Kandiya v. Immigration Appeal Tribunal; Khan v. Immigration Appeal Tribunal

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	20 March 1990
Citation / Document Symbol	[1990] Imm AR 377
Cite as	Kandiya v. Immigration Appeal Tribunal; Khan v. Immigration Appeal Tribunal, [1990] Imm AR 377, United Kingdom: Court of Appeal (England and Wales), 20 March 1990, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6224.html [accessed 5 November 2019]
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.

KANDIYA v IMMIGRATION APPEAL TRIBUNAL; KHAN v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (CIVIL DIVISION)

[1990] Imm AR 377

Hearing Date: 20 March 1990

20 March 1990

Index Terms:

Primary purpose -- whether adjudicator has a duty in all cases to make a finding on the intention of the parties to live together -- whether it is usually desirable to do so -- social mores and tradition -- reliance by adjudicator on a tradition acknowledged by both parties to an intended marriage, that normally a wife joined her husband and his family on marriage -- whether adjudicator entitled so to rely without receiving expert evidence -- whether to place reliance on such a tradition observed in Pakistan was discriminatory -- whether a breach of tradition and the reason for the breach were matters relevant to assessing the discharge of the burden of proof as to the primary purpose of an intended marriage. HC 169 paras 41(a), 41(b): Immigration Appeals (Procedure) Rules 1984 r 39.

Held:

Appeals from Simon Brown J and Roch J who had refused applications for judicial review of the refusals of leave to appeal to the Tribunal in two primary purpose cases. Counsel argued that an adjudicator was obliged, before considering the issue of primary purpose, to consider the evidence as to sub-paragraph (b) of the rule, determine whether he was satisfied by it and make a conclusion on that issue: at very least he was obliged to weigh the evidence as to intention, and show his reasons for finding it outweighed by other evidence as to primary purpose. If that were done then, following Mahmud Khan, insufficient reasons would be given in the determination.

In the case of Khan the adjudicator, in assessing whether the burden of proof on the appellant as to his primary purpose, had been discharged, had placed reliance on tradition and custom in Pakistani Muslim society. Counsel argued that he was not entitled to do so without receiving expert evidence and in any event, to rely on such tradition was discriminatory.

Held: 1. In Hoque and Singh the evidential relevance of sub-paragraph (b) of the rule to sub-paragraph (a) had been emphasised. The propositions in Hoqhe and Singh did not demand as a matter of law a specific finding on sub-paragraph (b) before proceeding to consider issues under sub-paragraph (a). In Choudhury the court had already approved the approach adopted at first instance in Kandiya, that in most cases it would be desirable for a finding on sub-paragraph (b) to be made, even when the only issue before an adjudicator turned on sub-paragraph (a).

2. Mahmud Khan was authority only for the proposition that reasons bearing upon the point at issue between the parties had to be given, and the basis of fact upon which the conclusion was reached: ". . . it is not necessary for an adjudicator to isolate every single piece of evidence and to indicate whether or not he finds it relevant to one of the issues raised by the rule. It is sufficient if he indicates that he has taken these matters into account by including them in his determination and . . . indicates the reasoning upon which he has based his conclusion sufficiently to show that he has had in mind any balancing factors in the motivation of the parties."

3. There was no authority for the proposition that an adjudicator could not take into account, without expert evidence, a tradition to which both parties to a match had indicated they adhered.

4. To take account of such a tradition was not discriminatory: it was simply a matter, in those circumstances, by which the adjudicator was able to test the veracity and consistency of the account given by the appellant.

5. Neither adjudicator had, on an examination of the determination, made any error of law.

Cases referred to in the Judgment:

Alexander Machinery (Dudley) Ltd v Crabtree [1974] 1CR 120. R v Immigration Appeal Tribunal ex parte Mahmud Khan [1983] 1QB 790: [1982] Imm AR 134.

R v Immigration Appeal Tribunal ex parte Vinod Bhatia [1985] Imm AR 50. R v Immigration Appeal Tribunal ex parte Arun Kumar [1986] Imm AR 446. Immigration Appeal Tribunal v Amirul Hoque and Matwinder Singh [1988] Imm AR 216.

