R v Immigration Appeal Tribunal and Seada Bi ex parte Secretary of State for the Home Department [QBD]
| Jurisdiction | England & Wales |
| Judgment Date | 11 July 1983 |
| Year | 1983 |
| Date | 1983 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Division
Taylor J
In ex parte Seada Bi:
Simon Brown for the applicant Secretary of State.
David Latham for the Respondent Tribunal.
G Yazadi for the respondent Seada Bi.
In ex parte Ghulam Fatima:
S Kadri & Miss H Grewal for the applicant Ghulam Fatima.
Simon Brown for the respondent Secretary of State.
In ex parte Shafeena Bi:
Owais Kadri for the applicant Shafeena Bi.
Simon Brown for the respondent Secretary of State.
Cases referred to in the judgment:
Quazi v QuaziUNK [1979] 3 All ER 897.
Sharrif v SharrifFLR [1980] 10 FLR 216
Chaudhary v Chaudhary, unreported, dated 13 May 1983.
Zaal v ZaalFLR [1983] 4 FLR 284.
Qureshi v Qureshi [1972] FLR 173.
Manzoor v Allah Wasuya [1973] PLD 36.
Practice and procedure — Effect in English Law of Talaq divorce pronounced in England but perfected in Pakistan — The two clear principles in English law regarding Talaq — The Recognition of Divorces and Legal Separations Act 1971 ss. 2, 3.
In the first case the Secretary of State for the Home Department applied for judicial review of the Immigration Appeal Tribunal's determination. That allowed Seada Bi's appeal from the decision of an adjudicator dismissing her appeal against the refusal of the Secretary of State to grant her indefinite leave to stay as the wife of Mohammed Gulzar, a registered citizen of the United Kingdom and Colonies. He had in England on 23 February 1978 pronounced a Talaq against his then wife: this was communicated to her in Pakistan, and to the appropriate Union Council there. Following the failure of the required reconciliation proceedings the marriage was declared dissolved according to Pakistan law. Seada Bi was admitted in November 1978 for three months to marry Mohammed Gulzar, and did so in January 1979. Her application in February 1979 for indefinite leave of stay was refused as the Secretary of State was not satisfied that the Talaq divorce was effective under English law and in consequence was not satisfied that the subsequent marriage was valid.
The second application, by Ghulam Fatima, was for judicial review of an immigration officer's refusal of leave to enter as the fiancee of her sponsor Mohammad Afzal. He also pronounced in England a Talaq, in May 1978, against his then wife, and his statutory document that he had done so was sent to her and the Union Council in Pakistan: likewise the marriage was, no reconciliation having been effected within the required ninety days, dissolved according to Pakistan law. The grounds for the refusal of entry to the applicant were that, as the immigration officer was not satisfied that the sponsor's marriage was effectively dissolved according to English law, he could not be satisfied that the intended marriage between the applicant and her sponsor could take place within a reasonable time.
The third application for judicial review was similar to that of Ghulam Fatima. Shafeena Bi's sponsor had married in Pakistan in 1970 whilst on a visit from England, and pronounced his Talaq here in September 1981. Copies of his statutory declaration to that effect were sent to his wife and the Chairman of the local Union Council. After 90 days, reconciliation not having been achieved, the divorce was effective under Pakistani law. When Shafeena Bi sought entry as the sponsor's fiancee in February 1983 she was refused on the same grounds as Ghulam Fatima.
Held: (i) That the pronouncement of Talaq in England in each of the three cases was part of the proceedings by means of which the divorce was obtained. The proceedings were, therefore, partly in the British Isles and partly in Pakistan.
(ii) The full (i.e. to be effective in Pakistani law—by pronouncement of the Talaq orally or in writing, giving notice thereof in writing to the Chairman of the local Union Council, and giving a copy of that notice to the wife) Talaq procedure was one set of proceedings only.
(iii) In English law two principles in respect of the full Talaq procedure were clear:(a) when the full Talaq procedure took place wholly in a country overseas and was effective in the laws of that country the divorce would be recognised here if either spouse was a national of that country at the relevant time; (b) when the full Talaq procedure took place wholly within the British Isles, English law did not recognise it as an effective divorce.
Taylor J: These three applications for judicial review have been heard together since they all turn on the same point, namely, what is the effect in English Law of a Talaq divorce pronounced in England, but perfected in Pakistan?
In the first application, the Secretary of State for the Home Department applies for judicial review of a determination by the Immigration Appeal Tribunal, dated 27 August, 1982, allowing an appeal by Seada Bi from the decision of an adjudicator dismissing her appeal from the refusal of the Secretary of State to grant her indefinite leave to remain in the United Kingdom as wife to Mohammed Gulzar (the sponsor). Although Seada Bi is strictly respondent to this application, she was initially an applicant for leave to remain in the United Kingdom and, for convenience, I shall refer to her in this judgment as ‘the applicant’ on this first application.
In the second application, Ghulam Fatima (the applicant) seeks judicial review of an immigration officer's decision, dated 31 July, 1982, refusing her leave to enter the United Kingdom as fiancée of Mohammed Afzal (the sponsor).
In the third application, Shafeena Bi (the applicant) seeks judicial review of an immigration officer's decision, dated 24 February, 1983, refusing her leave to enter the United Kingdom as fiancée of Mohammed Zamir (the sponsor) and of directions for her removal from the United Kingdom, dated 26 May, 1983.
According to ancient Muslim law, if a husband...
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