England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (MAURICE KAY J)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 October 2003

Lord Justice Potter:

Introduction

1. This appeal, for which permission was granted by the full court on 16 July 2003, is from a decision of Maurice Kay J on 19 March 2003 dismissing the application of the claimant for judicial review of a decision of the Chief Immigration Officer made on 29 September 2000. Upon that date the Officer wrote to the claimant's solicitors indicating satisfaction that when the claimant came to this country on 1 March 1994 he had entered the United Kingdom as an illegal immigrant because he had obtained leave to enter as a foreign spouse at a time when he knew, but did not disclose, that his marriage to Zahida Bashir, with whom he had previously gone through a ceremony of marriage in Pakistan, was not genuine and subsisting.
2. The appeal concerns the nature and practical application of the burden of proof which lies upon the Home Secretary in a 'fraudulent entry' case.

The Background Facts

3. The appellant married Zahida Bashir in Pakistan in December 1987. She is and always has been domiciled in the United Kingdom. The appellant is her cousin. She went out to Pakistan for the marriage and lived with him for a period of two months at the home of his parents. She then returned to England where she remained save for a further 2-month visit to Pakistan where again she lived with him in his parents' house. The appellant remained in Pakistan and sought entry clearance as a foreign spouse, but he did not obtain it until October 1993. A visa was issued to him on 17 October 1993. On the following day, 18 October 1993, a letter reached the Home Office from Miss Bashir asking them not to grant her intended husband a visa as she did not like or love him. However, in March 1994, the appellant arrived in this country and was granted 12 months leave to enter as a foreign spouse. On 6 April 1994 the couple went through a second form of marriage in England. The marriage did not survive and, in July 1995, Miss Bashir petitioned for divorce.
4. The appellant was by then an overstayer. Having been divorced, he married Zaida Begum by whom he has subsequently had two children. He was served with notice as an illegal entrant on 1 September 1995.
5. On 14 September 1995 Helen Bedson an Immigration Officer who investigated the position and status of the appellant, having contacted Miss Bashir, reported as follows:

"In October 1993 she had informed the Home Office that she did not support her husband's application for an entry clearance to join her for settlement in the UK, however before this information was received the visa had been issued in Islamabad on 17 October 1993. In February 1994 Miss Bashir had telephoned her husband in Pakistan and told him she was not prepared to live with him and he should not come to the UK. However, he arrived in the UK on 1.03.94 and was granted leave to enter for 12 months … The couple had lived at her family home, but had not shared the same bedroom and the marriage had never been consummated. Miss Bashir has written several letters to the Home Office withdrawing her support for husband's continued stay and instigated divorce proceedings in July 1995. She confirmed that she and the subject are cousins."

6. The report also disclosed that Miss Bedson had interviewed the claimant under caution in September 1995. He had stated that, after he had obtained his entry clearance, he had received letters and telephone calls from his wife asking him to come to the United Kingdom. However, due to the ill health of his father he had been unable to travel. There is no indication in the report that the appellant was informed of, or asked to comment on, the assertion of Ms Bashir that, in February 1994 or at any time before he came to the United Kingdom, the appellant was told by Ms Bashir that she was not prepared to live with him or that the marriage was over. The report went on to state that Miss Bedson had concluded that the claimant had obtained his entry clearance by deception and gave her reasons for that conclusion as follows:

"The subject had obtained his entry clearance as the spouse of a British citizen. He had been informed by his wife prior to his entry to the UK, that she did not intend to live permanently with him and the marriage would not be subsisting. [The appellant] had failed to inform the Entry Clearance Officer of the change in his circumstances since the issue of his visa which I considered would have rendered it ineffective. On arrival in the UK he had not disclosed to the Immigration Officer the true position regarding his marriage thereby constituting an offence under Section 26(1)(c) of the Immigration Act 1971."

7. At the time that report was written, there were upon the Home Office file, not only the letter of 18 October 1993, but further letters from Miss Bashir dated 6 December 1994, 4 January 1995 and 25 January 1995. The letter of 18 October, to which I have already referred (see paragraph 3 above), asked the Home Office not to grant a visa to the appellant saying that she did not like or love him and that she was distressed and upset with the whole situation. She had heard that he was going to Islamabad to get a visa and added:

"Please stop this, it is just a way of getting into this country."

