R v Immigration Appeal Tribunal, ex parte Weerasuriya
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 1982 |
| Date | 27 April 1982 |
| Court | Queen's Bench Division |
Queen's Bench Division
Webster J
M. Beloff QC and Miss R. Sheikh for the applicant.
John Laws for the respondent.
Cases referred to in the judgment:
Hadmor Productions Ltd v HamiltonUNKWLR [1982] 1 All ER 1042, [1982] 2 WLR 322 HL.
R v Immigration Appeal Tribunal, ex p Nathwani [197980] Imm. A.R. 9
Deportation Following refusal of application by student for extension of stay on ground of marriage Whether marriage a real one or one of convenience HC 394 para 143.
Evidence Facts given in Home Office explanatory statement Whether this explanatory statement evidence or a pleading Facts coming into existence after Secretary of State's decision Immigration Act 1971 ss 19(1), 20(1) Immigration Appeals (Procedure) Rules 1972, rr 8(1)(2)(4), 29(1), 18(3).
Tribunal Proper function of.
The appellant, a citizen of Sri Lanka, was admitted for twelve months as a student on 9 September 1974, and granted extensions in that capacity until the end of September 1976. On 12 November 1976 he applied for an extension on the ground of his marriage two days before to a woman settled in the United Kingdom. On the basis of his marriage his leave was extended so as to end in November 1977. Application by him on 30 November 1977 to have the conditions upon his leave to enter removed was refused by the Secretary of State on 19 June 1978 on the ground that the marriage was one of convenience.
Following dismissal of his appeal by an adjudicator and the refusal by the Immigration Appeal Tribunal of leave to appeal against that decision, and refusal by the Secretary of State of a fresh application for permanent settlement, the Secretary of State decided on 20 March 1981 to deport the applicant under section 3(5)(a) of the Immigration Act 1981. The present application was one for judicial review by way of certiorari to quash the Immigration Appeal Tribunal's refusal of leave to appeal against an adjudicator's dismissal of the applicant's appeal against the decision to deport.
Held: (i) The Home Office explanatory statement was admissible as evidence of facts.
(ii) Facts coming into existence following the Secretary of State's decision were properly not considered admissible by the adjudicator and the Tribunal.
(iii) The Immigration Appeal Tribunal was not an extension of the administrative decision-making function, but a process for enabling that decision to be reviewed.
Webster J. This is an application for judicial review by way of certiorari to quash a decision of the Immigration Appeal Tribunal made on the 4 August 1981 when that Tribunal refused the applicant leave to appeal against the decision of an adjudicator made on the 15 June 1981.
The applicant in his appeal to the adjudicator was seeking to challenge the decision of the Secretary of State made on the 20 March 1981 to deport him upon the ground that he was an overstayer. His claim that he was entitled to stay in this country was based upon a marriage which, it is common ground, had occurred, to a woman whoI think this is also common groundis to be regarded as settled in this country. The point at issue throughout has been whether that marriage was a real marriage or a marriage of convenience. Those are the short issues.
I now turn to the history of the matter in a little bit more detail. The applicant is a citizen of Sri Lanka and is, therefore, subject to the Immigration Act of 1971 and the Rules made under it. He arrived in this country on the 9 September 1974 when he was granted permission to enter as a student with 12 months leave. On the 9 September 1975 that leave was varied so as to expire at the end of May 1976, and some time during 1976 he was given a further extension to remain as a student, which leave expired at the end of September 1976. On the 10 November 1976, whilst still in the United Kingdom, he married a Miss Jarman who was either a patrial or, in any event, as I have said, a woman who is to be regarded as settled in the United Kingdom. On the 12 November 1976, two days later, he applied for an extension of his leave on the ground of that marriage.
The response to that application by the Secretary of State was made on the 6 October 1977 when leave was extended, upon the basis of that marriage, to end in November 1977. At that stage, therefore, no decision had been made by the Secretary of State whether or not to regard the marriage as one of convenience. On the 30 November 1977 the applicant applied to have the conditions upon his leave to enter removed, that is to say he applied to be allowed to settle permanently in this country on the basis or in reliance upon his marriage. On the 19 June 1978 that application was refused by the Secretary of State upon the grounds that the marriage was a marriage of convenience.
On the 10 May 1979 the applicant appealed to the adjudicator against that refusal and that appeal was dismissed. Upon the 3 August 1979 he applied to the Immigration Appeal Tribunal for leave to appeal against the adjudicator's decision and that application was dismissed. Nothing more of any materiality happened until 1981, although in December 1979 he made a fresh application for permanent settlement which was clearly misconceived and rejected.
On the 20 March 1981 the Secretary of State made his decision which is effectively the subject-matter of this application for judicial review because, on that date, he decided to deport the applicant under Section 3(5)(a) of the 1971 Act. On the 15 June 1981 the adjudicator refused the applicant leave to appeal against that decision. On the 4 August 1981 the Immigration Appeal Tribunal refused the applicant leave to appeal against that decision of the adjudicator. It is that decision of the Immigration Appeal Tribunal of the 4 August 1981 which is the subject matter of this application.
I now turn to the decisions of 1979 and 1981 in more detail taking, first, the relevant parts of the 1979 decisions and the material facts which led to them. For the purposes of the application which was made by the applicant in that year, which was ultimately dismissed, the Home Office prepared, as is their usual practice, a written statement of facts, which included the following. On 19 May 1978 immigration officers called at Dingwalls Club Camden Lock, and asked the manager if they could speak to the applicant's wife. He said that she worked there, although he knew her in her maiden name of Jarman. The applicant's wife's first comment when told that the immigration officers wished to interview her was to say she...
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