Afuah Foriwaa Poku v. Secretary of State for the Home Department

AFUAH FORIWAA POKU v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Queen's Bench Division

[1986] Imm AR 119

Hearing Date: 25 February 1986

25 February 1986

Index Terms:

Marriage -- marriage of convenience -- whether the appellant could rely on s 1(5) of the Immigration Act 1971 to obtain indefinite leave on the basis of the admitted marriage of convenience to a person allegedly settled in the United Kingdom on the coming into force of the Immigration Act 1971. British Nationality Act 1948, ss 1(2), 4, 6(1); Commonwealth Immigrants Act 1962, ss 2, 6, Schedule 1, para 2(5): Immigration Appeals Act 1969, s 20: Immigration Act 1971, ss 1(4), 1(5)(a), 2(1)(a) 2(3)(a), 3(5), 5(1)(2), 33(1): British Nationality Act 1981, s 6(2), Schedule 2 paras 2, 3: Command Paper 4295, paras 4, 24, 31: Command Paper 4298 paras 34, 54-56: HC 80, paras 4, 25: HC 1 paras 97, 124

Held:

The facts are set out in the determination. Held: 1. Section 1(5)(a) of the Immigration Act 1971 applies to any wife of a Commonwealth citizen who in accordance with English law is recognized as a wife prior to the date of the decision, which is the subject of an appeal to the immigration appellate bodies. 2. The Commonwealth citizen must have been settled in the United Kingdom on 1 January 1973 whether or not he be a British citizen. 3. In these circumstances, the pre-1971 Act rules must be applied as they would operate on the facts at the date of decision.

Cases referred to in the Judgment:

R v Secretary of State ex parte Shaw (unreported, DC 19 January 1978) R v Immigration Appeal Tribunal ex parte Cheema [1982] Imm AR 124 Vervaeke v Smith [1983] AC 145: [1982] All ER 144 Zarda Begum and ors v Visa Officer, Islamabad [1983] Imm AR 175 Visa Officer, Islamabad v Saeedan [1983] Imm AR 131 Choudhry v The Commissioner of Police for the Metropolis (unreported, CA 23 November 1984) R v Immigration Appeal Tribunal ex parte L Ron Hubbard [1985] Imm AR 111 R v Immigration Appeal Tribunal ex parte L Ruhul [1986] Imm AR 27 Lohair (unreported) (3217) Pereira (unreported) (3547) Kwok (unreported) (3578) Rai (unreported) (3676) Ashiq (unreported) (4316)

Counsel:

BM Birnberg for the appellant; D Wilmott for the respondent PANEL: Professor DC Jackson (Vice-President); GW Farmer Esq (Vice-President); Miss PG Liverman JP

Judgment One:

THE TRIBUNAL: The appellant appeals against a decision of an adjudicator (Mrs DA Friedman) dismissing her appeal against the refusal of an application to vary her leave to remain in this country on the basis of her marriage to a man settled here. The background facts The facts of this case as it comes to us are deceptively simple, the issues complex. The appellant first came to the United Kingdom as a visitor in 1979, making two further visits, one in 1979 and one in 1980. Subsequent to her visit in 1980 she was allowed to remain for two further months for medical treatment. On 21 June 1982 the appellant was given leave to enter for three months for medical treatment and she embarked on 18 September 1982. On the 31 October 1982 she sought leave to enter as a visitor for two months and was refused. She was removed to Ghana. On 24 November 1983 the appellant travelling on a new Ghanaian passport was admitted as a visitor for three months and that leave was later extended until 24 May 1984. On 16 May 1984 the appellant married Michael Salu and on 24 May she applied for indefinite leave on the grounds of marriage to a British citizen. According to the explanatory statement, during enquiries the appellant admitted that she had paid Mr Salu's father a fee for Mr Salu to marry her. The appellant said that since the wedding she had not seen Mr Salu save when he went with her to the Home Office to apply for her indefinite leave. She said that she had married so that she could remain in the United Kingdom. Following these admissions the application was refused, the notice of refusal reading: "You have applied for leave to remain in the United Kingdom for an indefinite period on the basis of your marriage to a man settled here: However, the Secretary of State has reason to believe that you have contracted this marriage in order to obtain settlement in the United Kingdom, and that you are not living together as man and wife. Therefore, he does not consider the fact that you have married a man settled in the United Kingdom conclusive in our favour, but rather that in the light of your conduct it is undesirable to permit you to remain on this basis. You do not qualify to remain for any other purpose". It is clear from the explanatory statement that the Secretary of State considered the case under the Immigration Rules set out in HC 169. The adjudciator also considered the case under HC 169 and following and applying the Tribunal decision in Rai (3676) dismissed the appeal. As we understand it before us Mr Birnberg accepted the facts as set out above, subject to a dispute as to the amount of money paid by the appellant. For his part Mr Wilmott bearing in mind how the case has developed did not seek to challenge that Mr Salu, being the person to whom a birth certificate produced referred was also the person to whom the appellant was married and secondly, that Mr Salu was settled in this country at the date of decision. The case for each party Mr Birnberg's case is simply put. It is that by the marriage the appellant was entitled to indefinite leave. Mr Birnberg argued that there is no basis for enquiry into the quality of the marriage or the motive of the parties in entering into it. The case for the Secretary of State is that the admitted use of the marriage to achieve settlement is conduct which provides a ground for refusal or indefinite leave. The applicable law and immigration rules Before the adjudicator Mr Birnberg raised the question of whether the appellant was entitled to rely on section 1(5) of the Immigration Act 1971 and through section 1(5) on statutory or other provisions in force prior to the Act. Section 1(5) reads: "1(5) The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed". The raising of the applicability of Section 1(5) in these proceedings For the first time, as Mr Wilmott pointed out and Mr Birnberg agreed, reliance had been placed on section 1(5) on behalf of the appellant before the adjudicator. It appears that the adjudicator either considered that the section was irrelevant or did not deal with it. Certainly she made no finding on the question of whether Mr Salu was settled in this country on 1 January 1973 so as to bring this case within the ambit of the provisions. The Secretary of State had applied HC 169 to the appellant's application and had not considered the question of whether any other rules applied. Mr Wilmott argued strongly that there was no obligation on the Secretary of State to go further than current rules unless directed to others either by those current rules or by an applicant. Mr Birnberg on the other hand contended that it was for the Secretary of State to apply the law to an application, particularly when evidence submitted in support put him on notice that rules other than those current may apply. In this case, said Mr Birnberg, the appellant had produced her husband's bith certificate showing that he waas born in this country, and that should have alerted the Secretary of State to the possibility of the applicability of section 1(5). Mr Birnberg went on to argue that we should either infer from the non-consideration of the provision by the Secretary of State or from the evidence of the birth certificate that Mr Salu was settled here on 1 January 1973. We go with Mr Birnberg to this extent -- as the Tribunal has said on a number of occasions, it is for an applicant to make clear the factual basis of the application but it is for the Secretary of State, entry clearance officer or immigration officer to fit that application into the appropriate legal category. In this case the factual application was clear and if on those facts the appropriate rules were not applied it is for the appellate authorities to consider their application. The consequences of that consideration will depend upon the facts in each case. In this case it is clear to us that section 1(5) cannot be said to be applicable simply because the Secretary of State did not consider it. We have therefore to consider its applicability. The pre-requisites for the application of Section 1(5) The applicant must be a Commonwealth citizen settled in this country on 1 January 1973 or the wife or child of such a citizen. In this case on the evidence of Mr Salu's birth certificate the applicant is the wife of a British citizen, achieving that status on 16 May 1984. These facts raise three preliminary questions for resolution in order to decide if section 1(5) is at all applicable to this case -- ie (i) does section 1(5) encompass a wife who achieves that status after 1 January 1973? (ii) is the status of wife in any way to be qualified to attract the protection of section 1(5)? (iii) does the requirement of "settled" apply to British citizens for the purpose of section 1(5)? Does the provision apply to a wife achieving that status after 1 January 1973? Mr Wilmot did not seek to argue that the scope of the provision was limited to wives who had married prior to 1 January 1973. We agree. The