R v. Secretary of State for the Home Department, Ex parte Shorzan Bibi and Noor Miah

R v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte SHORZAN BIBI AND NOOR MIAH

Queen's Bench Division

[1987] Imm AR 213

Hearing Date: 26 January 1987

26 January 1987

Index Terms:

Children -- arrival without entry clearance after earlier refusal of entry clearance by entry clearance officer -- whether refusal of admission by immigration officer offended against Wednesbury principles. HC 169 paras 46, 47, 50, 51.

Judicial Review -- whether in reviewing the decision of the immigration officer the Court should take account of evidence not then in existence -- whether it should consider grounds for admission of the applicants not then put forward.

Held:

The applicants were two of the claimed children of Jamshed Miah. They were born in Bangladesh. They were refused entry clearance in Dhaka because the entry clearance officer was not satisfied that they were related to the sponsor as claimed. After that refusal they arrived at Heathrow and sought admission. Other members of the family with entry clearance were admitted. They, after interviews, were refused. It appears that the immigration officers took into account in those interviews, the explanatory statement by an entry clearance officer prepared in connection with an earlier unsuccessful appeal against a previous refusal of entry clearance. Before the Court, in addition to challenging the reasonableness of the immigration officer's decision on the evidence before that officer, counsel also raised two new issues. The results of subsequent blood tests, he asserted, strengthened the claims of the applicants to be related as asserted to the sponsor. Moreover, as children born to a British citizen they had a right of abode in the United Kingdom. Held: 1. On the evidence before the immigration officer, including the discrepancies recorded in the entry clearance officer's explanatory statement, the refusal of admission was reasonable and could not be challenged on Wednesbury principles. 2. The case fell outside the ambit of the principle enunciated in Khawaja and the Court had no duty to enquire further into the evidential basis for the decision. 3. The Court was restricted, in the application, to considering the evidence in existence at the date of decision. The evidence of the blood tests could not influence it. The claim to a right of abode was dependent on proving the relationship as claimed, and thus that issue could not of itself affect the matter before the Court. In any event it was not a matter put to the immigration officer at the time.

Cases referred to in the Judgment:

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: [1947] 2 All ER 680. Khawaja v Secretary of State for the Home Department [1981] 1 AC 74: [1982] Imm AR 139.

Counsel:

GMG Haque for the applicants; N Pleming for the respondent PANEL: McCullough J Judgment By-1: McCULLOUGH J

Judgment One:

McCULLOUGH J: Shorzan Bibi and Noor Miah apply for judicial review of decisions refusing them leave to enter the United Kingdom. They arrived at Heathrow on 23 December 1984 and were served with notices saying:

"You have asked for leave to enter the United Kingdom for settlement as the (daughter/son) of Jamshed Miah, but you do not hold a current entry clearance issued to you for this purpose. Furthermore, you have no claim to enter under any of the immigration rules."

