R v. Immigration Appeal Tribunal, Ex parte Davesh Pranjivan Desai

R v IMMIGRATION APPEAL TRIBUNAL ex parte DAVESH PRANJIVAN DESAI

Queen's Bench Division

[1987] Imm AR 18

Hearing Date: 7 October 1986

7 October 1986

Index Terms:

Husband -- application for settlement following marriage to woman settled in the United Kingdom -- adjudicator dismissed appeal without reference to intentions of applicant -- whether the Tribunal should have granted leave to appeal -- the proper approach to the material issues following Bhatia and Kumar -- the difficulties that arise where the reasoning in a determination is only cursorily recorded. HC 169 para 54.

Adjudicators -- the need to consider all the evidence -- the need to avoid phrasing in a determination that might suggest that an adjudicator had adoped a Wednesbury approach instead of reviewing a case de novo on the facts Immigration Act 1971 s 19.

Held:

The husband of a woman settled in the United Kingdom was refused entry clearance because the entry clearance officer was not satisfied that the primary purpose of the marriage was not for the husband to secure admission to the United Kingdom. On appeal to an adjudicator he phrased his determination in such a way as possibly to suggest that he had approached the matter on Wednesbury principles rather than deciding the case de novo on the facts. He also omitted to make any evaluation of the husband's own motives. Leave to appeal to the Tribunal was refused. On application for judicial review the Court granted certiorari directing the Tribunal to grant leave to appeal to review the case on its merits. Held: 1. The phrasing adopted by the adjudicator could suggest that he had misdirected himself as to the proper approach he should adopt under s 19 of the Immigration Act. 2. In any event, because he had failed to evaluate the motives and intention of the husband, the determination could not stand. 3. Following Kumar, it was possible that he had 'arrived at too ready and bland a conclusion' because it was an arranged marriage. In that regard 'One of the problems with a decision as shortly reasoned as this is that it is difficult to be sure precisely what approach was brought to bear to the various important aspects of the case'.

Cases referred to in the Judgment:

Vinod Bhatia v Immigration Appeal Tribunal [1985] Imm AR 39 (QBD) 50 (CA). R v Immigration Appeal Tribunal ex parte Arun Kumar [1986] Imm AR 446 (CA).

Counsel:

N Blake for the applicant; P Vallance for the respondent PANEL: Simon Brown J

Judgment One:

SIMON BROWN J: The applicant is a citizen of India, aged 27. He is desirous of joining his wife in this country. He applies with leave for judicial review of a decision of the Immigration Appeal Tribunal of 17 July 1985, refusing him leave to appeal in the following circumstances. In May 1983 the applicant met in Calais a young lady of Indian origin who is a citizen of the United Kingdom settled in this country. This was by arrangement and with a possible view to their eventual arranged marriage. That marriage was duly celebrated in India on 20 June 1983 and for some three weeks before her return to this country, the applicant lived with his wife. She is now his sponsor to bring him to this country. On 21 June, the day following the marriage, the applicant sought to join his wife as her husband. That application was made and fell to be considered under rule 54 of HC 169, which provides as follows:

"The husband of a woman who is settled in the United Kingdom, . . . is to be admitted if 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 the marriage was not entered into primarily to obtain admission to the United Kingdom; and (b) that each of the parties has the intention of living permanently with the other as his or her spouse; and (c) that the parties to the marriage have met."

