R v Secretary of state for the home department ex parte Seda Hayden
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 1988 |
| Date | 21 June 1988 |
| Court | Queen's Bench Division |
Queen's Bench Division
McCowan J
R de Mello for the applicant
R Ter Haar for the respondent
Cases referred to in the judgment:
Re Bradshaw, Blandy v WillisUNK; [1938] 4 All ER 143.
Secretary of State for the Home Department v Zalihe Huseyin [1988] Imm AR 129.
Deportation order revocation marriage to British citizen after deportation order signed whether Secretary of State obliged to revoke deportation order. Immigration Act 1971 ss. 1(5), 5(2).
The applicant sought to have quashed the decision of 14 April 1987 by the Secretary of State not to revoke a deportation order signed against her on 13 January 1986. She had married a British citizen on 4 September 1986 nine months after the order had been signed. She had previously maintained that she was the wife of a Mr Jacob Moyo but later denied that she had ever been married to him. On the facts, the Court held that it was not unreasonable for the Secretary of State to conclude that earlier marriage still subsisted and therefore the marriage to a British citizen in September 1986 was invalid. The Court also considered the submission by counsel that, assuming the later marriage to be valid, and following Zalihe Huseyin, the applicant, as the wife of a Commonwealth citizen settled in the United Kingdom on 1 January 1973, could not be deported and the order should have been revoked.
Held:
1. Zalihe Huseyin was to be distinguished because in that case the deportation order had been signed after the marriage had been contracted: in this case the applicant had married after the deportation order had been signed.
2. Section 5(2) of the Immigration Act 1971 provided that a deportation order would cease to have effect if the subject of the order became a British citizen: it did not extend to a person who became the spouse of a British citizen.
McCowan J: Under challenge in this case is the decision of the Secretary of State for Home Affairs communicated to the applicant by letter dated 14 April 1987 not to revoke a deportation order made by him in respect of the applicant on 13 January 1986.
The relief sought is (1) Certiorari to quash the decision; further or alternatively (2) Mandamus to order the Secretary of State for Home Affairs to reconsider the decision. Leave to move in this case was granted by McNeill J on 6 July 1987.
In her affidavit the applicant tells this story. She says: I am a member of the Ndebaele Tribe of Zimbabwe. I came to England in 1975 from Matabeleland in Zimbabwe because of the trouble between the then government and the guerilla forces. At that time Zimbabwe was Rhodesia and a member of the Commonwealth. She says: I entered Britain on a British passport issued out of the British High Commission in Botswana. This expired in December 1975. Thereafter she obtained annual visas. She has worked and remained in England ever since.
She says that she was interviewed by a Home Office official in April 1986. The question arose about a man called Jacob Moyo. This is what she says about him in her affidavit:
I had lived with Jacob Moyo in Zimbabwe as his common law wife for 24 years but there was never any kind of formal marriage between us. I told the interviewer that I had no marriage certificate and that I had not seen or heard from him for eight years and did not know whether he was alive or dead. I note it is now alleged that I admitted I had married him by tribal custom' and had not divorced him. I emphatically reject this suggestion, I was never married to him and did not tell the interviewer that I was.
8. In or about February 1986 I became acquainted with Mr Hayden and we began to spend time with each other on a regular basis. In June 1986 he asked me to marry him...
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