Secretary of State for the Home Department v Zalihe Huseyin
| Jurisdiction | England & Wales |
| Judgment Date | 30 October 1987 |
| Date | 30 October 1987 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Sir John Donaldson MR Neill, Ralph Gibson LJJ
P Havers for the appellant
D Pannick for the respondent
Cases referred to in the judgments:
R v Secretary of State for the Home Department ex parte Zalihe Huseyin (unreported, QBD 15 April 1987).
Immigration Appeal Tribunal v Haque, Rahman, Ruhul [1987] Imm AR 587.
Deportation wife of a Commonwealth citizen settled in the United Kingdom on 1 January 1973 marriage contracted in November 1983 whether the Secretary of State had power to deport her whether her position was protected by s. 1(5) of the 1971 Act. Commonwealth Immigrants Act 1962 (as amended) ss. 2(1), 2(2), 6(1), 6(2), 7, 8: Immigration Act 1971 ss. 1(5), 3(2), 3(6), 5(1), 5(4): HC 169 paras. 124, 148, 149.
Appeal from Farquharson J.
The respondent was a Cypriot who was admitted to the United Kingdom as a visitor for a month. She overstayed. Of that offence she was convicted. The Court recommended she be deported. The Secretary of State acted on that recommendation. Meanwhile the respondent had married a Commonwealth citizen settled in the United Kingdom on 1 January 1973. On application for judicial review which was granted by Farquharson J, it had been argued that as the wife of a Commonwealth citizen she could not be deported, having protected rights through s. 1(5) of the 1971 Act, which rights arose under the provisions of the Commonwealth Immigrants Act 1962, (as amended). The learned judge had also considered the meaning of admitted in a temporary capacity in paragraph 124 of HC 169, holding that it referred to the status of an applicant at the date of the marriage, not solely at the date of admission.
On appeal by the Secretary of State, it was argued that the protection embodied in s. 1(5) of the 1971 Act only related to what was subsequently written into the rules. It did not relate to other provisions of the 1971 Act itself.
Held:
1. The respondent was protected by the provisions of s. 1(5) of the 1971 Act. 1 As the wife of a Commonwealth citizen himself settled in the United Kingdom on 1 January 1973 she could not be deported. In that regard the quality of the marriage was irrelevant: a marriage of convenience would suffice.
2. The provisions of s. 1(5) of the 1971 Act were not restricted to wives and children at that date (ie 1 January 1973) of Commonwealth citizens then settled in the United Kingdom.
3. The immunity from deportation derived from ss.2(2) and 6(2) of the Commonwealth Immigrants Act 1962 (as amended). Rules promulgated under the 1971 Act ought to have included specific provisions to continue that protection for persons in the position of the respondent.
4. The Court, dismissing the appeal on the basis of the provisions of s. 1(5) of the 1971 Act, gave no guidance on the true interpretation of paragraph 124 of HC 169.
The Master of the Rolls: The applicant for judicial review is a Cypriot. In September 1981, when she was seventeen, she sought to enter this country as a visitor and was given leave to stay for one month. This was later extended to twelve months, but she overstayed, thereby committing a criminal offence to which she pleaded guilty in the Newham Magistrates' Court on 26 October 1983. She told the court that she would be leaving the country on 4 November 1983 and produced an airline ticket to prove it. The magistrates imposed a conditional discharge, but reinforced her expressed resolve to return to Cyprus at an early date by making a recommendation for deportation.
On 4 November 1983, instead of flying to Cyprus the applicant decided to embark on a shorter journeyto the Islington Registry Office, where she married Mr Huseyin, a Commonwealth citizen who was born in this country in 1959 and had been settled here on 1st January 1973. Whatever else may be said in favour of this marriage from the point of view of the applicant, and it is by no means clear what else can be said, it had, in the submissions made on her behalf, the overwhelming advantage that it deprived the Secretary of State of the right to deport her. The Home Office did not see it that way and the Secretary of State duly made a deportation order on 9 July 1984.
The applicant applied for judicial review to quash this order and Farquharson J granted that application. The Secretary of State now appeals.
I can deal with the matter comparatively briefly, because the scope for argument has been much reduced by a very recent decision of this court by which we are of course bound. This is R v Immigration Appeal Tribunal ex parte Ruhul (CA transcript 31 July 1987).* Lest the date lead anyone to conclude that this was the judicial equivalent of a Friday car, it should be added that the judgment had been reserved and was only handed down on that date. The central point in that appeal, as in this, was the true construction of section 1(5) of the Immigration Act, 1971. This is in the following terms:
(5) The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed.
Slade LJ, giving the judgment of the court consisting of himself, Stephen Brown LJ and Sir John Megaw, traced the history of immigration control as it affected Commonweath citizens, their wives and children from the Commonwealth Immigrants Act, 1962. For present purposes it is only necessary to note the position as it obtained after the coming into force of the Commonwealth Immigrants Act, 1968, which amended section 2 of the 1962 Act. Thereafter, whilst there was a general power under section 2(1) to refuse admission to a Commonwealth citizen, this power could not be exercised if the prospective immigrant, being a woman, satisfies an immigration officer that she is the wife of a Commonwealth citizen who is resident in the United Kingdom (section 2(2)). Furthermore whilst section 6(1) authorised the deportation of Commonwealth citizens who were convicted of offences punishable by imprisonment, section 6(2) excluded the application of subsection (1) in the case of persons born in the United Kingdom and the wife of such a person.
The Immigration Act, 1971 repealed the 1962 Act as from 1 January 1973 and, by section 3(2), required the Secretary of...
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