provision is focussed on the protection of Commonwealth citizens settled in this country when the Immigration Act came into force (ie 1 January 1973). Without express wording and given that the protection extends to the families of such citizens it would seem artificial to restrict the protection to families then in existence. Had such restrictions been intended it would surely have been expressed. It follows therefore that the appellant in this case is not outside the provision because of the date of her marriage. Is the status of wife sufficient of itself to attract section 1(5)? Mr Birnberg's case is that under the applicable law and rules there is no power in the Secretary of State to take note of the quality of the marriage or of the motive of the appellant in entering into it. We accept that at least so far as section 1(5) is concerned it applies to a "wife" once the marriage is valid in English law. The appellant is therefore a "wife" within the meaning of section 1(5). The relevance of "settled" in the case of a British citizen In the case before us the relevant person to whom the pre-requisite of "settled" applies if at all is Mr Salu. On the basis of the evidence submitted (his birth certificate) he was a citizen of the United Kingdom and Colonies by birth and therefore within the phrase "Commonwealth citizen" (British Nationality Act 1948 sections 1(2), 4). He had the right of obode in this country (Immigration Act 1971 section 2(1)(a)). On the coming into force of the British Nationality Act 1981 (ie on 1 January 1983) he would have become a British citizen, his right of abode continuing. We agree with Mr Wilmott first, that even if the relevant person (ie Mr Salu) is a British citizen the provision requires that it be established that that person was "settled" here on 1 January 1973. In our view although the concept of being settled is irrelevant to the rights of a British citizen to come and go and to remain in this country is not a concept inherently inapplicable to a British citizen when the issue concerns rights of others subject to immigration control. (See for example in another context Zarda Begum [1983] Imm AR 175). Reference to a person being settled in the United Kingdom is defined for the purpose of the Immigration Act 1971 as reference to "his being ordinarily resident there without being subject to the immigration laws to any restriction on the period for which he may remain" (sections 33(1), 2(3)(d)). There is nothing inconsistent with British citizenship in this definition. While a British citizen is necessarily not subject to any restriction as to the period for which he may remain he is also not necessarily ordinarily resident at all times. Further, it would appear that being settled is a concept envisaged by the Act as applying to those exempt by the Act from the provisions relating to leave to enter or remain (see section 1(2)). Finally, had it been intended that section 1(5) bestow a special status on the wife and children of British citizens it would have said so. The applicability of section 1(5) therefore depends upon whether Mr Salu was settled in this country on 1 January 1973. Was Mr Salu settled in the United Kingdom on the 1 January 1973? It is for the appellant to establish on the balance of probabilities that Mr Salu was ordinarily resident in the United Kingdom on 1 January 1973. Mr Birnberg urged us to infer from the evidence of the birth certificate that lacking other contrary evidence Mr Salu was ordinarily resident in this country on that date. We are unable to agree, and we do not think that on the evidence before us it has been shown that Mr Salu was ordinarily resident here on the critical date. In this event we agree with both parties that given the way the case has developed Mr Birnberg should be able to call such evidence as he wishes on this point. We leave the question as to whether the matter should be considered by us, an adjudicator or the Secretary of State pending consideration of whether section 1(5) has any substantive effect in this case. The effect of Section 1(5) Even if the appellant is within the scope of section 1(5) the pre-1973 rules are applicable only to the extent specified by the statutory provision as interpreted by judicial decision. In a judgment delivered in respect of three cases -- Ruhul, Rahman and Haque on the 21 November 1985 (and therefore subsequent to the adjudicator's decision) Taylor J followed the approach of Lord Denning MR in R v Chief Immigration Officer ex parte Salamat Bibi [1976] 3 All ER 843. Taylor J held "that what one has to do is to embark upon a comparison of the rules in force pre the Act and post the Act. If the rules post the Act are such as to make wives and children less free to come and go, then the previous position has to obtain". Taylor J disapproved of the view taken by the Tribunal in Saeedan [1983] Imm AR 131 that the effect of section 1(5) was limited to the preservation of statutory rights enjoyed prior to 1 January 1973. The Tribunal based its view on the wording of the provision that any change in status or claims stemming from changes in the rules or instructions issued by the Secretary of State prior to the Act were not the result of the passing of the Act. Taylor J thought this argument flawed. The learned judge said: "I do not see any reason why the final words of the subsection -- 'than if this Act had not been passed' -- should be read in any other way than to indicate a comparison in point of time with the state of the rights and options of would-be entrants before the Act was passed, and a similar surveillance of their rights and options afterwards. Perhaps the correct way to read those final words -- 'than if this Act had not been passed' -- is as if they read 'than if this Act had not said that the rules shall be so framed'." The learned judge continued: "The subsection prescribes how subsequent rules shall be framed, and what it clearly says is that wives and children are not to be less free to come and go by virtue of anything in those rules -- whether they be of discretionary or of na entitlement nature -- than if this Act had not been passed. It seems to me that the proper interpretation of that subsection is that which has been contended for by Mr Platts Mills; the subsection contemplates that following the enactment of this statute, those who wish to enter the United Kingdom under this provision shall not be in any worse position than they were at the time prior to its coming into force. That takes account not only of statutes and entitlements and rights, as Mr Collins would contend, but 'by virtue of anything in the rules's it also takes into account any discretionary options that they may have had as at that time". With the greatest respect the Tribunal continues to find this a rather puzzling construction. It finds it somewhat improbable that Parliament should have intended to freeze at 1 January 1973 the substance of instructions or rules in regard to