Tahir v. Immigration Appeal Tribunal
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 3 November 1988 |
| Citation / Document Symbol | [1989] Imm AR 98 |
| Cite as | Tahir v. Immigration Appeal Tribunal, [1989] Imm AR 98, United Kingdom: Court of Appeal (England and Wales), 3 November 1988, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6550.html [accessed 20 October 2022] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
TAHIR v IMMIGRATION APPEAL TRIBUNAL
Court of Appeal (Civil Division)
[1989] Imm AR 98
Hearing Date: 3 November 1988
3 November 1988
Index Terms:
Appeal -- powers of appellate authorities -- a finding that reasons originally given by Secretary of State did not justify the decision under appeal -- whether appellate authorities can uphold that decision for different reasons. Immigration Act 1971 ss 3(2), 18(2), 19: HC 169 para 156.
Standard of proof -- proceedings before appellate authorities -- assertion by Secretary of State that appellant had committed serious criminal offence -- whether appellate authorities have to be satisfied on criminal or civil standard of proof.
Held:
Appeal from Schiemann J. The appellant was a citizen of Pakistan. He entered the United Kingdom illegally in 1974. He then married a British citizen and applied for leave to remain. The application was refused. An appeal was dismissed but the adjudicator recommended he be given leave to remain outside the rules. That was granted. He then divorced his wife. In March 1981 a Pakistani national arrived at Heathrow claiming to be his fiancée: she was admitted to the United Kingdom: the appellant married her. The Home Office subsequently concluded that this fiancée had been the appellant's wife at the date of his earlier marriage to a British citizen and that marriage in consequence was bigamous. The Secretary of State decided to initiate deportation proceedings under s 3(5)(b) of the 1971 Act. The Tribunal did not consider that the allegation of bigamy had been proved: in coming to that conclusion it applied the standard of proof applicable to criminal proceedings, considering the allegation involved asserting that the appellant had committed a serious criminal offence. It also rejected the conclusion of the Secretary of State that the appellant and his (second) wife did not intend to live together. Those were the original reasons for deciding to deport the appellant: subsequently the Home Office also relied on the deception practised by the appellant. The Tribunal reviewed the immigration history of the appellant and upheld the decision to deport on the basis of the deception which the appellant had practised. On the application for judicial review it was argued that the Tribunal erred in law in dismissing the appeal for reasons that had not formed part of the original decision under appeal. Those arguments were repeated in the Court of Appeal. It was argued that the appeal should have been allowed and remitted to the Secretary of State to exercise his discretion in that regard. It was argued that the case could be distinguished from ex parte L Ron Hubbard because in this instant case the relevant rules included a discretion. It was also asserted that the Tribunal in weighing the factors set out in paragraph 156 of HC 169 had overlooked material compassionate circumstances. Held: 1. In applying the criminal standard of proof in relation to the allegation of bigamy the Tribunal had misdirected itself in law. Following Khawaja the proper standard was the civil standard of proof on the balance of probabilities but with due regard to the gravity of the issue. 2. The present case could not be distinguished from L Ron Hubbard. "The appellate bodies are expressly given power to decide whether the discretion in the decision under appeal should have been exercised differently and . . . it was open to the . . . Tribunal to decide that notwithstanding their different view of what facts justified the decision, the discretion involved . . . should not have been exercised differently." 3. "If the decision is not shown to have been unjustified but to have been justified by the facts proved in the process of the appellate review . . . [there is] . . . no ground for requiring the decision to be quashed . . . for the administrative procedure to be started again." Such a procedure could not be required on a true interpretation of s 18(2) of the 1971 Act. L Ron Hubbard approved. 4. Looking at the case as a whole it could not be said that the Tribunal had failed to take account of the compassionate circumstances.Cases referred to in the Judgment:
Khawaja v Secretary of State for the Home Department [1984] 1 AC 74; [1982] Imm AR 139. R v Immigration Appeal Tribunal ex parte Mahmoud Khan (CA) [1983] QB 790: [1982] Imm AR 134. R v Immigration Appeal Tribunal ex parte Mehra [1983] Imm AR 156. R v Immigration Appeal Tribunal ex parte L Ron Hubbard [1985] Imm AR 110. R v Immigration Appeal Tribunal ex parte Abed El Hassanin [1986] 1 WLR 1448: [1986] Imm AR 502. R v Immigration Appeal Tribunal ex parte Nadeem Tahir (unreported, QBD, 22 July 1987).Counsel:
A Collins QC and SA Khan for the appellant; G Sankey for the respondent PANEL: Purchas, Ralph Gibson, Russell LJJJudgment One:
