. If a tribunal is, in effect, rehearing the matter and considering it afresh, the only proper way they can do so in this sort of case, unless it is one of the very rare situations to which I have made reference, is to do so by hearing oral evidence in the same way as the adjudicator heard that evidence. The tribunal will, of course, be reviewing the exercise of discretion not only of the adjudicator but of the Secretary of State and they will be coming to a conclusion as to whether or not the Secretary of State should have come to a different conclusion. As that is the task of the tribunal they must, in my view, even with regard to compassionate circumstances, be confined to the consideration of the situation as it was when the Secretary of State came to his decision. However, they are entitled, in viewing the matter from that date, to take into account subsequent events which throw a light on the considerations which were before the Secretary of State. Where there is the sort of delay which existed in this case there could be wholly new compassionate circumstances which have arisen. The mere fact of the delay could create in itself additional compassionate features, or make the balance between the public interest and the compassionate circumstances different from what it was previously. Although the tribunal cannot on that basis interfere with the decision which had been properly made with regard to the situation as it was at the time of the Secretary of State's decision, they can informally express a view about it, and I am sure that if this is done that view will be taken into account by the Secretary of State. Having regard to the conclusion which I have come to in relation to this decision, that the tribunal were not sufficiently conscious of the dangers of interfering with the adjudicator's decision without hearing the witnesses, it follows that their decision must be quashed. The question of what action is taken following this depends on the view formed by the Secretary of State. He will have to decide whether, after this period of time has elapsed, it would be appropriate for the matter to go back before the tribunal. He will no doubt bear in mind that the grounds on which he was successful, prior to my decision, before the tribunal, were not the grounds which were the subject of his application for leave, nor, indeed, the basis of his primary arguments before the tribunal. I imagine that it must be rare indeed for the Secretary of State to wish to review a decision of an adjudicator who has heard the witnesses on compassionate circumstances, if there is no point of principle involved. In this case there was in the Secretary of State's view a principle involved when he originally decided to appeal. I therefore do not criticise in any way his decision to appeal. However, of course, the points of principle have now been resolved and in relation to the points of principle no one suggests that the decision of the tribunal is not the correct one. MR BLOM-COOPER: Would your Lordship order certiorari to go to the Immigration Appeal Tribunal with the caveat that the word "direct" in the adjudicator's decision about the stay should be read as "recommendation to the Secretary of State"? My Lord, I ask for the costs of this application. MR COLLINS: My Lord, I cannot resist the application for costs. May I mention one matter. It relates to your Lordship's views about the desirability of the tribunal hearing evidence in relation to these compassionate circumstance appeals. What concerned me slightly, the way your Lordship put it, was that your Lordship's judgment might give the impression to the authorities that in any case where there is an appeal against a deportation order-- because, as your Lordship is aware, in almost every case the issue of compassionate circumstances is a very live one -- and the adjudicator refuses to allow that appeal, then, if there is an appeal to the tribunal in every case there ought to be oral evidence. I imagine your Lordship did not mean that. It may be that this is a matter which would be appreciated by the tribunal in the course of a hearing where it becomes obvious that the tribunal is thinking in terms of making a finding which is adverse to the applicant or indeed, I suppose, to the Secretary of State if it be appropriate. In those circumstances, it may be that your Lordship would think that they would then adjourn the appeal in order to hear oral evidence, but that it should not be a matter of course that in every case where there are compassionate circumstances under appeal automatically it thinks in terms of oral evidence. My Lord, the only reason I raise that is because, as your Lordship appreciates, I appear for the tribunals and one is slightly concerned with the possibility that the idea should be got across that in every appeal of this nature there should be oral evidence. Your Lordship appreciates the effect that that might have. WOOLF J: Yes. Mr Collins, I am most grateful to you for drawing the matter to my attention. Of course, this is an extempore judgment. The remarks I made were dealing with matters of the sort that I was indicating; namely ones where the impact of what was proposed on the individual concerned was being, so to speak, reconsidered by the tribunal and the tribunal were taking a different view as to the impact on that individual. MR COLLINS: Indeed. WOOLF J: In such a situation it seems to me that it would be rare for the tribunal to be able to interfere without seeing an individual. MR COLLINS: Yes. WOOLF J: There will be other cases, I fully appreciate, where the same considerations do not apply. MR COLLINS: My lord, of course this case, one must never forget, is a case where there was an original finding in favour of the applicant and an intended finding adverse to him. It perhaps is the sort of case in which your Lordship's remarks would particularly apply. WOOLF J: I am talking about situations where the tribunal were taking a different view from that of the adjudicator. Of course, if the tribunal are taking the same view the risk that I referred to would not apply. MR COLLINS: Indeed. My Lord, I am grateful. I am sorry to have to mention it. WOOLF J: No. I am grateful to you.

DISPOSITION:

Order accordingly

SOLICITORS:

Messrs Bindman and Partners; Treasury Solicitor.