R v. Immigration Appeal Tribunal, Ex parte Mohd Amin

R v Immigration Appeal Tribunal ex parte Mohd Amin

Queen's Bench Division

[1992] Imm AR 367

Hearing Date: 6 April 1992

6 April 1992

Index Terms:

Appeal -- dismissal by adjudicator -- application for leave to appeal to Tribunal -- arguable point of law on one issue -- case dismissed by adjudicator on two issues -- no effective challenge to adjudicator's conclusions on second issue -- the obligation of the Tribunal to exercise its discretion in accordance with the Procedure Rules in considering the application for leave to appeal. Immigration Appeals (Procedures) Rules 1984 r 14(2)(a).

Adjudicator -- obligation to make findings on the credibility of witnesses -- proper approach to recording conclusions on the evidence -- whether entitled to say that she saw no reason to differ from any findings of fact made by the entry clearance officer.

Judicial review -- the obligation on the representatives of applicants to prepare papers for the court -- the desirability of submitting a skeleton argument in primary purpose cases. RSC Ord 53 para 14/45.

Held:

The applicant for judicial review was a citizen of Pakistan who had been refused entry clearance as a husband. An appeal had been dismissed by an adjudicator. She had found against the applicant both on the issue of primary purpose and on the adequacy of available maintenance. An application for leave to appeal to the Tribunal was refused. Before the court counsel submitted that there had been an error of law in the adjudicator's approach on both issues. He was unable to sustain his criticism of the adjudicator's findings on maintenance. It followed that even if she had erred in her approach to the question of primary purpose, her determination dismissing the appeal would stand, because it could not succeed unless all the conditions of the rules were satisfied. In those circumstances, he submitted, the Tribunal had still erred in law in failing to exercise its discretion to grant leave to appeal. Held 1. The adjudicator's determination could not be attacked on the findings on maintenance. The Tribunal however had failed to exercise its discretion under Procedure Rule 14(2)(a). The refusal of leave to appeal would be quashed, but the court declined to direct the Tribunal to grant leave to appeal. The Tribunal would merely be required to exercise its discretion in reviewing the application. 2. The adjudicator had erred in law in failing to make clear findings on the credibility of the two witnesses she had heard. 3. There were deficiencies in the reasoning process as set out in the determination in relation to the question of primary purpose. An adjudicator, in the determination should set out "with some clarity" what evidence was accepted, what evidence was rejected, on what evidence no conclusion could be reached, and what evidence was irrelevant. It would assist adjudicators if entry clearance officers adopted the same approach in their explanatory statements. 4. Where as in immigration cases half the evidence was received abroad and half given in the United Kingdom, an adjudicator was entitled, if so minded, to say "that he sees no reason to differ from any findings of fact made by the entry clearance officer." 5. The applicant's representatives had failed to prepare the papers properly for the courts: it was also desirable in applications for judicial review for counsel to prepare a skeleton argument: had that been done it would have been evident to counsel that the attack on the adjudicator's findings on maintenance could not be sustained and the court's time would have been saved.

Cases referred to in the Judgment:

Sumeina Masood v Immigration Appeal Tribunal [1992] Imm AR 69.

Counsel:

M Hussain for the applicant; M Shaw for the respondent PANEL: Schiemann J

Judgment One:

