R v. Immigration Appeal Tribunal, Ex parte Owusu-Sekyere

R v Immigration Appeal Tribunal ex parte Owusu-Sekyere

Queen's Bench Division

[1986] Imm AR 169

Hearing Date: 13 March 1986

13 March 1986

Index Terms:

Deportation -- whether deception as to marital circumstances leading to grant of indefinite leave to remain is deception to justify deportation as conducive to the public good -- the limits to the power to deport under s 3(5)(b) of the Immigration Act 1971: Immigration Act 1971 ss 3(5)(b); 26(1)(c): HC 394 para 117: HC 169 paras 156, 159

Held:

The appellant married while a student in the United Kingdom. He was a citizen of Ghana; his wife was a citizen of the United Kingdom. The marriage took place in April 1978, a child of the association having been born in May 1977. Not until June 1980 did the applicant approach the Home Office in relation to his immigration status, following his marriage. The Home Office posed various questions to the applicant. In reply, inter alia, the applicant wrote, in connection with his marriage certificate, "we do have two other copies . . ." He appears also to have indicated that ultimately the family would return to Ghana but he needed permission to stay and to work while his wife completed her own studies. In August 1980, on the basis of his replies to the Home Office enquiries, he was granted indefinite leave to remain in the United Kingdom. The Secretary of State subsequently discovered that the applicant's wife had left him in December 1978. There were in time divorce proceedings and a decree absolute was made on 6 August 1982. The Secretary of State concluded that the replies by the applicant to enquiries in June 1980, which implied that the couple were living together constituted deception. On 27 March 1984 the Secretary of State initiated deportation proceedings against the applicant pursuant to s 3(5)(b) of the Immigration Act 1971. His appeal was dismissed by the Tribunal. On application for judicial review counsel for the applicant submitted that following the dicta in Khawaja, the powers under s 3(5)(b) should not be used "as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry" or against a person similarly situated who had gained settlement by deception. Those dicta, unless confined to cases of deception on entry, were in conflict with the judgmeent in ex parte Cheema. Counsel also submitted that in the replies to the Home Office questions in June 1980, the applicant nowhere stated that he was living with his wife or that the marriage was subsistent. Held: 1. The Court was bound by the decision in ex parte Cheema. Deceitful statements made for the purpose of obtaining settlement were statements of a kind such as to entitle the Secretary of State to initiate deportation proceedings under s 3(5)(b). 2. Albeit the applicant did not specifically state, in 1980, that the marriage was subsistent, his replies to the Home Office enquiries, in which he used the plural "we" were such as to constitute deception. They led to the inevitable conclusion that the parties were still together. 3. The decision of the Tribunal could not be faulted on Wednesbury principles.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Cheema [1982] Imm AR 124 Khawaja v Secretary of State for the Home Department [1982] Imm AR 139 R v Immigration Appeal Tribunal ex parte Ghazi Zubalir Ali Khan [1982] Imm AR 32

Counsel:

A Riza for the applicant; R Ter Harr for the respondent PANEL: Mann J

Judgment One:

MANN J: There is before the court an application for judicial review. The applicant is Mr Dominic Owusu-Sekyere. The respondent is the Immigration Appeal Tribunal. Leave to move was given by Webster J on 10 December 1984. The decision which it is sought to impugn is a decision of 4 September 1984, whereby the Tribunal dismissed an appeal by the present applicant against a decision of the Secretary of State for the Home Department to make a deportation order against the appellant under section 3(5)(b) of the Immigration Act 1971. That decision was in these terms, amongst others:

"On 19 August 1980 you were granted indefinite leave to remain on the basis of your marriage to a British citizen here but the Secretary of State now has reason to believe that, at the time of your application, you were not living together as man and wife and that you employed deception in order to obtain settlement. The Secretary of State is therefore satisfied that your deportation would be conducive to the public good."