The subsequent letters were written after she and the claimant had separated and she continued to oppose his application to remain in the country. It is right to note that none of the letters written by Ms Bashir, nor the fact of their communication, were known to the appellant at the time they were sent, or until shortly before the proceedings for judicial review.

8. The divorce petition which Miss Bashir issued in July 1995 claimed dissolution of the English marriage and made no mention of the earlier marriage in Pakistan. Nor did it state that the marriage had not been consummated. The claim for divorce was based on an allegation of unreasonable behaviour, the particulars being expressed as follows:

"(a) Following the marriage the parties have enjoyed no form of married life together. The parties resided in the Petitioner's brother's house and the Respondent made no attempt to communicate with the Petitioner or form any married life with her.

(b) Approximately eight months after the marriage the Respondent left the Petitioner's brother's house and went to live in Walthamstow. The Respondent has made no attempt to contact the Petitioner.

(c) The Petitioner believes that the Respondent married her in order to be able to stay in the UK having come from Pakistan approximately one month before the marriage."

9. Having been divorced by Ms Bashir and following his marriage to Zaida Begum, in November 1997 the appellant sought leave to remain in this country on the basis of that marriage. Leave was refused, the refusal being explained in a letter from the Immigration and Nationality Directorate dated 4 February 2000 which stated:

"As you know, your client is considered to have entered the United Kingdom unlawfully, and on 1 September 1995 your client was served with notice to an illegal entrant. This notice advised your client of his liability to detention and summary removal from the United Kingdom as an illegal entrant, as defined in section 33(1) of the Immigration Act 1971."

10. The letter went on to point out that illegal entrants have no entitlement to make applications for leave to remain here under the Immigration Rules. However the official concerned went on to consider the appellant's case outside the Immigration Rules and reached a decision unfavourable to the claimant. Following further representations from the appellant's solicitor, that position was maintained in a Home Office letter dated 29 September 2000, whereby the Secretary of State refused to reconsider his decision of 1 September 1995 to treat the appellant as an illegal immigrant.
11. In 2001 the appellant made an application for permission to apply for judicial review of that further decision, which was heard by Richards J on a contested application following refusal of permission by Silber J on consideration of the papers. The contested application was refused on the grounds of delay.
12. On 21 November 2001, Lord Justice Schiemann granted permission to appeal the decision of Richards J and remitted the matter to the High Court. After substantial further delay, the case eventually came before Maurice Kay J on 19 March 2003.
13. It was not in dispute that the appellant and Zahida Bashir had been married in Pakistan. The particular issues which went to the heart of the Secretary of State's case as to fraud by the appellant at the time of his entry to the United Kingdom were (a) whether the marriage had been consummated and (b) whether or not, prior to the obtaining of his visa (and subsequent entry), Ms Bashir had, as she asserted, telephoned him to tell him that she was not prepared to live with him. (It was not suggested that she had ever so informed him on any other occasion or by other means.)
14. A week before the hearing, the appellant made application to Elias J for an order that the Secretary of State obtain and disclose a witness statement from Zahida Bashir and that she attend before the court for cross-examination at the hearing. That application was refused, the Secretary of State having taken the point that there was no power in the court to require him to produce evidence in a particular form or from a particular witness, and having indicated that he stood upon the report of the Immigration Officer (now affirmed by a witness statement), together with the letters mentioned at paragraph 7 above, as the evidence to be relied on at the hearing. He also pointed out that the application was made at a late stage and in respect of evidence as to events which had taken place and information which had been supplied to the Immigration Officer over seven years before.