SCHIEMANN J: This is an application to quash the decision of the President of the Immigration Appeals Tribunal made under rule 14 of the Immigration Appeals (Procedure) Rules 1984 refusing the applicant leave to appeal from a decision of an adjudicator. The appeal to the adjudicator had been made under section 13 of the Immigration Act 1971 because the applicant had been refused an entry clearance. The background to the matter is as follows. The applicant, a citizen of Pakistan, had on 14 June 1987 married in Pakistan a lady who at that time was settled in the United Kingdom. In November 1987 he applied for entry clearance. In February 1988 his by now pregnant wife returned to the United Kingdom. There, in June 1988, she gave birth to their child. In October 1988 the applicant and his mother were interviewed by the entry clearance officer; and a little later they were refused entry clearance. The entry clearance officer and the adjudicator were dealing with the case under paragraph 46 of HC 169 as amended by HC 503. This provides, so far as presently relevant: "A passenger seeking admission to the United Kingdom as the spouse of a person who is present and settled in the United Kingdom . . . must hold a current entry clearance granted for that purpose. An entry clearance will be refused unless the Entry Clearance Officer is satisfied:- (a) that the marriage was not entered into primarily to obtain admission to the United Kingdom; and (b) that each of the parties has the intention of living permanently with the other as his or her spouse; and (c) that the parties to the marriage have met; and (d) that there will be adequate accommodation for the parties and their dependents without recourse to public funds in accommodation of their own or which they occupy themselves; and (e) that the parties will be able to maintain themselves and their dependants adequately without recourse to public funds." The entry clearance officer refused entry clearance on the basis that he was not satisfied as to matters (a), (b), (d) and (e). The notice of appeal was served in December 1988. In March 1989 the wife purchased a home with the aid of a loan. Thereafter, ground (d) ceased to feature in the case. In December 1989 the appeal to the adjudicator was heard and argued on behalf of the applicant by Mr Hussain who also appeared in front of me. On 3 January 1990 the adjudicator set out her determination and reasons. She dismissed the appeal on the grounds referred to in paragraphs 46(a) and (e). Mr Hussain settled grounds of appeal to the Immigration Appeal Tribunal which dealt with the primary purpose point at some length and said in relation to the maintenance point: "Having found that the sponsor owned a house and that she is employed earning @85 weekly net, the learned adjudicator erred in law in not being satisfied that the future maintenance provisions are not (sic) met with in the rules." The President of the Tribunal, refusing leave, said: "In so far as the primary purpose of the marriage was concerned, and this was a question of fact, the Tribunal considers that the adjudicator's findings were not against the weight of the evidence and were properly supported by it. In so far as the immigration rules and the law were concerned, the Tribunal, having regard to the judgments of the Court of Appeal in the case of Hoque and Singh [1988] Imm AR 216, does not consider that the adjudicator misdirected herself. In so far as accommodation and support were concerned, in the opinion of the Tribunal, the respondent was justified in the decision taken and it agrees with the determination of the adjudicator which discloses no misdirection in law or wrong exercise of discretion. In the opinion of the Tribunal, and in the light of Rule 14(2)(a) Immigration Appeals (procedure) Rules 1984 this is not a proper case in which to grant leave to appeal, and such leave is refused. In the application for leave to appeal and in the notice of motion for these proceedings, there are various grounds in relation to the primary purpose findings which I will look at hereafter. I pause to mention at this point that so far as the finding in relation to maintenance is concerned, the only ground given reads as follows: "The learned adjudicator erred in law in her findings on maintenance." Contrary to the instructions set out clearly both in the Annual Practice at 53/1, 14/45 and in the Daily Cause List, there was not available to me either before or at the hearing a properly paginated and indexed bundle of documents, a list of issues, et cetera. Thus, when Mr Hussain rose, neither I nor his opponent had any idea as to how he was planning to argue the case in relation to maintenance. When I asked him for particulars, he referred me to the definition of public funds in paragraph 1 of HC 169 as substituted by paragraph 1 of HC 503 and asserted that on an income of @85 per week the parties would not be entitled to have recourse to public funds. When I asked him to make this good, he was not able to do so straight away. I allowed him to spend a prolonged luncheon adjournment to make this proposition good. When he returned at 2.30, it became clear that the proposition could not be made good -- not even under HC 388, which was the relevant one for the purpose of the consideration of the matter by the adjudicator. I do not think that the point was ever expressly abandoned but if it was persisted in, I am afraid I have not understood its basis and I am not persuaded that the adjudicator erred in law in her findings on maintenance. If Mr Hussain had prepared a skeleton argument, as is advisable in hearings for judicial review, then I think he would have appreciated that this point was unarguable and time would have been saved. In those circumstances, the decision of the adjudicator as such cannot be challenged because even if she erred in relation to the primary purpose point, she has not been shown to err in relation to the public funds point, and both points are ones upon which an applicant must satisfy an entry clearance officer. That however, is not the end of this application for judicial review which is concerned not with the adjudicator's decision in the first instance but rather with the decision of the Tribunal to refuse leave to appeal. The procedure rules provide in rule 14 as follows: "(1) An appeal shall lie only with leave . . . of the Tribunal (2) . . . an appellate authority to whom application for leave to appeal as aforesaid is duly made shall grant it -- (a) if the authority is satisfied that the determination of the appeal involves an arguable point of law, except that where leave to appeal is sought from the tribunal on