RALPH GIBSON LJ: On 22 July 1987 Schiemann J dismissed an application for judicial review made by the appellant, Mr Nadeem Tahir, who is a citizen of Pakistan, and who had sought the quashing of two decisions, namely: (1) a decision of the Secretary of State made on 20 June 1984 under section 3(5) of the Immigration Act 1971 to make a deportation order as conducive to the public good, and (2) a decision of the Immigration Appeal Tribunal given on 17 September 1985 whereby they dismissed an appeal against that decision of the Secretary of State. The appellant appealed to this court by notice of 12 February 1988 and time for appealing was extended without objection. He asks that the order of Schiemann J be set aside and that the two decisions be quashed. In this court it has only been sought to quash the decision of the Immigration Appeal Tribunal. The attack upon the two decisions in the submissions made to Schiemann J was based upon two points. The first is a point of law which requires some reference to facts to make it plain. The Secretary of State had given his reasons for making the deportation order in his written decision and the reasons were that the marriage of the appellant to a woman named Margaret Perry in this country in December 1975 was contracted by him bigamously in that he was then already married to Rifat Ara, otherwise known as Gul-E-Rana, and that the appellant had no intention of living permanently with Margaret Perry. Upon the appellant exercising his right of appeal to the Immigration Appeal Tribunal under section 15(1)(a) and (7)(a) of the Act there was prepared in the usual way an explanatory statement pursuant to rule 8(1) of the Immigration Procedure Rules 1984. In that statement the decision to make the deportation order as conducive to the public good was explained or justified both upon the grounds stated in the notice of decision and upon the additional ground of the appellant's persistent lying to Home Office representatives with reference to immigration control. The Immigration Appeal Tribunal took the view on the facts that, having regard to the gravity of the allegation of bigamy as a criminal offence, it was not sufficiently proved that Nadeem Tahir had bigamously married Margaret Perry or that he had had no intention of living with her permanently, but that the third -- the additional ground -- was made out and that because of the calculated deception practised by the appellant with reference to the entry into this country of Rifat Ara in July or August 1981, coupled with the past history of contempt for the immigration rules shown by him, the decision of the Secretary of State to make the deportation order was justified. It was contended (and at last I come to the point of law) that in law it was not open to the Secretary of State to add the third ground or reason to his submissions to the Immigration Tribunal, nor open to that Tribunal to determine the appeal upon that ground. The second ground of attack before the judge was that the Immigration Appeal Tribunal misdirected itself in weighing the factors set out in paragraph 156 of HC 169, the Parliamentary Paper -- that is to say, the requirement that consideration be given in making a decision to deport to the matters there listed. The Tribunal summarised the facts and added the words "there are no compassionate circumstances known to the Secretary of State at the date of decision, to be taken into account." It is said that that ignored the existence of the wife of the appellant and his two children. The appellant had in this country a wife, that is to say Rifat Ara, also known as I have said as Gul-E-Rana, whom he had married certainly in this country in September 1981 by a civil marriage and had by her two children born respectively in October 1982 and July 1984. There were accordingly compassionate circumstances known to the Secretary of State and to which it was the duty of the Tribunal to have regard. Since they plainly disregarded those circumstances, so it was submitted, their decision should be quashed. To make sense of these points, which have been again the main grounds of appeal put forward in this court, it is necessary to state the history of the appellant's presence in this country and of his relationship with Margaret Perry and Rifat Ara, his present wife. The appellant first came to this country in 1974. He was then aged 23; he is now 37. He set out deliberately to evade immigration control. He deserted his ship in Liverpool and looked for work. He made no application for any form of leave to enter or to remain until 17 December 1975 when he made application for leave to remain. The ground of his application was that on 6 December 1975 he had married Margaret Perry who was later found by the adjudicator or in earlier proceedings, as Mr Collins reminded us, to be "illiterate, extremely nervous and of low mental capacity." Leave to remain was eventually refused in May 1978. That refusal was appealed and the appeal was heard by the adjudicator. It seems that he dismissed the appeal because the Secretary of State was relying not only on the contention that the marriage was a marriage of convenience but also on the general provisions in the rules and in particular that he had entered the country without leave in the first place. The adjudicator however recommended in his decision of 21 September 1979 that leave to stay be given outside the rules, that recommendation being based on his "firm conclusion that this . . . [was] not a marriage of convenience". Leave to remain indefinitely was given to the appellant in February 1980. He began divorce proceedings very soon afterwards alleging adultery and desertion by Margaret Perry. There was a decree nisi in November 1980 and a decree absolute in January 1981. Suspicion was aroused as to the genuineness of the relationship between the appellant