A Member of Parliament then intervened on behalf of the applicants. On 2 January 1985 he wrote to Mr David Waddington, the Minister of State at the Home Office, who replied on 13 February 1985 confirming the decision of the Immigration Officer. Shorzan Bibi and Noor Miah claim to be the children of Jamshed Miah and Mala Bibi. Their sponsor, Jamshed Miah, from whom there is an affidavit, was born in 1934 and came to this country from Bangladesh in 1957. He asserts that he became a British citizen by registration in 1962 but no copy of a certificate of registration is exhibited to his affidavit. Jamshed Miah says that he went back to Bangladesh in February 1964 and in the same year married Mala Bibi. According to Jamshed Miah a son Shafique Miah was born on 4 February 1965. Then, it is claimed, Shorzan Bibi was born to them on 7 April 1966. In November 1966 Jamshed Miah came back to the United Kingdom. In July 1970 he returned to Bangladesh for a second time. It is said that Noor Miah was born there on 3 June 1971. Jamshed Miah came back to this country again in April 1972 leaving behind Mala Bibi and the three whom it is claimed were their children. On 12 March 1973 Mala Bibi and the applicants were granted entry clearance. They arrived in the United Kingdom on 19 April 1973 and were all given leave to enter. It would seem that they joined the sponsor. In January 1974 Honofa Miah was born to him and Mala Bibi in this country. Shorzan Bibi attended a school in Ipswich until some time in 1975. On 11 October 1975 all those whom I have named and who were here returned to Bangladesh. The sponsor and Mala Bibi had three more children: in February 1976, July 1980 and May 1982. In February 1981 application was made for entry clearance for the whole family except Honofa Miah who, having been born in this country in January 1974 whilst Jamshed Miah was here, was thought not to require entry clearance. On 24 June 1981 Mala Bibi was granted an entry clearance certificate but all of the children were refused because the entry clearance officer was not satisfied that they were related as claimed. There was an appeal to the adjudicator which was determined in writing. At that stage the whole family was still in Bangladesh. The appeal was dismissed and notification of the decision was given on 6 January 1982. The adjudicator said that there were adequate reasons for the entry clearance officer's decision. The adjudicator had before him the statement of the entry clearance officer dated 1 September 1981. It showed why the officer doubted the relationship between Jamshed Miah and those claimed to be his children. Of the birth certificates produced to him he said:

"The birth certificates are all late registrations to a greater or lesser degree and were clearly obtained specifically for the purpose of this, or the family's previous application. The unreliability of such documentation in Sylhet is well established."

His statement recorded that medical examination of Shafique Miah showed him to be some two years older than his stated age, the upper limit of the margin of error for such estimates. The entry clearance officer considered statements made in December 1973 and March 1978 by Somsu Miah, the brother of Jamshed Miah, when he was interviewed in connection with applications he was making or sponsoring. The entry clearance officer also had available to him records of one or more interviews of another brother, Danis Miah, in 1978 relating to an application which he was making or sponsoring. When these various statements were compared there seemed to be no doubt that Jamshed Miah had three brothers, namely Somsu Miah, Danis Miah and Moklisur Rahman. Jamshed Miah had not disclosed their existence to the entry clearance officer. Paragraph 4 of the entry clearance officer's statement said:

"Mr Langran now asked the sponsor who Danis Miah was. He replied that he did not know. He asked the same question of the applicants and received the same reply . . . Mr Langran asked the sponsor who Somsu Miah was; he replied that he did not know. He also said, when asked that he did not know who Daris Miah (Somsu's son) was. When asked who Noor Miah was, the sponsor said that he did not know, then swiftly corrected himself and said that it was his own son . . . Mr Langran asked the sponsor whether anyone called Somsu Miah had ever stayed at his UK address. He said yes, two. He however denied that either of them were his brother."

It seemed to the entry clearance officer (and it is plain that he had good reason for reaching this view) that Jamshed Miah had not been frank about the number of other members there were in his family. The implication is that Jamshed Miah had kept quiet about them, for fear that if they were interviewed they would say things about his family which were inconsistent with his own assertions. The entry clearance officer attached considerable importance to a letter dated 11 September 1972 which had been written by Jamshed Miah to Rais Miah, the brother of Mala Bibi. This letter had been written before the decision of 12 March 1973 giving entry clearance to Mala Bibi and the two applicants, but its existence only became known to the authorities at a later date. This is a translated extract from it:

"Teach your sister to write her name. Your sister should tell everything according to my declaration. As for example: I got three children. Eldest one is Shofiq Miah and my Ranu's name is Shujan Bibi and my Golam Hussain's name is Noor Miah and your sister's name is Mala Bibi."

The entry clearance officer says:

"The writer goes on to confirm this and tabulate the details which should be learned. Mr Langran considered that this totally destroyed any credibility remaining to the sponsor; in fact it appeared that entry certificates should not have been issued to Mala Bibi, Shorzan Bibi and Noor Miah in 1973, and they certainly would not have been if the contents of this letter had been known to the issuing officer."

