R v Secretary of state for the home department ex parte Valentina Bradshaw
| Jurisdiction | Scotland |
| Judgment Date | 24 March 1994 |
| Date | 24 March 1994 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Lord MacLean
M Bovey for the petitioner
Miss S J O'Brien for the respondent
Cases referred to in the judgment:
Jayakody v Secretary of State for the Home DepartmentUNK [1981] Imm AR 205: [1982] 1 All ER 461.
Khawaja v Secretary of State for the Home DepartmentELR [1984] AC 74: [1982] Imm AR 139.
R v Secretary of State for the Home Department ex parte Bugdaycay and ors (CA)WLRUNK [1986] 1 WLR 155: [1986] 1 All ER 458.
Bugdaycay and ors v Secretary of State for the Home Department (HL)ELR [1987] 1 AC 514: [1987] Imm AR 250.
Anilkumar Patel v Immigration Appeal TribunalWLR [1988] 2 WLR 1165: [1988] Imm AR 434.
Illegal entrant — deception as to state of marriage when granted indefinite leave to remain in the United Kingdom — whether deception material — whether applicant an illegal entrant. Immigration Act 1971 s. 33(1).
Statelessness — citizen of the former USSR — assertion she was now stateless — no application made for citizenship of Russia or the Ukraine — the Home Office approach. United Nations Convention relating to the status of stateless persons (1954) art. 1.
The petitioner for judicial review was a citizen of the former USSR who had married a British citizen. She had been granted limited leave on the basis of that marriage. Subsequently she was granted indefinite leave to remain. That variation was granted on evidence which purported to show that the marriage was subsisting. It subsequently came to light that the parties were not, at the material time, living together as man and wife. The Secretary of State concluded, following the re-admission of the petitioner to the United Kingdom on the basis of her indefinite leave to remain, that the petitoner was an illegal entrant. The court heard oral evidence.
The petitioner also asserted that following the new natonality laws of Russia and the Ukraine, she was stateless. She had not however made any application for citizenship of either state. The court received evidence of the Home Office approach to determining whether a person should, under the Convention, be recognised as stateless.
Held
1. On the facts, the deception practised by the petitioner to secure indefinite leave was material, and she was properly held by the Secretary of State to be an illegal entrant.
2. Before a person could be regarded as stateless there must have been application made for citizenship of those countries with which the person was most closely connected, and those applications must have been refused.
Lord MacLean: The petitioner was married to George McAllin Bradshaw in the Ukraine on 27 March 1989. At that time she was a citizen of the USSR and her husband was a citizen of the United Kingdom, being resident and domiciled in Scotland. On 27 March 1990 the petitioner entered the United Kingdom at Heathrow Airport and was given leave to remain in the United Kingdom until 27 March 1991. It is to be noted from her passport that earlier the consular section of the British Embassy in Moscow granted her a visa for a single journey to the United Kingdom on 14 February 1990. After her arrival in the United Kingdom she lived with her husband at his home at 9 Inchinnan Road, Renfrew where he continues to reside. On or about 4 January 1991 she separated from him and was taken in by an acquaintance of his, Thomas Crawford, at his house at 39 Auchinleck Gardens, Glasgow. Thereafter her place of residence in the United Kingdom has been at 39 Auchinleck Gardens, Glasgow. I should say that the petitioner, George Bradshaw and Thomas Crawford all gave evidence before me on 5 November 1993.
Although the petitioner and her husband have remained apart since January 1991 they have continued regularly to communicate with each other. Apart from one payment which I accept he made, George Bradshaw has not supported the petitioner financially. Appreciating that if the petitioner was to continue to live in the United Kingdom her leave to remain here had to be renewed before 27 March 1991, both the petitioner and her husband attended at the United Kingdom Immigrants Advisory Service office in Glasgow on 1 February 1991 where they saw Miss Elliot who gave them certain advice. The petitioner and her husband were not in agreement in their evidence about what passed at that meeting. According to George Bradshaw, his wife took the more active role at the meeting, despite her relatively poor command of English. He did not think that the United Kingdom Immigrants Advisory Service representative, who may have been Miss Elliot, communicated directly with him about his wife's status, but, significantly as I think, he recalled her saying that if his wife were to stay in the United Kingdom he would have to support her application and he would also have to support her financially. He did not recall receiving a hand-written document from Miss Elliot containing certain notes. He agreed that neither he nor his wife had mentioned the fact that they were separated.
The petitioner, on the other hand, maintained that at that meeting the lady, who may have been Miss Elliot, spoke mainly with her husband because her English was not good enough. Miss Elliot gave him some document at the same time as offering to prepare the necessary documents to be sent to the Home Office. According to the petitioner, her husband declined that offer, expressing the view that he would think about it and might do that himself. He added that if Miss Elliot did it, he might have to pay for that to be done. I believe from my assessment of George Bradshaw as a witness that that has the decided ring of truth about it. At that time her husband, she said, was always asking her to return to live with him. He worked as a radio operator offshore in the oil industry which meant that he worked two weeks offshore and had two weeks onshore.
I pass over for the moment a critical meeting which the parties had later in February 1991, to consider the application which the petitioner herself made to the Home Office for renewal of her leave to remain in this country. It appears that she attended the department's Public Enquiry Office in London in person on 11 March 1991 and then submitted her application. According to the affidavit of Mrs Howard she met the petitioner and completed the call note which was attached to the affidavit. She noted from the petitioner that she would be living at 9 Inchinnan Road, Renfrew, until the end of March 1991 and that as from April 1991 she would be residing at 39 Auchinleck Gardens, Glasgow. She also noted that the petitioner tendered certain documents with her...
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