The judge's decision

15. At the hearing before Maurice Kay J, at the invitation of both parties, the judge approached the matter as if he were dealing with it at first instance, the principal question being whether the burden of proof resting upon the Secretary of State to establish that entry had been obtained by fraud had been discharged to the requisite standard.
16. There was also a challenge by the appellant as to the fairness of the judicial review proceedings by reference to Article 6 of the European Convention on Human Rights (ECHR) on the basis that the appellant was in effect charged with a criminal offence, but that under Article 6(3)(d) he was deprived of the opportunity to examine or have examined witnesses against him, in that Zahida Bashir had supplied no witness statement (whether sworn, attested or otherwise); nor was she proffered or available for cross-examination. It was argued in the alternative that the appellant's right to a fair trial in a civil case by reference to Article 6(1) and/or at common law was breached for similar reasons, particularly bearing in mind the allegation of fraud.
17. The judge held, first, that the instant proceedings were not criminal in their nature, as to which this court refused permission to appeal. Second, he held that the judicial review proceedings did not involve breach of the appellant's Article 6(1) or common law rights. Having summarised the opposing submissions on each side, he said:

"I do not consider that the fairness of these proceedings is undermined by the lack of a witness statement from, or the absence from the witness box of, Zahida Bashir. Although the court has a discretion to permit or even require cross-examination, it is in general exceptional in judicial review proceedings, even in the context of cases involving questions of precedent fact. Accordingly, in my judgment, this first ground of challenge fails."

18. Finally, the judge held that the Secretary of State had satisfied the burden and standard of proof laid down in Khawaja v Secretary of State for the Home Department [1984] AC 74 ("a high degree of probability"). He said:

"21. … Has the Secretary of State established that the claimant entered this country illegally? In my judgment he has. I attach particular significance to the letter of October 1993, which was virtually contemporaneous with the grant of the visa, and also to the divorce petition which Zahida Bashir did not know would be produced outside the context in which it was issued. It was not she who caused it to be produced in these proceedings. The claimant's account to the immigration officer does not live easily with those documents.

22. The material read as a whole leads me to conclude that the claimant obtained leave to enter by representing his marriage to Zahida Bashir as valid and subsisting, whereas the true position, as he must have known, was otherwise. Notwithstanding the period of co-habitation in this country, and the ceremony of marriage, I do not believe that they ever really lived together as man and wife in this country.

23. In all those circumstances, I am satisfied that the Secretary of State has discharged the burden to the requisite standard and in those circumstances this application for judicial review must fail."

The issues

19. As indicated by the court when granting the application for permission to appeal, and as argued before us, the issues in this appeal are as follows:

"(1) Whether the appellant's case involved "the determination of his civil rights and obligations" under Article 6.1 of the ECHR.

(2) If not, whether the appellant was nonetheless entitled to all the benefits of the right to a fair trial under that article in relation to the judge's decision under ordinary common law considerations of fairness.

(3) Whether, in that context, he was entitled to a witness statement (as opposed to a hearsay statement) from the person whose evidence alleged deception and/or to cross-examine that witness.

(4) Whether the judge was wrong to hold that the Secretary of State had proved his case in the light of the evidential value of the evidence produced and/or whether, given the form of proof that was adopted, the appellant had a fair opportunity to rebut or otherwise deal with it."

(1) The Case under Article 6

20. By s.2 of the Human Rights Act 1998, domestic courts and tribunals must take into account the case law of the European Court and Commission when determining a question which has arisen in connection with a convention right. The European Commission of Human Rights has consistently held that proceedings relating to the entry, stay or deportation of aliens do not involve the determination of civil rights or obligations for the purposes of Article 6 and this approach was followed by the European Court of Human Rights in Maaouia v France (2001) 33 EHRR 1037, see paragraphs 34-38. The appellant has not suggested that there is any decision to the contrary. Since it seems clear to me that the judicial review proceedings in this case related in substance to the entry, stay or deportation of a person (the appellant) who is not a national or citizen of the United Kingdom, it is clear in my view that Article 6(1) is inapplicable.

(2) Fairness at common law

21. However, that is probably academic in this case because, as is plain from the case of Khawaja and as a matter of common law, the appellant was entitled to a fair hearing of the judicial review proceedings. Just as under Article 6(1), the essential question is whether the proceedings as a whole are fair (see, for example, Schenk v Switzerland 13 EHRR 242), so the same question must be asked and answered under the common law having regard to the context and nature of the proceedings and the issue before the court. In this case the issue was whether or not the appellant had obtained entry to this country by fraud when he represented to the Immigration Officer on entry that his marriage in Pakistan to Zahida Bashir was a valid and subsisting marriage.
22. As to the burden and method of proof in such cases, as observed by Lord Templeman in Khawaja at 128C:

" … the burden of proving that leave to enter was obtained by fraud and that consequently the entrant is an illegal entrant liable to arrest and expulsion can only be discharged by the Immigration Authorities manifesting to the satisfaction of the court a high degree of probability."