The entry clearance officer went on:

"Mr Langran did not prolong the interview beyond this point. He considered that the sponsor, and the older applicants at his behest, had given a totally false account of his family and this had been shown up by reference to related papers and by a letter provided by the sponsor himself. This continued a pattern of deceit which appeared to have been practised at one time or another by all four sons of Nosib Ullah." (Nosib Ullah is the father of Jamshed Miah.)". . . He did however consider that the principal applicant could be accepqted as the sponsor's wife in the light of the fact that she had had a child by him in the UK. He noted that the letter threw considerable doubt on her identity . . . but on the balance of probability he considered that she should be issued with an entry certificate."

The entry clearance officer's last paragraph said:

"A notice of appeal was received at this office . . . I have read the grounds of appeal, in which the sponsor admits that both he and his family gave incomplete details of the rest of his family. He alleges that this was due both to harassment by interpreters and not being given the opportunity to tell the truth: both of these claims are totally without foundation and the sponsor has yet to come up with a valid reason for misleading the entry certificate officer as to his family details. I can therefore only agree with Mr Langran's own conclusion as to the reason for this (see paragraph 5) and I can find no grounds whatsoever for altering his decision."

I want to refer to a little more of the translation of the letter of 11 September 1972. It will be recollected that in the passage already quoted Jamshed Miah referred to the present applicants as "my Ranu" and "my Golam Hussain". There was an earlier reference in the letter to this effect: "I have sent my children's declaration in your name." There was also a later reference which said: "I shall not bring my son Shafique Miah to UK this time." A little later still he said: "I am praying to Allah that he will allow me to unite with my children immediately." So there were those various assertions that, amongst others, the present applicants were Jamshed Miah's children. In August 1982 entry clearance for all the children was again refused; there was no appeal. On 16 October 1984 there was a still further refusals, ie the third concerning the two applicants. On that occasion the children born in 1976, 1980 and 1982 were given entry clearance. Each of the three refusal was because the entry clearance officer was not satisfied that the applicants were related as claimed. On the morning of 23 December 1984 (just two months after the last refusal) the whole family, apart from Shafique, arrived at London Heathrow. They were examined by an immigration officer. One child held a British passport -- presumably Honofa. She was admitted. The three youngest had entry clearance, as did Mala Bibi. They were admitted. The applicants were not. Shorzan Bibi was medically examined and was found to be pregnant. She then said she was some five months pregnant and that she had married one Mohammed Abdul Karim on 29 May 1984 and that he was 28 years old. She said she had kept the marriage secret from her family and from her husband's family. Like Noor Miah she was seeking to enter this country as the dependant child of her father. At the time she was 18 and Noor Miah 13. In the afternoon of the day of their arrival they were interviewed by Miss Susan Leach, another immigration officer, from whom the court has an affidavit. She saw Shorzan Bibi first, then Noor Miah, Jamshed Miah and finally Mala Bibi. Shorzan Bibi told the immigration officer that she was seeking entry for settlement at her father's insistence and had come without entry clearance because that was his idea. She said she had not told the entry clearance officer she was married because he had not asked her. Amongst other things she told Susan Leach that she had had private tuition at home from the man whom she had married. She was asked for a copy of the marriage certificate. At first she said she had left it in Bangladesh, but later she said that there was no marriage certificate. She was not able to say why she had earlier said she had left it in Bangladesh. Noor Miah said that he had never heard of the name Mohammed Abdul Karim. Jamshed Miah said that Shorzan Bibi had had tutors (whom he named) but he did not know anyone of the name Mohammed Abdul Karim. Although he recollected someone by the name of Karim in connection with the local police office he had never met him and was certain he had never been a tutor in the house. Mala Bibi also said that she did not know anyone called Mohammed Abdul Karim. House of Commons paper 169, paragraph 47 (the section dealing with dependants coming for settlement) says:

"A passenger seeking admission as a dependant under this Part of the rules must hold a current entry clearance granted to him for that purpose."

