R v. Immigration Appeal Tribunal, Ex parte Vinod Bhatia

R v IMMIGRATION APPEAL TRIBUNAL Ex Parte VINOD BHATIA

Queen's Bench Division

[1985] Imm AR 39

Hearing Date: 3 April 1985

3 April 1985

Index Terms:

Application for Judicial Review -- decision of Immigration Appeal Tribunal -- Admission of fiancé to the United Kingdom for marriage to a woman there settled -- requirements of the immigration rules -- woman unwilling to go to India -- fiancé applies for settlement -- entry clearance officer to be satisfied that the primary purpose of the marriage was not to obtain admission to the United Kingdom -- that parties have intention to live together as man and wife -- that parties had met -- factors to be taken into account -- onus of proof -- in a genuine marriage is the intention to live together inevitably the primary purpose -- HC 169 para 41.

Held:

The appellant a citizen of India, there settled applied for entry clearance to enter the United Kingdom to marry his fiancée a divorcee with a young daughter. There was a conflict of evidence on how the match had been arranged but it was accepted that it followed an advertisement by the bride's father in the Hindustani Times. It was common ground that the parties had met and that the proposed marriage was genuine in that the parties intended to live together as man and wife. The application was refused because the entry clearance officer was not satisfied that the primary purpose of the marriage was not for the bridegroom to gain admission to the United Kingdom. On appeal, the refusal was upheld by an Adjudicator and by the Tribunal, which in a majority decision concluded that it did not follow, because an intended marriage was genuine, that the primary purpose must be for the parties to live together as man and wife; in consequence, on the true interpretation of HC 169 paragraph 41, there were three separate tests to be applied, and the applicant did not satisfy the first test merely because the marriage satisfied the second test. The facts are set out fully in the judgment: Held: i) That an applicant for entry clearance under HC 169 para 41 must satisfy the entry clearance officer, on the balance of probabilities in respect of all the requirements of rule 41. ii) On a proper construction of the rule, when it is accepted that the marriage is genuine, it does not follow, prima facie that the primary purpose of the marriage is not for the applicant to gain admission to the United Kingdom. iii) Care must be exercised in using terms 'shifting the burden of proof, which is inapposite when considering the roles of an entry clearance officer and an applicant for entry clearance. iv) The purposes of the parents of the parties to the intended marriage are relevant to the issue raised in HC 169 para 41(a). The entry clearance officer is also entitled to take into account his own knowledge of the local background and customs. The judge also commented on the approach to be adopted by the entry clearance officer to applications, under this paragraph: these were disapproved of by the Court of Appeal, for which see the judgment below, of 25 July 1985.

Cases referred to in the Judgment:

Benmax v Austin Motor Co [1955] AC 370: [1955] 1 All ER 326. Silver v Silver [1958] 1 All ER 523. Puttick v Attorney-General and Puttick [1980] Fam 1: [1979] 3 All ER 463. Garland v British Rail Engineering [1983] 2 AC 751: [1982] 2 All ER 402.

Counsel:

M Beloff QC and V Kothari for the appellant; J Laws for the respondent PANEL: Forbes J

Judgment One:

FORBES J: In this case, Mr Beloff moves for judicial review in the form of an order of certiorari to bring up and quash a decision of the Immigration Appeal Tribunal given on 1 October 1984, whereby they dismissed an appeal by the applicant against a decision of an adjudicator in terms dismissing the applicant's appeal against the refusal of the Entry Clearance Officer in New Delhi on 17 March 1983 to grant him entry clearance to the United Kingdom. Mr Beloff also moves for mandamus to order the Immigration Appeal Tribunal to allow the applicant's appeal in accordance with the minority view expressed by one member of the Tribunal, Professor Jackson. The facts are not altogether simple, but may, I hope, be shortly stated. On 19 February 1981, the applicant applied to the British High Commission in New Delhi for an entry clearance to enable him to come to the United Kingdom to marry and settle with Vijay Kumari, of 146 Anglesey Street, Newton, Birmingham. In August 1982, the applicant was interviewed by an Entry Clearance Officer. His fiancée Vijay Kumari, was interviewed by an immigration officer on 21 January 1983. Before the adjudicator, Vijay gave evidence and produced a number of letters and other documents. The facts which emerged from all this are not substantially in dispute. Vijay Kumari was 26 years of age at the time of the applicant's application. She had come to the United Kingdom in 1970 for marriage, and had married a man called Maden Jeet on 1 September 1970, by whom she had a daughter on 21 June 1971. She told an immigration officer that their marriage had ended effectively in 1975, when her husband had sent her to India because her parents had not given him enough jewellery for her dowry. They were divorced in 1978, the decree absolute being dated 2 November. The accounts given by the applicant and Vijay, when interviewed, as to how their engagement had come about differed. The applicant said that the marriage has been arranged early in 1980. No matchmaker had been involved because his father and Vijay's father were friends and all the parents lived in Delhi. Vijay, on the other hand, said that her father had advertised in the Hindustani Times in February 1980 and had been cont acted by the applicants family. A photocopy of this advertisement is upon the file and reads as follows: "Suitable match for fair, white colour, sharp features, charming undergraduate girl, twenty-nine, legally divorced with one baby, naturalised UK citizen, belongs to well-known respectable Mair Rajput (Goldsmith) family of East Punjab. Divorced suitable Khatri boy also considered". She said that she had returned to India towards the end of 1980 and had met the applicant at the wedding of her younger sister, the applicant's family having been invited expressly for this purpose. Vijay said that she would not be willing to go to India to marry because of her daughter (who is now 13 and had been born and brought up in England). The applicant and Vijay are Hindus, and in view of Hindu custom the entry clearance officer asked the applicant whether people in his family often married divorcees. He said that it was not usual, especially when they had children. Asked whether his father would have agreed to the marriage if Vijay had not been a United Kingdom resident, the applicant said he probably would not have agreed. It was conceded by the Home Office representative before the adjudicator that the intended marriage would be genuine. The adjudicator records that he found Vijay to be an honest witness. She agreed that her chances of re-marriage were small because it was not usual for Indian divorcees to remarry. She said that her parents had made enquiries in England for a suitable prospective husband without result before putting the advertisement in the Hindustani Times. She said she was not willing to go to India to live because of her daughter, but when her daughter grew up the position might be different. The adjudicator concluded his determination in the following way: "On the evidence before me I am afraid I can only find that the primary purpose of this intended marriage is for the appellant to obtain admission to the United Kingdom. The decision of the Entry Clearance Office was therefore correct and in accordance with the relevant regulations. I have great sympathy for the sponsor, torn between her wishes for her child to be in the United Kingdom and the rare opportunity of an Indian divorcee to effect another marriage which the respondent concedes would be a genuine one. But I am bound by the rules. Appeal dismissed." The case involves consideration of rule 41 of the Statement of Changes in Immigration Rules (HC 169). That provides, under the heading of "Fiancés": "A man seeking to enter the United Kingdom for marriage to a woman settled here and who intends himself to settle thereafter should not be admitted unless he holds a current entry clearance granted to him for that purpose. An entry clearance will be refused unless the entry clearance officer is satisfied (a) that it is not the primary purpose of the intended marriage to obtain admission to the United Kingdom; and (b) that there is an intention that the parties to the marriage should live together permanently as man and wife; and (c) that the parties to the proposed marriage have met. Where the entry clearance officer is satisfied that all the conditions at (a) to (c) above apply, an entry clearance will, subject to the maintenance and accommodation requirements of this paragraph, be issued provided that the woman is a British citizen. An entry clearance should not be issued unless the entry clearance officer is satisfied that adequate maintenance and accommodation will be available for the fiancé until the date of his marriage, without the need to have recourse to public funds." So far as the requirements of that paragraph are concerned, the only matters which have been argued have been confined to sub-paragraphs (a) and (b) and so far as the remaining requirements are concerned, as far as I know, they were all met. Because, however, this appeal raised a matter of general importance and affected many immigrants and because there were conflicting decisions of the Immigration Appeal