Mohammed Ashraf v Immigration appeal tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 19 October 1987 |
| Date | 19 October 1987 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Sir John Donaldson MR Neill, Ralph Gibson LJJ
J F F Platts-Mills QC and S A Khan for the appellant
G F Pulman for the respondent
Cases referred to in the judgments:
R v Immigration Appeal Tribunal ex parte Kwok on Tong [1981] Imm AR 214
R v Immigration Appeal Tribunal ex parte KotechaWLR [1982] Imm AR 88: [1983] 1 WLR 487.
R v Immigration Appeal Tribunal ex parte Amirbeaggi [1982] The Times, 25 May.
R v Immigration Appeal Tribunal ex parte Mohammed Ashraf (unreported, QBD, 29 October 1985).
Evidence deportation proceedings admission for marriage civil but no religious ceremony marriage subsequently dissolved Secretary of State concluded marriage entered into for settlement Immigration Appeal Tribunal declined to take into account post-decision facts relating to a second marriage whether that evidence should have been received whether alleged failure by advisers to lead other material evidence before the Tribunal would justify interfering with its decision. Immigration Act 1971 s. 3(5)(b).
The appellant was admitted to the United Kingdom for marriage. There was a civil ceremony but no religious rites: the marriage was not consummated: the parties did not live together: there was a conflict of evidence as to which party was responsible for the breakdown. The Secretary of State concluded that the marriage had been entered into to secure settlement. He decided to initiate deportation proceedings. Before the Tribunal no new evidence relating to the marriage was led: counsel, however, relied on a second post-decision marriage to contend that the Secretary of State's discretion ought to have been exercised differently. The Tribunal, following Kotecha, refused to entertain evidence relating to the post-decision marriage. In Queen's Bench and before the Court of Appeal it was argued that following Amirbeaggi such evidence ought to have been admitted, in particular because the alleged genuine and stable nature of that second marriage, suggested that the appellant could not have been guilty of the conduct which it had been asserted, made him responsible for the breakdown of the first marriage. As to that first marriage through the fault of the appellant's legal advisers, material facts had not been made known, and that evidence also ought not to be shut out to the appellant's detriment.
Held:
1. Following Kotecha the Tribunal and the learned judge at first instance had been correct in holding that the post-decision facts, in the circumstances, could not be brought into the case: Kwok on Tong and Amirbeaggi distinguished.
2. Looking at the record, the Court did not accept that the appellant's case had been prejudiced by any oversight by his advisers in the conduct of his case before the Tribunal.
The Master of the Rolls: I will ask Ralph Gibson LJ to deliver the first judgment.
Ralph Gibson LJ: This is an appeal by Mohammed Ashraf from a dismissal by Farquharson J on 29 October 1985 of the appellant's application for judicial review. By his application the appellant sought orders to quash three decisions firstly the decision of the Immigration Appeal Tribunal dated 25 January 1984; secondly a deportation order signed by the Secretary of State on 5 March 1984; and thirdly a decision of the Secretary of State dated 30 May 1984 in which the Secretary of State in effect refused to set aside the deportation order.
There is thus almost two years between the ruling of the learned judge and the matter reaching this court. This court understands that there has been some error in the court office in failing to get the matter brought on, but it is to be noted also that there has been no attempt, not surprisingly, by this appellant to have the case in this court earlier than the sequence of events has caused it to get here.
The story which led to the appellant's appeal to the Immigration Appeal Tribunal, which was dismissed, is as follows. He is now aged twenty-nine. He entered this country on 4 February 1979, having permission to do so for a period of three months. The purpose of his entry was to marry a young woman called Bushra who, as he, is a Moslem. Bushra was his sponsor. On 14 March the parties went through a civil form of marriage. Following that, in June 1979 and March 1980 his leave to be in this country was extended. Finally, on 22 April 1980, he was granted indefinite leave to remain. No doubt it was supposed when that was done that the marriage, for the purpose of which he was admitted to this country, was in being in the normal way. In fact it was not. Although the civil marriage had been performed the religious ceremony, without which the parties would not consummate the marriage, had not been performed. The parties never set up home together. In December 1980 the appellant ceased to live in the accommodation provided by his father-in-law, known in these papers as Malik. Bushra commenced proceedings for a decree of nullity on the grounds of wilful refusal by this appellant to consummate the marriage. A decree was made which became absolute on 14 March 1983.
The immigration authorities...
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