the ground that an adjudicator misdirected himself on a point of law then the tribunal may, notwithstanding that it is of the opinion that the point of law raised in the application might be decided in favour of the applicant, refuse leave to appeal if it considers that, even if the adjudicator had not misdirected himself on the point in question, he could properly have made the determination he did." Mr Hussain submitted that if he could persuade me that the decision on primary purpose involved an arguable point of law, then I should quash the decision of the President of the Immigration Appeal Tribunal not to grant leave so that the President may thereafter consider whether or not he should refuse leave by reason of the exercise of the discretion vested in him by the concluding words of rule 14(2)(a). I accept that submission. Mr Shaw, who appeared for the Secretary of State, sought to persuade me that this court can only interfere if it is shown that there has been an error in the exercise of the discretion by the President and that there is in this case no error in the exercise of that discretion. I agree that, given his premise that there was no arguable point of law under either head, the President was entitled to refuse leave to appeal. However, he never considered the position of how he would exercise his discretion if he were satisfied that the determination of the appeal did involve an arguable point of law. If the court comes to the conclusion that the adjudicator did make an error of law then, in my judgment, it is open to the court to exercise its discretion as to whether or not to send the matter back to the President of the Tribunal in order that he may exercise his discretion under rule 14(2)(a). That is an exercise which so far he has never undertaken and therefore the question of the court substituting its discretion for his does not arise. I turn now to look at the determination of the adjudicator in order to consider the argument advanced by Mr Hussain that the Tribunal should have been satisfied that the determination of the appeal from the adjudicator to it involved an arguable point of law. The structure of that determination is as follows: (1) The adjudicator stated that she had before her the entry clearance officer's explanatory statement and the original notes of interview on 6 October 1988 of the appellant and his mother and the entry clearance officer's assessment of the application then before him. (2) The adjudicator then set out evidence from the bride's father. (3) She then deals with the bride's evidence as follows: "The sponsor's evidence is that she did not talk to the appellant before they married; she had told her mother that she would live in Pakistan for some time and would then return to England. This was told to the appellant and to his mother, and her mother had told her that if she wanted to return to England after marriage she could do so, as her mother had spoken to the appellant and his mother. It is clear from her evidence that she knew before the marriage that she intended to return to England. She said that after the marriage the appellant wanted her to stay in Pakistan but she told him she did not like it there and he agreed she should go. She had told him of the comparative freedom she enjoyed in England which enabled her to go to work. She apparently would not expect him to work if he came here, as she will be prepared to support him, while he is to remain at home looking after the child. Given the strict traditional background of the two parties, and in particular that of the appellant as reflected in his and his mother's responses to the ECO, it is an incredible arrangement going as it does to the root of Muslim custom and tradition. When one looks to the time of the choice of bride for the appellant, I have to bear in mind that the two families are not related and according to his mother were not even known to each other before the proposal came from her father. I have not heard of any enquiries made from his side into the sponsor's family background which are usually made when marriages are arranged from outside the family relationship. For an appellant with his background, living in a village, trained as Imam, not permitted any contact with the sponsor other than a 'viewing' before marriage, to so readily accede to the wishes of a wife whose traditional role is submissive, to join her household and not only that, to denigrate his position by allowing her to keep him, as I have been told, is totally unacceptable and runs completely contrary to his upbringing. I note that he himself told the ECO he did not intend to get a job in the UK (Q150) and that in no circumstances would she come to Pakistan to settle (Q146 onwards). Although there is a bare denial (Q148) that the marriage was arranged to get him into the UK, the totality of the evidence before me does not support his assertion. Whilst I have no evidence before me to indicate that paragraph 41 (sic) subparagraph (b) would not be satisfied, nevertheless this is not a case where a favourable finding on this issue places him in a better position to satisfy the requirements of paragraph 41 subparagraph (a). On the primary purpose issue, I am not satisfied that the appellant has discharged the burden of proof and the appeal on this issue is dismissed." The crucial point in this case, according to the respondents, is that on the evidence before the adjudicator she was entitled to and did find that: (1) The bride intended before her marriage to return to England and that this fact was communicated to both the applicant and his mother. (2) The marriage had been conditional on the husband applying to go to the United Kingdom and that its continued subsistence was dependent upon him being granted entry clearance. (3) She could not be satisfied by the various assertions of the husband because (a) the husband and his mother had been evasive at the outset and had sought to deceive the entry clearance officer into believing the marriage to have been based on affection rather than being a traditionally arranged marriage. (b) the husband had lied to the entry clearance officer in stating that it was his view that a husband has to live according to his wife's wishes and that this was his reason for applying to come to England. (c) of various contradictions between what the husband said and what was said by his mother and his wife and various other minor matters. (4) She was not satisfied that the marriage was not entered into primarily to obtain admission to the United Kingdom. The respondent relied heavily on the decision in Masood v Immigration Appeal Tribunal [1992] Imm AR 69 (CA). That