Tohura Bibi and Others v Entry Clearance Officer, Dhaka

Hearing date: 4 July 2007

Judgement

If a citizen, now deceased, of an independent Commonwealth country were to have gained admission to the U.K. by assuming another person's identity and later, by reference to his own ensuing residence here, were to have obtained registration in that other person's name as a citizen of the U.K. and Colonies (being a status which later became that of a British citizen), would his widow and children, who have remained abroad, have a right of abode in the U.K? Such is the question raised in these proceedings.

The answer to the question given by the Entry Clearance Officer in Dhaka, Bangladesh, was no. So he refused the applications of the deceased's widow and the four children of their marriage, all five of whom are citizens of Bangladesh and have to date resided there, for Certificates of Entitlement to the Right of Abode. Upon successive appeals by the widow and children, the Immigration Judge and then the Asylum and Immigration Tribunal have ruled that the answer given by the Entry Clearance Officer was correct. The widow and children now appeal to this court.

The deceased man at the centre of the story called himself Abdul Jabbar when in Bangladesh and Abdul Sattar when in England. I will refer to him as Mr Jabbar. In 1929 he was born in what since 1971 has been Bangladesh. In 1983, aged 53, he died there.

It is now established that:

(a) Mr Jabbar married the first appellant there in 1969; and

(b) the second, third, fourth and fifth appellants, born there in May 1974, February 1978, April 1981 and February 1983 respectively, are the children of the marriage between Mr Jabbar and the first appellant.

The relationship of the appellants to Mr Jabbar had previously been in issue. The application by the appellants in 2003 for Certificates of Entitlement to the Right of Abode which led to the Entry Clearance Officer's refusal and to the present proceedings was their third such application. Their two previous applications had been made in 1990 and 1995 and had been refused on the basis that they had not established that they were the widow and children of Mr Jabbar. One problem was that, whereas the woman whom Mr Jabbar had apparently married was called Nuria Begum, the first appellant described herself in the applications as Tohura Bibi.

For the purposes of their third application the appellants commissioned a report by an English solicitor, Mr Hussain. Their intention was thereby to demonstrate their relationship with Mr Jabbar. In this endeavour they succeeded. In a detailed report Mr Hussain set out the results of interviews conducted by him in the village, near Sylhet in Bangladesh, in which the appellants resided; and to it he attached copies of numerous documents which he had obtained there. The Immigration Judge, to whom Mr Hussain also gave oral evidence, found, contrary to the submission on behalf of the Entry Clearance Officer, that Mr Hussain was a genuine and plausible witness; that his evidence, written and oral, should be accepted; and that on the balance of probabilities the appellants were, as Mr Hussain suggested, the widow and children of Mr Jabbar. In this regard Mr Hussain explained to the satisfaction of the Immigration Judge why the widow, Nuria Begum, described herself in the applications as Tohura Bibi. It was reflective of a practice known as the “Sylheti Tax Pattern”. Single men from Sylhet would migrate to the U.K.; would falsely represent to the Inland Revenue that they had wives in Sylhet and so were entitled to the married person's tax allowance; and would tender fictitious names for their non-existent wives. Later, however, when they became married, consistency required that, for official U.K. purposes, their wives should adopt the fictitious names which they had previously tendered. Thus in this case, so Mr Hussain explained, Mr Jabbar had falsely tendered the name of his sister-in-law, namely Tohura Bibi, as his wife; and thus many years later, for the purpose of her applications for entry clearance, Nuria Begum had seen fit to describe herself as Tohura Bibi.

In Mr Hussain's report, however, were other significant facts upon which, as an alternative to his continued rejection of the appellants' alleged relationship with Mr Jabbar, the Entry Clearance Officer had based his refusal of their application; and upon which the Immigration Judge and then the Asylum and Immigration Tribunal exclusively based their dismissals of the appellants' appeals.

The significant facts are best considered in the light of the law as it stood in 1962, when Mr Jabbar came to reside in the U.K., and on 8 November 1967, when he procured registration of a citizenship of the U.K. and Colonies.

