Mohammed Saftar (Petitioner) v Secretary of State for the Home Department [Court of Session (Outer House)]
| Jurisdiction | Scotland |
| Judgment Date | 21 February 1991 |
| Date | 21 February 1991 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Lord Prosser
J J Mitchell for the petitioner
C Campbell for the respondent
Cases referred to in the judgment:
Vinod Bhatia v Immigration Appeal Tribunal [1985] Imm AR 50.
R v Immigration Appeal Tribunal ex parte A run Kumar [1986] Imm AR 446.
Immigration Appeal Tribunal v Hoque & Singh [1988] Imm AR 216.
Primary purpose fiance conventional arranged marriage marriage conditional upon grant of entry clearance witnesses before adjudicator found by him to be credible appeal dismissed on basis of petitioner's replies in interview whether entry clearance officer and adjudicator correctly analysed those replies whether the adjudicator had attached proper weight to the intentions of the sponsor the preventative and protective nature of the rules. HC 394 para 41.
The petitioner was a citizen of Pakistan who had been refused entry clearance as the fiance of a British citizen settled in the United Kingdom. In interview he had been asked if the primary purpose of the marriage was for him to secure settlement and replied yes: he had then been asked was it an arrangement of the marriage that you could leave Pakistan and settle in the United Kingdom?: he replied yes. To further questions he replied that he did not want to live in Pakistan, did not like Pakistan, did not like the laws and customs, was not happy in Pakistan and had obtained a passport before his engagement because he wanted to leave Pakistan. Finally he agreed that if the marriage did not take place he would look for some other way to leave Pakistan.
The adjudicator heard evidence from the sponsor and her father. He found both to be credible and impressive witnesses. He nevertheless dismissed the appeal because of the answers given by the petitioner in his interview.
The petitioner applied for judicial review.
Held:
1. The adjudicator whose determination was promulgated before the Court of Appeal judgment in Hoque & Singh had adopted the wrong approach.
2. On a careful analysis, the petitioner's replies in interview were not fatal. It was uncertain how far he had understood the first material question: his succeeding answers did not necessarily show that the primary purpose of the intended marriage was for him to secure settlement in the United Kingdom.
3. The adjudicator had given insufficient weight to the intentions of the sponsor and her family in arranging the match. A sponsor's genuine intentions must be given very considerable weight.
4. The rulesdo not merely have a preventative role but by extending their exclusions no further than they do are designed to allow defined types of entry. In so doing they are not merely granting a right or privilege to the appellant in question. They are protecting or preserving for the sponsor, a United Kingdom citizen, the ability to marry and live permanently with the man she wants to marry and live with, without being forced to leave the United Kingdom in order to do so.
Lord Prosser: The first petitioner is Mohammed Saftar, who is a citizen of Pakistan and resides there. The second petitioner, Sami Akhtar, is a citizen of the United Kingdom. She lives in Glasgow. It is averred in the petition, and admitted in the answers, that she is the first petitioner's fiance, but I was informed that on 2 March 1990 the petitioners married one another in Pakistan. The respondents are the Home Secretary (who is the Secretary of State for the purposes of the Immigration Act 1971) and Mr A A MacKeith, an immigration appeals adjudicator appointed in terms of the 1971 Act. The petitioners seek judicial review of a decision by Mr MacKeith dated 5 November 1987, dismissing an appeal by the first petitioner against a decision of an entry clearance officer in Islamabad dated 9 April 1986. The entry clearance officer's decision refused entry clearance to the first petitioner for entry to the United Kingdom for the purpose of marriage to the second petitioner.
Rule 41 of the immigration rules makes certain provisions in relation to fianc and fiance. The rule has undergone amendment, and in its amended form provides inter alia that 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 UK; and
(b) that there is an intention that the parties to the marriage should live together permanently as husband and wife; and
(c) that the parties to the proposed marriage have met.
Rule 42 provides that a person holding an entry clearance issued under the preceding paragraph should, subject to paragraph 13, be admitted for three months and advised to apply to the Home Office once the marriage has taken place for an extension of stay. It is not disputed that despite the parties' recent marriage, the issue before me is to be determined on the pre-existing situation, when they were engaged. The petition seeks reduction of Mr MacKeith's decision, the consequence of which would be that the matter will be remitted back to him to proceed as accords. Leave to appeal against the decision was refused by the Immigration Appeal Tribunal in February 1988, and in these circumstances the matter is brought before this court for judicial review.
Section 19 of the 1971 Act deals with the determination of appeals by adjudicators. It provides inter alia as follows:
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(1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this part of this Act
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(a) shall allow the appeal if he considers
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and
(b) in any other case shall dismiss the appeal.
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(2) For the purposes of sub-section (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based
Counsel for the petitioners and counsel for the respondents analysed the nature of the adjudicator's task in somewhat different ways. They were however at one in saying that the different analyses probably produced no different results. It was accepted on both sides that the adjudicator was concerned with facts as they had been at the date of the original decision, and that in considering those questions of fact, he could only look at evidence of subsequent events in so far as these threw light on the pre-decision situation. It was accepted on both sides that the decision referred to in section 19 meant the objective result of the entry clearance officer's consideration of the application before him, and that while the adjudicator's role was appellate, his power under section 19(2) to review any determination of a question of fact on which the decision or action was based meant that he would consider the original evidence again, could hear further evidence, and on the basis of all that evidence would effectively go into all the facts again. Since he could hear new evidence, he might thus proceed upon facts which had not been known to the entry clearance officer. The different analyses presented by counsel appear to me to flow in large measure from this fact. Since the adjudicator's role is appellate, he is in one sense considering what the entry clearance officer did, rather than considering the primary issues of fact. On the other hand, if he has material before him which the entry clearance officer did not have, his review of that officer's determination of a question of fact, and his consideration of the result reached by that officer are not restricted to, or sufficiently described in terms of, questions as to whether the particular officer was (on the material before him) entitled to do as he did or right to do as he did. In effect, if not also in theory, the adjudicator will have to ask himself what determination he himself reaches on any question of fact which is or may be affected by evidence which he has heard, as well as considering the entry clearance officer's treatment of the original material. He will thus have to decide whether, on his own overall determination as to the facts, including any facts on which he differs from the entry clearance officer, the objective result reached by the entry clearance officer (in this case refusal of the application) is a result which would be in accordance with the law or with any immigration rules applicable to the case. While counsel for the respondents emphasised the appellate/reviewing aspects of the matter, and counsel...
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