and Margaret Perry and in March 1982 investigations began. Margaret Perry was interviewed. She gave an account very different from that of the appellant. In short, she said that he had, on obtaining leave to remain, thrown her out. Meanwhile in December 1980 having obtained indefinite leave to remain and having a decree nisi of divorce from Margaret Perry, the appellant returned to Pakistan and in February 1981, according to him, became engaged to marry a woman whom he first said was Gul-E-Rana. He returned to this country in March 1981 and on 3 August 1981 a woman described as Gul-E-Rana arrived and sought entry as his fiancée under that name and was given leave to enter for three months. They married in Slough on 12 September 1981 (that is the lady who is the mother of the two children to whom I have referred). Investigations in Pakistan had produced what appeared to be evidence which, if correct, identified the woman called Gul-E-Rana as in fact Rifat Ara with whom the appellant had, according to that evidence, gone through a form of marriage ceremony in Pakistan before his purported marriage to Margaret Perry in 1975. The name "Rifat Ara" was the name of the wife which the appellant had claimed to have for tax purposes when he first came to this country and the name of his wife as stated in a passport held by him. The appellant has asserted that the claim to have a wife was fraudulent when made for the purposes of tax. Upon the basis of that evidence and of answers given at interviews by the appellant and his wife it appeared to the Secretary of State that the woman called Gul-E-Rana who was brought to the country in 1981 as the fiancée of the appellant was in fact the woman Rifat Ara to whom he had been married since before 1975. If that was right, the marriage to Margaret Perry, by reliance on which he had secured indefinite leave to remain in this country, was bigamous and that leave to remain had been obtained by deceit. The deceit practised on the entry of Rifat Ara by pretending that she was Gul-E-Rana and his fiancée and not, as she was then, already his wife was apparently thought necessary by the appellant in order to avoid use of the name previously given by him to his wife, who he later said did not exist, in case the immigration officers be prompted to investigate further. As stated, when investigations were made evidence was found to the effect that there had been a wife and her name was Rifat Ara. When confronted with these matters and after persisting in assertions that his wife was Gul-E-Rana the appellant at an interview on 22 February 1984 announced that he wished to tell the truth and gave a final version to the effect that (1) the real identity of his wife was a woman called Rifat Ara; (2) the information given by him to the immigration office at Heathrow when his wife was admitted as a fiancée was false and was deliberately intended to conceal her true marital status as his wife whom he had married in Pakistan not back in 1972 as the Secretary of State had concluded but only in February 1981; (3) the deception was used because she had arrived without an entry clearance which he knew she required as a wife; (4) he also wished to conceal her true identity because under the name "Rifat Ara" she might be thought to be his wife because of his prior use of that name in two tax claims in 1974; (5) the affidavit and marriage certificate purporting to prove a marriage of him to Rifat Ara in October 1972 were bogus and had been obtained solely for the purpose of income tax frauds; (6) he was aware that if he had not used the deceit practised on the entry of his wife on 3 August 1981 the immigration authorities would on that occasion have refused entry to her. The appellant, before the Immigration Appeal Tribunal, continued to dispute the fact as he appeared to have conceded in the interviews that he had married in Pakistan in February 1981, but the Tribunal held the facts to be those that I have recited. The result of all that was that the appellant was apparently admitting that he had claimed in 1974 to have a wife called Rifat Ara and that on obtaining leave to remain in this country in 1980 he had returned to Pakistan and arranged to bring to this country a woman called Rifat Ara; but he asserted that he had married her in February 1981 and only lied as to her status and identity when she arrived in August 1981. The Secretary of State was persuaded that the evidence of the parties having married before 1975 was correct. On that basis the decision to make the deportation order was made on 20 June 1984 and was in the following terms: "The Secretary of State now has reason to believe that your marriage to Miss Perry was contracted bigamously in that you were already married to Ms Rifat Ara alias Gul-E-Rana, and that you had no intention of living permanently with Miss Perry as her husband. He therefore deems it to be conducive to the public good to deport you." Having considered the material before the Tribunal and notwithstanding their own comment that having heard him they regarded the appellant of little, if any, credibility and did not rely on his denial of bigamy, the Tribunal announced on the first day of the hearing that they would be unable to accept the assertion that the marriage to Margaret Perry in December 1975 and dissolved in January 1981 was for the purposes of the relevant immigration decisions shown to have been bigamous. The Tribunal directed itself that it must apply the criminal standard of proof -- proof beyond reasonable doubt -- and added that "even on a balance of probabilities . . . (they) could not accept the evidence as sufficient." In the result those issues of fact, both with reference to the bigamous marriage and intention to live together, were resolved by the Tribunal in favour of the appellant. The correctness of their decision is not in question before this court and I only comment upon it with reference to the principle of law by which they had directed themselves. The criminal standard of proof is not required; the proper standard is the civil standard of proof on the balance of probability but with due regard to the gravity of the issue: see Khawaja [1984] AC 74: per Lord Fraser at page 97. No doubt having regard to what they said after reference to the criminal standard of proof they would have reached the same conclusion which they did if they had limited themselves to the standard which in fact is appropriate. The Immigration Appeal Tribunal therefore concluded that neither reason given in the notice of decision to deport could be sustained on the evidence before them. They took however, as stated above, a different view of the deception in immigration matters to which the appellant had been a party and which was fully set out in the explanatory statement. They said at page 15: "In itself we would regard the calculated deception practised by the appellant in the matter of the entry of Rifat Ara as justifying the decision of the Secretary of State to commence deportation proceedings. Our view is strengthened by the past immigration history of the appellant which demonstrates a continuing contempt for the immigration rules and the need for honest dealings with the authorities." They then set out the appellant's immigration history. It is not necessary for me further to describe it. It is not contended that if there was lawful power to take the course they did there was no basis in the evidence for their conclusion. Finally, after reference to paragraph 156 of HC 169 in which, as I have said, appears the list of factors to be considered in deportation cases they concluded that there were no factors which outweighed the public interest which would be served by the deportation of the appellant. The application for leave to apply for judicial review was made on 16 December 1985. The grounds included a contention that it was not open to the Immigration Appeal Tribunal to add a further ground of their own devising -- that is to say, the persistent dishonesty in immigration matters. That appears to me to be substantially the same as, or a clear foreshadowing of, the point which was argued later before the judge and before this court. Schiemann J considered that this point was covered by the decision of Woolf J in R v Immigration Appeal Tribunal ex parte L Ron Hubbard [1985] Imm AR 110. In that case, decided in July 1985, the Secretary of State had refused a letter of consent to allow Mr Hubbard to visit the United Kingdom. An adjudicator dismissed his appeal and the Tribunal upheld that decision. The appeal was therefore under section 13 of the Act which deals with appeals against exclusion from the United Kingdom. Upon application for judicial review it was argued that the adjudicator and the Tribunal were restricted to reviewing the facts and issues on which the Secretary of State had come to his decision. Woolf J examined the "complex set of interlinked appeal procedures" provided by the Act and concluded that the adjudicator and the Tribunal were not so restricted in the conduct and decision of appeals. The ground of Woolf J's decision, as it seems to me, is set out beginning at page 118 of that report and I read as follows: "The difficulty I find with Mr Beloff's submission is that it could lead to results quite contrary to the manner in which the control of immigration is intended to be exercised by the immigration authorities under the Act. The Act requires that the Secretary of State shall from time to time lay down rules as to the practice to be followed in the administering of the Act; see section 3(2). The rules which the Secretary of State has laid before the Houses of Parliament in accordance with the requirements of the Act set out circumstances in which leave to enter this country is to be refused, circumstances where leave may be refused and circumstances where leave is to be granted. "In the course of an appeal, in reviewing the facts on evidence wholly different from that which was before the Secretary of State, the adjudicator can be faced with a situation where the effect of the facts as found by him is clear and unequivocal: leave should be refused. This is not a situation where the applicant is entitled to enter this country. However, because on the facts which were before him, the Secretary of State based his decision upon a different part of a rule, he could have come to a decision which was the right decision, for the wrong reasons having regard to the facts found by the adjudicator. If the adjudicator was then to be circumscribed by the reasons for the decision given by the Secretary of State, because the case did not, on his findings of fact, fall within the grounds relied upon by the Secretary of State, he would have no option but to come to a decision which was contrary to the rules when viewed as a whole, although it would accord with a particular rule or part of a rule relied upon by the Secretary of State. This would clearly be a result quite contrary to the intent of the Act. Furthermore, I regard it as one which would be contrary to the wording of