R v Immigration Appeal Tribunal ex parte Vijay Kumar (unreported, QB D 23 February 1989).

R v Immigration Appeal Tribunal ex parte Mohammed Khatab [1989] Imm AR 313. R v Immigration Appeal Tribunal ex parte Naushad Kandiya [1989] Imm AR 491. R v Immigration Appeal Tribunal ex parte Aurangzeb Khan [1989] Imm AR 546. Mohamed Numanul Choudhury v Immigration Appeal Tribunal [1990] Imm AR 211.

Counsel:

I Macdonald QC and EP Rees for the appellants; J Laws for the respondent

PANEL: The Vice-Chancellor, Taylor, Staughton LJJ

Judgment One:

TAYLOR LJ: These two immigration appeals raise the same point as to the proper approach to rule 41 of House of Commons paper 169 in primary purpose cases and accordingly it was convenient to hear them together. The rule reads as follows, so far as is relevant:

"A man seeking to enter the United Kingdom for marriage to a woman settled here and who intends himself to settle thereafter should not be admitted unless he holds a current entry clearance granted to him for that purpose. An entry clearance will be refused unless the entry clearance officer is satisfied:

(a) that it is not the primary purpose of the intended marriage to obtain admission to the United Kingdom and

(b) that there is an intention that the parties to the marriage should live together permanently as man and wife; and

Where the entry clearance officer is satisfied that all the conditions at (a) to (c) above apply, an entry clearance will, subject to the maintenance and accommodation requirements of this paragraph, be issued provided that the woman is a British citizen."

The first appeal is by Naushad Kandiya against the decision of Simon Brown J dated 25 April 1989, dismissing his application for judicial review of the refusal by the Immigration Appeal Tribunal on 19 February 1988 to grant leave to appeal from the decision of an adjudicator given on 21 October 1987. The adjudicator had dismissed the appellant's appeal against the refusal of entry clearance on 11 November 1986 by an entry clearance officer in Bombay. The appellant had sought entry for marriage and relied upon rule 41 of House of Commons paper 169. The case was referred by the entry clearance officer to the Home Office. Refusal was on the sole amended ground that the Secretary of State was not satisfied in accordance with rule 41(a).

The second appeal is by Aurangzeb Khan against a decision of Roch J given on 22 May 1989, whereby he dismissed the appellant's application for judicial review of decisions by an adjudicator and by the Immigration Appeal Tribunal. On 22 June 1988 the appellant Khan had been refused leave by the Immigration Appeal Tribunal to appeal against the dismissal by an adjudicator on 15 February 1988 of his appeal from a decision of an entry clearance officer. By that decision, given on 20 May 1987 at Islamabad, the appellant had been refused entry clearance. In this, as in the first appeal, reliance was placed upon rule 41 and the ground of refusal was that the entry clearance officer was not satisfied as to sub-paragraph (a) of that rule.

The law relating to rule 41 of HC 169

It was contended before the learned judges in each of these two cases that, following the decision of this court in ex parte Hoque and Singh [1988] Imm AR 216, it was the duty of an adjudicator in a primary purpose case to make a finding as to rule 41(b) before considering the point at issue under rule 41(a) and that in each of these two cases the adjudicator failed to do so.

In ex parte Hoque and Singh Slade LJ set out ten propositions derived from the case law. In doing so he referred not only to rule 41, concerning fiancés, but also rule 54 concerning husbands. The fifth and seventh propositions are set out at page 221 of the report as follows:

"(5) The mere fact that an applicant can satisfy the requirement of rule 41(b) does not by itself suffice to enable him to satisfy the requirement of rule 41(a)."

Then the learned Lord Justice quoted from the judgment of O'Connor LJ in Vinod Bhatia v Immigration Appeal Tribunal [1985] Imm AR 50:

"Just as no one would suggest that (c) is conclusive of (a), so I am clear that (b) is not conclusive of (a).'"

. . .

(7) "However, in the case of both rules 41 and 54," -- and he quotes again from Bhatia "'Paragraphs (b) and (c) spell out matters which will in any event be relevant to the proper consideration of paragraph (a). To that extent an applicant who satisfies the entry clearance officer of the requirement of (b) and (c) is better placed to satisfy him of (a).'"

