R v. Secretary of State for the Home Department, Ex parte Hayden

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte HAYDEN

Queen's Bench Division

[1988] Imm AR 555

Hearing Date: 21 June 1988

21 June 1988

Index Terms:

Deportation order -- revocation -- marriage to British citizen after deportation order signed -- whether Secretary of State obliged to revoke deportation order. Immigration Act 1971 ss 1(5), 5(2).

Held:

The applicant sought to have quashed the decision of 14 April 1987 by the Secretary of State not to revoke a deportation order signed against her on 13 January 1986. She had married a British citizen on 4 September 1986 nine months after the order had been signed. She had previously maintained that she was the wife of a Mr Jacob Moyo but later denied that she had ever been married to him. On the facts, the Court held that it was not unreasonable for the Secretary of State to conclude that earlier marriage still subsisted and therefore the marriage to a British citizen in September 1986 was invalid. The Court also considered the submission by counsel that, assuming the later marriage to be valid, and following Zalihe Huseyin, the applicant, as the wife of a Commonwealth citizen settled in the United Kingdom on 1 January 1973, could not be deported and the order should have been revoked. Held: 1. Zalihe Huseyin was to be distinguished because in that case the deportation order had been signed after the marriage had been contracted: in this case the applicant had married after the deportation order had been signed. 2. Section 5(2) of the Immigration Act 1971 provided that a deportation order would cease to have effect if the subject of the order became a British citizen: it did not extend to a person who became the spouse of a British citizen.

Cases referred to in the Judgment:

Re Bradshaw, Blandy v Willis; [1938] 4 All ER 143. Secretary of State for the Home Department v Zalihe Huseyin [1988] Imm AR 129.

Counsel:

R de Mell for the applicant; R Ter Haar for the respondent PANEL: McCowan J Judgment By-1: McCOWAN

Judgment One:

McCOWAN: Under challenge in this case is the decision of the Secretary of State for Home Affairs communicated to the applicant by letter dated 14 April 1987 not to revoke a deportation order made by him in respect of the applicant on 13 January 1986. The relief sought is "(1) Certiorari to quash the decision; further or alternatively (2) Mandamus to order the Secretary of State for Home Affairs to reconsider the decision." Leave to move in this case was granted by McNeill J on 6 July 1987. In her affidavit the applicant tells this story. She says: "I am a member of the Ndebaele Tribe of Zimbabwe. I came to England in 1975 from Matabeleland in Zimbabwe because of the trouble between the then government and the guerilla forces." At that time Zimbabwe was Rhodesia and a member of the Commonwealth. She says: "I entered Britain on a British passport issued out of the British High Commission in Botswana. This expired in December 1975." Thereafter she obtained annual visas. She has worked and remained in England ever since. She says that she was interviewed by a Home Office official in April 1986. The question arose about a man called Jacob Moyo. This is what she says about him in her affidavit: "I had lived with Jacob Moyo in Zimbabwe as his common law wife for 24 years but there was never any kind of formal marriage between us. I told the interviewer that I had no marriage certificate and that I had not seen or heard from him for eight years and did not know whether he was alive or dead. I note it is now alleged that I admitted I had married him by 'tribal custom' and had not divorced him. I emphatically reject this suggestion, I was never married to him and did not tell the interviewer that I was. 8. In or about February 1986 I became acquainted with Mr Hayden and we began to spend time with each other on a regular basis. In June 1986 he asked me to marry him and we were married on 4th September 1986 in the Birmingham District Registrar Office." She produces a copy of her marriage certificate to that man. It is not in dispute, indeed, that she went through a ceremony of marriage on that date and at that place with that man. That, as I say, is her affidavit, sworn in these proceedings in 1987. It is of interest that at an earlier stage she was seeking political asylum in this country. I look at a letter of 14 December 1984 from the Minister of State at the Home Office at that date, writing to her Member of Parliament and saying this: "Neither Mrs Moyo nor her sons have engaged in political activities in either Zimbabwe or the United Kingdom. Mrs Moyo has stated that she will be in danger in Zimbabwe because of her husband's former association with Zapu, yet she has admitted that they have been separated since 1977 and that her husband has returned to Zimbabwe and is living safely there. I have carefully considered Mrs Moyo's case in the light of your representations, but I am not persuaded that her fears of returning to Zimbabwe are well founded." Mr de Mello, who has appeared for her before me and argued the case with his usual skill, very realistically does not seek to rely on that now. But, as I say, it is of interest that the whole focus of her attempt to stay in this country has altered. The first question which has arisen before me is: was the marriage to Mr Hayden in September 1986 valid? Mr de Mello says (this is how he puts it): that she was associated with a man called Moyo; they lived together; and they came to this country together in 1974. Palpably, however, that is a very small -- to say nothing of whether it is an accurate -- part of the story. She came to this country (it is perfectly obvious to me) by claiming that she was married to him. Documents have been put before the court showing that Mr Moyo (who was settled in this country) wanted to bring his wife and children to this country. He was certainly representing to the Home Office that she was his wife. She, in turn, was saying the same thing to British Consular officials in Gaborone in Botswana. So this was a two-pronged attack with each of them saying that they were married to the other. I need not go into the documents in detail. It is not in dispute that that is what they were both saying. That is the basis on which she was allowed to come to this counry and remain here for many years. As I have indicated, it is apparent that as late as December 1984 she was speaking of him as her husband and seeking political asylum in this country. When I have to consider whether she had gone through a valid marriage with Mr Moyo, the fact that she and he were so representing in order to come to this country -- though not conclusive -- is powerful evidence, in my judgment. But it does not by any means rest there. She was interviewed in February 1986 by Mr Lee who is an immigration officer. He made a contemporaneous record of what she told him. This is what he recorded: "4. I noticed that the marriage certificate described the subject's 'condition' as a 'spinster' although from Home Office files it appeared that she had been married to one Jacob Moyo when admitted to the UK in 1975. She told me that she had married him in Zimbabwe (then Rhodesia in fact) in tribal custom. It appears that there was little by way of ceremony. In her country, she said, a man merely decided to take a woman. She described that some five people had gathered in her house and a few words had been said with herself and Jacob Moyo present. One could not even assert that she had taken her husband's name since her own maiden name had been Moyo (see father's name on marriage certificate). She had not divorced her husband. She had not instituted proceedings and had never heard of any through Mr Moyo in Zimbabwe. She maintained that after her (1975) arrival in the UK she had lived with Jacob Moyo for two years and then they had drifted apart; she had gone to stay with family/friends. Eventually Jacob had returned to Zimbabwe; she had heard nothing from him since 1980. She knew not whether he was alive or dead, but she had never had any news of his death. She had no one in Zimbabwe to inform her whether he lived or was dead." As I have indicated from the passage I read from her 1987 affidavit, she totally denies having said anything like this to the interviewer. Now I have considered that interview report in considerable detail. It was made contemporaneously. It is by no means unsympathetic in tone to the applicant. It seems to me unimaginable that he could have invented all that: for example, the detail about five people having gathered in her house and a few words having been said with herself and Jacob Moyo present. In my judgment that evidence, combined with the evidence of how she got into this country, amounts to very strong eevidence that she did marry Mr Moyo and that the marriage was subsisting. She has not suggested that she thought Mr Moyo was dead at the time she went through the ceremony of marriage. Mr de Mello sought to rely on the case of Re Bradshaw Blandy v Willis [1938] 4 All ER 143. I will read the headnote: "The parents of the first and second defendants lived together as man and wife for