R v Secretary of state for the home department ex parte Irfan Ahmed
| Jurisdiction | Scotland |
| Judgment Date | 26 October 1994 |
| Date | 26 October 1994 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Lord Coulsfield
M Bovey for the applicant
Miss S J O'Brien for the respondent
Cases referred to in the judgment:
Associated Provincial Picture Houses v Wednesbury CorporationELRUNK [1948] 1 KB 223: [1947] 2 All ER 680.
R v Secretary of State for Home Affairs ex parte HosenballWLRUNK [1977] 1 WLR 766: [1977] 3 All ER 452.
Pearson v Immigration Appeal Tribunal [1978] Imm AR 212.
CCSU v Minister for the Civil ServiceELRUNK [1985] AC 374: [1984] 3 All ER 935.
Abdul Aziz v The United KingdomHRC [1985] 7 EHRR 471.
W v The United KingdomHRC [1988] 10 EHRR 29.
Berrehab v The United KingdomHRC [1989] 11 EHRR 322.
R v Secretary of State for the Home Department ex parte Budh Singh (unreported, CS, 13 July 1988).
R v Secretary of State for the Home Department ex parte BrindELRUNK [1991] 1 AC 696: [1991] 1 All ER 720.
Khalid Masood Anjum v Secretary of State for the Home Department (unreported, CS, 11 September 1991).
Mohammed Saftar v Secretary of State for the Home Department [1992] Imm AR 1.
W v FinlandHRC [1992] 15 EHRR CD 109.
L v FranceHRC [1992] 15 EHRR CD 31.
E v The United KingdomHRC [1992] 15 EHRR CD 61.
N v The United KingdomHRC [1993] 16 EHRR CD 28.
Jordan lye v Secretary of State for the Home Department [1994] Imm AR 63.
Jane Namusisi v Secretary of State for the Home Department [1994] Imm AR 399.
Leave variation applicant admitted for marriage marriage broke down application for variation of leave on basis of subsisting second marriage refused initiation of deportation proceedings whether Secretary of State's decision reasonable whether unreasonable to require applicant to return to Pakistan to seek entry clearance the place of article 8 of the European Convention in Scottish law. Immigration Act 1971 s. 3(5)(a): HC 251 para. 50: European Convention on Human Rights art. 8.
The applicant for judicial review was a citizen of Pakistan who had been given limited leave to enter the United Kingdom for marriage. Albeit there was a civil ceremony, no religious ceremony took place: there were family disputes and the parties did not live together. An application was then made, after the applicant's original leave had expired, for variation of leave on the basis of the marriage.
In the course of interviews the true position as to the marriage was discovered. Deportation proceedings were initiated: appeals to the appellate authorities were dismissed. Meanwhile the applicant contracted a second marriage. The Secretary of State was asked to exercise his discretion and allow the applicant to remain in the United Kingdom. The Secretary of State declined to do so.
It was argued for the applicant that it was unreasonable in the events which had happened to require him to return to Pakistan and apply for entry clearance as a spouse: for the Secretary of State to exercise an extra-statutory discretion in his favour would not prejudice any third party. Relying indirectly on article 8 of the European Convention, it was argued that the Secretary of State had failed to take account of the serious effect the decision would have on the applicant's family life.
For the Secretary of State it was argued that the decision was not Wednesbury unreasonable. All the relevant facts had been considered: it was important that the rules should be applied fairly as between one applicant and another.
Held
1. It was clear that no direct reliance could be placed on article 8 of the European Convention, following Abdul Aziz: in the events which had happened the article was not relevant because it was clear that the Home Office had not ignored the obvious humanitarian principle of respect for family life.
2. Fairness in immigration control was a very delicate matter and where there were published rules the Secretary of State was entitled to regard it as important that it should be seen that those rules were observed. In the exercise of a discretion he was entitled to give significant weight to that matter.
3. The fact that the applicant had become an overstayer and had not revealed, at the appropriate time, that his first marriage had broken down, were also factors the Secretary of State was entitled to take into account.
Lord Coulsfield: The petitioner in this case seeks judicial review of two decisions of the respondent dated 22 March and 5 October 1993 by which he was refused leave to remain in the United Kingdom, on the ground that they are unreasonable. The issue raised in the petition is a short one but it is necessary to set out the circumstances in some detail in order to appreciate what the issue is.