Then, a passage quoted from ex parte Kumar [1986] Imm AR 446:

"'If that is true of paragraph 41, it must be still more true of paragraph 54, where evidence of intervening devotion to each other will make it easier to satisfy the entry clearance officer that the parties' primary purpose in entering into the marriage was not the extraneous purpose at which sub-paragraph (a) is aimed.'"

Then a quotation from Sir John Donaldson MR in Kumar:

"'Evidence bearing on one question will often cast a flood of light on the other.'"

It is to be noted that those propositions assert the evidential relevance of (b) to (a). They do not demand as a matter of law a specific finding as to (b) before proceeding to (a). In the second of the cases before this court, Roch J, after referring to the decision of Kennedy J in ex parte Kumar (unreported) 23 February 1989, and of Henry J in ex parte Mohammed Khatab (unreported) 2 December 1988, went on as follows at page 9F of the transcript:

"In my judgment, it will be desirable in most cases for the adjudicator to make a specific finding under rule 41(b) as to the intention of the parties to the marriage whether the adjudicator finds that it has been established that the parties intend to live together permanently as man and wife if they do marry. In that respect, I would respectfully follow the approach of Henry J and Kennedy J in the two cases to which I have been referred. But I do not consider that it is inevitable that an adjudicator should refer to that sub-paragraph specifically and make that finding specifically if it is clear from the words that the adjudicator has used that he has turned his mind to that issue."

That passage was approved by this court in Choudhury v Immigration Appeal Tribunal, I believe unreported, decided on 10 November 1989. Dillon LJ, giving the first judgment with which my Lord Staughton LJ and Mann LJ agreed, said this at page 7F of the transcript:

"In my view, to say that it is a requirement of justice that there should be a positive finding as to whether (b) is satisfied when the argument is entirely over (a), is putting it too high. We have been referred to the way in which it has been put by Kennedy J, Simon Brown J and Roch J in various cases decided in the present year. For my part I would endorse the view expressed by Roch J at pages 9 and 10 of his judgment in ex parte Aurangzeb Khan decided on 22 May 1989."

That of course is the judgment in the second case which is the subject of appeal here, and the learned Lord Justice quoted the passage from Roch J's judgment to which I have already referred. He went on at page 8 of the transcript at letter C as follows:

"I pass therefore, rejecting the submission that there is a duty to make a finding on (b), to the submission that there the adjudicator has misdirected himself, as he has considered (a) without considering the evidence which would support a favourable finding on (b), which in turn picks up what Roch J said: Has he turned his mind to the impact of (b) on (a)?"

In effect, therefore, Roch J's judgment, which is the subject of the second appeal before us, has already been approved in its statement of the law by this court.

Mr Macdonald sought at first to persuade us that it was necessary not only for an adjudicator to consider the evidence relating to rule 41(b) before proceeding to 41(a), but that he should determine whether he was satisfied and that he should make a conclusion on it. In the end Mr Macdonald did not persist in that submission. He does maintain, however, that the adjudicator must make it clear in his determination that he has weighed any evidence bearing upon the parties' intentions to live permanently together and show his reasons for finding it outweighed by other evidence of primary purpose. He said that where an adjudicator does not expressly deal with evidence which he has taken into account in dealing with the question of intention to live together permanently, he cannot have made a proper approach under 41(a).

Mr Macdonald relies upon R v Immigration Appeal Tribunal ex parte Khan (Mahmud) [1983] 1 QB 790. At page 794F the Lord Chief Justice said this:

"The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions.

Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason in this. A party appearing before a tribunal 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 some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

Mr Macdonald also points out that under rule 39 of the Immigration Appeal (Procedure) Rules 1984 there is a requirement for reasons to be given. However in my judgment it is important to note that in ex parte Khan (Mahmud) what were said to be required were the resons bearing upon the point at issue between the parties and the basis of fact upon which the conclusion has been reached.

Helpful guidance as to the proper approach to primary purpose is to be found in a well-known passage in the judgment of the Master of the Rolls in ex parte Kumar [1986] Imm AR 446 at 455.