See also per Lord Bridge at 124C-F and per Lord Scarman at 113H – 114A.

23. Lord Templeman added that:

"It does not follow that the court must disregard written statements by witnesses who are not available for cross-examination or documents which are not supported by direct written or oral evidence as to the circumstances in which they came into existence."

To similar effect, Lord Scarman observed at p.124G-125B:

"I understand all your Lordships to be agreed that nothing said in the present case should be construed as a charter to alleged illegal entrants who challenge their detention and proposed removal to demand the attendance of deponents to affidavits for cross-examination. Whether to permit cross-examination will remain a matter for the court in its discretion to decide … If the alleged illegal entrant … files an affidavit putting in issue the primary facts alleged against him he will himself be readily available for cross-examination, which should enable the court in the great majority of cases to decide whether or not he is a witness of truth."

24. In the present case, it is common ground that the burden was on the Secretary of State to produce evidence which justified the conclusion that the appellant was an illegal entrant. Leaving aside for a moment the form of the evidence and the weight to be given to it, there can be no question in my opinion that the proceedings before the judge were other than fairly conducted. The appellant had access to all the material put before the court and the benefit of legal representation to challenge that evidence. His representatives also had, and availed themselves of the opportunity to make detailed submissions as to why the evidence tendered should not be accepted and/or be considered insufficient as justifying the conclusion of the Secretary of State that the appellant was an illegal entrant. Further the appellant had an opportunity to make an application to cross-examine Ms Bashir. When that opportunity was taken, upon application before Elias J it was unsuccessful. However, there was no appeal from or challenge to the decision of Elias J.
25. Thus, at the substantive hearing the appellant's case was simply that, in the absence of a witness statement and the availability for cross-examination of Ms Bashir and, in the light of Article 6, the court should not permit the Secretary of State to "run his case" at the full hearing, alternatively that the claim for judicial review should be allowed, on the basis that the Secretary of State, in the face of the clear denials of the appellant in a formal witness statement, had failed to produce evidence of a quality to justify his decision.

(3) Entitlement to a witness statement

26. The suggestion that in some way the Secretary of State could be precluded from advancing his case in the absence of a witness statement from Ms Bashir was plainly doomed to failure. So far as the Secretary of State's original decision was concerned, it was based primarily upon the interview with her and, in particular, her assertion as to the content of the February 1994 telephone call which she said she had made to the appellant before his departure for the United Kingdom. That cannot be said to be evidence which was such as the authorities should not have relied on. Nor can it be said that the assertion of Ms Bashir was not admissible before the judge. First it was admissible as part, and indeed the essential part, of the material underlying the decision subject to review. Second, it was evidence (albeit hearsay in form) to which the judge was entitled to have regard for the purpose of forming his own conclusion as to precedent fact as to whether or not the appellant was an illegal entrant. The question of the weight to be attached to it in that regard was, however, a different matter.

(4) Was the burden of proof satisfied?

27. Prior to the decision in Khawaja the position was as stated in R v Secretary of State for the Home Department, ex parte Zamir [1980] AC 930 per Lord Wilberforce at p.949a–d i.e. that the Divisional Court:

"… cannot possibly act as, in effect, a Court of Appeal as to the facts on which the Immigration Officer decided. What it is able to do, and this is the limit of its powers, is to see whether there was evidence on which the Immigration Officer, acting reasonably, could decide as he did."