The applicant's immigration history is complicated. He is a citizen of Ghana who, on 5 September 1974, received leave to enter as a visitor until 15 October 1974. Subsequently, he was given leave to remain as a student until 1 September 1980. During his period as a student, he met a lady whom I shall call Christina. As a result of their relationship, a child was born on 25 May 1977. On 8 April 1978, Christina and the applicant married. The applicant did not, in the then immediate future, make any claim to settlement by reason of his marriage to Christina who was a United Kingdom citizen, born within the United Kingdom. However, it seems that on or about 2 June 1980 the applicant called at the Home Office and made a request in regard to his immigration status. I deliberately use neutral language. On 14 July, the Home Office wrote to him in these terms: "Thank you for your letter of 4 June." -- (ther whereabouts of that letter are quite unknown) -- "To enable your application to be considered further please provide the following information: 1. It is noted that you were married in April 1978. Why did you not inform us of your marriage sooner? 2. The marriage certificate you produced, in our Public Enquiry Office on the 2nd June, was a copy issued on the 4th March 1980. Where is the original? 3. How long have you known your wife? 4. Is Julie Nana Ekua your daughter? 5. How did you meet your wife? 6. Do you still receive financial support from your father? 7. What are your future intentions?" On 21 July, the applicant replied to each of the questions. In response to the question: "Why did you not inform us of your marriage sooner?" the applicant wrote: "The reason why I never informed the Home Office earlier about our marriage was that we thought being on student visa was enough as we intended to go back to Ghana after my studies. We did have financial problems with the baby around and with my wife's meagre wages. But we did not anticipate there would be other problems." The question in regard to the marriage certificate was answered in these terms: "As a matter of fact, we do have two other copies of our marriage certificate which we intend to put into frame. But if the Home Office wants to see the original, we shall send it along." The emphasis "we do have" and "we", is mine. In answer to the question: "What are your future intentions?" the applicant replied as follows: "I have already informed the Home Office that it's never been my intention to settle permanently in England. In fact, this was one of the reasons why we never informed the Home Office of our marriage sooner. But my wife has decided to acquire some skill before she goes back to Ghana. She has been contemplating doing a series of courses in computer technology for which she once passed an entry examination. We really don't know how long it will take. "I'm due to take over my father's insurance firm once I return to Ghana. But obviously I cannot leave my wife and daughter behind. My present intention is to find a job, especially in the insurance field whilst my wife is pursuing her course of studies. This will enable me to support them until she finishes. "I have already made enquiries as to my prospects, but all the firms need evidence of the Home Office's permission for me to remain and work in this country.

"We desperately need this permission which may give my wife the chance to get some educational qualification."

Somewhat surprisingly, in the light of that paragraph, the applicant was, on 19th August 1980, granted indefinite leave to remain. Subsequently, certain matters seem to have come to the attention of the Home Office. I quote from the explanatory statement, paragraph 7, which reads: "It subsequently came to the attention of the Home Office that an immigration officer and a police officer had visited 15 Batavia House on 5th January 1980 in connection with an unrelated matter. The immigration officer had spoken to a young lady who described herself as Miss Georgina Opoku. She told the immigration Officer that the owner of the house was the appellant but that he was out at the time. She showed the immigration officer the appellant's passport which confirmed his identity and told him that she lived in Croydon, but could not remember where. The immigration officer made further visits to 15 Batavia House but stated that on each occasion the property was unoccupied. The immigration officer was informed by the neighbours that the appellant had been living at that address with a woman, who fitted the description of Miss Opoku, since the summer of 1979. He was also told that the appellant's wife and left shortly before that date.

"After having made enquiries and discovered that the appellant's wife had been re-housed by Lewisham Council in 1979, an immigration officer, accompanied by a senior immigration officer, visited her address on the 7th August 1983. In reply to questioning, she gave the immigration officer the following information about her relationship with the appellant. She said that she had left him in December 1978 because of his violence. She had left 15 Batavia Road to live with her mother and had taken their daughter, Julie Nana Ekua Osei-Blankson, with her. Christina stated that she had started divorce proceedings in February 1979 and that she had been granted interim custody of the child. She told the immigration officer that she had had no real contact with the appellant since the legal separation and stated that he did not pay maintenance for the child. Christina allowed the immigration officer to take some legal papers pertaining to the divorce. The divorce was made absolute on the 6th August 1982."

It should be observed in relation to that paragraph that divorce proceedings were not commenced in February 1979. The petition which led to the decree absolute on 6 August 1982 is dated 13 August 1981, and in that petition it is pleaded that the petitioner and the respondent had lived apart continuously since 22 December 1978. The reference in the explanatory statement to February 1979 must, I think, be a reference to an injunction obtained by the petitioner in the divorce registry on 29 January 1979 whereby the respondent was ordered "to deliver the child of the family to the petitioner and that he be restrained from removing the child from the care and control of the petitioner, from removing the child from England and Wales or from molesting, assaulting or otherwise interfering with the petitioner." I return to paragraph 9 of the explanatory statement which reads:

"On the 8th August 1983, two immigration officers visited 15 John Sopp Point, Freemasons Road, London E16, where they spoke to the appellant. The immigration officer questioned him about his letters to the Home Office in connection with his application for indefinite leave to remain in July 1980, and put it to him that he had deceived the Home Office into thinking that his marriage had subsisted. The appellant agreed that he had been legally separated, but said that he had been hoping for a reconciliation. The immigration officer said that this had not been the impression that he had gained from his wife, to which the appellant did not reply. The immigration officer asked him about the girl who had been at 15 Batavia House on the 5th January 1980. He claimed that she was a friend of the family who had been staying with him only because there was no room at his father's house."