which the functions (ie the discretion) of the Secretary of State and immigration officers were exercised. Prior to the Act, Commonwealth citizens had certain statutory rights. Subject to these rights the general pattern of the exercise of discretion was set out in instructions (later termed "rules") which were made by the Secretary of State and presented to Parliament. These had been changed on a number of occasions between 1962 when immigration control was first introduced in respect of Commonwealth citizens and 1973. The result of the Ruhul approach is that the pattern of discretion existing at 1 January 1973 became set in statutory concrete. Subject to subsequent statutory provisions the basis for the granting of leave in respect of those within the provision, remains as it was on 31 December 1972. Such a consequence confers on those within the provision a guarantee against changes in the "discretionary options" (as Taylor J put it) which was not there prior to the Immigration Act. It is difficult to appreciate why Parliament should intend to confer any statutory guarantee over and above the pre Act statutory rights which controlled the ambit of the discretionary options. As the present case helps to show, the practical consequences of the Ruhul approach are of considerable difficulty not least as the pre 1971 Act rules were clearly (and understandably) drafted in the context of statute law as it then was. In our view it would be surprising if as a result of Ruhul the Secretary of State and appellate authorities must put themselves back in time so as to ignore all legal developments since 1973. If this is not to be done however, it is difficult to interpret rules drafted in one context in a different context, particularly when some of the rules are now inapplicable because of statutory changes. Further, where the pre-Act rules provide for the exercise of a discretion within the rules it is in practice impossible for immigration officers to leap backwards and exercise that discretion following rules of guidance which apply prior to the Act. Yet if the protection extends to "discretionary options" it is just as difficult to know why and when to stop along the pre 1973 discretionary route. Conversely the Tribunal can appreciate how Parliament wished to preserve statutory rights of Commonwealth citizens particularly taking into account the change in the immigration control pattern to statute and rules. Further and specifically the pre 1973 statutory rights of Commonwealth citizens would in future in some important respects be the subject not of statute but of rules and thereby more easily subject to change. However, whatever our reservations we are bound by the decision in Ruhul. It follows that the question of whether the relevant person (in this case Mr Salu) was settled here on 1 January 1973 is material depends on an assessment of the relative benefits conferred by the pre Act rules. Pre Act and post Act comparison The case before us raises issues not rased in any of the cases before Taylor J. Those cases were all concerned with individuals seeking entry as dependent sons who at the time of application were over the age of 18 but under the age of 21. As such they had no statutory entitlement either before or after 1973, but the immigration rules applicable prior to 1973 were more beneficial than those made after the Act and otherwise applicable to their application. There was apparently no change between 1 January 1973 and the date of decision on the nationality of any of the individuals or any other factor relevant to the application of section 1(5). In Salamat Bibi the issue turned on the requirement of an entry clearance for the wife of a Commonwealth citizen. Lord Denning MR approached the issue as one of comparison between pre Act and post Act rules, saying that the requirement appeared in both sets of rules. On 1 January 1973 both the applicant and her husband were citizens of Pakistan and therefore Commonwealth citizens. On Pakistan leaving the Commonwealth both the applicant and her husband lost that status and the applicant had to satisfy the rules relating to non Commonwealth citizens. No argument appears to have been adduced as to whether in these circumstances the relevant pre Act rules were any but those applicable to Commonwealth citizens (ie Cmnd 4298). To consider the comparison indicated by Ruhul it is necessary to set out the relevant pre 1973 and post 1973 law and rules. Pre 1973 law and rules If pre 1973 rules apply the directly applicable rules are those set out in Cmnd 4295 in the final sentence of paragraph 24 and in paragraph 4. These read: "24. . . . But a woman admitted in a temporary capacity who marries a resident should have her conditions of admission revoked on application". "4. . . . In deciding whether to grant an application for revocation or variation of conditions, or to initiate a variation of conditions, account will be taken all relevant factors, including whether the Commonwealth citizen has observed the conditions on which he was admitted to the United Kingdom". However we must also have regard to statutory rights and to any other provisions of Cmnd 4295 which could affect the scope of interpretation of the rules directly applicable. In this case the appellant was admitted as a visitor and is applying for variation of leave. Under the Commonwealth Immigrants Acts 1962 and 1968 the power to vary leave is set out in schedule 1 paragraph 2(5) of the 1962 Act. This reads: "2(5) Any conditions specified in a notice under this paragraph may at any time be revoked or varied by the Secretary of State, either by notice in writing given to the immigrant to whom those conditions apply or by order applying to immigrants of any class to whom such conditions for the time being apply". The Commonwealth Immigrants Act 1962 section 2 (as amended by the Commonwealth Immigrants Act 1968) provides so far as relevant that the power to refuse admission to Commonwealth citizens shall not be exercised in respect of a wife of a Commonwealth citizen who is resident in the United Kingdom. (section 2(2)(b)). By section 20 of the Immigration Appeals Act 1969 the requirement of a current entry clearance for the purpose of settlement was introduced in respect of a wife of a Commonwealth citizen and this was reflected in Cmnd 4298 paragraph 34. The power to deport a Commonwealth citizen was set out in the Commonwealth Immigrants Act 1962 section 6 as extended by the Immigration Appeals Act 1969, section 16. Under the Act of 1962 deportation was dependent on a conviction for an offence and the Act of 1969 introduced overstay (without a conviction) as a ground of deportation. There was however no power to deport a Commonwealth citizen who was the wife of a citizen of the United Kingdom and Colonies born in this country (see section 6(2) of the Act of 1962). This prohibition was reflected in Cmnd 4295 paragraph 31. Mr Birnberg also drew our attention to the provisions of