I shall refer to those requirements respectively as "requirements (a), (b) and (c)". On 9 May 1984, entry clearance was refused on the basis that the entry clearance officer was not satisfied of requirement (a). The applicant appealed against that refusal and the appeal was heard by an adjudicator, Dr Pearl, on 1 May, a hearing at which a number of witnesses were called. His adjudication was notified on 30 May, after he had had an opportunity of reading the transcript of Forbes J's then very recent decision in ex parte Bhatia. Dr Pearl's adjudication was adverse to the applicant. I shall return to it in a moment in more detail. The applicant sought to take the matter further and applied for leave to appeal to the Immigration Appeal Tribunal. The Tribunal refused that on 17 July 1985, the decision now under challenge. The Tribunal were required to grant leave if, but only if, they were satisfied that the determination of the appeal involved an arguable point of law. That is provided for by rule 14 of the relevant procedure rules. The Tribunal expressed the opinion that the determination of the appeal did not so turn upon any arguable point of law. It is against that conclusion that Mr Blake's submissions are largely directed. The adjudicator, having heard evidence, remarked in his determination that "the facts as they were displayed before me by the four witnesses differ markedly from the facts given to the ECO." He then noted that the facts given to the ECO were contained in a particular paragraph of the explanatory statement which he recited in full. It is not necessary to go into the matter in great detail; suffice to say that the account given to the entry clearance officer was frankly incredible in that it suggested that the meeting in Calais between the applicant and the sponsor was wholly fortuitous, the sheerest chance and that there had been no question of its being pre-arranged. When evidence was given to the adjudicator, it was made clear that the meeting was indeed arranged, the applicant known to be in France at the time. The whole encounter was set up by one of the witnesses, a Mr SS Patel, who is in fact related to both the sponsor and the applicant, being the father respectively of the sponsor's eldest sister's husband and of the applicant's brother's wife. It was he who was asked by the applicant's father to find a bride for the applicant. And it was he who, availing himself of his family connection with the sponsor, arranged the introduction. The only outstanding issue on the evidence before the adjudicator was the ultimately immaterial question of whether or not Mr SS Patel accompanied the sponsor and her father on the visit to Calais. Having recited those matters and the submissions of the respective parties to the appeal, Dr Pearl came to the disposal of the matter before him. His determination concludes with these passages:

"On the evidence, I have come to the conclusion, and SS Patel really admitted this, that he was asked by the appellant's family to find a bride for the appellant. SS Patel was living in UK and he could really only find a bride in the UK. It was natural that he would look first at the daughter of Vinod Patel" -- I interpolate that he is the sponsor's father -- "given that the families were already tied through an inter marriage. The fact that there is no evidence of any pre-existing desire on the part of the sponsor to bring the appellant to the country does not really affect the matter as Forbes J states" -- I interpolate to note that that was in Bhatia -- "one must look to the 'discoverable purpose which may be properly attributable to those who arranged the marriage.' The 'discoverable purpose' -- on my interpretation of this evidence -- on the part of SS Patel, the appellant's father, and perhaps also the father of the sponsor, was that the marriage was arranged to facilitate the appellant's entry to this country. I have decided that the case is on all fours with the Bhatia judgment. Adopting the fourth question, which I extract from that judgment in this case, it is my view that the ECO in this case, on the material before him (even as clarified before me) 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 the other inferences was sufficient to satisfy him that the primary purpose of this marriage was not for admission. Accordingly, I dismiss the appeal."