Tribunal, a special tribunal was selected to hear the appeal, consisting of Mr DL Neve, the President, and two Vice-Presidents, Professor DC Jackson and Mr RE Maddison. The Tribunal heard the case on 31 August 1984 and on 1 October 1984, dismissed the appeal, Professor Jackson dissenting. I do not propose to read the determination or the dissenting opinion. The issues have been put forward before me in the arguments of Mr Beloff, for the applicant, and Mr Laws, for the Immigration Appeal Tribunal. Although there was an issue raised before the Tribunal as to where the onus lay in cases such as this, and indeed Professor Jackson considered this question at some length in his dissenting opinion, Mr Beloff now expressly abandons any argument about onus and accepts that the applicant must satisfy the entry clearance officer, on the balance of probabilities in respect of all the requirements of rule 41. He submits, however, that once it is established that the marriage is a genuine marriage, in the sense that the parties intend to live together permanently as man and wife, then a presumption arises that the primary purpose of the man and woman is to enjoy the incidents and benefits of marriage. In other words, he says, once the entry clearance officer is satisfied as to (b), then prima facie he should be satisfied of (a) in the absence of cogent evidence to the contrary. The legal onus rests on the applicant throughout, but once (b) is established the evidential burden shifts on to the entry clearance officer to show something to indicate that the primary purpose is something other than to enjoy the incidents and benefits of matrimony. In support of this main submission, he advances six heads of argument: (1) This construction is that which is most compatible with the view of the status of marriage which obtains in our society. (2) It minimises what is, on any view an interference with the basic right of any citizen to marry and live in any country of which she is a citizen. (3) It minimises discrimination on grounds of sex which is a designed feature of the rules. (This is a reference to the fact that the rules differentiate between the requirements applicable to men on the one hand and to women on the other when seeking entry for marriage). (4) It maximises the United Kingdom's compliance with the European Convention on Human Rights. (5) It takes strength from previous rules dealing with the same issues. (6) It minimises the difficult and distasteful exercise in enquiring into a hierarchy of purposes and therefore makes this rule easier of operation. I do, I hope, no injustice to the arguments of Mr Beloff, or to the opinion of Professor Jackson, if I decline to pursue the path, which might be attractive in another case, of a philosophical inquiry into the concept of marriage. The draftsman of the rule seems to me to have made it clear that there are, so far as is relevant here, two distinct elements about which the entry clearance officer must be satisfied and therefore which the applicant is required to prove. One is that the parties intend to live together permanently as man and wife; the other that the primary purpose is not to obtain admission. I see no reason to think that the one requirement was intended to be treated differently from, or as more or less important than, the other. The matters raised by Mr Beloff, in his submissions, which I have numbered above, are matters which should no doubt properly be taken into account if there are two equally acceptable constructions of a statutory provision. It would then be permissible to resolve any such ambiguity by reference to accepted views of the status of marriage or of the United Kingdom's treaty obligations. But where the words are clear and there is no ambiguity, the first canon of statutory construction is that "if the words are themselves precise and unambiguous then no more can be necessary then to expound those words in their ordinary and natural sense". That is a quotation from Craies on Statute Law, 7th Edn at page 65. One should see also, for the former point, Lord Diplock in Garland v British Rail [1983] 2 AC 751, at 771A: "It is a principle of construction of United Kingdom statutes, now too well established to call for citation of authority, that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it." I do not detect any ambiguity in the words of rule 41 and deprecate any attempt to seek to suggest that there is one by delving into philosophical discourse on the nature of marriage. It may well be that one of the purposes of marriage is, as Mr Beloff put it, to enjoy the benefits of the institution; it may well be, further, that where there is a "genuine marriage", a term used in the argument by Mr Beloff, one of the purposes is, inevitably, to enjoy those benefits. But the draftsman has required two separate matters (I ignore subparagraph (c) to be proved to the satisfaction of the entry clearance officer and I can see no grounds for suggesting that he intended proof of (a) to be subsumed in proof of (b). In so far as Mr Beloff argues to the contrary (and initially I understood that to be his contention) I reject that argument. I do not think, however, that Mr Beloff now maintains that proof of (b) is sufficient to carry with it proof of (a). What he now says is that he accepts that the burden of proof lies on the applicant throughout, but that once (b) is established, (a) is prima facie established also and can only be negatived by cogent evidence that the primary purpose of the marriage is to obtain settlement. He put this in terms of shifting the evidential burden of proof. I think one must be very careful about the use of the expression "shifting the burden of proof". This expression clearly imports the concept that one is in the context of a lis inter partes where certain facts have to be proved and the question arises: On which of the parties should the burden of proving the facts from time to time lie? It is clearly, to my mind, inept, to use those expression in the context of a situation where there is only one party who has to prove anything, the other "party" being the body to satisfy whom there is a burden cast on the applicant party. On the other hand, before the