These applicants did not have such clearance and the immigration officer would have been entitled to refuse their applications for leave to enter on that ground alone. Paragraph 50 deals with children and says that if the requirements of paragraphs 46 and 47 are satisfied children under 18, provided they are unmarried, are to be admitted for settlement in certain circumstances. Shorzan Bibi was over 18 and, according to her claim, married. Paragraph 51 says:

"Children aged 18 or over must qualify for settlement in their own right unless there are the most exceptional compassionate circumstances (in which case their cases should be considered under paragraph 52). Special consideration may, however, be given to fully dependent and unmarried daughters over 18 and under 21 who formed part of the family unit overseas and have no other close relatives in their own country to turn to. The requirements of paragraph 46 and 47 must be met in all cases."

That again is a paragraph which could not help Shorzan Bibi. Despite being entitled to rely on the absence of entry clearance the immigration officer looked into the question of the applicants' relationship with Jamshed Miah. She considered the material to which I have referred and came to the conclusion that she could not be satisfied that the applicants were related to the sponsor in the way claimed. She therefore issued notices of refusal. The applicants now assert and seek to rely on the fact that Jamshed Miah became a British citizen by way of registration in 1962, so that by virtue of certain provisions of the British Nationality Act 1948 and the Immigration Act 1971 they have the right of abode in this country. Susan Leach says that this argument was not advanced to her. She said:

"Had it been I would not have accepted that the applicants were British citizens as I was not satisfied that they were related as claimed and accordingly I would have decided that they required leave to enter."

So the new assertion would not have made any difference to the decisions. The letter of 2 January 1985 from the Member of Parliament for Ipswich to Mr Waddington said: "I am writing to you concerning my constituent, Mr Miah. Quite recently when re-entering the country from Bangladesh two of Mr Miah's children were prevented from obtaining entry to Britain. (I have enclosed for your reference a photocopy of the immigration office temporary admission pro forma.) Mr Miah says that he is a British citizen and holds a British passport and cannot understand why two of his children have been given such a short stay in Britain. I believe that they have been given temporary accommodation in London until 9th January 1985.

"I would be pleased if you would look into the matter since the issue of the length of stay is indeed urgent."

That letter does not assert that the applicants had the right of abode in this country by virtue of being descended from a British Citizen who was such at the time of their birth. Certainly the Minister of State did not understand that such a claim was by then being made. His reply was to the effect that they were seeking admission for settlement as dependants, and, as he said, such persons must have current entry clearance; these two did not. The Minister of State concluded by saying:

". . . I am satisfied that the immigration officer' s decision was correct, and that I would not be justified in taking the exceptional step of authorising the admission of Shorzan Bibi and Noor Miah outside the provisions of the Immigration Rules."

Although the notice of application for leave to apply for judicial review says that the decision under challenge is one made by immigration officers at Heathrow on 13 February 1985 refusing them leave to enter as patrials, the reality of the matter is that what is challenged are the decisions of 29 December 1984 refusing leave to enter in the way then claimed, namely as dependants of the sponsor and the Minister's confirmatory decision of 13 February 1985. It is not right to say that the decision under challenge is one (whether made by the immigration officer or the Minister) refusing to recognise a right of abode in this country by virtue of descent from their father, a British citizen by registration from 1962. The question for this court is whether, on what have come to be known as the Wednesbury principles, it can be said that in December 1984 the immigration officer reached a decision on the material before her which no reasonable immigration officer could have reached. Likewise the Minister on 13 February 1985. I am satisfied that such a challenge could not succeed. I have already referred to the lies told by Shorzan Bibi about her marriage certificate and to the fact that she concealed her marriage which she later asserted in an attempt to gain entry to this country as the dependant child of her father. There are also the lies told about whether or not the person she claimed was her hushand had earlier been her tutor. There is the pattern of deceit about the family relationships referred to in the entry clearance officer's explanatory statement. There are the questions raised by the letter of 11 September 1972 which are not, in my judgment, resolved by the fact that in it Jamshed Miah referred to the applicants in more than one place as "my children", "my Ranu" and so on. At one stage in the argument I was troubled as to whether the principle in Khera v Secretary of State for the Home Department and Khawaja v Secretary of State for the Home Department [1984] 1 AC 74 applied in circumstances such as these. The headnote says:

"On an application to the court for judicial review of an immigration officer's order detaining any person in the United Kingdom as an illegal entrant it was the court's duty to inquire whether there had been sufficient evidence to justify the immigration officer's belief that the entry had been illegal and that the duty of the court was not limited to inquiring merely whether there was some evidence on which the immigration officer had been entitled to decide as had."

It might be argued that in 1973 the Secretary of State recognised a state of affairs which in 1981, 1982 and, more particularly, 1984 he denied, the former state of affairs being one which entitled the applicants to be here and the latter being to the opposite effect, reached on the basis that the earlier leave had been obtained by deception. However, having heard counsel, I am satisfied that that principle is not applicable to the present case. Both Khera and Khawaja were here with permission at the time it was decided that their entry and current leave to be here had been procured by fraud or deception. That is not the case with the present applicants. At the time of the decision in question they were not here with permission. They had newly arrived and were seeking a permission without which, on the arguments which they were advancing, they would not be allowed to enter. It is not possible to infer from the decisions taken in 1973 that the Secretary of State accepted that these applicants had a right of abode. Indeed the indications are to the contrary, because with a right of abode one would not expect them to have been given entry clearance; they would not need it. The position in law is that on each occasion when they sought entry clearance they needed to establish the dependant relationship which they claimed. They succeeded in 1973, but failed in 1981, 982 and (materially for present purposes) in 1984. The only decisions under consideration are the decisions that the applicants were not to be given leave to enter on the grounds that they had no entry certificates and no other rule entitled them to enter. Those decisions could not be successfully challenged and accordingly the applications for leave to move must be refused. I would add the following. Both of the applicants and Jamshed Miah and Mala Bibi have recently submitted themselves for blood testing. As a result there is a report dated 15 January 1986 from Barbara Dodd, Emeritus Professor of Bloof Group Serology at the London Hospital Medical College. I have not been able to take it into account in considering the present case because it was not before the immigration officer when she took her decision in December 1984 or before the Minister of State when he gave his confirmatory decision on 13 February 1985. I was told at the outset of this hearing by Mr Haque on behalf of the applicants that these four people want to undergo a further, and, it is suggested, more conclusive blood testing procedure. For that reason he asked me to adjourn this case, but I refused his application because even if material to establish the claimed relationship resulted it could have no bearing on the decisions taken in December 1984 and February 1985. If, as I understand is so, the applicants now contend that they havethe right of abode because (i) they are the children of Jamshed Miah (reliance being placed on the blood tests which have already taken place and on the further tests which it is hoped to undergo) and (ii) Jamshed Miah was registered as a British citizen in 1962 (ie prior to their birth) an application on this basis should be made to the Secretary of State so that he can consider what, until now, he has not been asked to consider, namely, whether these applicants have a right of abode in this country on account of such relationship and such registration. I say nothing designed to influence the Secretary of State one way or the other, but I presume that if those assertions can be made they will rapidly be made with the necessary formality for the Secretary of State to be able to consider them. He will then be in a position to decide whether or not to acknowledge such a right of abode or to stay his hand so that further blood tests can be made before he reaches a decision. Those are matters for him, not the court.

DISPOSITION:

Applications dismissed.

SOLICITORS:

Zaman, Chaudhury & Co, London N15; Treasury Solicitor

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