Mr Blake's first criticism of that determination is that the adjudicator misdirected himself as to the role that he was required to play in the discharge of his appellate function. Mr Blake suggests that the last paragraph (that referrable to the fourth question extracted from Bhatia) indicates that the adjudicator was, in effect, reviewing the ECO's determination on a basis akin to that adopted by this court in the exercise of its supervisory jurisdiction rather than disposing of an appeal which he was required to entertain on a de novo basis Mr Vallance, for the respondent Tribunal, now accepts that the adjudicator is indeed required to determine afresh on the factual material before him the self-same question which initially fell to the entry clearance officer to answer, namely, as to whether or not he was satisfied that the marriage was not entered into primarily to obtain admission to the United Kingdom. But Mr Vallance suggests that there is, on analysis, no reason to suppose that this adjudicator saw his role otherwise than as that. The language of the relevant paragraph, although superficially suggestive of the adjudicator discharging a review rather than an appellate function, should not ultimately be so regarded. Mr Vallance suggests that it may well be that the language owes something to the way that section 19(1)(a)(i) of the statute is framed and is not inconsistent with the required approach. I am bound to say that it seems to me difficult to regard that paragraph as consistent with the adjudicator adopting a proper approach in the way Mr Vallance contends. If it were, then it is difficult quite to understand why the fourth question should have been posed and answered at all having regard to the view which the adjudicator had already expressed in the preceding paragraphs. But I prefer, rather than arrive at any concluded view upon that ground of complaint, to found my decision upon what seems to me to be the more substantial criticisms advanced against the earlier paragraphs. The real decision, as I understand this determination, is to be found in the short paragraph in which Dr Pearl expresses his conclusion upon the "discoverable purpose" of those who arranged this marriage. The first criticism, to my mind, substantiated by Mr Blake against that paragraph, is that it strikingly ignores any consideration of the applicant's own intentions and purposes in entering into this marriage. Of course, the purposes of those who arranged it are material and in the end may well be of conclusive importance. However, any decision which so wholly ignores, as this decision apparently ignores, any consideration of the applicant's own intentions of the matter, is in my judgment, insupportable. The arranger's purposes may well not be and are not necessarily dominant in giving the marriage its eventual character as a "genuine or immigration marriage", using the language of the Master of the Rolls in the recent case, of ex parte Kumar. Moreover, the absence of any reference to the applicant's intentions and purposes in the concluding paragraphs of this determination is compounded by the matter to which I have already alluded, that the adjudicator's only reference to the evidence given by the applicant to the entry clearance officer was to such evidence as was contained in the single paragraph cited from the explanatory statement. That paragraph itself omits all the evidence that was given by the applicant to the ECO as to what his intentions were in this matter. In particular, the applicant had expressly denied that he had married the sponsor because he wanted to live and work in the United Kingdom. It may well be that the adjudicator would have been entitled to place singularly little weight upon that evidence as to the applicant's own intentions in the matter, but he most certainly should have referred to it and not confined his reasoned determination solely to a consideration of the discoverable purposes of others. After all, as the Court of Appeal observed when the case of ex parte Bhatia came before them: "What the applicant himself says about his reasons for seeking entry clearance for marriage must be of the first importance." That criticism of the discoverable purpose paragraph does not stand alone. There are other aspects of it also which I am bound to say trouble me and I cannot help concluding that the decision would certainly have been reasoned very differently and might conceivably have been substantively different had Dr Pearl had the advantage, as henceforth the independent appellate authorities will have, of the recent Court of Appeal decisions in Bhatia and Kumar. The conclusion which he arrived at purports to be based on evidence which, on analysis, does not altogether obviously support the inferences which he drew. It may well be that he placed too much reliance upon the mere fact that this was an arranged marriage. The dangers of adopting that somewhat trite approach have been underlined in the Master of the Rolls' judgment in ex parte Kumar. I need not refer to the particular passage in his judgment to that effect. There is also no reference in this determination to the fact -- which may often illuminate the question whether requirement (a) be satisfied -- that requirement (b) here was clearly satisfied. Again, it is a small point in itself, but it is one which suggests that regard may well not have been had to all the various circumstances which ought properly to have been taken into account before the adjudicator reached his final determination. It is at least possible that the adjudicator here was in error in his approach to arranged marriages generally and that he arrived at too ready and bland a conclusion because the only actual findings of fact that he makes might well be thought essentially innocuous rather than adverse to the success of the application. One of the problems with a decision as shorly reasoned as this is that it is difficult to be sure precisely what approach was brought to bear to the various important aspects of the case. In the result, I have concluded that the grounds of appeal put before the Tribunal formulated arguments as to errors and misdirections in law by this adjudicator which could only properly have been regarded by the Tribunal as arguable points of law upon which the determination of the appeal might well turn. It follows that the Tribunal was wrong to refuse leave to appeal in this case and that their decision to do so must be quashed. I need hardly add that the result of this application can only be that the real issue will now have to be determined upon a substantive appeal by the Immigration Appeal Tribunal. Nothing that I have said is in any way intended to indicate a view as to how such substantive appeal ought hereafter to be determined. In short, what I have said is designed to influence the required approach, as a matter of law, to the appeal, but not its substantive result. It follows that certiorari will go, but I do not intend to make any further order.

DISPOSITION:

Application granted.

SOLICITORS:

Ashok Patel & Partners, London SW17; Treasury Solicitor

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