"Any attempt to achieve a delicate and detailed analysis of the motives for the marriage is more likely to obfuscate than enlighten. The motives will often, and perhaps usually, be complex and defy such analysis. Detailed analysis also introduces a 'Catch 22' element. If neither party to the marriage wishes to live in the United Kingdom, cadit quaestio. If, however, the wife is already settled here, is a British citizen and wishes to continue to live here, it is idle for her to marry a man who does not wish to obtain admission to the United Kingdom. Yet it is fatally easy to treat his admission that he does indeed wish to obtain admission in evidence that this is the primary purpose of the marriage. The proper approach is for the entry clearance officer to consider the question as would a jury, that is to say by impression based on the evidence as a whole, rather than on legalistic analysis. Mentally using the language which might be appropriate when directing a jury, he should ask himself, 'What is or was the real, the primary, the basic object of the exercise in this couple agreeing to get or getting married? Was it to live together as man and wife, preferably in the United Kingdom, or was it to enable the fiancé or husband to obtain entry to the United Kingdom, the matrimonial relationship being of subsidiary importance?' 'It is only if the answer is that the matrimonial relationship was or may have been of subsidiary importance that the entry clearance officer will fail to be satisfied that it was not an 'immigration' marriage and will therefore conclude that the requirements of paragraph (a) are not met.'

Those being the principles, it is now necessary to look at the facts of these appeals and to apply the principles to those facts.

Naushad Kandiya:

The appellant is an Indian national who is now 23, but was 19 at the time of the engagement. His fiancée, the sponsor, is seven years older. She came to the United Kingdom in October 1972 when her family were deported from Uganda. She became a British citizen by registration on 23 August 1983. In November 1984 she went to India, partly for a holiday, but partly to find a husband if she could, as she had failed to do so in England. Within three weeks of her arrival and only days of meeting him, a marriage had been arranged with the appellant. An engagement party was held on 9 December 1984. Four days later, on 13 December, the sponsor returned to England. Since then the parties have not met, although they have corresponded.

On 2 June 1985 the appellant applied in Bombay for entry clearance. He was interviewed in January 1986. The sponsor was interviewed in England in June. On 11 November 1986 the application was refused. Before the adjudicator the sponsor gave evidence and the record of the interviews was also considered. The sponsor said she would not live in India, but that the appellant had not realised that until she was on the point of leaving England. She said he tried by letter to persuade her to live in India with him. She produced no letters. Some letters had been produced by the applicant, but they did not throw any light on or confirm in any way that statement from the sponsor.

The Secretary of State had concluded from the age difference, the speed at which the decision to marry was made, the sponsor's refusal to live in India and the economic advantages to the appellant of entering the United Kingdom that he was not satisfied as to rule 41(a). The adjudicator reviewed the evidence of the interviews and that given before him. He noted certain discrepancies and concluded that the sponsor's account of the engagement had been modified because of reservations expressed in the Home Office explanatory statement. He rejected the sponsor's evidence that she had proposed to the appellant. He found that the appellant had exaggerated his earning capacity in India so as to impress the entry clearance officer. He concluded his determination with the following paragraph:

"The appellant asked his uncle to look for a suitable wife for him and the conclusion I draw from the whole of the evidence before me is that the appellant was anxious to improve his standard of living, he knew perfectly well the sponsor came from the United Kingdom and would wish to return, and he very readily agreed to marry her. The facts that she was seven years older then he was and was totally opposed to settling in India, that she did not like his house, or the food, or that he was quite unable to provide her with a car, were all set aside because the matrimonial relationship was of subsidiary importance, the primary purpose of the proposed marriage being to enable the appellant to enter the United Kingdom."

Mr Macdonald contends that the determination as a whole, and particularly that last paragraph, contain insufficient reasoning to show that proper account had been taken of matters pertaining to rule 41(b) and that any intention to live together had not been balanced in a way that could be discerned against any indications that the primary purpose was to gain entry into the United Kingdom. He submits that the final paragraph is inadequate to satisfy the need to show the evidence upon which the decision was based, and its reasoning. In particular he suggests that the adjudicator failed to deal with a number of points which would have been in favour of the appellant. Those are listed in the notice of appeal as follows:

"(a) that the applicant and his sponsor are of the same caste.