the British Nationality Act 1948 section 6(1) which together with section 1(2) provides that a woman who is a citizen of (inter alia) Ghana "who has been married to a citizen of the United Kingdom and Colonies shall be entitled on making application therefor to the Secretary of State in the prescribed manner . . . to be registered as a citizen of the United Kingdom and Colonies . . ." Post 1973 law and rules If pre 1973 rules do not apply the directly applicable rules are those set out in paragraph 124 and paragraph 97 which so far as relevant read: "124. A woman admitted in a temporary capacity who marries a man settled here should on application be given indefinite leave to remain". "97. The succeeding paragraphs set out the principles to be followed in dealing with applications for variation of leave or to remain or, in the absence of such an application, in deciding to vary leave. They apply also to applications for leave to remain by children born in the United Kingdom who are not British citizens and who have not obtained leave to enter. In deciding these matters account is to be taken of all the relevant facts; the fact that the applicant satisfies the formal requirements of these rules for stay, or further stay, in the proposed capacity is not conclusive in his favour. For example, refusal will be the normal course if the applicant has made false representations in obtaining leave to enter (including the giving of undertakings, express or implied, which he has not honoured, as to the duration and purpose of his stay); if he has not observed the time limit or conditions subject to which he was admitted, or given leave to remain; if in the light of his character, conduct or associations it is undesirable to permit him to remain; if he represents a danager to national security; or if he might not be returnable to another country if allowed to remain for the period for which he wishes to stay. In such circumstances it is not necessary to consider any claim by the person concerned that he satisfies the formal requirement of these rules. Refusal of an extension of stay will also be justified where an applicant takes an unreasonable time to produce any evidence required under the rules". The exemption from deportation was removed through the repeal of the Commonwealth Immigrants Act 1962 by the Immigration Act 1971. By the provisions of the Act of 1971 a person such as the appellant is liable to deportation if an overstayer, on the grounds that deportation would be conducive to the public good or as a member of the family of a person who is or has been ordered to be deported (section 3(5)). The entitlement to citizenship and to the right of abode of the wife of a citizen of the United Kingdom and Colonies was removed by the British Nationality Act 1981 so far as a wife marrying on or after 1 January 1983. In regard to such a wife there is no right of abode and citizenship depends on compliance with certain requirements subject to a discretion in treating the requirements as having been met. However, it is necessary that an applicant such as the appellant is not in this country by virtue of limited leave (see British Nationality Act 1981 section 6(2) schedule 2 paragraphs 3 and 4). The basis of comparison The case before us raises the issue of whether the necessary comparison indicated by Ruhul is or can be restricted to the post Act and pre Act rules. It illustrates first, that to consider the rules as entities independent of statutory rights is unrealistic and secondly, the practical difficulties inherent in the comparison itself. As we understand it it is common ground between Mr Birnberg and Mr Wilmott that prior to 1973 because of entitlement to citizenship of the United Kingdom and Colonies under the British Nationality Act 1948 section 6(2) in practice the appellant would have been granted leave. Mr Birnberg put his case on the basis first, that because of the appellant's entitlement to citizenship no discretion existed to do other than to grant leave and secondly, that if there was a discretion (stemming from paragraph 4 of Cmnd 4295) it would automatically have been exercised in the appellant's favour. Mr Birnberg drew our attention to the prohibition on deportation in Cmnd 4295. In this context he said that prior to 1973 there was no immigration concept of a marriage of convenience and secondly, that as a consequence of the Ruhul approach we must transpose ourselves back in time and deal with the case as it would have been dealt with prior to 1973. Mr Wilmott contended first, that under Cmnd 4295 there was always a discretion to vary leave based on paragraph 4 but that because of the entitlement of the wife of a Commonwealth citizen to citizenship of the United Kingdom and Colonies it was not exercised so as to refuse leave. In applying the rule set out in Cmnd 4295 today urged Mr Wilmott we should stay in the present. There was now no entitlement to citizenship. In our view if for our comparison we were to take as our pre 1973 base either the rules set out in Cmnd 4295 of their application prior to the Act of 1971 the rules are more beneficial to the appellant than HC 169. In considering the rules themselves at the least, prohibition on deportation provides a factor relevant to the exercise of any discretion that may exist by virtue of paragraph 4. If the application of the rules was the base it is conceded by Mr Wilmot that in practice the entitlement of the appellant to citizenship would mean that there would be no refusal of leave to remain. However, section 1(5) will prevent the reduction of rights by the Immigration Act itself only if the Act can be so construed, and whatever the effect of section 1(5) in relation to other provisions of the Act it cannot bind Parliament in respect of subsequent statutes. The wording of section 1(5) makes it clear that it focuses on the reduction in rights "by virtue of anything in the rules". To the extent therefore that the post Act rules affect the right to come and go of those within the provision, it is right to say that, accepting the Ruhul approach, the pre Act and post Act rules must be compared. It does not follow however that that comparison is the exclusive basis of assessment of rights when the right to come and go is affected by legislation other than the rules. In our view the comparison between the rules must take place only in the context of the right to come and go as it exists apart from the rules at the date of decision. It is necessarily implied in that view that we must apply the pre Act rules to the appellant's case as the case is made at the date of decision and not as it may have been made prior to the Immigration Act 1971. It follows that we do not agree with Mr Birnberg that we must base our assessment of the appellant's rights on the pre Act rules as they would have been applied when in operation. In our view in deciding whether the rules are more beneficial we must consider the content of the rules in the