Akram v Immigration Appeal Tribunal
| Jurisdiction | Scotland |
| Judgment Date | 28 September 1989 |
| Date | 28 September 1989 |
| Docket Number | No. 1. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Milligan.
Immigration—Illegally overstaying immigrant—Deportation order—Order appealed to adjudicator and Immigration Appeal Tribunal—Petition for judicial review of decisions of adjudicator and tribunal—Whether adjudicator and tribunal considered all relevant factors and thereby gave proper reasons for their decisions—Whether necessary to specify in decisions relevant factors and weight decided to be given to each—Whether sufficient weight given to immigrant's domestic circumstances as compassionate circumstances—Whether proper definition given to compassionate circumstances in weighing against the public interest in having the immigration rules adhered to—Immigration Appeals (Procedure) Rules 1984, r. 39 (3)1—Immigration rules (H.C. Paper 169 1982–83), rr. 155, 156 and 158.2
Immigration—Illegally overstaying immigrant—Deportation order—Order appealed to adjudicator and Immigration Appeal Tribunal—Petition for judicial review of decisions of adjudicator and tribunal—Whether competent to seek reduction of decisions of both adjudicator and tribunal.
A Pakistani citizen entered the United Kingdom on 12th July 1981, having been granted leave to stay in the United Kingdom on a visitor visa for six months. After a disagreement of some kind with his employer he moved from England to Scotland, where he worked in the catering industry. For much of the time since 1981 his whereabouts were, in fact, unknown to the immigration authorities. However, in 1984, an unsuccessful application was made on his behalf for leave to remain in the United Kingdom indefinitely. In February 1985 he married a British citizen of Pakistani origin, although he already had a wife in Pakistan, whom he had not divorced. Being a person who had remained in the United Kingdom beyond the time limited by the leave to
remain granted to him, he was a person liable to deportation in terms of sec. 3 (5) of the Immigration Act 1971 and the Secretary of State for Scotland decided to deport him. Notice of this decision was sent to him on 12th August 1985. By late 1985 he had formed a relationship with a Scottish woman who was married with three children and they began living together as man and wife, his British wife of Pakistani origin having left him of her own accord and returned to Pakistan. The Scottish woman had a child by him and was expecting another child by him. They established a business in Scotland. Neither he nor the Scottish woman with whom he was living initiated divorce proceedings in order to regularise their situation by marriage. Meanwhile, he exercised his right under sec. 15 (1) of the Immigration Act 1971 to appeal against the Secretary of State's decision to an adjudicator. In terms of sec. 15 (2) no deportation order could be made pending disposal of this appeal. The adjudicator dismissed the appeal on 19th October 1987. Thereafter, he exercised his right to appeal against the decision of the adjudicator to the Immigration Appeal Tribunal. On 2nd June 1988 the tribunal refused the appeal. Thereafter, he presented a petition for judicial review in which the reduction of the decisions of the adjudicator and the tribunal were sought on the grounds that they had failed to give sufficient weight in their decisions to his relationship with the Scottish woman; that they had failed to give proper reasons for their determinations; and that they had failed to take into full account all the factors required by the Immigration Rules, especially compassionate circumstances.Held (1) (followingSingh v. Immigration Appeal TribunalUNK [1986] 2 All E.R. 721) that, the reduction of the adjudicator's decision was not competent because it was appealable and had been appealed and because the adjudicator was not called as a respondent, although consideration of the adjudicator's reasons for his decision was relevant because the tribunal adopted the reasoning of the adjudicator; (2) that, the adjudicator and the tribunal each considered carefully and thoroughly all the relevant factors which they required to consider in coming to their decisions and, in so doing, gave proper reasons for their decisions; (3) that, it was not necessary for each relevant factor to be individually set out with express and separate specification of the weight decided to be given to that particular factor in the weighing exercise involved in the decision reached; (4) that, in the weighing exercise which was required to be done under r. 154 of the immigration rules it must be recognised that the weight of the public interest in having the immigration rules adhered to should vary; (5) that, neither the adjudicator nor the tribunal had misdirected themselves in law by applying too narrow a definition to the "compassionate circumstances" which fell to be weighed against the public interest in having the immigration rules adhered to in terms of r. 154; and orders sought refused and petitiondismissed.
