R v Immigration Appeal Tribunal ex parte Kumar
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE MUSTILL,THE MASTER OF THE ROLLS |
| Judgment Date | 30 July 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0730-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 1986 |
| Docket Number | 86/0719 |
[1986] EWCA Civ J0730-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(MR. JUSTICE KENNEDY)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Mustill
and
Lord Justice Nourse
86/0719
MR. ANDREW COLLINS, Q.C. and MR. ALPER RIZA (instructed by Ms. Vereena Jones, Coventry Legal & Income Rights Service) appeared on behalf of the Applicant.
MR. DAVID LATHAM, Q.C. (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.
This is an immigration case. The question is whether a marriage celebrated in India between a husband who has lived there all his life and a wife who is settled in the United Kingdom was entered into primarily to obtain the admission of the husband to the United Kingdom. The entry clearance officer at New Delhi decided that it was and an entry clearance was refused. His decision was upheld on an appeal to an adjudicator over here. Leave to appeal against the determination of the adjudicator was subsequently refused by the Immigration Appeal Tribunal. The husband now moves for judicial review by way of an order of certiorari to bring up and quash the tribunal's refusal of leave to appeal, leave to move having been refused by Mr. Justice Kennedy on the 25th October, 1985 but granted on a renewed application to this court on the 10th February, 1986.
The applicant husband is Arun Kumar. He is an Indian citizen who was born in India on the 18th May, 1955. The wife is Santosh Kumari. She is a British citizen who was born in the United Kingdom on the 6th April, 1965. Both the applicant and Santosh are Hindus of the Brahmin caste. The applicant's brother Rakesh Kumar, who is also settled here, is married to a sister of Santosh's father.
It seems that the marriage was arranged between Santosh's parents and Rakesh Kumar on behalf of the applicant's parents, although the adjudicator recorded a conflict of evidence as to whether the first approach had been made by the former to the latter or by the applicant himself to Santosh's mother as long ago as 1975, when he and Santosh were aged 20 and 10 respectively. In any event, they became engaged in 1981. On the 25th March, 1982 the applicant applied for an entry clearance to come to the United Kingdom in order to marry Santosh. She subsequently made two sponsorship declarations to that end, the second in November 1982. She apparently then changed her mind, because it was in that month that she went to India. The marriage took place in village Chachoki in the Punjab on the 12th December, 1982. In her evidence-in-chief before the adjudicator Santosh said that she went to India because the applicant's family would be able to attend the wedding there. In cross-examination she said that it was also to enable them to get together more quickly, and later that it was also done with a view to accelerating the immigration procedure for the applicant.
After the marriage the applicant and Santosh lived in his father's house. On the 21st April, 1983 they were both interviewed by the entry clearance officer at New Delhi. In January, 1984, after having been in India for more than 13 months, Santosh returned to the United Kingdom. In his affidavit in support of this application the applicant has said that she did so for health reasons. In any event, she was then pregnant. On the 11th February, 1984 she was admitted to the Coventry & Warwickshire Hospital, where she suffered a miscarriage at ten weeks pregnant. Three days earlier, on the 8th February, the applicant was again interviewed at New Delhi, this time by an entry certificate officer who refused his application for entry clearance.
In due course steps were taken to mount an appeal against the refusal of entry clearance. Meanwhile, Santosh visited the applicant in India for six weeks in January 1985, when she again became pregnant. No doubt she had to be back in time for the hearing of the applicant's appeal before the adjudicator in Birmingham. He heard oral evidence from Santosh, her mother and Rakesh Kumar, but not of course from the applicant, who remained in India. He also had certain documentary evidence before him, including a long explanatory statement by the entry clearance officer dated the 7th August, 1984, a written statement and explanation by the applicant in respect of matters arising from certain paragraphs of the explanatory statement and a letter dated the 25th January, 1984 from the applicant to Rakesh Kumar. The adjudicator gave his written determination and reasons on the 25th March, 1985, when he dismissed the appeal. I shall return to that determination in greater detail later. Leave to appeal against it was refused by the President of the Immigration Appeal Tribunal on the 26th June, 1985. On the 25th August the applicant was admitted as a visitor in order to be near to Santosh during the latter part of her pregnancy. A child was born to them in October 1985. We were told that since then Santosh has suffered a further miscarriage.
The immigration rule which the entry clearance officer had to apply in the present case is that found in paragraph 54 of H. C. 169 (1983) under the heading "Husbands":
"54. 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."
It cannot be doubted that the effect of that rule was to place the applicant under the burden of satisfying the entry clearance officer, and in due course the adjudicator, of the matters mentioned in sub-paragraphs (a), (b) and (c). If he could not do so, the refusal of entry clearance was mandatory. No question has arisen on sub-paragraph (c), which is admitted to have been satisfied. The dispute has centred on the effect of, and the interaction between, sub-paragraphs (a) and (b).
In Bhatia v. Immigration Appeal Tribunal [1985] Imm. A.R. 50 it fell to another division of this court, of which I myself was a member, to consider the effect of the comparable rule headed "Fiancés" and found in paragraph 41 of H.C. 169, the first part of which is in the following terms:
"41. 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."
Since that decision has played a large part in the argument on this application, it is necessary to consider it with some care.
Vijay Kumari was a British citizen settled here whose marriage had been dissolved in 1978. She had a daughter by that marriage. It is rare for an Indian woman who is divorced to find another husband. In 1980 Vijay's parents, who were in New Dehli, having unsuccessfully made enquiries in this country, advertised in an Indian newspaper for a husband for her. Mr.Bhatia, an Indian citizen whose family also lived in New Dehli, was selected from those who replied to the advertisement. He met Vijay when she visited India later in 1980. The marriage was arranged between the parents and entry clearance applied for. Mr. Bhatia told the entry clearance officer that he did not think that his father would have agreed to the marriage had Vijay not been settled in this country. For her part, Vijay told an immigration officer in England that she was not prepared to live in India because of the education of her daughter. The entry clearance officer refused the application on the ground that he was not satisfied that it was not the primary purpose of the intended marriage to obtain Mr. Bhatia's admission to the United Kingdom.
It appears that before the adjudicator there was no dispute that the proposed marriage would be a "genuine" marriage and that the requirements of paragraph 41(b) were fulfilled. It was not suggested that sub-paragraph (c) had not been satisfied. But the adjudicator dismissed the appeal, saying that on the evidence before him he could only find that the primary purpose of the intended marriage was for Mr. Bhatia to obtain admission to the United Kingdom. The Immigration Appeal Tribunal by a majority, subsequently affirmed his determination. Mr. Bhatia's application for judicial review of the decision of the tribunal having been refused by Mr. Justice Forbes, an appeal was brought to this court.
The first submission made on behalf of Mr. Bhatia in this court was that the purpose which has to be taken into account in determining the primary purpose of the intended marriage is the purpose of the parties to the marriage alone. In rejecting that submission, Lord Justice O'Connor, with...
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