The petitioner is a citizen of Pakistan. He visited the United Kingdom, under a limited leave to remain, between October 1986 and October 1987. On 19 July 1988, he made an application in Islamabad for an entry clearance to enable him to come to the United Kingdom in order to marry Tasleem Hussain. The application was refused by the entry clearance officer but allowed by an adjudicator, after an appeal, on 12 July 1991. The application for entry clearance was made, and the limited leave was granted, under rule 47 of the immigration rules. Tasleem Hussain is the petitioner's cousin and the marriage was arranged by their families. On 12 December 1991, the petitioner and Tasleem Hussain were married by a civil ceremony. No Muslim religious ceremony, however, took place either then or later. The petitioner came to the United Kingdom on 28 September 1991. The leave granted to the petitioner was leave to enter the United Kingdom for six months but subject to a condition prohibiting employment. It appears that the proposed marriage was disrupted by a quarrel between the fathers of the two parties. The petitioner's leave to enter the United Kingdom expired about the end of March 1992. He remained in the United Kingdom, however, and on 27 May 1992 an application for an extension to his leave to remain for a further 12 months was made by a firm of solicitors on his behalf. There was submitted with the application a marriage certificate confirming that he had married Tasleem Hussain on 12 December 1991. In fact, as has been noted, no religious ceremony had taken place and, according to some of the documents at least, the parties had, in accordance with Muslim custom, not lived together after the civil ceremony. Tasleem Hussain was interviewed by an immigration officer, in connection with the application for extended leave to remain, on 21 August 1992. In that interview, she disclosed that no religious ceremony had taken place and that the arrangements for the proposed marriage had broken down. She also informed the officer that she had initiated divorce proceedings. In fact, a decree of divorce had already been granted at Paisley Sheriff Court on 27 July 1992. The petitioner was then interviewed, on 23 August 1992. In the course of the interview, he explained that the problem which had prevented the marriage taking place was one between the older members of the family. He said, in reply to a direct question, that he was aware that his wife had applied for a divorce but that he had first heard about it two weeks previously and that he was waiting for things to cool down between the older members of the family and hoped that the religious ceremony would take place in the future. He also stated that he had been working as the third partner in a grocery shop in Glasgow during his time in the United Kingdom. On the same day, 23 August 1992, the petitioner was served with a notice of intention to make a deportation order. He appealed against that decision and was granted bail pending the determination of the appeal. The appeal was refused by an adjudicator on 23 March 1993 and an application for leave to appeal to the Immigration Appeal Tribunal was also refused, on 13 April 1993. The appeal proceedings are largely irrelevant to the present application and the adjudicator's decision is not challenged in these proceedings.
The petitioner avers that following the breakdown of the relationship proposed with Miss Hussain, his family proposed Tasleem Koshar Babu as a wife for him. Miss Koshar Babu and the petitioner were married in a civil ceremony on 15 December 1992 and a religious ceremony on 18 February 1993 and have since lived together in Glasgow. On 26 February 1993, agents on behalf of the petitioner made an application for leave for him to remain in the United Kingdom as the spouse of Tasleem Koshar Babu. Tasleem Koshar Babu, like Tasleem Hussain, is a United Kingdom national born in Scotland. She is also a member of the petitioner's extended family. The letter setting out the application explained that the petitioner had originally entered the United Kingdom to marry Tasleem Hussain and that his primary purpose in coming to the United Kingdom was to marry, not to seek employment. An explanation of the petitioner's circumstances in Pakistan was given and the letter continued:
Primary purpose was clearly accepted by the entry clearance officer when the original visa was issued to him as a fiance. It is important to realise that my client came to Scotland for a traditional Islamic arranged marriage. The same extended family is involved...
To continue reading
Request your trial
-
R v Secretary of state for the home department ex parte Balvir Singh
...referred to in the judgment: Shepherd v ElliotSC [1896] 23 R 695. R v Secretary of State for the Home Department ex parte Irfan Ahmed [1995] Imm AR 210. Judicial review costs illegal entrant claim for asylum marriage to British citizen asylum refused appeal to special adjudicator no decisio......