QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CHAUDHRY ZIA ULLAH||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR A MCCULLOUGH (instructed by The Treasury Solicitor, London, SWIH 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"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."
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 claimant's case, also outside the Immigration Rules, but he reached a decision unfavourable to the claimant.
"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 at Islamabad on 17 October 1993. In February 1994 Miss Basher 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 1.3.94 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 Basher has written several letters to the Home Office withdrawing her support for her husband's continued stay and instigated divorce proceedings in July 1995. She confirmed that she and the subject are cousins."
"Please stop this, it is just a way of getting into this country."
It would not be an exaggeration to describe the tenor of the letter as being somewhat desperate. It was followed by later letters on 6 December 1994, 4 January 1995 and 25 January 1995. Those were written after she and the claimant had separated, when she continued to oppose his application to remain in this country.
"(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."
"Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
"If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a 'mixed' offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude extended thus far might lead to results incompatible with the purpose and object of the Convention. The court therefore has jurisdiction, under Article 6 and even without reference to Articles 17 and 18, to satisfy itself that the disciplinary does not improperly encroach upon the criminal."
Mr Moll submits that the present hearing falls within the ambit of that extended meaning.
"I arrived in the UK on 1 March 1994 and my then wife met me at the airport. We initially lived at Stratford and we shared the same bedroom. Our court marriage was on 6 April 1994, and initially we lived document happily. After a while, however, our marriage bay can to break down because of interference of some of the members of her family. The situation deteriorated to such an extent that I was forced to go and live with my cousin at 73 Boundary Road, Walthamstow."
"(i) My ex-wife never phoned me in February 1994 to state that she no longer supported my entry into this country as her husband.
(ii) We did share the same bedroom in this country and our marriage was consummated.
(iii Indeed it was my wife who insisted that we go through a ceremony of marriage in this country as she felt it was necessary in order to validate the Pakistani ceremony."
That witness statement concludes with the assertion that Zahida Bashir was saying things out of malice. A later witness statement goes to his present circumstances rather than the events in 1993 to 1995.
(1) The lateness on the account upon which the claimant relies. Although he has known the Secretary of State's decision in its original form since 1995, he did not take steps to challenge it or to put forward his present account for about five years.
(2) Zahida Bashir's position was expressed contemporaneously, within days of the issue of the visa.
(3) Her account is consistent, a proposition which Mr McCullough bases on a comparison between what she told Miss Bedson and the letters in 1993 and 1994, and the divorce petition. Even though she has not provided a witness statement in these proceedings, she must have formally asserted the truth of her divorce petition in order to obtain the divorce which was a necessary step to the claimant's subsequent re-marriage. All this is consistent with what she told the immigration officer.
(4) She has, and had, no real motive to lie. Even if the later letters, the divorce petition and the conversation with the immigration officer followed separation and may be said to be afflicted with malice, that assertion is undermined by the letter of October 1993.
(5) On the other hand, the claimant has a motive to lie. The history of his presence in this country shows that he has taken a succession of steps to bring about or prolong his presence in this country, not all of which have been consistent with each other. In this regard I observe that, just after the divorce petition was issued, the claimant applied for asylum in this country which was refused by the Secretary of State and an appeal in respect of the application was subsequently dismissed by an adjudicator. It is apparent from the determination of that adjudicator that what the claimant was saying in support of his asylum application was that his motive for leaving Pakistan and coming to this country was for his own personal safety and "because people were after him". I bear in mind that Zahida Bashir and the claimant did go through a ceremony of marriage a month or so after his arrival in this country and that they did live under the same roof for some eight months.