R v. Immigration Appeal Tribunal, Ex parte Patel

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE PATEL

Queen's Bench Division

[1988] Imm AR 338

Hearing Date: 18 February 1988

18 February 1988

Index Terms:

Deportation -- conducive to the public good -- deception on state of marriage on application for variation of leave -- what constituted a dishonest representation in those circumstances. Immigration Act 1971 s 3(5)(b); HC 169 para 169.

Held:

The applicant was a citizen of India. He had been granted leave to enter for marriage in 1983. In due course he applied variation of leave on the basis of marriage. The terms of the letter (set out in the judgment) were imprecise but on the strength of that letter he was granted indefinite leave. In fact the parties were not then living together and the wife obtained a decree of nullity in 1985. When the true facts became known to him, the Secretary of State decided to initiate deportation proceedings pursuant to s 3(5)(b) of the 1971 Act. The Tribunal dismissed the applicant's appeal: it held that the material letter contained a misrepresentation, implying that the marriage subsisted and the parties intended to live together as man and wife. On application for judicial review it was submitted by counsel that the letter constituted no more than an application inviting the Secretary of State to consider whether the applicant qualified for settlement: the Secretary of State should have made further enquiries: it was difficult to imply a representation about an intention to live together. Held: 1. An application of the kind made in the letter "is . . . obviously to be understood as one founded on a genuine and subsisting marriage." 2. Applying the words of Goff LJ (as he then was) in Choudhry, "we are not concerned with mere non-disclosure but with a positive deception implicit in the letter."

Cases referred to in the Judgment:

Abdul Rashid Choudhry v Commissioner of Police for the Metropolis (unreported, DC 24 November 1984). R v Immigration Appeal Tribunal ex parte Owusu-Sekyere [1986] Imm AR 169. In re Owusu-Sekyere (CA) [1987] Imm AR 425.

Counsel:

A Riza for the applicant; J Laws for the respondent PANEL: McCullough J

Judgment One:

MCCULLOUGH J: Mr Yanus Patel applies for judicial review of the decision of the Immigration Appeal Tribunal of which he was notified on 2 September 1986. The Tribunal dismissed his appeal against a notice of intention to deport him given by the Secretary of State on 21 August 1985 under section 3(5) of the Immigration Act 1971. Mr Patel was born in India on 12 October 1963. On 21 April 1983 he was granted an entry clearance certificate so that he could enter the United Kingdom to marry Salmabanu Valli who was born on 30 May 1965 and was settled here. He arrived in this country on 7 June 1983 and was admitted for three months in accordance with paragraph 42 of HC 169, Statement of Changes in Immigration Rules. He and Salmabanu Valli celebrated their marriage according to their religion on 24 July 1983. They were married in a Register Office on 27 July 1983. On 18 August 1983 he applied for an extension of his stay on the basis of his marriage and on or about 13 September 1983 he was given permission to stay for a further twelve months, that is until 13 September 1984, in accordance with paragraph 126 of HC 169. That paragraph reads: "Where a man admitted in a temporary capacity marries a woman settled here, an extention of stay or leave to remain will not be granted, nor will any time limit on stay be removed, unless the Secretary of State is satisfied: "(a) that the marriage was not entered into primarily to obtain settlement here; and "(b) that the parties to the marriage have met; and "(c) that the husband has not remained in breach of the immigration laws before the marriage; and "(d) that the marriage has not taken place after a decision has been made to deport him or he has been recommended for deportation or been given notice under section 6(2) of the Immigration Act 1971; and "(e) that the marriage has not been terminated; and "(f) that each of the parties has the intention of living permanently with the other as his or her spouse." "Where the Secretary of State is satisfied that all the conditions at (a) to (f) above apply, the husband will be allowed to remain, for 12 months in the first instance, provided that the wife is a British citizen. At the end of the 12 months' period the time limit on the husband's stay may, subject to (a) to (f) above, be removed." On 5 September 1984 he applied for this time limit to be removed, again relying on his marriage. The letter in which he made the application is at the heart of this case. It was addressed to the Under-Secretary of State at the Home Office and was headed with the full names and dates of birth of himself and his wife. It read: "I am writing to inform you that I wish to extend my stay in the United Kingdom for permanently, I have my own house and I am married, therefore, I am sending you both passports of myself and my wife and also our marriage certificates, I would be very grateful to hear from you soon. "Thank you. "Yours faithfully." The passports and the marriage certificates were enclosed. The issue before the Tribunal was whether there was to be implied into this letter a representation that the marriage was subsisting and that Mr & Mrs Patel were living together as man and wife. In fact the marriage had never been consummated and Mr & Mrs Patel had never lived together. On 6 November 1984 the Secretary of State granted Mr Patel leave to remain indefinitely on account of his marriage to a woman who was settled here. By this date the applicant's father-in-law, Mr Valli, had told the immigration office in Preston that the applicant and his wife had never lived together, but Mr Valli made a mistake about Mr Patel's name and he did not know his son-in-law's date of birth; nor did Mr Valli have his precise address. So this information was not related to Mr Patel in time to prevent the grant of permission on 6 November 1984. The Home Office only learned that the name of Mr Valli's son-in-law was Patel on 27 November 1984. An immigration officer then interviewed Mrs Patel and discovered the facts. After the marriage Mrs Patel had hoped for some time that her husband would, as she put it, "call her to his house", and he had promised he would, but by the time of the interview she no longer trusted him, did not want to join him and regarded the marriage as at an end. The applicant himself was interviewed on 26 January 1985. He told the immigration officer a number of lies, among which were that they had lived together until about September 1984, that she had then returned to her father, that he had wanted her to re-join him, but she would not, that he took money to her every two weeks and that a house which he had bought in September 1984 had been purchased in their joint names. During 1985 Mrs Patel took proceedings to have the marriage annulled, and a decree absolute of nullity was pronounced on 15 November 1985. Meanwhile the Secretary of State had considered the applicant's position. He concluded that the applicant had obtained settlement by misrepresenting the circumstances surrounding his marriage. Having taken into account all the known facts, he decided that it would be conducive to the public good to deport him by virtue of section 3(5)(b) of the Immigration Act 1971 and to give directions for his removal to India. The Notice of Intention to deport (dated 21 August 1985) was in these terms: "You were admitted to the United Kingdom on 7 June 1983 for three months for marriage to Salmabanu (Sulmabanu) Valli, a woman settled here. "Following your marriage on 27 July 1983 you were granted leave to remain until 13 September 1984. On 6 November 1984 you were granted indefinite leave to remain on the grounds of your marriage. "The Secretary of State now has reason to believe that your marriage was entered into primarily to obtain your settlement in the United Kingdom with no intention that you should live permanently as man and wife. "Having regard to this the Secretary of State considers it to be conducive to the public good to make a deportation order against you." It then said that he had decided to do so. On the same date the Home Office wrote to solicitors who were then acting for Mr Patel a letter which gave a different reason for the decision. It included this sentence: "Mr Patel's immigration status has been reviewed and, having regard to all the relevant circumstances, in particular that he appears to have obtained settlement by misrepresenting that he had entered into a genuine and subsisting marriage, it has been decided in principle to deport him." The applicant gave notice of appeal against the decision. The Home Office Explanatory Statement, prepared for the purposes of the appeal and dated 19 February 1986, repeted the reason