adjudicator, it may be correct to talk about shifting the burden of proof because the adjudicator is an appellate body and there is a lis before him in which he has to decide whether to dismiss or allow the appeal. A slightly different context in which it might still be right to talk about the burden of proof is when a decision is challenged by judicial review: then the decision-making body may have cast on it the burden of justifying the decision which it made. There is a further matter about which it is essential to be careful in this contrext. A decision as to what is the primary purpose of the marriage or what is the intention of the parties to it is, of course, a question of fact because, in the well-known phrase, the state of a man's mind is as much a fact as the state of his digestion. But on analysis the question, in all instances which I can think of, is answered by drawing an inference from the facts proved by the evidence adduced and from any notorious facts which do not require proof, but which may form part of the judicial knowledge of the tribunal. It may be that in the end there is only a small but important difference between the positions adopted respectively by Mr Beloff and Mr Laws for this reason. the expression "prima facie evidence" is used commonly in two different senses: The first, that the evidence adduced by one party is sufficiently cogent to entitle a tribunal, or for that matter any reasonable man, to decide the issue in favour of that party, while not obliging him to do so; the second, that the evidence is such that, in the asbence of further evidence, no reasonable man could fail to decide the issue in favour of that party. I think all Mr Beloff is doing is submitting that, once the intention to live together is proved or accepted, then the evidence bears the second degree of cogency, while Mr Laws is asserting that it goes no further than the first. Before attempting to resolve this divergence of view, I should pass to another of Mr Beloff's submissions. Mr Beloff also posed the question: Whose purpose is one to look at in deciding the question of primary purpose? The answer, he suggested, must be the purpose of the applicant alone. Even though, in the case of other arranged marriages, the parents or other members of the families of the couple, may have their own purposes to serve in arranging the marriage, and the fiancée herself may have other purposes in mind too, those purposes can only be relevant, he submits, in so far as they bear on the purpose of the applicant. This formulation seems to me to concede that the marriage may indeed have mutifarious purposes and not be monolithically dedicated to one, which appeared to be the main thrust of Mr Beloff's central submission. The process which this suggestion requires the entry clearance officer to follow would surely be one of examining the field of possible purposes which might be displayed by the relevant facts: the attractions of the married state itself, filial duty, dynastic aspirations, financial benefit, are some of the possibilities, which may all play their part as, of course, may, in the context, the desire to achieve settlement in the United Kingdom. The argument depends, however, on an interpretation of the rule which I cannot accept. Sub-paragraph (b) speaks of "an intention that the parties . . . should live together". I do not believe that an intention of only one of the parties that he should live with the other is sufficient to show the intention required by the rule. Could it be said that it is enough to demonstrate the intention of the applicant to live with his wife if the evidence also shows that the wife had no intention of living with her husband? The words are, I consider equivalent to "it is the parties' intention that they should live together". If it is objected that the draftsman could have said so, the riposte is that the draftsman could equally have said "it is the applicant's intention that he should live with his wife" if that had been the meaning he sought to convey. He did not need to go further than he did because "an intention" that the parties should do something necessarily imports a joint intention in the context. Furthermore, the draftsman uses different language in (a). He speaks not of the intention of the parties, but of the purpose of the marriage. In the context of arranged marriages, which must be a context contemplated by the rule, these words clearly to my mind are wide enough to embrace, inter alia, any discoverable purposes which may be properly attributable to those who arranged the marriage. Where, as is common in Western Europe, the parties to a marriage choose to marry as a result of personal choice, the views of the parents may perhaps be disregarded as having any relevance in determining what is the purpose of the parties in marrying. But where, as is common in the Indian sub-continent, marriages are arranged by the parents, it would seem to be essential to have regard to that fact in determining what is the primary purpose of the marriage. It is noteworthy that one of the matters the entry clearance officer must be satisfied about is that the parties have met. It would be a very curious Western marriage of which this had to be proved as an essential prerequisite of genuineess. The insertion of this requirement is the clearest indication that the draftsman was particularly concerned about the incidents of arranged marriages. Indeed it is not difficult to deduce from the terms of rule 41 that the policy behind this rule, and therefore the object of this piece of subordinate legislation, was to deal inter alia with a situation where marriages might be arranged by parents for the purpose of securing the entry into the United Kingdom of the intended bridegroom. An arranged marriage might well be a genuine marriage in the sense that the parties intended to live together, but the primary purpose of the arrangement might still be to secure admission to the United Kingdom. Whether the policy behind rule 41 is good or bad is not, of course, for me to decide or even to comment upon. But that, as a matter of interpretation, the object or purpose of the rule is that which I have described I entertain no doubt at