R v Immigration Appeal Tribunal ex parte Rajput
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE GLIDEWELL,LORD JUSTICE NICHOLLS |
| Judgment Date | 26 January 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0126-8 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 1989 |
| Docket Number | 89/0101 |
[1989] EWCA Civ J0126-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE MCNEILL
Royal Courts of Justice
The President
(Sir Stephen Brown)
Lord Justice Glidewell
and
Lord Justice Nicholls
89/0101
MR ANDREW COLLINS, Q.C., and MR A. RIZA, instructed by Messrs Alexander Johnson (London Agents for Ms. V.A. Jones, Leicester Rights Centre), appeared for the Appellant (Applicant).
MR DAVID PANNICK, instructed by The Treasury Solicitor, appeared for the Respondent (Respondent).
This is an appeal from the decision of Mr Justice McNeill of 22nd March last year, 1988, when he dismissed Mr Rajput's application for judicial review of the refusal of the Immigration Appeal Tribunal to grant him leave to appeal from the decision of an adjudicator of 21st March 1986 dismissing his appeal against an Entry Clearance Officer's refusal to grant him leave to enter the United Kingdom on 28th March 1984.
The appeal involves further consideration of rule 54 of the statement of Changes in Immigration Rules House of Commons Paper 169 laid before Parliament on 9th February 1983 under section 3(2) of the Immigration Act 1971. The rule provides as follows:
"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:
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(a) that the marriage was not entered into primarily to obtain admission to the United Kingdom: and
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(b) that each of the parties has the intention of living permanently with the other as his or her spouse: and
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(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." The wife of this appellant is in fact a person who has the right of abode in the United Kingdom.
It is convenient to say that similar considerations arise in relation to rule 41 which deals with the position of fiancés—that is to say, a man seeking to enter the United Kingdom for marriage to a woman settled here and who intends himself to settle thereafter, and also in relation to rule 126 which deals with the situation of a man admitted in a temporary capacity who marries a woman settled here.
The chronology of events giving rise to the proceedings leading to this appeal is as follows. The appellant is a native of India, having been born in India on 12th January 1961. He does not have a right of abode in the United Kingdom. His wife was born in Leicester on 8th October 1964. She has a right of abode in the United Kingdom. On 2nd January 1983 her parents took her to India for the purpose of finding a husband, and on 21st January 1983 she was married to the appellant in Bombay. He immediately applied for an entry clearance certificate to enter the United Kingdom. His wife returned to the United Kingdom on 27th February 1983. In due course she sent a sponsorship declaration on 24th June 1983, and on 31st August 1983 the appellant was interviewed by an Entry Clearance Officer in India. The interview was conducted in English by the Entry Clearance Officer through a Gujerati interpreter. The appellant's dialect is Gujerati.
The Entry Clearance Officer refused entry clearance on 28th March 1984 upon the ground that he was not satisfied within the terms of rule 54(a) that the marriage was not entered into primarily to obtain admission to the United Kingdom. It was and is explicitly accepted that the requirements of subparagraphs (b) and (c) of rule 54 were established by the appellant.
The appellant appealed to an adjudicator and on 21st March 1986 the adjudicator, sitting in Birmingham, dismissed his appeal. The appellant then sought leave to appeal from that decision to the Immigration Appeal Tribunal, but the Tribunal refused leave to appeal stating that no point of law arose for consideration. The appellant then sought leave to move for judicia review of the refusal of the Immigration Appeal Tribunal to grant him leave to appeal. He was granted leave to move by Mr Justice Russell on 11th November 1986, and on 22nd March 1988 Mr Justice McNeill heard the substantive application for judicial review. He dismissed the application. The appellant then gave notice of appeal to this court. The grounds of appeal stated in the notice of appeal are:
"1. That the learned Judge erred in law in holding that paragraph (a) of HC 169 was not ultra vires the Immigration Act 1971. It is submitted that Rule 54(a) is partial and unequal in its operation, is manifestly unjust and involves an outrageous interference with the rights of those subject to it: see Kruse v Johnson (1898) 2 Q.B.91 per Lord Russell C.J. at page 99. In the premises, it is so outrageous that it is possible to say that Parliament never intended to authorise the making of such a rule.
2. In particular, it is submitted that, quite apart from the Rule being so unreasonable as to be ultra vires section 3(2) of the Act, it is also so unreasonable that it cannot be said to be a Rule that could be ' lawfully imposed on any person' in accordance with section 1(1) of the Act.
3. Alternatively, that the learned Judge erred in law in holding that the Adjudicator's decision was in accordance with the guidelines given by the Master of the Rolls, Sir John Donaldson (as he then was), in R v Immigration Appeal Tribunal ex parte Arun Kumar (1986) Imm. A.R. 446."
At the hearing of this appeal Mr Andrew Collins Q.C. who appears with Mr Riza for the appellant takes two substantive points. Firstly, he submits that rule 54(a) is ultra vires the Immigration Act 1971. He argues that it is so uncertain in its operation and so prejudicial in its effect and operation that this court ought to hold that Parliament could never have intended the rule to be made under the authority of the Immigration Act 1971.
Secondly, he submits that if the court should consider nevertheless that the rule is intra vires the Act, then the adjudicator misdirected himself, and the learned judge was at fault in not so ruling, in his approach to the application of rule 54(a) and in his evaluation of the evidence before him.
House of Commons Paper 169 was issued by the Secretary of State under the authority of section 3(2) of the Immigration Act 1971. Mr Andrew Collins helpfully reminded the court of the context in which the immigration provisions of the Act and the various House of Commons Papers have developed. It is appropriate first to refer to the general principle stated in section 1(1) of the Immigration Act 1971. I read the subsection:
"All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person." Subsection (2):
"Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain)." Subsection (4-) provides:
"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
Section 3(1) as amended by the British Nationality Act 1981 provides:
"Except as otherwise provided by or under this Act, where a person is not a British Citizen—
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(a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;
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(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period".
Subsection (2) of section 3 provides:
"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
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