many years from about 1890, and enjoyed the reputation of being married persons. Five children were born of the union (including these defendants) prior to Nov 22, 1898, when the parents went through a ceremony of marriage, after banns, at the parish church of Fulham. The birth and baptismal certificates of the children gave the surname of the mother as the same name as that of the father. It was proved that from time to time prior to that ceremony statements were made by both parents to the effect that they had been married, and a solicitor who witnessed the marriage ceremony in 1898 deposed that the husband had stated to him that he had married EJ (the mother) in Scotland. The certificate of the marriage in 1898 showed that the register which the parents signed described them as bachelor and spinster respectively. These defendants claim that, notwithstanding the certificate, a marriage prior to 1893 should be presumed. "Held: if the evidence had consisted only of the birth and baptismal certificates and a declaration of the parents, together with the reputation they enjoyed of being married persons, it must be presumed in law that the parents had been married prior to 1893. However, the marriage certificate relating to the ceremony performed in 1898, and the statements of facts contained in it, rebutted any legal presumption of a prior marriage of the parties." So in the present case, Mr de Mello seeks to argue that he is assisted in establishing that there was no pre-existing marriage because she went through a ceremony of marriage with Mr Hayden in September 1986. I am quite unable to accept that submission. In my judgment, the case to which he has referred is really not in point. Why, in that case, should they have gone through a second ceremony if they had earlier gone through a first one? Having considered the entire matter, I have no hesitation in coming to the conclusion that it is impossible to say that the Home Secretary's decision that the marriage with Mr Hayden was invalid because of her pre-existing and subsisting marriage to Mr Moyo is in any way irrational. In my judgment it was a perfectly reasonable and understandable decision on the evidence available. If I am right about that, Mr de Mello concedes that his second point does not arise. In case I am wrong, I go on to consider it. He says that because she has married a Commonwealth citizen, the Home Secretary is obliged (as I understand him) to revoke the previously made deportation order against her. For that proposition he relies on a recent decision of the Court of Appeal in the case of Secretary of State for the Home Department v Zalihe Huseyin [1988] Imm AR 129. The headnote reads: "The respondent was a Cypriot who was admitted to the United Kingdom as a visitor for a month. She overstayed. Of that offence she was convicted. The Court recommended she be deported. The Secretary of State acted on that recommendation. Meanwhile the respondent had married a Commonwealth citizen settled in the United Kingdom on 1 January 1973. On application for judicial review which was granted by Farquharson J, it had been argued that as the wife of a Commonwealth citizen she could not be deported having protected rights through section 1(5) of the 1971 Act, which rights arose under the provisions of the Commonwealth Immigrants Act 1962, (as amended). The learned judge had also considered the meaning of 'admitted in a temporary capacity' in paragraph 124 of HC 169, holding that it referred to the status of an applicant at the date of the marriage, not solely at the date of admission. "On appeal by the Secretary of State, it was argued that protection embodied in section 1(5) of the 1971 Act only related to what was subsequently written into the rules. It did not relate to other provisions of the 1971 Act itself. "Held: 1. The respondent was protected by the provisions of section 1(5) of the 1971 Act. As the wife of a Commonwealth citizen himself settled in the United Kingdom on 1 January 1973 she could not be deported. In that regard the quality of the marriage was irrelevant: a marriage of convenience would suffice." I do not think I need read the rest of the headnote. On the face of it, that authority appears to support Mr de Mello's contention. But Mr Ter Haar (appearing for the respondent before me) has drawn my attention to these words in the judgment of Neill LJ appearing at the bottom of page 133 of the report: "The case for the respondent on the other hand has been that no valid deportation order could be made against her because she is and was on 9 July 1984 the wife of a Commonwealth citizen who was settled in the United Kingdom at the date of the coming into force of the 1971 Act, namely 1st January 1973." The relevant dates in that case were that she married on 4 November 1983 and the deportation order was made on 9 July 1984. Mr Ter Haar points out that the dates in the present case are significantly different. They are that on 26 September 1985 notice of intention to deport was sent to the applicant's last known address. On 13 January 1986 the deportation order was issued and on 4 September 1986 she went through a ceremony of marriage with Mr Hayden. I agree with him that those dates are significantly different. As he points out, when one looks at the terms of section 5(2) of the Immigration Act 1971 they read: "A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen." It is not said that they shall cease to have effect if he or she becomes the spouse of a British citizen. This deportation order was already in existence when she went through the ceremony of marriage with Mr Hayden. In my judgment that serves to distinguish the present case from that of Huseyin. It is to be noted, as Mr Ter Haar has pointed out, that in the present case the deportation order is not challenged. All that is said is the Secretary of State was wrong not to revoke the deportation order. There remains Mr de Mello's third point. He submits that the Secretary of State failed to take into account or to give sufficient weight to the compassionate circumstances in the present case; namely, that the applicant is in her middle 50s, has lived here for many years and has no remaining ties with Zimbabwe. However, I have to have regard to the terms of the Minister's letter of 14 April 1987 and in particular to the last two paragraphs of that. In the last paragraph he said: "In the circumstances and having regard to the need to maintain a fair and effective immigration control, I do not consider that the compassionate factors in their cases" I interpolate that he was also considering the case of her son "are of a sufficiently compelling nature to set aside the deportation orders." In those circumstances it seems to me impossible to uphold a submission that he did not consider the compassionate circumstances. He plainly did and decided not to revoke the deportation order. That was his right and I am quite unable to say that it was an irrational decision.

DISPOSITION:

Application dismissed

SOLICITORS:

Cove & Co, Birmingham; Treasury Solicitor

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