It is to be observed that the letter of 21 July was not put by the immigration officers to Christina. It is to be observed, also, that Christina was not called at the hearing of the appeal which is under review. Having considered the material to which I have referred, the Secretary of State decided on 27 March 1984 to make a deportation order under section 3(5)(b) of the Act of 1971. Under that section, as it is now drawn, a person who is not a British citizen shall be liable to deportation from the United Kingdom "if the Secretary of State deems his deportation to be conducive to the public good." The right of appeal against such a decision is conferred by section 15 and in particular by section 15(7)(a) which provides that appeals against decisions to make deportation orders on the ground of deportation being conducive to the public good should be to the tribunal. I should draw attention to section 26(1)(c) before leaving the statute. That provides: "A person shall be guilty of an offence punishable on summary conviction with a fine of not more than level four on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases . . . (c) if on any such examination or otherwise 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." A person who is so convicted lays hmself open to the possibility of deportation should the convicting court so recommend by reason of section 3(6) of the Act. The relevant deportation rule is HC169 of 1983, paragraph 159, which provides, in very general terms:

"The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 156."

There is one other rule to which I should refer and it is one of the rules in relation to marriage contained in HC 394 of 1980 which was a rule prevalent at the time when the applicant made his application. It is paragraph 117 and it provides: "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, if there is reason to believe . . . (f) that one of the parties no longer has any intention of living permanently with the other as his or her spouse. Where there is no reason to believe that any of (a) to (f) applies, the husband will be allowed to remain, for 12 months in the first instance, provided that the wife is a citizen of the United Kingdom and Colonies who was born in the United Kingdom or one of whose parents was born there. At the end of the 12 months period the time limit on the husband's stay may, subject to (a) to (f) above, be removed." Mr Riza, for the applicant, points out that under (f) it is the intention of the parties which is material, not whether they are actually living together at the critical moment. Mr Riza asks, "Was it shown at any stage that the wife had no intention of living permanently with the present applicant?" he now conceding that they living apart but that the husband hoped for a reconciliation. Mr Riza takes a number of points, the first of which, and possibly the one of most general importance, concerns the limits of the power to decide to make a deportation order under section 3(5)(b). The section is drawn in wide terms and does not import, within itself, any limitation. However, the provision was considered in the speech of Lord Bridge in Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765. Lord Bridge said, at page 787, at A:

"I see great force in the connection 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 procedures available to secure the expulsion of a non-patrial who has obtained leave to enter by fraud are those suggested by counsel for the appellant Khera, 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 (see 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."

Mr Riza relies upon that passage as limiting the scope of the power under section 3(5)(b) and he says that, in terms, Lord Bridge is dealing with the person who made a fraudulent statement to obtain entry and that there is no distinction between that case and a case such as the present where the fraudulent statement, if one there was, was made after entry and with a view to obtaining settlement. Stephen Brown J (as he then was) in R v Immigration Appeal Tribunal ex parte Ghazi Zubalir Ali Khan, [1983] Imm AR 32 said at page 38:

"So far as deceptions after entry are concerned, I am satisfied that they can in law justify proceeding under section 3(5)(b)."

The learned judge does not give any reason for his satisfaction or as to how one distinguishes between pre- and post-entry conduct. In R v Immigration Appeal Tribunal ex parte Cheema, [1982] Imm AR 124, the Court of Appeal had to consider cases of what are described as marriages of convenience. The applicant, Cheema, in that case obtained leave to enter for a limited period. He was granted a number of extensions and during the time when he was here under the extensions, he married. It was asserted that the marriage was a marriage of convenience. The Lord Chief Justice referring to the argument on behalf of the then applicant said the following: "In the end his whole argument comes down to the proposition that section 3(5)(b) is intended for public menaces and not for people who 'merely' enter into marriages of convenience in order to evade the Immigration Rules. He draws our attention to a number of cases, most of them unreported, on this type of immigration situation, dealing with marriages of convenience, and I personally do not find them particularly helpful. They are not very helpful to Sir Charles, with the possible exception of Ex parte Kohli, which was plainly decided upon an entirely different point. ". . . (I omit a paragraph and continue) . . . "What we have to determine in the present cases is whether there were proper grounds upon which the Secretary of State could reasonably come to the conclusion that the continued presence of these men in the United Kingdom was not conducive to the public good; and secondly, whether the Secretary of State exercised his powers under the Act genuinely for that reason, or whether on the other hand his actions under section 3(5)(b) were dictated by an oblique purpose, namely the desire to adopt an administratively convenient method, or a method which would deprive the appellant one of his avenues of appeal, a method which would greatly be more expeditious from the Secretary of State's point of view. "As to the latter point, the suggestion that the Secretary of State was using the section 3(5)(b) procedure as an administrative convenience, there is to my mind no shred of evidence and I would reject that contention out of hand. "As to the former point, this is expressed by Sir Charles in the way that I have indicated, namely that it is clear from the remarks of the then Home Secretary and observations in various cases that the section 3(5)(b) power is a special one. Indeed he goes so far as to say that that much is made apparent by the sections of the Act which I have read. The subsection is aimed, he says, at public menace and should not and cannot be used to catch a mere deceiver.