given in the letter as the basis for the decision. The appeal was heard on 5 August 1986 and the Immigration Appeal Tribunal gave its decision on 2 September 1986. At the hearing the advocate appearing for the Secretary of State told the Tribunal that he did not rely on the decision for the reasons explained in the notice of 21 August 1985; he relied on those in the letter of the same date and repeated in the Explanatory Statement. This does not mean that the Secretary of State conceded that the primary purpose of the marriage was not to obtain settlement or that at the date of his marriage he intended to live permanently as man and wife. His stance was simply that he was not making these allegations. What he set out to prove to the satisfaction of the Tribunal was that the applicant had obtained indefinite leave to remain by representing the circumstances of his marriage in his letter of 5 September 1984. He submitted that the letter contained a representation "that the appellant's marriage was subsisting and that the appellant and his wife were living together". At the request of Mr Riza, counsel for the applicant, Salmabanu (who had by then remarried) and her father were tendered for cross-examination. No evidence was called on the applicant's behalf. The argument was directed solely to the question of whether or not the letter of 5 September 1985 contained the representation for which the Secretary of State contended. The Tribunal were referred to the following authorities: R v Immigration Appeal Tribunal, ex parte Owusu-Sekyere [1986] Imm AR 169 (a decision of Mann J which has since been affirmed on appeal (See now [1987] Imm AR 425.) and Abdul Rashid Choudhry v Commissioner of Police for the Metropolis (unreported) 23 November 1984, a decision of the Divisional Court presided over by Robert Goff LJ (as he then was). The Immigration Appeal Tribunal concluded their decision with these words: "With regard to the question of whether or not the appellant has employed misrepresentation in order to circumvent the immigration rules, we now turn to consider the evidence. This comprises the documentary evidence upon the file including the Home Office explanatory statement, and the oral evidence made to them in cross-examination that Salmabanu had actually lived with the appellant, and that it was financial considerations which had led to the failure of the marriage, their evidence is virtually unchallenged -- at least in the sense that no evidence to the contrary was led by Mr Riza. We found Salmabanu to be a most convincing witness who appeared to us to give her evidence honestly: we accept it without reservation. Her father also appeared to us to be telling the truth, although he was a less compelling witness by reason of his evidently emotional state. We determine this appeal upon the basis of the following facts which we find. "In so far as Ebrahaim Valli and his family were concerned this was a genuine arranged marriage: in so far as the apellant's family were concerned we are not so sure. It appears to us that there was at least some evidence to suggest that upon their part it may have been a marriage of convenience. However, this allegation has now been specifically withdrawn by the respondent, and consequently we dismiss that possibility from our minds. We believe that Salmabanu and her father were at all times ready and willing for Salmabanu to go and live with the appellant as his wife, but that this never happened. They have never lived together and the marriage has never been consummated. "We now come to the vital letter received by the Home Office from the appellant on 5 September 1984 which we have quoted, requesting indefinite leave upon the following grounds 'I have my own house and also our marriage certificates . . .' In our opinion it is conceivable that in some circumstances this letter might have been written with no intention to mislead. However, we have to consider it in the context of the circumstances in which it was written and the events which subsequently took place -- particularly the lies told by the appellant and his friend (or brother) Ahmed Patel when they were interviewed at the Preston immigration office on 26 January and apologised for trying to deceive the immigration officer. Later in that interview and after the apology had been tendered the appellant nonetheless persisted in the attempt to deceive by claiming, falsely, that the property at 8 Kingfisher Street was purchased in the joint names of his wife and himself and that she had signed the deeds. Also in this connection we note that the appellant has not been called by Mr Riza as a witness to assure us that the letter was perfectly innocently written. The letter appears to us to be very similar to the letter referred to in the case of Choudhry which we have quoted above. Whilst we are very much alive to the fact that every case must depend upon its own facts, we note that the learned judges in that case considered that that letter constituted a misrepresentation sufficient to amount to the commission of a criminal offence in the circumstances in which it was written, and of course the standard of proof required from the prosecution in a criminal case is even more stringent than that to which we may conveniently refer as the Khawaja standard which we have to apply. We are satisfied to a high standard of probability that the letter in question was written by the appellant with the deliberate intention of creating the impression that his marriage to Salmabanu was subsisting and that they intended to live together as man and wife. We are satisfied to the same degree that it was a deliberate misrepresentation with the aim of circumventing the provisions of the immigration regulations. " . . . we consider it conducive to the public good that persons who attempt to deceit to set the regulations at nought should be deported unless compassionate considerations render it undesirable to do so . . . "In our opinion the Secretary of State's decision involved no mistake of law or wrong exercise of discretion. We ourselves would not have exercised our discretion in any way differently. "The appeal is dismissed." It will be noted that the representation which the Tribunal held to have been implied in the letter was not, as the advocate for the Home Office had been contending, that the marriage subsisted and that they were living together, it was that the marriage subsisted and that they intended to live together as man and wife. The question for this court is a narrow one. It is whether the decision of the Tribunal, based as it was on the finding of the letter of 5 September 1984 did contain the representation which they found, was