28. However, in Khawaja, exceptionally in the realm of judicial review, this position was overturned in the field of immigration in relation to a question whether an applicant is or is not an illegal entrant. In such a case the court must itself decide whether the evidence relied on by the Secretary of State is sufficient to resolve the question of precedent fact against the applicant. In effecting that change in Khawaja, however, their Lordships contemplated that the relevant evidence in relation to such matters would normally be given upon affidavit, subject to cross-examination at the discretion of the court. While observations were made discouraging of attempts by applicants to insist on cross-examination of deponents to affidavits on behalf of the Secretary of State, Lord Scarman and Lord Templeman emphasised the need for the court to consider the explanations of the applicant (and any of his witnesses), referring to the opportunity available to the court to judge the reliability of the entrant's explanations under cross-examination where appropriate: see paras 22 and 23 above.
29. In this case, the judge had no such opportunity. Acknowledging that the essential question was whether, at the time of his entry to the United Kingdom, the appellant's Pakistan marriage was no longer valid and subsisting "as he must have known" the judge continued:

"Notwithstanding the period of co-habitation in this country and the ceremony of marriage [in England], I do not believe they ever really lived together as man and wife in this country."

see para 22 of the judgment quoted at para 18 above.

30. However, that was not the essential issue. The essential issue was whether or not, at the time of his entry, despite the existence of the Pakistan marriage, its consummation (as the appellant asserted) and two periods of co-habitation in Pakistan, the appellant nonetheless knew or believed that his marriage was not valid and subsisting. In that respect, all hung upon the hearsay and untested assertion of Ms Bashir that she had made a single telephone call to him in Pakistan telling him that she was not prepared to live with him, a fact which the appellant stated to be untrue in his witness statement.
31. The judge preferred the version of Ms Bashir, principally upon the basis that her position was expressed contemporaneously to the Home Office within days of the issue of the visa and that the subsequent documents were consistent with her case, whereas the appellant had a motive to lie. The judge stated that he attached particular significance to the letter to the Home Office of October 1993 which was virtually contemporaneous with the grant of a visa in Pakistan, and also to the divorce petition which Ms Bashir did not know would be produced outside the context in which it was issued.
32. Those were of course matters which the judge was entitled to take into account in deciding which overall version of events was likely to be true. However, as already indicated, the matter rested on the existence and content of the telephone call prior to issue of the visa and whether, as a result of what was said, the appellant was aware that his marriage was no longer valid and subsisting. Apart from that call, it was not suggested that Ms Bashir had ever indicated to the appellant, or indeed that he had any indication prior to his arrival in the United Kingdom, that she did not wish, or would not be prepared, to live with him as man and wife. The judge does not appear to have had regard to the possibility that, as the appellant asserted, the stance of Ms Bashir towards him was one of willingness that he should come, albeit that (unknown to him) she wrote to the Home Office in the terms she did.
33. In all the circumstances, as it seems to me, but for Ms Bashir's assertion as to the telephone call, the picture was consistent with an arranged, but valid and consummated, marriage in Pakistan which the appellant had reason to believe was subsisting, albeit Ms Bashir herself had reservations and was hoping that the appellant would not obtain a visa. Furthermore, there was a total absence of explanation from Ms Bashir as to why, if the marriage was indeed at an end in 1994, the second ceremony of marriage took place in England. It was the uncontradicted evidence of the appellant that it was Ms Bashir who wished for a repeated ceremony as she felt it was necessary in order to validate the Pakistani ceremony. Nor did Ms Bashir assert a forced or pressurised marriage. Apart from the statement in her petition for divorce that before the 'breakdown' of the marriage the parties "enjoyed no form of married life together", there was no evidence to contradict the account of the appellant that the couple had shared a bedroom in England and that the marriage was happy until it broke down because of interference by Ms Bashir's family.
34. All that being so, and bearing in mind the level of proof required in cases of this kind, I do not consider that the material before the judge was of sufficient weight for him to be satisfied as to Ms Bashir's version of events and, in particular, that she had, by a single telephone call to the appellant in Pakistan, made clear her position and attitude to the extent that the appellant "must have known" that the Pakistan marriage was no longer valid and subsisting.
35. This was not a case where the judge had the advantage of hearing oral evidence from the protagonists, or the opportunity thus to form a view as to who was the witness of credit as to the essential issues. He reached his conclusion upon the documents before him, all of which (save for the divorce petition) were the same as those relied on by the Secretary of State. In such a case, this court is in as good a position as the judge to reach a conclusion as to whether or not the burden of proof lying upon the Secretary of State was discharged. I do not consider that it was.
36. Accordingly, I would allow the appeal.