(b) that the applicant and his sponsor are related.

(d) that the applicant and sponsor have a common cultural heritage in that the applicant lives in the same area as that from which the sponsor's family originate.

(c) that the fact the applicant and the sponsor correspond regularly and frequently was evidence of mutual devotion (the sponsor's letters were produced to the entry clearance officer).

(f) that the applicant and the sponsor were suitable marriage partners, liked each other and that, as the adjudicator himself found, the sponsor was a pleasant girl.

(g) that the applicant did not obtain a passport for himself for some months after the engagement and did not apply for entry clearance for six months."

In fact, a number of those points, (a), (b), (c), (d), (e) and (g) were all specifically referred to in the course of the adjudicator's determination. It is suggested that he ought to have made specific mention of them in the context of rule 41(b), but in my judgment it is not necessary for an adjudicator to isolate every single piece of evidence and to indicate whether he finds it relevant to one of the issues raised by the rule or not. It is sufficient if he indicates that he has taken these matters into account by including them in his determination and if he indicates the reasoning upon which he has based his conclusion sufficiently to show that he has had in mind any balancing factors in the motivation of the parties.

In the final paragraph, which I have already read, the adjudicator specifically refers to the matrimonial relationship and its importance by saying that it was of subsidiary importance to what he found to be the primary purpose of the proposed marriage, namely to enable the appellant to enter the United Kingdom. Simon Brown J, in dealing with that passage, said this at page 7 of his judgment:

"I take the phrase 'the matrimonial relationship was of subsidiary importance' to predicate that this was proposed to be a genuine marriage followed by the parties living together permanently. But the adjudicator was saying that, nevertheless, he regarded this to be of subsidiary importance because its primary purpose was settlement."

Mr Macdonald submits that it is not open to an adjudicator, even if he is assuming or finds proved that 41(b) is satisfied, to put it on one side and then, as it were, with blinkers on, proceed to consider 41(a). I would accept entirely that submission, but there is no suggestion here in the passages that I have read that the adjudicator has put it aside and assumed blinkers. He has expressly contrasted the purpose relating to the matrimonial relationship with what he found to be the primary purpose and came to the conclusion that the matrimonial relationship aspect was of subsidiary importance, thereby, incidentally, adopting the very words put forward by way of guidance by the Master of the Rolls in the case of Kumar.

In my judgment the adjudicator sufficiently indicated his reasoning and sufficiently indicated that he had taken into account the intentions of the party as to the future of the marriage in reaching his decision. At page 7 of his judgment Simon Brown J said:

"I believe the correct approach to be to consider these adjudications sensibly and realistically in the light of the particular matters in issue, not to require adjudicators in their decision making to follow slavishly some pre-ordained route, let alone to recite routinely as an incantation certain particular assumptions or conclusions which could as well be implied in their decisions."

I would adopt that passage and, applying it to the present case, in my judgment the appeal of Kandiya must fail.

Aurangzeb Khan:

In this case the sponsor, the appellant's fiancée, was born in Pakistan on 18 September 1967. She came to the United Kingdom on 24 June 1980 with her parents and has lived with them in Birmingham. She became a British citizen on 6 August 1981. In November 1983, when she was 16, she returned to Pakistan with her mother to see her grandmother. The visit lasted some seven months until June 1984, when mother and daughter returned to England. It is during that visit that the daughter became engaged to the appellant. Their families came from the same village.

The appellant applied for entry clearance in April 1985. He and his mother were interviewed by an entry clearance officer through an interpreter on 4 August 1986. His application was refused on 4 November 1986. On his appeal, the adjudicator heard oral evidence from the sponsor and her mother. He also had an explanatory statement summarising the interviews of the appellant and his mother of 4 August 1986.

