Immigration appeal tribunal v Hogue and Singh
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 18 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1218-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 1987 |
| Docket Number | 87/1305 |
[1987] EWCA Civ J1218-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
Royal Courts of Justice
On Appeal From The High Court of Justice
Queen's Bench Division
(Mr. Justice Kennedy)
On Appeal From The High Court of Justice
Queen's Bench Division
(Mr. Justice Simon Brown)
Lord Justice Slade
Lord Justice Balcombe
Lord Justice Stocker
87/1305
MR. EDWIN GLASGOW Q.C. and MR. GEORGE WARR (instructed by The Treasury Solicitor) appeared for the Appellant.
MR. ANDREW COLLINS Q.C. and MR. V. P. KOTHARI (instructed by Messrs. Gummer & Singh) appeared for the Respondent (Singh).
MR. A. M. AZHAR (instructed by Messrs. Rahman & Co.) appeared for the Respondent (Hoque).
There are before the court two appeals by the Immigration Appeal Tribunal ("the Tribunal"). The first, to which the respondent is Mr. Amirul Hoque, is from an order of Kennedy J. made on 12th March 1987. The second, to which the respondent is Mr. Matwinder Singh, is from an order of Simon Brown J. made on 23rd March 1987. The two cases are quite separate, but nevertheless raise similar points of principle.
Mr. Hoque is a citizen of Bangladesh who married a lady settled in this country but was subsequently refused leave to remain in this country because the Secretary of State was not satisfied "that the marriage was not entered into primarily to obtain settlement here", within the meaning of the relevant Immigration Rule, which was Rule 126 of House of Commons Paper 169 of 1983.
Mr. Singh is a citizen of India who married a lady settled in this country but was subsequently refused leave to enter because the entry clearance officer was not satisfied "that the marriage was not entered into primarily to obtain admission to the United Kingdom", within the meaning of the relevant Immigration Rule, which was Rule 54 of H.C. 169.
In each case:
(1) the decision refusing leave to enter or remain in this country (as the case might be) was upheld by an adjudicator;
(2) the Tribunal refused the applicant leave to appeal from the adjudicator's decision;
(3) the applicant, having obtained the necessary leave, applied for judicial review of that decision of the Tribunal;
(4) the judge granted the application to the extent of quashing the decision of the Tribunal.
The proper test to be applied in considering whether or not the purpose of a marriage was or is to obtain settlement in or admission to the United Kingdom has recently been considered by this court in two cases, R. v. Immigration Appeal Tribunal ex parte Vinod Bhatia (1985) Imm.A.R. 50 ("Bhatia") and in R. v. Immigration Appeal Tribunal ex parte Arun Kumar (1986) Imm.A.R. 446("Kumar ").
Mr. Glasgow Q.C., in opening these appeals on behalf of the Tribunal, made it plain that their concern was not so much with the facts or outcome of these particular cases as with the principles established by the Bhatia and Kumar decisions. He told us that in the Tribunal's view the guidance given by this court in Kumar had been widely misunderstood, and in particular had been misunderstood and misapplied by the learned judges in the court below in the present cases. He explained that there are a number of other pending cases in which similar problems are raised and that the Tribunal hope that on the present appeals this court will be able to provide further elucidation of the relevant principles for the assistance of all those responsible for the due application of the Immigration Rules. This we will attempt to do. We will begin by setting out the wording of the relevant Rules.
THE RELEVANT RULES
Rule 41 of H.C. 169 is headed "Fiancés" and, so far as material, provides:
"A man seeking to enter the United Kingdom for marriage to a woman settled here and who intends himself to settle thereafter should not be admitted unless he holds a current entry clearance granted to him for that purpose. An entry clearance will be refused unless the entry clearance officer is satisfied:
(a) that it is not the primary purpose of the intended marriage to obtain admission to the United Kingdom; and
(b) that there is an intention that the parties to the marriage should live together permanently as man and wife; and
(c) that the parties to the proposed marriage have met.…"
Rule 54 of H.C. 169 headed "Husbands" provides:
"The husband of a woman who is settled in the United Kingdom, or who is on the same occasion being admitted for settlement, is to be admitted if he holds a current entry clearance granted to him 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.
Where the entry clearance officer is satisfied that all the conditions at (a) to (c) above apply, an entry clearance will be issued provided that the wife is a British citizen."
Rule 126 of H.C. 169, which falls within a section of the Rules headed "Marriage", so far as material provides:
"Where a man admitted in a temporary capacity marries a woman settled here, an extension 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
…
(f) that each of the parties has the intention of living permanently with the other as his or her spouse.
…"
We think it not difficult to discern the broad object of the Secretary of State in including the conditions set out above which have to be satisfied if a man is to be given entry clearance or leave to remain under Rule 41, 54 or 126. We infer that it is to prevent a man from obtaining leave to enter or remain in the United Kingdom in his capacity as the husband of a woman settled here in cases either where the marriage was in the first place not a genuine marriage but a device to enable him to achieve leave to enter or remain in this country or where the parties to the marriage no longer intend (even if they previously intended) to live together permanently as man and wife. However, the application of the Rules gives rise to some difficulties in practice.
THE DECISIONS IN BHATIA AND KUMAR
In the course of argument, we have had the benefit of very careful and detailed arguments from counsel as to the effect of the judgments of this court in Bhatia and Kumar. However, save as to one important sentence from the judgment of Sir John Donaldson M.R. in Kumar, no challenge has been made as to the correctness of any part of the judgments in these two cases. It is common ground that the expression of opinion in that one sentence was obiter. The effect of the Bhatia decision was itself subjected to detailed analysis by Nourse L.J. in Kumar. Both decisions are binding on us.
We shall begin by listing a series of propositions of law which we think are clearly to be derived from one or both of those decisions and then proceed to make various comments on the one sentence from the judgment of the Master of the Rolls in Kumar which has given rise to the principal debate on these appeals. These propositions are as follows:-
(1) Under Rule 41 the onus falls on the applicant to satisfy the entry clearance officer on the balance of probabilities that it is not the primary purpose of the intended marriage to obtain admission to the United Kingdom and that the other requirements of the rule are duly satisfied: (see, for example, Bhatia at page 52 per O'Connor L.J. as further explained by Nourse L.J. in Kumar at page 450).
(2) Similarly, under Rule 54 the onus falls on the applicant to satisfy the entry clearance officer on the balance of probabilities that, at the time when the marriage took place, its primary purpose was not to obtain admission to the United Kingdom and that the other requirements of the rule are duly satisfied: (see, for example, Kumar at pages 450–451 per Nourse L.J. and at page 454 per Sir John Donaldson M.R.).
(3) "In considering the application [whether under Rule 41 or under Rule 54] the entry clearance officer is not limited to such evidence as the applicant may put before him, but is entitled to make enquiries of his own and test such evidence as the applicant chooses to put forward": ( Bhatia at page 52 per O'Connor L.J.).
(4) In considering the application [whether under Rule 41 or Rule 54] "it is the intention of the applicant's side which is the central consideration": ( Bhatia at page 54 per O'Connor L.J.). However, in assessing the purposes of the marriage, the intentions of both parties will be relevant; so, too, in cases where the marriage is one which has been arranged, by parents or others, will be their reasons for arranging the marriage: (ibid at pages 52–53 per O'Connor L.J.).
(5) The mere fact that an applicant can satisfy the requirement of Rule 41 (b) does not by itself suffice to enable him to satisfy the requirement of Rule 41 (a). "Just as no-one would suggest that (c) is conclusive of (a), so I am clear that (b) is not conclusive of (a)": ( Bhatia at page 54 per O'Connor L.J.).
(6) Likewise, the mere fact that an applicant can satisfy the requirement of Rule 54 (b) does not by itself enable him to satisfy the requirement of Rule 54 (a): (see Kumar at page 451 per Nourse L.J. and at pages 454–455 per Sir...
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