section 19(1)(a)(i) which refers to any immigration rules applicable to the case. A preferable interpretation of the Act is one which leads to the result that the adjudicator, having found the facts, is entitled to apply the immigration rules as applicable to the case, having regard to the facts that he has found, subject to important provisos. "The first proviso is this. It is necessary, of course, to make sure that the appellant before the adjudicator has a proper opportunity of fairly stating his case. He must be given proper notice of the case which he has to meet. If, at the outset of the hearing, it is not apparent that a particular point is going to arise for consideration, then it may be necessary for the matter to be adjourned to enable the applicant to deal with the matter properly. The construction of the provisions which I would adopt does not need to involve any risk of injustice to the appellant, if the adjudicator bears in mind, as he is bound to in my view, that the procedure must be one which is fair to the appellant." That is all I read from the judgment. The second proviso referred to at page 119 is not relevant to this case. Mr Collins, who did not appear in the court below and who has argued this case with, if I may say so, the care, skill and economy always apparent in his submissions, did not primarily argue that the decision of Woolf J in Hubbard's case was wrong, but said that it is to be distinguished from this case on the ground that in Hubbard's case there was no element of discretion in the decision under appeal. If the immigration officer was not satisfied with reference to the intentions of Mr Hubbard there could be no leave to enter. In this case the decision to make a deportation order was made by the Secretary of State in exercise of his discretion and there should be, it is said, no freedom either in the Secretary of State to contend for different reasosn or grounds to uphold the decision under appeal or in the Immigration Appeal Tribunal to entertain them. That view of the proper ambit of the appeal procedures was to be derived, whatever be the proper construction of section 18(2) to which I will return, from the structure of the appeal process as a whole and the importance of fairness to the immigrant. Further Mr Collins contended that the reasoning of Woolf J was flawed in so far as he said at page 118 in the passage which I have already read out that "if the adjudicator was then to be circumscribed by the reasons for the decision given by the Secretary of State, because the case did not, on his findings of fact, fall within the grounds relied upon by the Secretary of State, he would have no option but to come to a decision which was contrary to the rules when viewed as a whole, although it would accord with a particular rule or part of a rule relied upon by the Secretary of State." In fact, said Mr Collins, if the limitation contended for exists it would still be open to the Immigration Appeal Tribunal instead of making a decision as arguably required by the rule to remit the case for further consideration to the Secretary of State. Mr Collins referred to section 19(3). In this case he says that what should have happened is precisely that; namely, that the matter should have been referred again to the Secretary of State for him to consider again, in the light of the only remaining ground capable of justifying a decision to deport, the matter with reference to this appellant. It was conceded that it would be open to the Immigration Appeal Tribunal to express their view on the gravity of the appellant's dishonesty. But it was said that their only course was to remit the matter to the Secretary of State and, he having decided it again, there would be, if necessary, a further appeal to the Immigration Appeal Tribunal. Mr Collins emphasised the independent value of that process -- that is, the remission to the Secretary of State, to an individual appellant comprising, as he said it does, the capacity at that stage to make submissions to the Secretary of State. Next in his submissions, and if necessary, Mr Collins contended that the decision in Hubbard was wrong and that the court should accept the argument then made that on its true construction section 18(2) deprives the Secretary of State of the right to rely in the appellate procedure upon any ground on which a decision might be taken save those stated in the notice of decision and that it precludes the Immigration Appeal Tribunal and adjudicator from giving consideration to any other "ground". The argument then proceeded to the effect that the "ground" within the meaning of the subsection was the stated basis upon which the Secretary of State had decided that it was conducive to the public good to deport this appellant -- that is to say, the bigamous marriage and the absence of honest intention to live together permanently. The ground for this purpose, said Mr Collins, was not that deportation was conducive to the public good in support of which, on failure of the first two, a third reason could be found and applied. He invited this court to accept and apply the distinction between grounds and reasons discussed in R v Immigration Appeal Tribunal, ex parte Mehra [1983] Imm AR 156, a decision of Mann J considered by Woolf J at pages 119 to 120 of the report of his decision in Hubbard. For my part I do not accept either of these submissions which I hope that I have fairly summarised. Firstly, I agree with the decision of Woolf J and with the reasons which he gave. Save as mentioned