wrong in law. Had any member of the public, unversed in the refinements of the law, been listening to the argument in this case, he might well have asked himself why it should matter whether the letter contained the implication or not, for this was a man who was found by the Tribunal to have had the dishonest intention of misleading an Immigration Officer in order to get round the immigration regulations on 5 September 1984 and who had gone on to tell a number of express lies when interviewed about the same subject on 26 January 1985. Looked at from the standpoint of the public good, was that not enough to justify the decision to deport him in the admitted absence of compassionate circumstances? Why bother to ask whether something said in a letter implied something else as well? The answer, of course, is that that is not how the case was presented to the Tribunal. The Secretary of State relied, exclusively, on his assertion that there was in that letter a dishonest implied representation, and on this alone the survival of the Notice of Intention to Deport therefore depended. Hence the need for the Tribunal to confine its attentions to a single point. And this court must do the same. A similar letter to that written by the applicant in this case fell for consideration by the Divisional Court in Choudhry v Commissioner of Police for the Metropolis. Mr Choudhry had been convicted of an offence under section 26(1)(c) of the Immigration Act 1971, which provides that in certain circumstances it is an offence to make, to an Immigration Officer or other person lawfully acting in the execution of the Act, a statement or representation which he knows to be false or does not believe to be true. A man called Abbas came to the United Kingdom as a visitor. He wished to reside here permanently. A woman who was settled here was persuaded to go through a ceremony of marriage with him so that he could obtain the necessary leave. They would not live together and after three years they would be divorced. For this service she was to be paid @1,500. Mr Choudhry had some part in the arrangements. In particular he was party to the writing of a letter dated 14 September 1973 to the Home Office from a solicitor. It was in these terms: "Dear Sir, re Mr Nazir Abbas. We act on behalf of Mr Nazir Abbas of 405 New Cross Road, New Cross. He was granted leave to enter the United Kingdom for one month from 24 October 1982 and we understand an application for leave to be extended was subsequently made. On 1 September 1983 he married one Helen Moorcroft, a British subject, citizen of the United Kingdom and Colonies, and our client now wishes to obtain leave to remain in the United Kingdom permanently. We enclose our client's Pakistan passport, his wife's British passport, and a certified copy of the marriage certificate. We await hearing from you. Yours faithfully." The learned stipendiary who tried the case held that the letter carried, by necessary implication, a representation that the marriage was genuine, that is to say not one entered into in consideration of a payment of money for the sole purpose of obtaining leave for Abbas to reside permanently in England, but without there existing between him and Helen Moorcroft any mutual affection or intention of living together as husband and wife. He therefore convicted Mr Choudhry of the offence. Mr Choudhry appealed to the Divisional Court by way of case stated. The question was whether the Magistrate was right in concluding that the letter carried with it the representation that the marriage was genuine. The question was essentially one of construction of the letter in the context of the surrounding circumstances. Was there, or was there not, a positive deception implicit in the letter? Robert Goff LJ (as he then was) dealt with the question like this: "We are here concerned with a letter which came from a solicitor. But the letter must have been written on instructions from an immigrant. No doubt it is well known among a substantial section of the immigrant community that what the magistrate has called a marriage of convenience does not, by virtue of Rule 126 of the immigration Rules (HC 169) qualify an immigrant for a grant of an extension of stay or leave to remain in this country. But it does not follow that the precise terms of Rule 126 are known to every immigrant who may make an application of this kind. Can it, therefore, be said to be a necessary implication of a letter written in the terms of the letter in the present case, that the person on whose instructions the letter was written is impliedly representing thereby that the marriage referred to in the letter is a genuine marriage in the sense described by the magistrate? "I have come to the conclusion that it must be so. It seems to me that when any letter of this kind is despatched to the Home Office, being as it is an application for a grant of leave to remain in this country, it is obviously intended to be understood as a bona fide application founded upon a marriage to a person settled here. It must be intended to be understood as referring to a genuine marriage in the sense that the marriage is not a sham marriage which is a mere formality, a temporary strategem, designed to generate a marriage certificate, and to be dissolved as soon as the Home Office has, on the basis of the marriage and in reliance on the marriage certificate, granted the desired permission. The recipient of such a letter would, in my judgment, read the letter as referring to such a genuine marriage, not because of his own knowledge of the Immigration Rules or because of his attribution of such knowledge to the writer of the letter, but simply because the letter would on its ordinary meaning be understood as referring to a genuine marriage and not to a sham marriage of the kind I have described. That was precisely how the letter in the present case was intended and expected to be understood, though it was not suggested that the solicitor who signed it was party to the fraud. It follows that we are in the present case concerned not with mere non-disclosure, but with a positive deception implicit in the letter. That deception constituted a false representation for the purposes of section 26(1)(c) of the Act of 1971." The similarity of wording and circumstances between that case and this is striking. Each letter was written after a person visting the United Kingdom with permission to stay for a limited period had married a woman settled here. Each husband wanted permission to stay longer on this account. Each letter said that the marriage had taken place, that the husband wanted to stay here permanently and that the documents were enclosed -- all statements