Sumeina Masood v Immigration appeal tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 09 July 1991 |
| Date | 09 July 1991 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Purchas, Glidewell LJJ Sir Roger Ormrod
A Riza QC for the appellant
Miss A Forster for the respondent
Cases referred to in the judgments:
Vinod Bhatia v Immigration Appeal Tribunal [1985] Imm AR 50.
R v Immigration Appeal Tribunal ex parte Arun Kumar [1985] Imm AR 446.
Immigration Appeal Tribunal v Hoque & Singh [1985] Imm AR 216.
R v Immigration Appeal Tribunal ex parte Sumeina Masood [1991] Imm AR 283.
Primary purpose conditional marriage sponsor had made it clear she would not live with husband in Pakistan sponsor insisted on living in United Kingdom whether that reflected an intention by both parties to live together as man and wife whether adjudicator correct to conclude that in the circumstances the intentions of the sponsor and her parents were central to the case the consequence of concluding that the intention to live together was contingent upon the husband obtaining entry clearance. HC 503 para. 46.
Judicial review whether in primary purpose cases a sponsor in the United Kingdom had locus standi to seek judicial review of the refusal of entry clearance for her husband then settled abroad.
Appeal from Simon Brown J. The appellant was the wife of a national of Pakistan who had been refused entry clearance as her husband. Neither the entry clearance officer nor the adjudicator had been satisfied that the burden of proof of showing that the primary purpose of the marriage had not been to secure settlement in the United Kingdom had been discharged: the Tribunal had refused leave to appeal.
Counsel criticised the approach by the adjudicator, who had written the central considerations in this appeal are the intentions of the sponsor and her parents. The wife had made it entirely clear at some stage (and it mattered not, the court observed, whether that was before or after marriage) that she had no intention at all of living in Pakistan.
Held:
1. In view of the stance adopted by the wife if the parties were going to live together as man and wife for more than a short periodit was essential that the husband should be able to come to the United Kingdom. Thus it followed that the obtaining of an entry clearance for the husband was a necessary precondition to him being able to live with his wife.
2. An intention on the part of a party to the marriage to live permanently with the other conditional upon the other being able to obtain the necessary consent to enter the United Kingdom is no proper intention at all: it was the expression of a wish: a wish only became an intention when there was some reasonable prospect of its being fulfilled.
3. It followed that the adjudicator was correct to look at the intentions of both parties to the marriage.
4. Once the entry clearance officer and the adjudicator had reached the stage in their reasoning that led them to conclude that the husband's intention to live with his wife, no doubt based on a sincere wish to do so, was itself contingent upon his obtaining an entry clearance, it was but a short step to the conclusion that the marriage was entered into primarily to obtain admission to the United Kingdom.
5. The court confirmed that a sponsor wife in the United Kingdom had locus standi to seek judicial review of a refusal of entry clearance to her husband settled abroad.
Purchas LJ: I will invite Glidewell LJ to deliver the first judgment.
Glidewell LJ: This is an appeal against a decision of Simon Brown J on 22 January 1991 dismissing an application for judicial review of a decision of the Immigration Appeal Tribunal given on 25 May 1989 which had refused leave to appeal against a decision of an adjudicator dated 22 February 1989.
There is one slightly unusual matter of fact which I mention merely to get it out of the way; it does not form any significant part of the decision. The applicant for judicial review, the appellant in this court, was not the applicant in the immigration proceedings. They are husband and wife, as I shall shortly say. The applicant for judicial review and the appellant before this court is the wife, Sumeina Masood. It was the husband who was the applicant for an entry clearance certificate, the refusal of which led to the various proceedings before the adjudicator and the Immigration Appeal Tribunal. The issue whether under those circumstances the wife was entitled to apply for judicial review and had standing to do so, was raised as a question by Schiemann J who initially granted leave for judicial review on paper, but the matter was not pursued at the hearing before Simon Brown J and indeed it seems clear to me as it did to him that the wife certainly had sufficient standing to make this application.
The decision of the Immigration Appeal Tribunal, that of the President, Mr Neve, contains the following passage:
The only issue in this appeal concerned the primary purpose of the marriage. In so far as this depended upon matters of fact, the Tribunal considers that the adjudicator's findings were not against the weight of the evidence and were properly supported by it. In so far as the immigration rules and the law were concerned the Tribunal, having regard to the judgments of the Court of Appeal in the case of Hoque and Singh [1988] Imm AR 216, does not consider that the adjudicator misdirected himself.
It was for that reason that leave to appeal was refused by the Tribunal. The issue raised in the judicial review proceedings before the learned judge and now before this court was the second of the issues upon which the Immigration Appeal Tribunal based its decision, namely: did the adjudicator misdirect himself in relation either to the applicable law or to the applicable immigration rules?
As I have said, the applicant is the wife. The husband's name is Khalid Masood. He is a citizen of Pakistan. He was refused entry clearance to enter the United Kingdom by an entry clearance officer in Pakistan on 27 July 1988. The wife is a British citizen by birth. She was born and has lived all her life in West Yorkshire.
The relevant rule to be applied is paragraph 46 substituted by House of Commons Paper 503. Since the date of the relevant decision in this case that has been further substituted by House of Commons Paper 251 but the wording of the rule in HC 251 is exactly the same
Paragraph 46 deals with spouses. It reads:
A passenger seeking admission to the United Kingdom as the spouse of a person who is at present settled in the United Kingdom,must hold a current entry clearance granted for that purpose. An entry clearance will be refused unless the entry clearance officer is satisfied
(a) that the marriage was not entered into primarily to obtain admission to the United Kingdom: and
(b) that each of the parties has the intention of living permanently with the other as his or her spouse;
There are three further requirements which do not arise in this...
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