"I disagree. Marriage is still, like it or not, one of the cornerstones of our society, despite recent trends of behaviour. If a person chooses to use a ceremony of marriage or the status simply as a dishonest and deceitful way of avoiding the law -- the immigration law or any other law -- then I consider it properly open for the Secretary of State to come to the conclusion that that person's continued presence in this country is not conducive to the public good, and that conclusion is well within not only the literal meaning of the Act, but also within the spirit of the Act."

That is a decision, binding upon me, which is against Mr Riza. True it is that it antedates the decision in Khawaja by about one month. It is also true that what was there concerned was a marriage, whereas what we are here concerned with is an allegedly deceitful statement. I cannot distinguish between a marriage for the purpose of obtaining some form of settlement and a deceitful statement for the purpose of obtaining some form of settlement. Each is aimed at an evasion of the law and the rules. Each was a case concerning post-entry activity. I propose to follow the decision in Cheema. It may be for consideration elsewhere and hereafter whether Cheema can stand with the observations of Lord Bridge in Khawaja, or whether the observations of Lord Bridge are confined, as Stephen Brown J thought they were, to statements made upon entry. It may be that that is the case because Lord Bridge refers to the respectable resident, that is to say the person who, as a resident, has been respectable, although guilty possibly of fraud upon entry. If that be the case, then it could be said in relation to this applicant or indeed to any other applicant who is guilty of deceit after obtaining entry, that they are not respectable residents. I accordingly hold that it was within the scope of the Secretary of State's powers to make a deportation order in this case. It is common ground that the onus of supporting the deportation order before the tribunal is on the Secretary of State. It is also common ground that the onus has to be discharged upon a high degree of probability. (See Lord Scarman in Khawaja at page 784, letter C.) That being so, the remaining question is whether a reasonable tribunal applying the rule as to onus and the rule as to standard to which I have referred, could have properly reached the conclusion that here there was deceit. Mr Riza accepts that the tribunal's decision could be flawed only by reference to considerations of irrationality. Mr Gillespie, who appeared for the applicant before the tribunal, submitted that nowhere in the letter of 21 July 1980 is it stated that the marriage was subsistent or that the appellant and his wife were living together. I agree that the replies do not specifically state that the application was made on the basis that the appellant and his wife were living together and that neither party had any intention of not living permanently with the other as his or her spouse. Were it otherwise, the appellant would have fallen foul of paragraph 117 of HC 394, the then relevant paragraph and in particular, (f). However, the whole tenor of paragraph 7 of the letter of 21 July 1980 is that the appellant and his wife were living together. Had the appellant disclosed the marital rift and the fact that his wife no longer had any intention of living permanently with the appellant as his spouse as evidenced by the facts related earlier, his application would have failed at the first hurdle. Moreover, there is no evidence of any attempt at reconciliation by the appellant or his wife. For my part I think that no reasonable tribunal reading the letter of 21 July, would have concluded other than that the parties were living together and proposed to continue living together. I refer again to paragraph 2: "As a matter of fact we do have . . ." and continuing: "if the Home Office wants to see the original, we shall send it along." Paragraph 7 is incomprehensible save on the basis that the parties are in fact living together. In fact, of course, they were not. Had the separation been revealed it is, in my view, irresistible as a conclusion that leave would not have been granted at least without further enquiries. I think there is evidence of deception in a material respect which satisfies the burden and accordingly the tribunal's decision was correct. I do not, however, hide my difficulty at the point raised by Mr Riza in relation to Khawaja. I am told that this is a point of general importance involving a number of cases and it may be, although of course it is for the parties, that guidance should be sought from a higher tribunal.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley Burgess, London; Treasury Solicitor