The appellant told the entry clearance officer that the proposal of marriage had come initially from the sponsor herself some two weeks after her arrival back in Pakistan. He also said the sponsor wanted to live in the United Kingdom and had told him she could not live in Pakistan. He wanted to come to the United Kingdom for her sake. He said, "I love her and I want to live with her there". After her return to the United Kingdom in June 1984, he said that they had corresponded monthly. He produced only two letters from the sponsor. He admitted to the entry clearance officer that there was a Pakistani tradition whereby on marriage the wife went to live at the husband's family home. He was going against that because the sponsor had called him and was unwilling to live in Pakistan. When it was put to him that a visa was therefore necessary for the marriage to take place, he agreed.

The evidence of the sponsor and her mother to the adjudicator was at variance with the appellant's account in several respects. The sponsor denied that she had proposed marriage to the appellant. It had been arranged solely by the parents. The adjudicator accepted this and said that it damaged the appellant's credibility. On the other hand the sponsor said that there had been no discussion at all as to where the parties would live. This the adjudicator did not believe. The sponsor asserted that although she would rather live in England she had never told the appellant she could not live in Pakistan, and in fact she would do so if entry clearance were refused.

The adjudicator concluded his determination as follows:

"The appellant appears to think that if entry clearance is not granted then the mariage would not take place, but this is contraverted by the sponsor's evidence, as well as the sponsor's mother, which appears to suggest that the marriage will go ahead whether or not the appellant is granted entry clearance. Whether the sponsor is speaking for herself in this regard, or for herself and the appellant, I do not know.

The burden of proof is on the appellant to satisfy me, on the balance of probability, that it was not the primary purpose of the marriage to obtain settlement in the United Kingdom. I have heard and read evidence which suggests to me that so far as the appellant is concerned the primary purpose of the marriage is settlement in the United Kingdom. I have heard and read very little evidence which would lead me to a contrary conclusion. Thus the appellant has failed to discharge the burden of proof which lies on him to satisfy me that it was not the primary purpose of the intended marriage to obtain settlement in the United Kingdom."

In the penultimate paragraph of that passage the adjudicator clearly did turn his mind to the intention of the parties regarding the future of the marriage. He found there to be a conflict of evidence between them. There was nothing to suggest they had reached agreement about it. Accordingly he concluded, on this and other evidence, that the appellant had not discharged the burden of proof to satisfy him as to rule 41(a). I agree with Roch J that the adjudicator's approach on this issue cannot be faulted.

Mr Macdonald makes two further points on this appeal. First he submits that the adjudicator failed to take into account relevant matters in the appellant's favour: the fact that the match was a suitable one; the fact that there was no rush by the appellant to apply for an entry certificate; that there was an exchange of letters. In particular he relies on two answers in interview given by the appellant which were favourable to his case.

Here, as in the case of Kandiya, the adjudicator did refer to a number of those matters and in my judgment it cannot be put by way of criticism of an adjudicator that he does not itemise every point in the evidence and say how he finds in relation to it. There is no duty on an adjudicator to refer to each piece of evidence, as long as he makes it clear what the evidence was upon which he based his decision and his reasoning and as long as in the context of rule 41(a) he makes it clear that he has taken into consideration the parties' intentions with regard to the future of the marriage. Accordingly, in my judgment there is no merit in this second point made by Mr Macdonald.

His third and final point relates to the tradition referred to in the determination of the adjudicator. That is the tradition by which it is said that in Pakistan upon a marriage the wife goes to the husband's home. The adjudicator said all the parties were aware of the tradition. Mr Macdonald submits that there was before the adjudicator no proper evidence that such a tradition existed at all. When it was pointed out that both the appellant and the sponsor had given evidence to the effect that they recognised the tradition, Mr Macdonald's riposte was that they were not capable of giving evidence of such a tradition, that it could only be proved by an expert. He gave no authority for that proposition and for my part I cannot accept it.

It seems to me that if the two parties are agreed that a tradition exists and both recognise it, then the adjudicator was perfectly entitled to regard that as something which they in the ordinary way would regard as governing their conduct, and accordingly no further evidence was required. But Mr Macdonald goes further and says that it was wrong to consider the question of the tradition because to do so was discriminatory; that to erect a hurdle, as it were, for Pakistanis in this field of litigation which would not apply to others was exercising recial discrimination.