below, I would reserve my view of the comments made by Woolf J on the other cases considered by him -- namely, Mehra, ex parte Tong [1981] Imm AR 214, ex parte Mehmet [1978] Imm AR 46, ex parte Mohammed Akhtar [QBD, 25 June 1982] unreported, and Malik, all of which are referred to in the later stages of his judgment. I make that reservation not because I have any doubts as to the substantial correctness of the comments, but because we have not closely considered every aspect of those cases. The reasoning which led Woolf J to his conclusion applies in my judgment with at least equal force to the appeal in this case which is concerned with an appeal against a decision reached in the exercise of discretion. If the Secretary of State reaches the conclusion that deportation of the appellant is conducive to the public good for reasons (a) and (b) and in his explanatory statement provides, or if there is provided in some other proper way, compelling evidence of reason (c), it is open to the Immigration Appeal Tribunal in my judgment to uphold the decision to deport upon reason (c) if deemed sufficient in all the circumstances even though the Immigration Appeal Tribunal is not satisfied that grounds (a) and (b) are made out. The Immigration Appeal Tribunal must of course, as Woolf J said, ensure that the appellant is treated fairly and given proper opportunity to deal with every aspect of the case. I cannot distinguish the principle which Woolf J thought was applicable in that case on the basis that in this case the decision was made in the exercise of discretion. The appellate bodies are expressly given power to decide whether the discretion involved in the decision under appeal should have been exercised differently and it was in my judgment intended to be open to the Immigration Appeal Tribunal to decide that, notwithstanding their different view of what facts justified the decision, the discretion involved in the decision should not have been exercised differently. As to the flaw said to be detected in the reasoning of Woolf J at page 118 of the report, I am not persuaded that any flaw destructive of the reasoning is shown to exist. I will not attempt to envisage every sort of circumstance which might arise. I do not understand Woolf J to be saying that if the view contended for had been accepted the Tribunal would in every case be required, for example, to grant leave simply because not convinced of the rightness of the ground given for refusing it. But it seems to me that cases could arise in which the point made by Woolf J would be plainly valid. This, in my view, is such a case. If the argument were accepted, then in this case the Immigration Appeal Tribunal would have been required to quash the decision to make a deportation order since the stated reasons for making it had not been made out despite their view on their findings of fact that the discretion to make a decision to deport was properly exercised as conducive to the public good and in accordance with the rules viewed as a whole. It is said that that is of no importance because the Secretary of State could make another decision and order for the new reason. I do not agree. The structure of the appellate procedures is provided to enable the administrative decision of the Secretary of State to be reviewed: see R v Immigration Appeal Tribunal, ex parte Hassanin [1986] 1 WLR 1448, at page 1452, G to H, and the cases there cited. If the decision is not shown to have been unjustified but to have been justified by the facts proved in the process of appellate review, I see no ground for requiring the decision to be quashed in order for the administrative procedure to be started again. As to the point based upon construction of section 18(2) I have no doubt that Woolf J was right in rejecting it. At page 119 of his judgment he said that "section 18(2) is not intended to have the effect Mr Beloff submits. Its purpose is to avoid any dispute as to the basis of the Secretary of State's decision. It does not affect the scope of appeals from the decision." If that be right it is not necessary to consider whether the reference to the bigamous marriage was a ground or a reason and I would not in this case wish to pursue that matter to the point of decision. With that proviso I add only that my inclination is to agree with the view of Woolf J that it is not "right or sensible to draw a distinction between grounds and reasons" for these purposes. Further, if it had been necessary to decide the point I would have preferred the view that the ground in this decision was that of "deportation conducive to the public good" and that the references to the bigamous marriage and lack of intention to live together were reasons or bases for the decision to deport upon that ground. I turn then to the second ground argued by Mr Collins. The Immigration Appeal Tribunal expressed their final decision as follows (I take this at page 10 of Schiemann J's judgment): "'Against our conclusions in that respect'" -- I interject that that is "calculated deception practised by the appellant" -- "'we have to weigh the factors set out in paragraph 156 of HC 169. The appellant is still in his thirties, whatever conflicting date of birth is accepted. At the date of decision he had been in the United Kingdom for some ten years, the first nineteen months without leave. Since the dissolution of the marriage to Margaret Perry, his only family connection with the United Kingdom is his wife, whose immigration status is itself we think, uncertain. He appears to have a share in a house. He is in employment. His personal history and conduct we have examined in detail above, and find nothing therein to weigh in his favour. There are no compassionate circumstances known to the Secretary of State at the date of decision, to be taken into account. At the end of the hearing he brought to our attention, through his counsel, the claim that he is suffering from some serious and rare medical condition: we know not the details, but, being a matter (if true) not known to the Secretary of State at the relevant date, it can play no part in our decision." They then express the final conclusion to which I have already referred. Mr Collins acknowledged that although the reference to the medical condition as a "matter (if true) not known to the Secretary of State" appeared to be a misdirection: see R v Immigration Appeal Tribunal, ex parte Hassanin [1986] 1 WLR 1448 decided in October 1986 -- that is to say, after the decision of the Appeal Tribunal in this case -- no harm had thereby been caused to his client. The contention has been that the Tribunal appears to have forgotten, or failed to attend to, the existence in this country of the wife and if not the wife certainly the two children now aged six and four years respectively, and that this was a matter of cardinal importance to weighing the compassionate circumstances against any public good to be achieved by the deportation of this appellant. Schiemann J, to whose careful and complete judgment I would wish to pay tribute, dealt with the point thus (it starts at page 13 of the judgment). Having stated the second ground of attack, he continued: "In fact, the presence of the wife from Pakistan and the two children born in the United Kingdom could constitute such circumstances" -- that is compassionate circumstances -- "It is clear from the statement of reasons in paragraph 34 that the existence of the wife and child and the imminent birth of another was known to the Secretary of State. However, ground two is not concerned with attacking the Secretary of State's decision. Although the existence of the children is not specifically referred to by the Tribunal, I think it fair to be satisfied that the Tribunbal was advised of their existence because of two matters, to which one might add a third, namely that the applicant was represented before the Tribunal by counsel. "The first two matters are these. The Tribunal had the written statement before it, as the explanatory statement, and indeed referred to it in the course of its decision. Secondly, without objection from Mr Platts-Mills the notes of the Tribunal's chairman were put before me. These contained, against the rubric 156 which is clearly a reference to the criteria in HC 169, paragraph 156, the following: 'Connection -- none . . . wife and childre in UK -- but her position uncertain.' However Mr Platts-Mills" -- who then appeared for the appellant -- "argues, relying on the ground he produced for the first time during this hearing, that the existence of a wife and children constituted compassionate circumstances and, whatever weight it might be appropriate to give them, the Tribunal erred in saying that there were no compassionate circumstances known to the Secretary of State at the date of the decision to be taken into account." Then after reference to the concession by Mr Sankey that of course the wife and children were relevant considerations the judge continued: "That concession was, in my judgment, rightly made. That concession, coupled with the fact that there is no express reference to children in the Tribunal's decision is not, however, in my judgment determinative of this application. Of course the Tribunal had in mind the existence of the wife and children and bore them in mind in coming to a decision whether or not to allow the appeal." The judge gave further reasons for that conclusion but that is the basis of his decision. Mr Collins put before this court the case of Khan [1983] QB 790 and contended that there is a duty in the Immigration Appeal Tribunal to give sufficient reasons to show that they had attended to the issues and the facts relevant to those issues. The actual decision in Khan's case is in my view far from this. In Khan's case the Tribunal had neither made reference to the two elements of an alleged marriage of convenience to be considered, nor showed that it had addressed its mind to the necessity to prove lack of intention to live together permanently. Lord Lane CJ, at page 794G, said this: "A party . . . is entitled to know, either expressly stated by the Tribunal or inferentially stated, what it is to which the Tribunal is addressing its mind." In this case, for the reasons given by Schiemann J, I am confident that the Tribunal was aware of the existence of the wife and children and of their importance as matters of compassionate circumstances and gave proper weight to their importance in reaching their conclusion. I accept of course that counsel does not always deal with every relevant fact. I find it impossible to suppose that this case, touching as it expressly did on compassionate circumstances, can have proceeded without sufficient reference to the presence of those two small children. For these reasons I am not satisfied that any misdirection on the part of the Tribunal is made out, and I accordingly would dismiss this appeal.Judgment Two:
RUSSELL LJ: I agree.Judgment Three:
PURCHAS LJ: I also agree.DISPOSITION:
Appeal dismissedSOLICITORS:
Hafiz & Co; Treasury SolicitorCopyright notice: Crown Copyright
