Nadeem Tahir v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 03 November 1988 |
| Date | 03 November 1988 |
| Court | Immigration Appeals Tribunal |
Court of Appeal
Purchas, Ralph Gibson, Russell LJJ
A Collins QC and S A Khan for the appellant
G Sankey for the respondent
Cases referred to in the judgments:
Khawaja v Secretary of State for the Home DepartmentELR [1984] 1 AC 74; [1982] Imm AR 139.
R v Immigration Appeal Tribunal ex parte Mahmoud KhanELR (CA) [1983] QB 790: [1982] Imm AR 134.
R v Immigration Appeal Tribunal ex parte Mehra [1983] Imm AR 156.
R v Immigration Appeal Tribunal ex parte L Ron Hubbard [1985] Imm AR 110.
R v Immigration Appeal Tribunal ex parte Abed El HassaninWLR [1986] 1 WLR 1448: [1986] Imm AR 502.
R v Immigration Appeal Tribunal ex parte Nadeem Tahir (unreported, QBD, 22 July 1987).
Appeal powers of appellate authorities a finding that reasons originally given by Secretary of State did not justify the decision under appeal whether appellate authorities can uphold that decision for different reasons. Immigration Act 1971 ss. 3(2), 18(2), 19: HC 169 para. 156.
Standard of proof proceedings before appellate authorities assertion by Secretary of State that appellant had committed serious criminal offence whether appellate authorities have to be satisfied on criminal or civil standard of proof.
Appeal from Schiemann J. The appellant was a citizen of Pakistan. He entered the United Kingdom illegally in 1974. He then married a British citizen and applied for leave to remain. The application was refused. An appeal was dismissed but the adjudicator recommended he be given leave to remain outside the rules. That was granted. He then divorced his wife. In March 1981 a Pakistani national arrived at Heathrow claiming to be his fiance: she was admitted to the United Kingdom: the appellant married her. The Home Office subsequently concluded that this fiance had been the appellant's wife at the date of his earlier marriage to a British citizen and that marriage in consequence was bigamous. The Secretary of State decided to initiate deportation proceedings under s. 3(5)(b) of the 1971 Act. The Tribunal did not consider that the allegation of bigamy had been proved: in coming to that conclusion it applied the standard of proof applicable to criminal proceedings, considering the allegation involved asserting that the appellant had committed a serious criminal offence. It also rejected the conclusion of the Secretary of State that the appellant and his (second) wife did not intend to live together. Those were the original reasons for deciding to deport the appellant: subsequently the Home Office also relied on the deception practised by the appellant. The Tribunal reviewed the immigration history of the appellant and upheld the decision to deport on the basis of the deception which the appellant had practised.
On the application for judical review it was argued that the Tribunal erred in law in dismissing the appeal for reasons that had not formed part of the original decision under appeal.
Those arguments were repeated in the Court of Appeal. It was argued that the appeal should have been allowed and remitted to the Secretary of State to exercise his discretion in that regard. It was argued that the case could be distinguished from ex parte L Ron Hubbard because in this instant case the relevant rules included a discretion.
It was also asserted that the Tribunal in weighing the factors set out in paragraph 156 of HC 169 had overlooked material compassionate circumstances.
Held:
1. In applying the criminal standard of proof in relation to the allegation of bigamy the Tribunal had misdirected itself in law. Following Khawaja the proper standard was the civil standard of proof on the balance of probabilities but with due regard to the gravity of the issue.
2. The present case could not be distinguished from L Ron Hubbard. The appellate bodies are expressly given power to decide whether the discretion in the decision under appeal should have been exercised differently andit was open to theTribunal to decide that notwithstanding their different view of what facts justified the decision, the discretion involvedshould not have been exercised differently.
3. If the decision is not shown to have been unjustified but to have been justified by the facts proved in the process of the appellate review[there is]no ground for requiring the decision to be quashedfor the administrative procedure to be started again. Such a procedure could not be required on a true interpretation of s. 18(2) of the 1971 Act. L Ron Hubbard approved.
4. Looking at the case as a whole it could not be said that the Tribunal had failed to take account of the compassionate circumstances.
Purchas LJ: I will invite Ralph Gibson LJ to deliver the first judgment.
Ralph Gibson LJ: On 22 July 1987 Schiemann J dismissed an application for judicial review made by the appellant, Mr Nadeem Tahir, who is a citizen of Pakistan, and who had sought the quashing of two decisions, namely: (1) a decision of the Secretary of State made on 20 June 1984 under section 3(5) of the Immigration Act 1971 to make a deportation order as conducive to the public good, and (2) a decision of the Immigration Appeal Tribunal given on 17 September 1985 whereby they dismissed an appeal against that decision of the Secretary of State.
The appellant appealed to this court by notice of 12 February 1988 and time for appealing was extended without objection. He asks that the order of Schiemann J be set aside and that the two decisions be quashed. In this court it has only been sought to quash the decision of the Immigration Appeal Tribunal.
The attack upon the two decisions in the submissions made to Schiemann J was based upon two points. The first is a point of law which requires some reference to facts to make it plain. The Secretary of State had given his reasons for making the deportation order in his written decision and the reasons were that the marriage of the appellant to a woman named Margaret Perry in this country in December 1975 was contracted by him bigamously in that he was then already married to Rifat Ara, otherwise known as Gul-E-Rana, and that the appellant had no intention of living permanently with Margaret Perry. Upon the appellant exercising his right of appeal to the Immigration Appeal Tribunal under section 15(l)(a) and (7)(a) of the Act there was prepared in the usual way an explanatory statement pursuant to rule 8(1) of the Immigration Procedure Rules 1984. In that statement the decision to make the deportation order as conducive to the public good was explained or justified both upon the grounds stated in the notice of decision and upon the additional ground of the appellant's persistent lying to Home Office representatives with reference to immigration control.
The Immigration Appeal Tribunal took the view on the facts that, having regard to the gravity of the allegation of bigamy as a criminal offence, it was not sufficiently proved that Nadeem Tahir had bigamously married Margaret Perry or that he had had no intention of living with her permanently, but that the thirdthe additional groundwas made out and that because of the calculated deception practised by the appellant with reference to the entry into this country of Rifat Ara in July or August 1981, coupled with the past history of contempt for the immigration rules shown by him, the decision of the Secretary of State to make the deportation order was justified.
It was contended (and at last I come to the point of law) that in law it was not open to the Secretary of State to add the third ground or reason to his submissions to the Immigration Tribunal, nor open to that Tribunal to determine the appeal upon that ground.
The second ground of attack before the judge was that the Immigration Appeal Tribunal misdirected itself in weighing the factors set out in paragraph 156 of HC 169, the Parliamentary Paperthat is to say, the requirement that consideration be given in making a decision to deport to the matters there listed. The Tribunal summarised the facts and added the words there are no compassionate circumstances known to the Secretary of State at the date of decision, to be taken into account. It is said that that ignored the existence of the wife of the appellant and his two children.
The appellant had in this country a wife, that is to say Rifat Ara, also known as I have said as Gul-E-Rana, whom he had married certainly in this country...
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