which were true. In neither letter was anything said about vital facts which, had they been known to the Home Office, would have led to the refusal of the permission. The decision in Choudhry makes irresistible the inference that the letter written in the present case contains within it the same representation as that which the court held to have been included in the Choudhry letter. Mr Riza recognises this in his submissions, but contends that nothing more can be implied. He says that a letter of this kind is a mere application -- an invitation to the Secretary of State to consider whether the applicant qualifies for settlement. An applicant is under no duty to volunteer the fact that he and his wife have never lived together or (if it be the case) that they do not intend to, or no longer intend to, or that the marriage has not been consummated. It is for the Secretary of State to satisfy himself of the requirements of the rules. It is much more difficult, he says, to imply a representation about an intention to live together as husband and wife than it is to imply a repesentation that the marriage, when entered into, was genuine Relationships between married couples are of almost infinite variety; marriages may run into temporary difficulty; intentions to live together may rise and fall in strength or disappear and later return: some people do not even know their own minds in this regard, let alone their spouse's. There are six requirements in paragraph 126 and, as Robert Goff LJ said in Choudhry, it does not follow that the precise terms of paragraph 126 are known to every immigrant who may make an application of this kind. For these reasons, Mr Riza submits, a letter in these terms is as a matter of law not capable of bearing the implied representation which the Tribunal found. To what extent the question is one of law and to what extent one of fact is debatable. Mr Laws suggested that there were two stages for the Tribunal to consider." (1) was the letter capable of bearing the suggested representation? -- a question of law; (2) if so did it bear that representation? -- a question of fact. Had the proceedings been criminal and had the defence made a submission of no case to answer at the close of the case of the prosecution, this, suggests Mr Laws, is the approach which the judge would have adopted. If he is right then this court, exercising its function of judicial review, is concerned only with the first of the two questions, and Mr Laws noted that Mr Riza's submissions had in fact all been couched in terms consistent with his own approach. It may be that Mr Laws is correct, although, when one comes to perform the exercise, a proper consideration of the first question leads to the answer to both. The exercise is so bound up with a consideration of facts that it is difficult to accept that it does not lie in the field of fact; yet, the essential question being one of construction, it may be that it is all law. However, be it fact or law, or some of each, I intend to begin by considering whether or not I think the Tribunal was correct in its conclusion. If it was that is the end of the matter. Only if I think it wrong need one return to ask how much is law and how much fact. The question for the Tribunal, as I have said, was essentially one of construction of the letter itself, in the light of the relevant surrounding circumstances known both to the writer and the recipient, which included of course the fact that it was directed to the Home office for the purpose of the application which the letter contained. Husbands and wives in the overwhelming majority of cases want to live together. Economic circumstances may not always permit it, but this is what they want to do. If one party to a marriage is settled here and wants to stay, it would be inhuman not to permit the other party to do so too. So the immigration rules provide that they may do so. Any reasonable person who devoted more than a moment's thought to the question would appreciate that the rules (however they were drafted) would provide for couples who intended to live together to do so, and that they would not extend to couples who did not have this intention. No one from whatever country he or she came could reasonably expect that the privilege of the right to settlement on the ground of marriage would be given to those who never intended to live together. Nor could it reasonably be thought to extend to those who no longer intended to live together, for example those who had been divorced -- or in respect of whose marriage a decree nisi had been pronouned -- or whose marriages were already the subject of divorce proceedings -- or who had separated with the intention of never coming together again. In each of these cases the humanitarian reason for bestowing the privilege would have gone. All this must be well appreciated by any visitor who applies for settlement on the basis of marriage to a person already settled here. It is inconceivable that the applicant in this case can have thought otherwise. To impute such knowledge to an applicant is not to presume that he knows the precise terms of paragraph 126. It is to do no more than recognise that he must have understood as much as I have indicated. An application of the kind made in this letter is, therefore, obviously to be understood as one founded on a genuine and subsisting marriage. I use the word "genuine" in the sense in which it was used in Choudhry, and I use the word "subsisting" as meaning one in which the parties at the time of the application intend to live together as man and wife. To an extent the words overlap, but they sufficiently describe what is implied. (The essential feature of the want of genuineness in Choudhry was the intention that the marriage should never subsist.) In Choudhry's case the relevant representation to be implied was best paraphrased by the word "genuine". In this case "subsisting" is the more appropriate. There are differences of fact between the two cases, but there is none of principle. So to conclude is not to imply a reprsentation of silence. As Robert Goff LJ said in Choudhry: "We are not concerned with mere non-disclosure, but with a positive deception implicit in the letter. In my judgment the Tribunal was right in its conclusion and I share its preference for the formulation of the implied repesentation in terms of an intention to live together rather than of the fact of living together. It follows that they made no error either of law or of fact; how much of the exercise was one and how much the other is imaterial. The application is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Norton & Coker, London NW1; Treasury SolicitorD9E6E05: