Layla Khatun Najma Begum, Abdul Khalam Abdul Haque, Jahanara Begum v Entry clearance officer, Dhaka
| Jurisdiction | England & Wales |
| Judgment Date | 10 August 1993 |
| Date | 10 August 1993 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
Professor D C Jackson (Vice-President) A G Jeevanjee Esq, P Rogers Esq JP
S Hussain for the appellants
T Wilkie for the respondent
Cases referred to in the determination:
Director of Public Prosecutions v BhagwanELRUNK [1972] AC 60: [1970] 3 All ER 97.
Khawaja v Secretary of State for the Home DepartmentELR [1984] AC 74: [1982] Imm AR 139.
Immigration Appeal Tribunal v Tohur Ali [1988] Imm AR 237.
Zeeshan Tariq (unreported) (7518).
Illegal entry by sponsor in 1969 application in 1984 for entry clearance by wife and children refused sponsor never lawfully settled in United Kingdom sponsor brought to United Kingdom under false name and by false claimed relationship at age 15 whether illegal entrant in 1969 whether in consequence sponsor illegal entrant after the coming into force of the 1971 Act whether on the facts there had been a de facto adoption of the sponsor by his claimed parents whether the subsequent reversion to his real name by the sponsor and the acquisition of a passport in that name on which he had subsequently been granted leave to enter altered his immigration status. Commonwealth Immigrants Act 1962 (as amended by the 1968 Act) ss. 2, 2A, 2(6), 4(3)(a), (b), 4A, 4(A)(4): Immigration Act 1971 ss. 33(1), 34(1).
The sponsor seeking to bring his wife and children to the United Kingdom had himself been brought to the United Kingdom as a bogus son in 1969, under a false name. The applications for entry clearance were refused, the entry clearance officer concluding that the sponsor was not and never had been lawfully settled in the United Kingdom.
On appeal, counsel argued that the sponsor had not been brought to the United Kingdom through a false claimed relationship: he had come as the adopted son of his then claimed father, there having been a de facto adoption. Alternatively it had not been shown to the requisite high standard that an offence had been committed under the 1962 Act (as amended) when the sponsor secured entry in 1969: in consequence he was a person settled in the United Kingdom on the coming into force of the 1971 Act.
The sponsor had reverted to his proper name in April 1971, and counsel further argued that in consequence he was settled in the United Kingdom on 1 January 1973 and he having been granted leave in that name after the coming into force of the 1971 Act his position could not be undermined by events in 1969.
Held
1. On the facts there had not been shown to have been a de facto adoption of the sponsor by those claimed as his parents in 1969.
2. The sponsor had secured entry by deception.
3. It was established to the necessary high degree of probability that in 1969 there had been a representation to the immigration officer that constituted a breach of the then immigration law.
4. By the provisions of s. 34(1) of the 1971 Act the effect of the illegal entry in 1969 continued after the coming into force of the 1971 Act.
5. The sponsor's subsequent reversion to his true name and the grants of leave in that name could not alter the illegal nature of his original entry, and all subsequent grants of leave were infected by that illegal entry.
Determination
The appellants, citizens of Bangladesh, appeal against a decision of an adjudicator (Mr J M Timmons) dismissing their appeals against the refusal of entry clearances to join Motoshir Ali in this country as his wife and children.
The applications were made as long ago as 11 September 1984, and were refused on 1 November 1988. The notice of refusal reads:
You have applied for settlement entry clearances as the dependent wife and children respectively of Motoshir Ali. However Motoshir Ali was never lawfully settled in the United Kingdom.
I therefore refuse your application.
As is apparent from the notice of refusal, the entry clearance officer did not consider whether the applicants satisfied all the requirements for entry, but refused the application on the one ground stated. It follows, as Mr Hussain and Mr Wilkie agreed, that if the Tribunal was in favour of the appellants, the matter would have to be further considered by the entry clearance officer.
The background to the decision and subsequent events have contributed to the delay which has occurred. The principal applicant was first interviewed in 1985 and, apparently, because of doubts felt by the entry clearance officer as to the relationship and possibly the sponsor's status in the United Kingdom, the matter was referred to the Home Office. On 7 November 1985 the sponsor was interviewed in connection with the applications, and on 25 November 1986 he returned to Bangladesh. Both the sponsor and Layla Khatun were then interviewed on 14 February 1988, and it was subsequent to these interviews that the applications were refused. A copy of notes of the three interviews are before us.
There are copies of two further interviews also before us. The first, apparently taking place on 11 May 1992, may be in connection with an application for entry clearance as a returning resident. The second (held on 7 June 1992) was in connection with an application for entry as a visitor in order to give evidence at this appeal, and the hearing of this appeal was adjourned on a number of occasions because the applicants sought to obtain the sponsor's presence as a witness.
The application for this appeal to be adjourned for the sponsor's presence was made once the case reached the Tribunal. The sponsor applied for a visit entry clearance on 7 June 1992, was interviewed and refused on that day. An appeal against that refusal was dismissed by an adjudicator on 15 December 1992, and on 10 February 1993 leave to appeal to the Tribunal was refused. There were then further delays because of the difficulties of obtaining documentary evidence, and the appeal was finally heard on 3 June 1993.
The immigration history of the sponsor
The sponsor is the son of Somed Ali. He was born on 25 February 1954. He first entered this country in January 1969 under the name of Ataur Rahman. Under such identity he pretended to be the son of Badsha Miah and came with Badsha, his wife and his two sons. By deed poll dated 1 April 1971 he changed his name back from Ataur Rahman to Motoshir Ali.
Between his entry and his latest departure from this country in 1986, he paid four...
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