The Commonwealth Immigrants Act 1962 (“the Act of 1962”), which, so far as relevant, came into force on 1 July 1962, was the first statutory step towards controlling immigration into the U.K. of such Commonwealth citizens as were neither born in the U.K. nor held U.K. passports, whom, by way of shorthand, I will describe as “Commonwealth citizens”. By s.2(1) of the Act of 1962 power was given to immigration officers to refuse Commonwealth citizens admission to the U.K. But, by s.2(2) and (3), the power in s.2(1) was circumscribed in various ways. Section 2(3) provided:

“… the power to refuse admission under this section shall not be exercised … in the case of a Commonwealth citizen who satisfies an immigration officer …—

(a) that he wishes to enter the United Kingdom for the purposes of employment there, and is the person described in a current voucher issued for the purposes of this section by or on behalf of the Minister of Labour …”

It seems that pursuant to the subsection the Minister of Labour would issue such a voucher, within the limits of a set annual quota, upon application by a prospective employer in respect of an identified Commonwealth citizen, to whom the employer would then send it for use in securing admission. By s.4(3)(a) of the Act of 1962, it was a criminal offence for a Commonwealth citizen to make a false representation to an immigration officer in relation to the exercise of his powers under the Act. By s.4(1), it was a criminal offence for a Commonwealth citizen to enter or remain within the U.K. following a refusal of admission. By s.3 and schedule 1, certain persons such as stowaways were to be treated as having been refused admission; but there were large gaps in the machinery set up by the Act of 1962, by virtue of which, following other forms of clandestine entry, Commonwealth citizens could reside in the U.K. without being at risk of removal.

The Act of 1962 also altered the criteria by reference to which a Commonwealth citizen was entitled to be registered as a citizen of the U.K. and Colonies (“a U.K. citizen”). Under s.6(1)(a) of the British Nationality Act 1948 (“the Act of 1948”) he had been required to satisfy the Secretary of State that he had been ordinarily resident in the U.K. throughout the period only of twelve months immediately preceding the application. By s.12(2)(a) of the Act of 1962, however, the requisite period of ordinary residence was extended from twelve months to five years.

The significant facts, not in dispute, are as follows:

(a) In 1962 Mr Jabbar was a citizen of Pakistan.

(b) “At some point in the sixties”, wrote Mr Hussain, “[Mr Jabbar] came across an Employment Voucher issued to one [Mr] Sattar”. Since, as we now know, employment vouchers were introduced on 1 July 1962, Mr Jabbar must have come across the voucher after that date and, in the light of what follows, very shortly afterwards.

(c) There is every reason to infer that Mr Sattar was a real person (other than Mr Jabbar) in respect of whom a prospective U.K. employer had successfully applied for an employment voucher. But nothing else is known about Mr Sattar.

(d) “Using this voucher”, wrote Mr Hussain, “[Mr Jabbar] entered the U.K.” Upon entry Mr Jabbar must also have proffered, as relating to himself, a Commonwealth (almost certainly a Pakistani) passport in the name of Mr Sattar, including a photograph of himself. Indeed the first appellant told Mr Hussain that the name in Mr Jabbar's passport had been Mr Sattar.

(e) In that, upon Mr Jabbar's arrival in the U.K., the immigration officer wrongly believed that the man asking him for admission was Mr Sattar, to whom the employment voucher related, he wrongly concluded that he had no power to refuse admission to Mr Jabbar and so granted it to him.

(f) By making to the immigration officer a false representation as to his identity, Mr Jabbar committed a criminal offence under s.4(3)(a) of the Act of 1962.

(g) In the light of what follows, Mr Jabbar's admission to the U.K. must have taken place between July 1962 and 8 November 1962.

(h) Following his admission to the U.K. Mr Jabbar resided in the U.K. for five years in the name of Mr Sattar.

(i) Thereupon Mr Jabbar at once caused an application to be made under s.12(2) of the Act of 1962 for...