In my judgment, the relevance of the matter of tradition was not in any way discriminatory. It was simply a matter by which the adjudicator was able to test the veracity and consistency of the account given by the appellant. If he himself regarded the tradition as one that would normally bind him, he being respectful of such traditions, the question as to why he was departing from it was clearly a relevant one, simply as a way of testing his motives for adopting a course which involved his coming to this sponsor in England. I can find nothing discriminatory in that approach and accordingly I reject that further point made by Mr Macdonald.

In those circumstances this appeal in my judgment must fail.

Judgment Two:

STAUGHTON LJ: The main question in the appeal of Aurangzeb Khan and the only question in the appeal of Naushad Kandiya is whether the adjudicator in each instance gave adequate reasons for his decision. One turns then to the obligation to give reasons. Quite apart from the Tribunals and Inquiries Act, there are regulations which govern this matter. They are the Immigration Appeals (Procedure) Rules 1984. Rule 39 provides that the adjudicator must set out reasons for his determination in writing. Then the question is, with what degree of detail must the adjudicator set out his reasons?

In the present context we are concerned with what is plainly and only a question of fact, ie whether the primary purpose of the intended marriage was to obtain admission to the United Kingdom. That is concerned with the state of mind of the applicant and also to some extent of the fiancée or fiancé and, if the marriage is an arranged marriage, of the arrangers. Is it sufficient for the adjudicator merely to say, aye or no, what conclusion he reaches on that question of fact? Or should he state the evidence which he has accepted and which supports the conclusion that he has reached? Or must he also state the evidence which he has rejected, or the evidence which would militate against the conclusion which he has reached, together with his reasons for not accepting that evidence or the conclusion to which it points?

The answer, as it seems to me, is primarily to be found in the case of R v Immigration Appeal Tribunal ex parte Khan (Mahmud) [1983] QB 790. There, Lord Lane CJ at 794 quoted from a judgment of Sir John Donaldson in the National Industrial Relations Court in the case of Alexander Machinery (Dudley) Ltd v Crabtree [1974] ICR 120. The passage which is quoted includes this:

"Whilst there can be no appeal from findings of fact, the absence of evidence to support a particular finding is an error of law."

Then Lord Lane CJ himself said at page 794:

That, as it seems to me, imposes two requirements: first, that the tribunal should make plain that it has considered the issue, the issue in this case being what was the primary purpose of the intended marriage. Secondly, the tribunal should indicate the evidence upon which it has come to that conclusion, that is, the evidence which it has accepted and which supports the conclusion which it has come to. There is nothing there as to stating the evidence which it has rejected, or the evidence which would militate against the conclusion which it has come to. That is consistent with the passage quoted from Sir John Donaldson, that it is an error of law to find a fact for which there was no evidence.

So in my judgment the minimum requirement by way of reasons is that stated by the Lord Chief Justice. In so far as the judgment of Dillon LJ in the Choudhury case goes further, I would say that in my view it is dealing with what is desirable or good practice rather than the minimum requirements of law. But it may be that one cannot lay down any inflexible rule on this topic. Here I am quite satisfied in each case that the adjudicator gave sufficient reasons for his conclusions, in the one case that the primary purpose of the marriage was to gain entry to the United Kingdom, and in the other case that he was not satisfied that it was not to gain entry into the United Kingdom. So I regard the reasons given as adequate. There is nothing to show any perversity or irrationality in the decision and indeed, as I understood Mr Macdonald's argument, he did not base his application for judicial review on any ground other than the question of adequate reasons.

In the case of Khan I agree with what has been said by Taylor LJ about the separate point of tradition and the adjudicator's findings in that respect.

Accordingly I too would dismiss these appeals.

Judgment Three:

THE VICE-CHANCELLOR: I agree that both appeals should be dismissed for the reasons given by Taylor LJ. I prefer not to express any concluded view as to the necessary constituents of adequate reasons, since I know from bitter experience the problems that raises. That does not mean to say that I am disagreeing with my Lord on the subject. I prefer to reserve the question till another time when it is essential to a decision.

DISPOSITION:

Appeals dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

TV Edwards and Co, agents for Tyndallwoods, Birmingham; Treasury Solicitor.