R v Immigration Appeal Tribunal, ex parte Khan (Mahmud)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE ACKNER,LORD JUSTICE OLIVER |
| Judgment Date | 13 January 1983 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0532 |
| Date | 13 January 1983 |
[1983] EWCA Civ J0113-4
The Lord Chief Justice of England
(Lord Lane)
Lord Justice Ackner
and
Lord Justice Oliver
83/0532
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION
(MR. JUSTICE STEPHEN BROWN)
Royal Courts of Justice,
MR. J. MACDONALD Q.C. and MISS K. CRONIN (instructed by Messrs. Howard Cohen & Co., Leeds) appeared on behalf of the Appellant (Applicant).
MR. D. LATHAM (instructed by The Treasury Solicitor) appeared on behalf the Immigration Appeal Tribunal (Respondent).
This is another immigration appeal. It arises from a decision by Mr. Justice Stephen Brown, and concerns a man called Mahmud Khan.
The case is yet another case of alleged marriage of convenience, and the chronology of events leading up to the hearing before the Tribunal and thence before Mr. Justice Stephen Brown are these. The appellant married Cynthia Mitchell on 30th June 1975. She was at that time a prostitute with a number of convictions for prostitution and kindred offences in her past. The appellant on 10th September was given indefinite leave to stay in this country. He is a citizen of Pakistan, and he is now some 37 or 38 years of age. In July 1977 he returned to Pakistan and came back to this country on 11th June 1978 with his parents, who were admitted as dependants. Consequently in this country were his father, his mother, his two sisters and their children and his brother, all of them being lawfully here.
On 9th July 1980, as a result of inquiries which had been made, he was served with a decision to deport under section 3(5)(b) of the Immigration Act 1971. The reasons for the inquiries being made were that he had applied to be registered as a citizen of the United Kingdom. Inquiries followed as a matter of course, and the result of those inquiries, for reasons which will emerge in a moment, were to raise a suspicion, certainly in the mind of the Secretary of State, that this was a man whose presence in the country was not conducive to the public good.
On 21st July 1980 the applicant set out his side of the matter, where the first ground of appeal reads as follows: "That the marriage of Mahmud Khan to Cynthia Mitchell on the 30th June 1975 was not a marriage of convenience, the parties at the time of the marriage intending to live together permanently as man and wife."
The Secretary of State's grounds for deportation are to be found on the previous page and read as follows: "To Mahmud Khan: The Secretary of State has reason to believe that your marriage to Cynthia Mitchell at Bradford Register Office on 30 June 1975 was one of convenience entered into to obtain your settlement in the United Kingdom with no intention that you should live together permanently as man and wife. Having regard to this the Secretary of State considers it conducive to the public good to make a deportation order against you." There you have the Secretary of State setting out accurately and in concise form the two ingredients of a marriage of convenience: first of all the marriage is entered into for the primary purpose of evading the immigration law and rules, and secondly, the necessity of there being no intention, or a lack of intention to live together permanently as man and wife. I emphasise that, if one may say so, by drawing attention to the ground of appeal which I have already read, which confines the issue simply to the latter part of the definition of the marriage of convenience, namely, no intention to live together permanently as man and wife.
Consequently when, as in due course, the matter came before the Appeal Tribunal, one would have expected the issue to be perfectly plain and to have been set out perfectly plainly by the Tribunal in their reasons. Of course there was only one issue here. It was apparent that the primary reason for the marriage when it took place had been to try to escape from the tentacles of the immigration laws. The real question was, or should have been, whether this marriage was one in which the husband had intended permanently to live with his wife after the marriage had taken place.
We have been referred helpfully by Mr. Macdonald, whose submissions have been accurate, helpful and extremely concise, to a decision of the Industrial Relations Court under the Presidency of Sir John Donaldson, Alexander Machinery (Dudley) Ltd. v. Crabtree (1974) I.C.R. 120, and to the following passage: "We have already said that it is unsatisfactory and amounts to an error of law for a tribunal simply to...
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