Lord Justice Tuckey:

37. I agree that this appeal should be allowed for the reasons given in both judgments.

Lord Justice Thorpe:

38. I agree that this appeal must be allowed for the reasons given by my lord, Potter LJ, whose judgment I have had the advantage of reading in draft.
39. Insofar as there is a case of fraudulent entry for the appellant to answer it rests specifically on:

i) Three letters from his former wife to the Home Office

ii) The contents of her petition for divorce filed on 28 July 1995

iii) The note of her interview on 14 September 1995.

40. The letters in question were an undated letter received by the Home Office on 18 October 1993, a letter of 6 December 1994, and a repeat in identical terms dated 4 January 1995. (There is a fourth letter dated 25 January 1995 which can be disregarded since it merely answers an apparent query dated 17 January 1995 from the Home Office.)
41. In his judgment of 19 March 2003 Mr Justice Maurice Kay records, and apparently accepts, the following submission on behalf of the Secretary of State:

"(Zahida Bashir's) account is consistent, a proposition which Mr McCullough bases on a comparison between what she told Miss Bedson (the immigration officer) and the letters in 1993 and 1994, and the divorce petition."

42. That is not a proposition which I can accept. I will comment on these three pieces of evidence in their chronological order.
43. The letter received by the Home Office on 18 October 1993 suggests that Mr Ullah was seeking a visa as the writer's betrothed in order to enter this country in preparation for a marriage ceremony. This is a serious misrepresentation. The reality was that the parties had married in Pakistan in 1987 and the writer had subsequently supported Mr Ullah's three applications for entry clearance as a foreign husband.
44. The letter to the Home Office dated 6 December 1994 accords with the case pleaded in the subsequently filed petition in that it was written precisely eight months after the English marriage ceremony. The obvious implication of the letter is that a pre-existing state of cohabitation as husband and wife had broken down and would not be restored by reconciliation. What is obviously open to question is the writer's motivation.
45. The divorce petition is open to the same criticism as the first letter. It conceals the Pakistan marriage. The status of marriage between Mr Ullah and Zahida Bashir was achieved by the 1987 marriage. It is that marriage that the petitioner should have pleaded and petitioned to dissolve.
46. The interview on 14 September 1995 is opaque but it certainly suggests that the writer understood that Mr Ullah and Zahida had been married in Pakistan: for instance this sentence, 'he had been informed by his wife prior to his entry to the UK, that she did not intend to live permanently with him and the marriage would not be subsisting'. That passage is obviously inconsistent with the letter received by the Home Office on 18 October 1993. Furthermore Zahida's account of the relationship after Mr Ullah's arrival in the United Kingdom is not entirely consistent with her petition. For to the immigration officer she makes the fundamental assertion that the marriage had never been consummated. If that were the reality her natural remedy would have been nullity rather than divorce.
47. As this review demonstrates it is impossible to extract a consistent story from these scraps of evidence. Any statement from Zahida Bashir would be vulnerable to cross examination on the grounds of contradiction or inconsistency with the letters, and/or her divorce petition and/or her interview with the immigration officer.
48. The judge concluded that Mr Ullah 'obtained leave to enter by representing his marriage to Zahida Bashir as valid and subsisting, whereas the true position, as he must have known, was otherwise'. (My emphasis added) The conclusion must rest upon the single sentence in the immigration officer's report:

"In February 1994 Miss Bashir had telephoned her husband in Pakistan and told him she was not prepared to live with him and he should not come to the UK."

49. Even if that assertion could be said to be consistent with the thrust of the letter received by the Home Office on 18 October 1993, the absence of any direct evidence from Zahida Bashir and the many doubts and questions that arise from the scattered scraps of her evidence lead me to the firm conclusion that the Secretary of State failed to discharge the burden of proving, to the requisite elevated standard, that Mr Ullah had achieved entry to the United Kingdom by deception. The context of all the available evidence is the relationship between two former spouses as it was almost a decade ago. Any investigation of an intimate relationship at a distant date is notoriously difficult even on oral evidence from each. Without oral evidence from either, without a written statement from one, conclusions as to what either said, did or felt would in my judgment be inherently dangerous.
Order: Appeal allowed, Respondent do pay Appellant's costs of the appeal both her and below. (Order does not form part of the approved judgment)