R v Immigration appeal tribunal ex parte Sandal
| Jurisdiction | England & Wales |
| Judgment Date | 09 June 1981 |
| Date | 09 June 1981 |
| Court | Queen's Bench Division |
Queen's Bench Division
Ralph Gibson J
A. Padman for the applicant.
Andrew Collins for the respondent.
Appeal Leave to appeal to Tribunal Leave refused by Tribunal Merits of case borderline in adjudicator's opinion Refusal of application for leave to remain upheld by adjudicator on a narrow balance of probabilities Applicant the husband in an arranged marriage which broke down through no fault on his part Normal practice that leave to remain be refused in marriage breakdowns Discretion exercised by adjudicator on careful consideration of relevant facts affecting husband Whether incumbent on Tribunal to grant leave to appeal because of case's borderline nature Immigration Appeal (Procedure) Rules 1972, rr 14(1)(c), 16(5), 42 HC 239, para 26A(e).
Marriage Settlement in the United Kingdom Arranged marriage for which husband given limited leave to enter the United Kingdom Breakdown of marriage Application for leave to remain Leave to remain normally to be refused on break-down of marriage Discretion in adjudicator to decide on consideration of relevant circumstances that normal practice be not followed Dismissal of appeal with comment by adjudicator that he found it a borderline case Whether incumbent on Tribunal to grant leave to appeal by reason of case's borderline nature HC 239, para 26A(e) Immigration Appeals (Procedure) Rules 1972, r 14(1)(c), 16(5).
The applicant (S), a citizen of India, was given limited leave to enter the United Kingdom in April 1978 as the holder of an entry clearance granted to him as the fianc in an arranged marriage with a young woman who was settled in this country. A civil ceremony of marriage duly took place but not the intended religious ceremony because the wife refused to live with her husband.
In June 1978 S applied for the time limit on his stay to be removed by reason of his marriage; his application was refused by the Secretary of State on the ground that (after some family enquiries) he had reason to believe that the marriage had been one of convenience entered into primarily to obtain settlement with no intention that the couple should live together permanently as man and wife. S appealed to an adjudicator, and at the hearing the respondent put forward as an alternative case under sub-para (e) of para 26A of HC 239, with the leave of the adjudicator, that if it was not a marriage of convenience, nevertheless the parties no longer intended to live together and therefore S had properly been refused any extension of stay.1
The adjudicator found that it had not been a marriage of convenience and that S was free of blame for its breakdown; but, on a consideration of the facts
relevant to the exercise of his limited discretion under para 26A(e) to permit S to remain in this country he concluded that, on a narrow balance of probabilities, the circumstances were not so exceptional as to justify departure from the normal course of refusing leave to remain.2 Commenting further, however, the adjudicator said he found this to be a borderline case in which he had very considerable sympathy for SLeave to appeal to the Tribunal was refused by the Tribunal, the notice of refusal stating that in the Tribunal's opinion there was sufficient evidence to support the adjudicator's findings of fact.
On an application by S to the Divisional Court it was submitted, inter alia, (1) that, the adjudicator, having found the case to be a borderline one, an obligation was imposed on the Tribunal to grant leave to appeal; (2) that the adjudicator had misdirected himself and that on the facts his decision was wholly unreasonable, and that the Tribunal should on this ground also have granted leave.
Held (dismissing the application): (i) the proposition that there was an obligation on the Tribunal to grant leave to appeal because the adjudicator had found the case a borderline one was an impossible one, and to hold otherwise would be a wholly unwarranted interference by the court in the running of these tribunals under the powers given by statute and the rules made thereunder (p 99, post);
(ii) the adjudicator had directed himself correctly as to the nature of his discretion under para 26A(e) of HC 239 and had considered the relevant evidence, and his decision was one which, having regard to the terms of the immigration rules, most reasonable men would reach (pp 98 & 100, post);
(iii) though a tribunal had power to grant leave even if it did not think an adjudicator's decision was unreasonable or perverseon the basis that the decision ought to be considered again having regard to the circumstancesit did not follow that it must exercise that power or that it had gone wrong in law if it did not do so.
Per curiam: There was clearly a carefully detailed and sympathetic consideration of the appellant's case by the adjudicator; and it would seem that it was clear to the Tribunal that, although there was much to be said for S, he had taken the risk of an arranged marriage; it had failed; there was nothing special about the case, and no further appeal...
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