R v. Immigration Appeal Tribunal, Ex parte Singh

R v IMMIGRATION APPEAL TRIBUNAL ex parte SINGH

Queen's Bench Division

[1988] Imm AR 372

Hearing Date: 26 February 1988

26 February 1988

Index Terms:

Deportation -- husband of woman who was settled in the United Kingdom on 1 January 1973 -- whether a husband enjoys protection against deportation by virtue of the effect of s 1(5) of the 1971 Act. Immigration Act 1971 ss 1(5), 3(5)(a).

Held:

The appellant was admitted to the United Kingdom for marriage in 1980. The marriage broke down: the appellant was refused indefinite leave. He became an overstayer. A decision was taken to initiate deportation proceedings. Appeals against that decision were dismissed. The appellant subsequently married another person, who was it seems settled in the United Kingdom on 1 January 1973. On the basis of that marriage and s 1(5) of the 1971 Act, it was argued, following Zalihe Huseyin, that the appellant could not be deported. Held: 1. The Court of Appeal in Zalihe Huseyin had held that a woman who married a Commonwealth citizen settled in the United Kingdom on 1 January 1983 was protected from deportation in consequence of the more favourable applicable pre-1973 rules. 2. That decision was not authority for the proposition that the same protection extended to the husbands of wives so settled on 1 January 1983. 3. Neither the European Convention on Human Rights nor the Sex Discrimination Act required the word "wives" in s 1(5) of the 1971 Act to be read as "husbands".

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Zalihe Huseyin (unreported, QBD, 15 April 1987). Secretary of State for the Home Department v Zalihe Huseyin (CA) [1988] Imm AR 129.

Counsel:

H Singh for the appellant; J Bate-Williams for the respondent PANEL: Macpherson J

Judgment One:

MACPHERSON J: In this case Mr Harjit Singh moves on behalf of his client Bahadur Singh for judicial review of the decision of the Immigration Appeal Tribunal dated 19 June 1985. He furthermore seeks to overturn the decision of the Secretary of State that he should be removed from the country now as a result of a deportation order signed on 22 October 1986. The short history of the matter is as follows. On 4 May 1980, Singh arrived in this country and was admitted for three months as the fiancé of a woman called Balwinder Kaur. On 30 May 1980 there was a civil marriage followed by a religious ceremony in September 1980. The applicant was granted leave to remain until September 1981 on the basis of that marriage. Thereafter, in 1982, the couple were seen and were interviewed. Eventually, on 8 September 1982 an application for indefinite leave to remain in this country was refused. There was an appeal to the adjudicator but that appeal was withdrawn. The applicant was advised by the Home Office to leave this country on 5 September 1983. Representations were made by politicians on the applicant's behalf but by that time it was apparent that the marriage was on the rocks since Balwinder Kaur wrote, for example, a letter in November or December 1983 indicating that her husband was violent and intimidating and that the marriage had never been successful. On 22 May 1984 a decision was made to deport the applicant who had no right to remain since he had not had his right to stay extended. There was an appeal to the adjudicator in November 1984. Leave was granted to appeal to the Tribunal and, in due course, there was a hearing before the Tribunal. The Tribunal dismissed the applicant's appeal on 19 June 1985. There were then representations made as to possible compassionate circumstances by Mr Healey and, adding to the applicant's misfortunes he then had to plead guilty to a charge of assault occasioning actual bodily harm in June 1986 when he was fined @75. On 1 August 1986 the applicant's marriage to his wife was dissolved by decree absolute. I should indicate at once that Mr Singh seeks to challenge the original orders in this case but he is ages out of time in that application. Furthermore, the matters raised before the adjudicator and before the Tribunal concerning the availability of a young girl who would marry the applicant concerned the person who has been called "Woman Number 2", namely Binaljit Kaur. She disappeared from the scene and, in my judgment, there is no possible basis upon which the balancing exercise of public interest against deportation could be properly or satisfactorily argued in this court by Mr Singh on the applicant's behalf. I believe that in truth he abandons that second limb of his argument. At all events, I see no strength in it and dismiss it, quite apart from its staleness and the fact that it is out of time. What happened thereafter does, however, raise a problem since on 13 October 1986 the applicant married Paramjit Kaur. He did not notify that matter to the Home Office; perhaps for good reasons. On 22 October 1986 the deportation order was signed. There was then some more contact with politicians and on 11 November 1986 solicitors wrote to the Home Office requesting leave to remain for the applicant on the basis of his marriage to Paramjit Kaur. It transpired later that the wife had not been previously aware of the applicant's immigration status and history so, if that is true, he had concealed from her the fact that he had been before the adjudicator and before the tribunal and that all the decisions to date had been firmly against him. Furthermore, he may well have concealed from her that there had been a decision to deport him which was simply awaiting the signature of the Home Secretary. The applicant now claims that because of the marriage to Paramjit he is entitled to remain in this country. As a matter of pure common sense, it seems to me that such a suggestion is bizarre, but it is made and Mr Singh argues that whatever the court's reaction may be to such a proposition, he is protected by law and is entitled to argue that his client should be allowed to remain here as the husband of Paramjit Kaur. He relies upon section 1(5) of the Immigration Act 1971. That reads as follows: "The rules" -- that is to say the Immigration 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." Furthermore, he refers me paricularly to the case of R v Secretary of State for the Home Department, ex parte Zalihe Huseyin decided by Farquharson J on 15 April 1987 and considered by the Court of Appeal on 30 October 1987. I have seen The Times Law Report of the decision of both those courts and counsel has read to me, and I have available, the transcript of the Court of Appeal decision (See now [1988] Imm Ar 129). It should be noted at once that the Court of Appeal decision concerned a Cypriot girl who had been convicted of overstaying and, in November 1983, married a Commonwealth citizen who had been born in the United Kingdom in 1959. The Court held, with reluctance, that in that case the argument of the applicant prevailed. The Master of the Rolls said at one stage in his judgment that he reached the conclusion that he did with extreme reluctance because any unmarried woman faced with deportation had only to marry a Commonwealth citizen who was settled in the United Kingdom on 1 January 1973 to be proof against deportation. The reason for that is the pre-1973 rules were more favourable than the later rules and the court had to look at the earlier rules when deciding whether there had been a breach of section 1(5); perhaps it would be better to say whether the benefit of subsection (5) could be claimed by the applicant. In the present case, Mr Singh argues that his client is in the same position as the woman whose case was considered by the Court of Appeal, namely, Zalihe Huseyin. He argues that subsection (5) of section 1 must apply to wives and husbands just as much as it does to husbands and wives. Mr Singh accepts that if that is not right then he fails. For his part, Mr Bate-Williams in a commendably short submission argues that the subsection must be read as it stands in the statute and that there is no room for the substitution of the word "husband" for "wives" in that subsection. Quite why the subsection was drafted in that way is not a matter into which the court should go but there may well be reasons why it was slanted against men as it was when it was passed in 1971. I have come to the conclusion that Mr Bate-Williams' argument is correct. The subsection says in terms that Commonwealth citizens and their wives and children are not by virtue of anything in the rules to be any less free to come into and go from the United Kingdom than if this Act had not been passed. If Parliament had intended that the same rule should apply the other way round, it would have been the easiest possible thing to have indicated that Commonwealth citizens and their spouses and children should be treated in that way. The subsection did not so direct. It seems to me that it would be wrong to depart from the meaning of the words as they stand in subsection (5) and as interpreted by Mr Bate-Williams. I am not impressed by the argument in this case that the European Convention on Human Rights must mean that the section should be interpreted in the way for which Mr Harjit Singh argues. Immigration Rules do bite differently as they concern men and women in many areas. One only has to look at the rules to see that that is so. I see no reason why in 1971 Parliament should not have legitimately been allowed to pass a section which concerned men and their wives and not wives and their husbands. That I am able to interpret the law in this way gives me some comfort since, as I have indicated, it does seem to me to be absurd that somebody whose deportation order is signed only a day or two after his marriage to the third woman whose acquaintance he has made in this country should allow him to escape deportation whereas if it had been made earlier he would have been on the next airplane back to his country of origin. The Master of the Roles obviously was unhappy with the position faced by an unmarried woman who was able to escape deportation. I do not believe that I am compelled by the European Convention on Human Rights or by any of the Sex Discrimination Acts which apply in this country to interpret subsection (5) so that the word "wives" can be read as the word "husbands". in all the circumstances, therefore, commonsense prevails and this application is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Mandla & Co, Birmingha; Treasury Solicitor

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