context of the appellant's immigration status at the date of decision. In so doing we must take account of any changes in that status as between 1 January 1973 and the date of decision stemming from sources other than the rules. We must then consider whether section 1(5) protects the appellant from any such changes. In this case the appellant remained at all time a citizen of Ghana and the pre Act rules are therefore Cmnd 4295. However her right to come and go is fundamentally affected by two statutory reductions as compared to that right when Cmnd 4295 was in operation. First, following the enactment of the Immigration Act 1971 marriage to a citizen of the United Kingdom and Colonies no longer prevents deportation and more, a decision to make a deportation order may be on the grounds that such deportation would be conducive to the public good. In our view section 1(5) cannot be read as exempting those entitled to its protection from the effect of other provisions of the Act. Section 1(4) of the Act provides that the rules under the Act must contain provisions relating to certain admission categories: section 1(5) then provides that the rules are to be so framed that those within the section are not by virtue of anything in the rules to be less free to come and go, section 1(5) is therefore directed solely at the rules and had it been intended to confer protection against provisions of the Act it would have so provided. Secondly, following the enactment of the British Nationality Act 1981 the appellant's marriage to a British citizen at a date after 1 January 1983 no longer provides an entitlement to registration as a British citizen. The appellant's pre Act and post Act immigration status is thereby reversed. Prior to 1973 she would have been granted leave as was entitled to citizenship of the United Kingdom and Colonies and the right of abode: after 1 January 1973 she cannot be granted British citizenship unless she has indefinite leave or the right of abode. There is nothing in section 1(5) or the British Nationality Act 1981 to justify the view that section 1(5) was intended to protect those within it from this reduction to the right to come and go. We turn, therefore, to a comparison between HC 169 paragraphs 4 and 124 and Cmnd 4295 paragraphs 4 and 234 bearing in mind the reduction in rights to come and go of the appellant and applying both sets of rules to the case at the date of the decision. In our view although paragraph 4 of Cmnd 4295 is by no means as detailed as paragraph 97 of HC 169 it encompasses the kind of factors on which this case turns. We agree with Mr Wilmott that paragraph 4 imports a discretion so that formal compliance with other rules will not be conclusive. Further as in our view the rule must be applied as at the date of decision, the existence prior to the Act of factors going to the exercise of discretion are not relevant unless but for the rules otherwise applicable they would continue in operation. Neither the exemption from deportation nor the entitlement to citizenship operated at the date of decision and the removal of these rights was not by virtue of the rules made subsequent to the Immigration Act 1971. It follows that neither the power conferred by paragraph 4 of Cmnd 4295 nor the exercise of that power is now limited by these former rights. However, the need to construe the rules in the applicable statutory context also works in the appellant's favour. It appears that prior to the Immigration Act 1971 unless the appellant had been the subject of a deportation order she would have had a statutory right of entry for settlement. (Commonwealth Immigrants Act 1962 section 2(2)(b). This right would have depended on (i) her status as a wife and (ii) being in possession of an entry clearance. She would have been entitled to an entry clearance on establishing her status as a wife (see Immigration Appeals Act section 20(3). The right of entry is underlined by the provisions in Cmnd 4298 by which a wife who is a Commonwealth citizen cannot be refused admission on medical grounds, grounds of criminal record or security (see paragraphs 54 to 56). The discretionary provisions of Cmnd 4295 paragraph 4 must in our view operate within the immigration structure as a whole. As we understand it the power was not exercised to refuse leave to a person in the appellant's position because of the entitlement she would have had to citizenship of the United Kingdom and Colonies. Her entitlement to indefinite leave on entry provided she was not subject to a deportation order must, therefore, at the least be a relevant factor to consideration of whether to refuse variation of her leave when in this country so as to grant her indefinite leave. Unlike the exemption from deportation and the entitlement to citizenship the removal of the right of entry is a direct result of the framing of the post Act rules. The ability of a person in the appellant's position to enter since the Act has been based entirely on rules made under the Act. So HC 169 paragraphs 73 and 85 now qualify the right of entry in that the appellant's character and conduct could justify refusal of entry on the grounds that it was undesirable to give her leave to enter. Furthermore, it may well be arguable that to apply for leave on the basis of marriage when that marriage is entered into solely in order to obtain that leave is a false representation (see for example the Court of Appeal decision in Choudhry v the Commissioner of Police for the Metropolis (23 November 1984)). It follows that by virtue of the rules the appellant is less free to come and go in a sense relevant to her case, in that in our view first, under Cmnd 4295 a discretion to refuse to grant her indefinite leave would involve a consideration of her right to indefinite leave on entry and secondly, that right existed prior to the Act and did not exist after the Act. The applicability of Cmnd 4295 in this case calls for the exercise of discretion by the Secretary of State. If those rules do not apply, then that discretion must initially be exercised by the Secretary of State and the matter must be remitted for that exercise (see Ashiq (4316)). Whether Cmnd 4295 applies depends on whether the appellant establishes that Mr Salu was settled in this country on the 1 January 1973, a matter we have held remains for decision and to which we return at the end of this determination. The possible applicability of HC 169 paragraphs 4, and 24 If it is not established that Mr Salu was settled here on 1 January 1973 the case is to be dealt with in accordance with HC 169. The Secretary of State and the adjudicator have already expressed their views on this matter and it was fully argued before us. We now consider it. Mr Birnberg argues that the appellant falls squarely within paragraph 124 being a woman who admitted in a temporary capacity has married a man settled here. As provided by that paragraph, said Mr Birnberg she then should be given indefinite leave to remain. The Secretary of State refused leave on the ground that as the marriage was contracted in order for the appellant to obtain settlement in this country the appellant's conduct rendered it undesirable to permit her to remain on the basis of her marriage. The question of whether the right of a woman who relied on her marriage for indefinite leave to remain under HC 169 was qualified, was the subject of the Tribunal decision in Rai (3676). In that decision the Tribunal held that: (i) Paragraph 124 of itself was based on the validity of the marriage and there could not be incorporated into that paragraph the qualifications set out expressly in paragraph 126 in relation to a husband's application. (ii) Paragraph 97 did apply to qualify paragraph 124 as by the express terms in pargraph 97, paragraph 124 is made subject to it, and it therefore followed that paragraph 97 operates as a qualification to compliance with the "formal requirements" of paragraph 124. (iii) The essential focus of paragraph 97 is on elements which may override any entitlement normally flowing from satisfaction of formal requirements and these are based on conduct, character and association. (iv) The burden of proof lying on the Secretary of State to a high degree of probability, the use of marriage to achieve settlement is deceitful conduct justifying refusal of leave under paragraph 97 (adapting the principle set out by Lord Lane CJ in R v IAT ex parte Cheema [1982] Imm AR 124 at page 131). (v) Where the Secretary of State relied on paragraph 97 this should be made clear in the notice of refusal, the notice specifying that the refusal was based on conduct in entering the marriage. Mr Birnberg relied on Rai in so far as it held that factors listed in paragraph 126 cannot be incorporated into paragraph 124, but challenged the decision in respect of its holding that paragraph 97 could be applied so as to qualify the effect of paragraph 126 on the ground of conduct. He argued to this effect before the adjudicator and before us. The adjudicator applied Rai and found that the conduct of the appellant was such as to justify refusal under HC 169 paragraph 97. Before us Mr Birnberg attacked Rai on the following grounds: (i) Paragraph 124 provides a mandatory right to remain and paragraph 97 could not qualify that right. (ii) If paragraph 97 applies to paragraph 124, the act of going through a marriage of convenience was not "conduct" within that paragraph, the cases relied on in Rai all being concerned with conduct unconnected with marriage. (iii) Cheema is wrong in its formulation of the use of marriage to obtain settlement as deceitful, and Rai is wrong in adopting the principle of Cheema. (iv) Cheema and the interpretation put on paragraph 124 in Rai is inconsistent with (a) Section 1(5) (b) Citizenship provisions and (c) A line of authority culminating in Vervaeke v Smith [1982] 2 All ER 144, establishing that according to English public policy the quality of marriage is relevant only if there is express provision for it to be relevant. (v) The rules do not distinguish between a "genuine" and a "non genuine" marriage and that this is supported by the amendments to the rules through HC 503 equating the requirements applicable to wife and husband applicants. Mr Wilmott argued that Vervaeke v Smith and other like cases are not relevant in that they are concerned with the public policy being the recognition of the validity of marriage and not the public policy of certain circumstances requiring that marriage has a certain quality as well as validity. In support of the contention that paragraph 124 is subject to paragraph 97 Mr Wilmott cited the Tribunal decision in Lohar (3217) in which the Tribunal upheld the application of HC 80 paragraph 4 (the equivalent of HC 169 paragraph 97) to HC 80 paragraph 24 (the equivalent of HC 169 paragraph 124). In Pereira (3547) and Kwok (3578) the Tribunal had held that HC 169 paragraph 124 was subject to paragraph 97. Mr Wilmott drew our attention in particular to the decision of the Divisional Court on the 19 January 1978 in R v Secretary of State ex parte Shaw. In that case the court rejected a submission that paragraph 4 of HC 80 did not apply to paragraph 25 of HC 80 (which although applied to husbands, as amended at one time was worded similarly to paragraph 124 of HC 169). The argument advanced in that case very similar to that of Mr Birnberg in this case. A later amendment to paragraph 25 introduced specific "marriage of convenience" provisions and it was argued that the later introduction indicated that the earlier discretion did not cover marriage of convenience. Lloyd J (with whom Lord Widgery CJ and Melford Stevenson J agreed) said: ". . . that submission is wrong. The words of paragraph 4 of HC 80, and in particular the words that he is to take into account all relevant facts, are, in my judgment, amply wide enough to enable the Secretary of State to take account of the fact, if in his view it was the fact, that this was a marriage of convenience. In that respect the general considerations set out in paragraph 4 override the particular considerations set out in paragraph 25 as amended from time to time. This is not a case where one can usefully apply the ejusdem generis rule in limiting in any way the overriding discretion which the Secretary of State is given by paragraph 4 of HC 980; nor do I get any assistance from the fact that the rules were subsequently amended and laid before Parliament to deal specifically with a marriage of convenience". Mr Wilmott also relied on the conclusion of the Tribunal in Rai that the application of paragraph 4 to a case such as the present is simply an adaptation of Cheema. Conclusions, assuming HC 169 to be applicable We accept, as did the Tribunal in Rai that until the amendment in 1985 of HC 169 by HC 503 the immigration rules discriminated in favour of wives as against husbands in regard to admission and to that extent must reflect English public policy. Apart from the rules we do not accept however that English public policy in 1984 was that it was deceitful conduct for a man to use the marriage ceremony as a means of entry but not for a woman so to do. In particular in our view it would make nonsense of the respect for marriage as an institution and of immigration control to hold that a marriage ceremony of itself provided an unassailable ground for entry for a woman but not for a man. If the rules provided for a mandatory right of a "wife" to remain this would be a clear indication of public policy in the immigration context, but the issue before us is precisely whether the rules do so provide. We do not agree that the discrimination of the rules in favour of wives as against husbands leads to or indicates that there is a right to remain despite the use of the marriage ceremony solely to achieve entry. We agree with Mr Wilmott that as the validity of the marriage is not at issue the authorities relied on by Mr Birnberg have limited relevance. In Vervaeke v Smith it was held that where a marriage was entered into solely to obtain British nationality for the woman the marriage was valid. The public policy reflected in English law was to recognise the marriage once it was formally entered into with mutual consent whatever its purpose. However, with respect the public policy supporting validity of a marriage implies a public policy recognising validity of itself as a ground of admission of a person subject to immigration control only in the context of the statutes and rules imposing that control. We are therefore driven back to an assessment of the statutory provisions and rules. In Rai the Tribunal referred to the relationship between the statutory rights of a wife stemming from section 1(5) and section 2 of the Immigration Act 1971 and the rules. We agree with Mr Birnberg that the statutory provisions confer rights on a wife within the scope of those provisions without qualification and that the test for such rights is the validity and not the quality of marriage. It follows therefore that within the scope of those provisions a wife would be entitled to the right of abode without any enquiry into the quality of the marriage or the motive for entering into it. It would be difficult to argue that within that statutory pattern, paragraph 97 provides any ground for enquiry into the conduct of the parties in entering into the marriage. However there does not seem to us to be any inherent inconsistency between the relevance under the rules of the deceit in using marriage as a method of evasion of immigration control and the statutory pattern in existence at the date of decision. Section 1(5) confers rights on a specified category of wives in maintaining the operation of the rules in operation on 31 December 1972 in so far as their rights are dependent on the rules. Section 2 of the Immigration Act conferred substantive rights on wives who were Commonwealth citizens married to British citizens -- removing them from immigration control. Had the appellant married before 1 January 1983 she would have had the right of abode and under the British Nationality Act 1948 would have been entitled to citizenship of the United Kingdom and Colonies. In that context the conduct on which the Secretary of State relies in this case could hardly have been relevant. However, at the date of decision the appellant did not have the right to abode nor any right to British citizenship and she therefore falls into the category of wives" subject to immigration control and in regard to whom the conduct in entering into the marriage may be relevant. To decide whether it is relevant we must look at the content of the rules. We agree with the Tribunal decision in Rai that the use of the ceremony of marriage as a means of entry falls within deceitful conduct in the context of immigration control as it existed at the date of decision and we agree that this is simply an application of the principles adumbrated in Cheema. It seems to us clear that given immigration control and an admission category of marriage the deliberate use of the ceremony as a means of obtaining entry is deceit in the context of that control. In Rai the Tribunal indicated that in its view where reliance was placed on conduct within paragraph 97 the notice of refusal should so indicate. The decision of Woolf J in R v IAT ex parte Hubbard liberated the Secretary of State, adjudicators and the Tribunal from the shackles of the notice of refusal. However, the effect of Section 18(2) of the Act remains to the extent that the grounds of refusal is that which is stated in the notice. To the extent therefore that a further ground is relied on in appellate proceedings and that ground incorporates a discretion, it may well be necessary to remit the matter for exercise of that discretion (see Mohammad Ashiq (4316)). Particularly is this so where the new ground relied on is the appellant's conduct. However, in this case (unlike Rai) the Secretary of State specifically relied in the notice of refusal on the appellant's conduct and did not therefore seek to introduce a new ground before the adjudicator or before us. To sum up, therefore, in our view (i) Section 1(5)(a) applies to any wife of a Commonwealth citizen who in accordance with English law is recognised as a wife prior to the date of decision (b) requires that the Commonwealth citizen be settled in the United Kingdom on the 1 January 1973 whether or not the individual is a British citizen. (ii) in applying section 1(5) if the pre Act rules are applicable they must be applied as they would operate on the facts at the date of decision and in the light of the statutory pattern of immigration control at that date (iii) there is no inconsistency in the relevance to the right to remain of the use of a marriage as a means of settlement and its irrelevance where a wife is outside immigration control. (iv) the use of marriage in seeking to qualify for leave when the marriage has no substance is deceitful conduct in the context of immigration control. (v) If HC 169 applies (a) the appellant, having no right of abode nor claim to citizenship is within immigration control and her conduct in using marriage in a deceitful way is such as to justify refusal of leave to remain. (b) the Secretary of State having relied on that conduct in the notice of refusal is not seeking to rely on a new ground and thereby exercised the discretion under the rule on which he relied. (vi) If Mr Salu was settled here on 1 January 1973 the appellant's case must be adjudged under Cmnd 4295 for the reasons set out in the determination. Consequences of our findings It follows that the question of whether Mr Salu was settled in this country on 1 January 1973 must be decided. As, if Cmnd 4295 is applicable the matter must be remitted to the Secretary of State and as the Secretary of State has as yet not considered the question of Mr Salu's ordinary residence on 1 January 1973, in our view it is preferable that both these matters be remitted to the Secretary of State for consideration and decision. We should say that as that which will be before the Secretary of State remains the application made by the appellant on 24 May 1984, any decision adverse to her will carry a right of appeal to an adjudicator. The appeal is dismissed in so far as the immigration rules set out in HC 169 are applicable. The appeal is allowed in so far and only in so far as the matter is remitted to the Secretary of State for decision (after opportunity being given to the appellant's representatives to make representations and provide evidence) as to (i) whether Mr Michael Salu was settled in this country on 1 January 1973 and (ii) if Mr Salu was so settled, how the appellant's application would have been adjudged in accordance with Cmnd 4295 as interpreted in this determination.

DISPOSITION:

Appeal allowed in part

SOLICITORS:

BM Birnberg & Co

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