Observed, that in the case of the adjudicator's decision it might be useful and appropriate in some cases to proceed along compartmentalised lines such as desiderated for the petitioner but failure to adopt such a format will not in itself provide grounds for reducing such a decision.
Observed further, that it was inappropriate in the r. 154 test for the same circumstance to be taken into account both to reduce the weight of the public interest in a particular case and to increase the weight of the circumstances against which that public interest was being weighed.
Mohammed Akram presented a petition for judicial review of a decision of an adjudicator and a decision of the Immigration Appeal Tribunal to confirm a deportation order made against him. His averments and the respondents' answers thereto were, inter alia, as follows:—"Stat. (1) The petitioner is a citizen of Pakistan whose application for indefinite leave to remain in the United Kingdom was refused on 2nd October 1984 and who, on 12th August 1985, had deportation proceedings instituted against him by the Secretary of State all in terms of the Immigration Act 1971 as amended by the British Nationality Act 1981. The petitioner's appeal against the decision was dismissed by an Adjudicator … on 19th October 1987 and by an Immigration Appeal Tribunal … on 2nd June 1988. The respondent is the Immigration Appeal Tribunal. Mrs Catherine Davidson may have an interest in these proceedings. Ans. (1) Admitted that the petitioner is a citizen of Pakistan. Admitted that an application by him for indefinite leave to remain in the United Kingdom was refused on 2nd October 1984. Admitted that on 12th August 1985 deportation proceedings were initiated against him by the Secretary of State under the Immigration Act 1971, as amended, under explanation that on said date the Secretary of State took a decision to make a deportation order against him under sec. 3 (5) (a) of said Act. … Admitted that the petitioner's appeal against said decision was dismissed by an adjudicator on 19th October 1987 and by the Immigration Appeal Tribunal on 2nd June 1988. …Quoad ultra denied. Explained and averred that the Secretary of State for the Home Department was a party to the proceedings before the adjudicator and Immigration Appeal Tribunal. He has an interest in the present proceedings and is properly a respondent thereto. Stat. (2) The petitioner seeks to have the deportation decision of 12th August 1985, which was upheld by the adjudicator on 19th October 1987 and the tribunal on 2nd June 1988 quashed and craves the court so to order or to pronounce such further orders, decrees or otherwise as may seem to the court to be just and reasonable in all the circumstances of the case. Ans. (2)Admitted that the petitioner seeks the remedies referred to, under explanation that he is not entitled thereto. Stat. (3) The petitioner challenges the said decision on the following grounds:—(i) Full consideration has not been given to all the relevant circumstances including those listed in paragraph 156 of H.C. 169 which require to be taken into account before a decision to deport is taken. (ii) Insufficient weight has been given to the petitioner's domestic circumstances as compassionate circumstances. (iii) The decision to deport is against the weight of the evidence. Ans. (3) Admitted that the petitioner challenges the decision to deport under explanation that he has no good grounds for doing so. Stat. (4) The following facts are presented in support of the challenge:—(i) The petitioner was born at Sunkiya, Pakistan on 2nd April 1951. He was orphaned at an early age and brought up in Pakistan by his maternal grandmother. He married one Akbar Noor in Pakistan by whom he has no children. He has verbally informed Akbar Noor that their marriage is over but the divorce has not yet been made legal in “talaq” form. (ii) In 1974, when he was 33, the petitioner left Pakistan and moved to Dubai, where he obtained employment with a company run by a Mr Sercovitch and remained there for some 7 years. (iii) In 1981 the said Mr Sercovitch brought the petitioner to the United Kingdom where on 12th July 1981 he was given leave to enter the United Kingdom for 6 months as a visitor. (iv) After some sort of disagreement with Mr Sercovitch the petitioner made his way to Scotland. He obtained a number of jobs in various Asian restaurants and worked there for a number of years. (v) In 1984 a late application for indefinite leave to remain was made on behalf of the petitioner and was refused on 2nd October 1984. (vi) In 1985 the petitioner visited Blackburn. There he met a Bibi Jan, then divorced, who was then living in Blackburn. They married in Cowdenbeath on 4th February 1985. Bibi Jan moved from Blackburn to Scotland and she and the petitioner lived together as husband and wife. (vii) In December 1985 the petitioner, at that time working for his brother who had been resident in the United Kingdom since...
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