all. I therefore reject any suggestion that in considering the purpose of the marriage the entry clearance officer is not entitled to look at, for instance, the objects which the arrangers of the marriage seek to attain. On the other hand, it would be inappropriate to consider the purposes of those arrangers when determining whether there was the required intention under sub-paragraph (b). The arrangers may have hopes, but only the parties can have an intention to live together. I can now return to what I consider is the real issue between Mr Beloff and Mr Laws; it is whether, once the entry clearance officer is satisfied about (b) and no further evidence is available, the situation is that he may find, but is not obliged to find, that he is also satisfied about (a) or whether it is rather that he must find himself so satisfied. I accept that, taking a practical view, once it is shown or conceded that the marriage is one where there is the intention required by (b) that, ex concessis, must mean that at least one of its purposes must be that referred to in the subparagraph. If the entry clearance officer is thus satisfied about (b), in the absence of evidence of any other purpose it might be thought to be difficult for him to fail to be satisfied about (a). This conclusion, however, does less than justice to the presence of the word "satisfied" in the rule and to the sphere in which the entry clearance officer is operating. "Unless the entry clearance officer is satisfied" are words which, in my opinion, in the light of the object of the rule which I have already described, import the concepXt that the entry clearance officer is certainly entitled, and may indeed be under a duty, to approach any claims made for marriage with a certain degree of caution. He is certainly under a general duty to make such enquiries as may be necessary to determine, for instance, the facts surrounding a marriage or intended marriage. This entry clearance officer was working in New Delhi. He was entitled, in my opinion, to approach the task against the background of his knowledge of Hindu customs, where, as here, the parties were Hindus. He was also entitled to take into account the fact that many marriages in the sub-continent have been entered into whose primary purpose was, in fact, to obtain admission to the United Kingdom. It would, of course, be wrong of him to consider that this background means that there is a presumption that every marriage has admission as its primary purpose. But it would also be wrong of him to disregard this background and that is because he has a duty to consider whether he is satisfied in each particular case. The most appropriate description, in my opinion, of his proper approach to claims that a marriage does not have admission as its primary purpose should be that which I have already used, namely, one of caution, perhaps of cautious pessimism, which may be deepened or allayed by the facts which he discovers and the inferences which he properly draws from them. Despite the fact that he may be satisfied of the existence of an intention that the parties should live together as required by (b), there is still a residual burden on the applicant to allay any doubts which the entry clearance officer may have, born perhaps of experience in other cases, as to what might be the primary apurpose of the marriage. Furthermore, if it is accepted, as I think it must be, that the purposes of the parents in an arranged marriage are relevant in the consideration of requirement (a), while for requirement (b) only the intention of the parties themselves falls to be considered, it must follow, in my opinion, that the entry clearance officer cannot properly regard (b) as conclusive of (a). Something more remains to be considered, and may have to be the subject of further evidence. With these considerations in mind, it is my opinion, once (b) is proved or accepted, and there is no evidence of purpose which might serve or contradict (a), the state of the evidence is such that the entry clearance officer may find, but is not obliged to find, that the primary purpose of the marriage is other than to obtain admission to the United Kingdom. To hold otherwise would be to force the entry clearance officer to declare himself satisfied on a matter on which, as a result of what may be a wealth of experience, he entertains considerable and legitimate doubt. I can put it another way: it is accepted that the standard of proof required of the applicant is that he should satisfy the entry clearance officer on the balance of probabilities. In considering the probabilities, in the context of deciding the primary purpose of a marriage in these circumstances, he must be entitled to consider them against the background that many marriages contracted between men living in the Indian sub-continent and the women who have an entitlement to abode in the United Kingdom have had as their primary purpose to gain admission to the United Kingdom. Where there is an appeal from the entry clearance officer, a different aspect of the term "burden of proof" becomes apparent. The entry clearance officer is no longer a person exercising a quasi-judicial role; he becomes a party to the appeal and may be called upon to justify his decision. If the facts are not challenged, he may still have to justify the inference which he has drawn from those facts, and "where the point in dispute is the proper inference to be drawn from approved facts, an appeal court, is generally in as good a position to evaluate the evidence as the trial judge", per Lord Reid, in Benmax v Austin Motor Co Ltd [1955] AC 370, at page 376. Questions of purpose and intention are almost inevitably to be determined by drawing inferences from observed fact and the real issue in this case is whether the entry clearance officer, on the material before him, was justified in coming to the conclusion that none of the inferences to be drawn from that material, even when taken in conjunction with all other inferences, was sufficient to satisfy him that the primary purpose of this marriage was not for admission. I do not find myself assisted in determining that issue by the suggestion that such a conclusion involves acceptance of the concept of a purposeless marriage, or any of the interesting but, to my mind, unnecessary philosophical speculations which appear to have troubled Professor Jackson and to form the basis of the submissions of Mr Beloff. In my view, there was ample material before the entry clearance officer on which he could properly find that, despite the intention that the parties should live together as required by (b), he was not satisfied that the primary purpose of the marriage was not to obtain admission. Out of deference to the arguments addressed to me, I should deal briefly with two other matters. The first involves a quotation from the judgment of Sir George Baker, P, in Puttick v Attorney General [1979] 3 All ER 463, at page 469. Only a small portion of the passage was relied on by Mr Beloff, but, in my opinion, one must look at the whole: "The petitioner appeared to me to be a clever witness and a persuasive woman. I am sure, and find, that the purpose of the marriage, and on her side the sole purpose, was to be able to remain in the United Kingdom and subsequently to obtain citizenship. Two of the witnesses to the ceremony, Gillian Lees and Monty Hurman, have said in evidence that they assumed it was a marriage of convenience, and some time has been devoted to that question. 'Marriage of convenience' is a popular, not a legal, description. All I need to say is that this marriage lacked all the purposes and intentions of a genuine and generally accepted union, namely, mutual love, support and comfort; cohabitation in the matrimonial home as husband and wife; a union for life and the production of children. But that is immaterial to the validity of the marriage: see Silver v Silver, although I think it is relevant when considering the question of domicile." I have emphasised the shorter passage relied on by Mr Beloff. The prayer of the petitioner in that case was for a declaration that her marriage was valid. As Sir George Baker acknowledges, the issue had to determine was whether the marriage was valid, not whether it was genuine. In considering whether a marriage is genuine, it is, of course, legitimate to postulate a finite list of attributes (or purposes) which a genuine marriage may display. An arrangement which exhibits none of the attributes (or purposes) in the list cannot then, logically, qualify for the appellation "genuine marriage". The converse, however, is not necessarily true when one considers the way in which Sir George Baker formulated his proposition. It would not be right to conclude that, to qualify as genuine, a marriage has to exhibit all the attributes; that is not what the President was saying and if he were, I would profoundly disagree with him. There have been many marriages which it would require a bold man to categorise as not genuine in which mutual love was not apparent or the production of children was known to be impossible. It follows that all that can be deduced from this passage is that, in the President's view, a genuine marriage would exhibit some of the purposes he set out. It is logically unacceptable to conclude from this that a marriage which exhibits only one of the attributes or purpose necessarily qualifies, on this formulation, as a genuine marriage. Still less is it possible to conclude that the existence of an intention to live together, being one of the attributes in Sir George's formulation, carries with it the concept that such intention is the primary purpose of the marriage. I might add parenthetically that the passage clearly sets out, without gradation, several possible purposes, and thus does not assist an argument that proof of an intent to live together is sufficient to conclude the primary purpose. The truth is, in my opinion, that this passage from the case of Puttick does nothing to carry the argument further and only serves to confuse the issue by being used as an aid to the interpretation of this rule, a purpose the passage was not designed to serve and, in any event, the rule, in reality, requires no such assistance. The second matter involves another argument which was derived from a comparison of the language of the present rule 41 and that of its predecessor. I need only say that I found such a comparison both unhelpful and unnecessary. The language of rule 41 seems to me to be clear and to require no such aid to construction. For the reasons that I have already advanced, I consider that the position which the entry clearance officer has to adopt when considering applications to which rule 41 applies is this: (1) It is the duty of the applicant to satisfy the entry clearance officer of each of the matters set out in the rule, and that means that the burden of proof is on the applicant throughout. (2) In considering (a) and (b) of the rule, the intention the entry clearance officer must be satisfied about is the intention of the parties, and in the context of an arranged marriage, the purpose of the marriage may include the objects which those arranging the marriage seek to attain as well as those sought by the parties themselves. (3) In considering whether he is satisfied about any of the matters contained in the rule, the entry clearance officer may not only make his own enquiries; he is also entitled to take into account his own knowledge of the local background and customs, including the fact that marriages are not infrequently arranged for the very purpose of obtaining admission to the United Kingdom. (4) That if the only evidence before him which he accepts shows thaxt the parties have the intention expressed in (b), then he may, but is not obliged to, conclude that he is satisfied about (a)also. In the circumstances of this case, I agree with the majority of the Tribunal that the entry clearance officer was justified in concluding that the applicant had failed to satisfy him as required by rule 41, and that both the adjudicator and the majority of the Immigration Appeal Tribunal in their ownconsideration of the matter, were justified in coming to that conclusion. This application must accordingly be dismissed.

DISPOSITION:

Application dismissed.

SOLICITORS:

Bates, Wells and Braithwaite, London: Treasury Solicitor.

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