decision of the Court of Apepal post-dated the decision under appeal but, it was submitted on behalf of the respondent, amply justified the approach taken in the present case. The position in Masood was that the wife intended to live in the United Kingdom whether or not her husband joined her; the husband could not join her in the absence of an entry clearance certificate; the husband wished to join her in the United Kingdom and to live with her here as husband and wife; the wife wished to live with the husband in the United Kingdom. My impression gained from sitting in this jurisdiction is that this sort of situation is not uncommon. Glidewell LJ, who gave the leading judgment in Masood, drew a distinction between a wish and an intention. Leading counsel for the appellant in that case conceded that an intention on the part of a party to the marriage to live permanently with the other conditional upon the other being able to obtain the necessary consent to enter the United Kingdom was no proper intention at all. The learned Lord Justice indicated that in his view that concession was rightly made. He stated that he regarded such an "intention" as being merely the expression of a wish and that "a wish only becomes an intention when there is some reasonable prospect of it being fulfilled". It seems implicit in the decision in Masood that the requirements of paragraph 46(b) were not fulfilled. Yet the decision appears to have turned not on paragraph (b) but rather on paragraph (a). That had been the approach of the adjudicator. The Court of Appeal upheld this approach. Glidewell LJ said at page 78: "The entry clearance officer was quite entitled to take the view . . . that the husband's intention to live with (the wife), which was no doubt based upon a sincere wish to do so, was itself contingent upon him obtaining an entry clearance certificate. Once the entry clearance officer and the adjudicator both reached that stage in their reasoning, it followed that it was but a short step to the conclusion that the marriage was entered into primarily to obtain admission to the United Kingdom." Mr Hussain did not quarrel with the decision in Masood on its facts but pointed out that that was a case where the appellant's father had said expressly that the marriage had been arranged to enable his son to go and live in the United Kingdom and, moreover, that the appellant in that case had said to the entry clearance officer that if he, the appellant, chose to live in Pakistan, his wife would have to obey him and he would divorce her if she did not. Whether or not I am strictly bound to follow the approach in the decision in Masood, I do not think it would be right for me sitting at first instance to refuse to follow the unanimous approach of that court, far-reaching as it is in its implications. In the present case, it cannot seriously be maintained that upon the material before the adjudicator she had no choice but to be satisfied of the matters set out in paragraph 46(a) and (b). Nor is that the way Mr Hussain puts his case. He points out that so far as (b) is concerned, the adjudicator's wording does not indicate whether or not she was satisfied that each of the parties had the intention of living permanently with the other as his or her spouse. Nor does she indicate what weight, if any, she gave to the evidence that the parties had cohabited for a period and that a child had been born to the couple. He points out that the sponsor said in front of the adjudicator that "after the marriage the appellant wanted her to stay in Pakistan". If true, that would be a powerful indication that the marriage was not entered into primarily to obtain admission to the United Kingdom. Mr Shaw submitted that it was clear that the adjudicator had rejected this evidence. He may be right that the evidence was rejected but there was no finding by the adjudicator as to this or indeed any other express finding in relation to the credibility of either the wife's evidence or that of her father. Mr Shaw relies on the reference by the adjudicator to "an incredible arrangement". He submits that it is for the parties to satisfy the adjudicator and, if they put forward material which is incredible, then the adjudicator cannot be blamed for failing to be satisfied. But it is not clear to me on reading the adjudicator's decision what precisely it is that she is describing as "an incredible arrangement". On the face of it, it appears to be an arrangement that if the husband comes over here the wife will be prepared to support him whilst he remains at home looking after the child. Mr Shaw submits that in substance what the adjudicator is saying is that the whole story being put forward by the applicant, the sponsor and their parents is incredible. But parts of that story the adjudicator appears to accept. In my judgment adjudicators should indicate with some clarity in their decisions: (1) what evidence they accept; (2) what evidence they reject; (3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it; (4) what, if any, evidence they regard as irrelevant. This the present decision fails to do even in relation to the evidence given in front of the adjudicator. So far as the evidence in front of the entry clearance officer is concerned, given the system of immigration appeals which provides for half the evidence being heard abroad before the entry clearance officer and the other half being heard in England before the adjudicator, I think it legitimate for an adjudicator to say, if so minded, that he sees no reason to differ from any findings of fact made by the entry clearance officer. It will help the task of adjudicators if entry clearance officers adopt the same approach to evidence as I have indicated is appropriate for adjudicators. In my judgment, the deficiencies in the reasoning process as set out in the decision are such that the Tribunal should have been satisfied that the determination of the appeal would involve an arguable point of law. Nevertheless, I do not propose to order the President to grant leave to appeal to the applicant because I can find nothing wrong in the decision of the adjudicator that she was not satisfied that the parties will be able to maintain themselves and their dependants adequately without recourse to public funds. In those circumstances, the Tribunal has a discretion as to whether or not to grant leave. I propose therefore to quash the decision of 22 May 1990 refusing leave and to direct that the Tribunal consider whether or not it should grant leave.

DISPOSITION:

Application granted

SOLICITORS:

Fieldings, Blackburn; Treasury Solicitor

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