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R v. Secretary of State for the Home Department, Ex parte Ullah and Other Applications

QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

[1987] 1 All ER 1025, [1987] 3 WLR 634, [1987] Imm AR 201

Hearing Date: 15, 16 JANUARY 1987

16 January 1987

Index Terms:

Immigration -- British citizen -- Right of abode -- Right to live in United Kingdom 'without let or hindrance' -- Right to live in United Kingdom with spouse -- British citizen marrying Bangladeshi wife in Bangladesh -- Wife having no right of entry into United Kingdom -- Wife arriving in United Kingdom from Bangladesh without entry certificate -- Wife refused entry and having to return to Bangladesh to obtain entry certificate -- Whether right to live in United Kingdom 'without let or hindrance' including right to bring forthwith into United Kingdom wife who required entry certificate -- Whether delay in granting entry certificate to wife infringing husband's right of abode -- Whether requirement that wife return to Bangladesh to obtain entry certificate unreasonable -- Immigration Act 1971, s 1(1).

Held:

The applicants were British citizens married to Bangladeshi wives who arrived in the United Kingdom without entry clearance certificates and were refused entry. The immigration officers' decisions to refuse entry, which were indorsed by the Secretary of State, meant that the wives would be sent back to Bangladesh to obtain entry certificates. The applicants sought judicial review of the Secretary of State's decisions, contending that the applicants' right under s 1(1) of the Immigration Act 1971 to live in the United Kingdom 'without let or hindrance' included the right to live in the United Kingdom with their spouses and that any delay in granting their wives entry clearance infringed that right.

Held -- On the true construction of s 1(1) of the 1971 Act the term 'without let or hindrance' did not confer the right on those having a right of abode in the United Kingdom to bring forthwith to the United Kingdom a wife or relative who herself required leave to enter. Furthermore, the decision of the Secretary of State to send the wives back to Bangladesh to obtain entry certificates rather than arrange for them to be interviewed in the United Kingdom was not irrational, notwithstanding the length of the delay that would be involved, since the Secretary of State had been entitled to take the view, as he had done, that it would be unfair to give priority to those who entered without an entry certificate over those who abided by the rules and took their turn in Bangladesh to obtain a certificate. It followed that the applications would be refused.

R v Secretary of State for the Home Dept, ex p Phansopkar [1975] 3 All ER 497 distinguished.

Notes:

For persons having the right of abode in the United Kingdom, see 4 Halsbury's Laws (4th edn) paras 974--975.

For the control of immigration of wives, see ibid para 976, and for cases on the subject, see 2 Digest (Reissue) 200--202, 1157--1159.

For the Immigration Act 1971, s 1, see 41 Halsbury's Statutes (3rd edn) 16.

Cases referred to in the Judgment:

Brahmbhatt v Chief Immigration Officer, Heathrow Airport, Terminal [1984] Imm AR 202, CA.

Nottingham CC v Secretary of State for the Environment [1986] 1 All ER 199, [1986] AC 240, [1986] 2 WLR 1, HL.

R v Secretary of State for the Home Dept, ex p Akhtar [1975] 3 All ER 1087, [1975] 1 WLR 1717, DC.

R v Secretary of State for the Home Dept, ex p Phansopkar [1975] 3 All ER 497, [1976] QB 606, [1975] 3 WLR 322, DC and CA.

Cases cited in the Judgment:

R v Secretary of State for the Home Dept, ex p Swati [1986] 1 All ER 717, [1986] 1 WLR 477, CA.

Introduction:

Applications for judicial review

R v Secretary of State for the Home Dept, ex p Ullah

Rofath Ullah applied, with the leave of Russell J given on 24 April 1986, for judicial review of the refusal of the Secretary of State for the Home Department to reverse an immigration officer's notice of refusal of leave to enter the United Kingdom, dated 5 October 1985. The relief sought was a declaration that the waiting time in the queue in Bangladesh amounted to a delay in the exercise of a right that the applicant's wife had to come to the United Kingdom as a dependant pursuant to s 1(4) of the Immigration Act 1971. The facts are set out in the judgment.

R v Secretary of State for the Home Dept, ex p Ali

Soifur Rahman Ali applied, with the leave of Nolan J given on 18 August 1986, for judicial review of the refusal by the Secretary of State for the Home Department to reverse an immigration officer's notice of refusal of leave to enter the United Kingdom, dated 4 May 1986. The relief sought was a declaration that the applicant's right to live in the United Kingdom without let or hindrance conferred by s 1(1) of the Immigration Act 1971 included the right to live in the United Kingdom with his spouse and that any delay in the exercise of that right was unlawful. The facts are set out in the judgment.

R v Secretary of State for the Home Dept, ex p Uddin

Foriz Uddin applied, with the leave of Nolan J given on 18 August 1986, for judicial review of the refusal by the Secretary of State for the Home Department to reverse an immigration officer's notice of refusal of leave to enter the United Kingdom, dated 23 November 1985. The relief sought was a declaration that the applicant's right to live in the United Kingdom without let or hindrance conferred by s 1(1) of the Immigration Act 1971 included the right to marry and live in the United Kingdom with his spouse and that any delay in the exercise of that right was unlawful. The facts are set out in the judgment.

Counsel:

Alper Riza for the applicants.

David Pannick for the Secretary of State.

PANEL: TAYLOR J

Judgment One:

These are three applications for judicial review. They have been heard together as they all raise the same points. In each the applicant is a British citizen married to a Bangladeshi wife. In each the wife was refused entry into the United Kingdom since she lacked an entry clearance certificate. The decision challenged in each case is the refusal of the Secretary of State to reverse the immigration officer's refusal.

The facts of the three cases can be stated quite shortly. The first applicant, Rofath Ullah, is 25 years old and was born in Bangladesh. He came to the United Kingdom in 1976 to join his father . He settled here and was registered as a British citizen in 1984. In May 1985 he went back to Bangladesh, where he married Nurjahan Begum on 31 August 1985. She was a Bangladeshi citizen. He returned to the United Kingdom with his wife on 5 October 1985. They had made no application for an entry certificate in Dhaka before coming to the United Kingdom because they knew that there would be a very considerable delay. On arrival the wife was refused leave to enter on the grounds that she had no entry certificate. The assistance of a member of Parliament was enlisted to seek a reversal of that decision, but by a letter of 6 December 1985 the Secretary of State for the Home Department maintained the refusal.

It is accepted in each of these three cases that the process of being interviewed with a view to obtaining an entry certificate in Dhaka at the present time involved something of the order of 13 months' delay. The second applicant is Soifur Rahman Ali. He is 27 years old. He is a British citizen born in the United Kingdom in Coventry of Bangladeshi parents. He has lived here most of his life, but on 13 March 1986 he married Dilara Begum in Bangladesh. On 29 March 1986 he and his wife visited the British High Commission in Dhaka and applied for an entry certificate for the wife to join her husband in England. There are letters from the High Commission indicating that no firm date could be given for an interview. The applicant claims that he had to return to the United Kingdom for business reasons and he was unwilling to endure any lengthy delay before his wife could join him. Accordingly he brought her back with him on 5 April 1986. She was given temporary admission whilst her case was considered, but on 4 May she was refused entry again on the ground that she had no entry clearance certificate. Once again the applicant sought help from a member of Parliament. He also suggested by letter to the authorities that any interview that was necessary in respect of his wife's application for entry clearance might take place in the United Kingdom rather than in Dhaka, but again the Secretary of State turned down the application by letter of 18 June 1986.

The third applicant is Foriz Uddin. He is 20 years old and was born in Bangladesh. He became a registered British citizen on 1 June 1985. He married Ashma Begum, a Bangladeshi citizen, in the United Kingdom on 18 December 1985. She falls to be considered as a fiancaee rather than as a wife in this case because she arrived on 23 November seeking leave to enter so as to marry the applicant. She was refused at that stage as she had no entry clearance,

but she was granted temporary admission. She took advantage of that to marry the applicant and thereafter in this case, as in the other two, the assistance of a member of Parliament was sought to try to overturn the decision of the immigration officer. But by a letter of 14 May 1986 the Secretary of State refused to change the decision. Special reliance was placed in that case on the fact that the applicant's wife was expecting a child imminently at the time that the approach was made to the Secretary of State, but unfortunately that child was stillborn in July 1986.

It is unnecessary to recite the precise terms of the Secretary of State's decision in each case, but the rationale of each can perhaps best be summarised by referring to the letter which was written in the case of Soifur Rahman Ali on 18 June 1986. This paragraph appears in the Secretary of State's letter:

'I attach great importance to the entry clearance requirement as an essential factor in maintaining an effective immigration control which is both firm and fair. It provides not only the opportunity for entry clearance officers to check the entitlement of applicants before they travel but also ensures that all are dealt with in a fair and orderly way. Waiving the requirement would encourage others to travel without entry clearance leading to long delays at ports while the necessary enquiries were undertaken. For these reasons I am prepared to set aside the entry clearance requirement only in exceptional compassionate circumstances.'It is right to say that counsel for the applicants does not suggest in these cases that there are any exceptional compassionate circumstances. It is next convenient to look at the statutory provisions and at the rules which are relevant. First, reference must be made to s 1 of the Immigration Act 1971, which, so far as is relevant, reads as follows:

'(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.

(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act . . .

 

(4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming . . . as dependants of persons lawfully in or entering the United Kingdom . . .'

Section 2(1)(a) of the 1971 Act reads as follows, in the form in which it now stands, having been substituted by s 39 of the British Nationality Act 1981:

'A person is under this Act to have the right of abode in the United Kingdom if--(a) he is a British citizen . . .'Section 3, so far as is relevant, reads as follows:

'(1) Except as otherwise provided by or under this Act, where a person is not a British citizen--(a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act . . .

(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter . . .'

The relevant rules are those laid down in the Statement of Changes in Immigration Rules (HC Paper (1982--83) no 169), as amended by the Statement of Changes in Immigration Rules (HC Paper (1984--85) no 503). Paragraph 4 of HC Paper (1982--83) no 169 deals, inter alia, with the requirements for entry. The last sentence of para 4 reads as follows:

'A person who is neither a British citizen nor a Commonwealth citizen having the right of abode requires leave to enter.'HC Paper (1984--85) no 503, by para 3, substitutes new paragraphs in relation to the obtaining of entry clearance. It is unnecessary for me to read the provisions in full. Paragraph 8 of HC Paper (1984--85) no 503 substitutes new paras 41 to 44 in HC Paper (1982--83) no 169 in respect of fiancaes and deals with requirements before they can be admitted for settlement. Those requirements are that they must hold a current entry clearance granted for the purpose of entry and the entry clearance will be refused unless the officer is satisfied of various matters which I can shortly summarise as saying that the marriage is not a marriage of convenience. Similarly para 10 of HC Paper (1984--85) no 503 substitutes new paragraphs in HC Paper (1982--83) no 169 in respect of spouses which are in similar terms to those in relation to fiancaes. Counsel for the applicants accepts that the wives of these applicants do not have a right of entry to the United Kingdom. They do not have a right of abode themselves, nor does the fact that they are married in each case to a British citizen give them any such right. Under the Immigration Act 1971 as originally enacted they would as Commonwealth citizens married to British citizens have had a right of abode themselves pursuant to s 2(2) as it then was. However, s 39(2) of the British Nationality Act 1981 amended the 1971 Act to remove that right. Now wives and fiancaes of British citizens who are themselves Commonwealth citizens require leave to enter the United Kingdom under s 3(1)(a) of the 1971 Act. They are subject to immigration control and to the rules made in pursuance of ss 1(2) and (4) and 3(2) of the 1971 Act. Counsel for the applicants seeks to meet this problem by basing his case on the rights of the applicant husbands. His principal argument stems from s 1(1) of the 1971 Act. Each of the applicants having a right of abode has a right under that section to live in, come from and go to the United Kingdom without let or hindrance, subject to the exceptions stated. The argument is that if his wife is delayed for months in joining him that constitutes an indirect let or hindrance to the applicant's right. Counsel for the applicants contends that the right to live in the United Kingdom is not confined to a right of physical presence. It includes by implication, he says, the right to live in the United Kingdom normally with one's wife. He goes further and says not only with one's wife, but with one's children and relatives too. Therefore, the delay occasioned by processing entry clearance infringes the husband's right. He recognises that the phrase 'without let or hindrance' in s 1(1) is qualified by the words 'except as may be otherwise lawfully imposed on any person', but he maintains that once the wife is eligible to come any extensive delay in allowing her to do so is not lawfully imposed.

Counsel for the applicants relies on R v Secretary of State for the Home Dept, ex p Phansopkar [1975] 3 All ER 497, [1976] QB 606. There the Court of Appeal ruled that it was unlawful for a wife's certificate of patriality to be delayed without good cause and that a desire by the authorities to be fair to all and avoid queue jumping was not a valid reason for such delay. However, Phansopkar's case was decided when s 2(2) of the 1971 Act still operated to give the patrial's wife a right to come to the United Kingdom. Each member of the Court of Appeal emphasised the difference between one who has a right to come and one who requires leave. Thus, Lord Denning MR said ([1975] 3 All ER 497 at 508, [1976] QB 606 at 622):

'It is only those who have a simple straightforward case for patriality who should get priority . . . because they are entitled as of right and not by leave.'Similarly, Lawton LJ said ([1975] 3 All ER 497 at 508, [1976] QB 606 at 623):

'Such rules as have been made under s 3(2) would not apply to patrials, including wives coming within s 2(2), as they have a right to enter they do not require leave to enter.'The case decided that a wife having a right of abode could not lawfully be delayed in her exercise of it. Here it is common ground that the wives required leave.

The distinction was underlined in the subsequent case of R v Secretary of State for the Home Dept, ex p Akhtar [1975] 3 All ER 1087, [1975] 1 WLR 1717. There the wife was an alien and had therefore no right of abode under s 2(2) even as originally enacted. The court made it clear that the decision in Phansopkar's case did not apply to a person who did not have the right of abode. In my judgment, the argument based on s 1(1) of the 1971 Act in this case is misconceived. However desirable it no doubt is in human terms that husband and wife should live together and should not have to endure long separation, s 1 cannot by implication give the husband a right to have his wife join him forthwith. The Act is concerned to distinguish between different categories of persons for the purposes of immigration. It differentiates between those who have a right of abode and those who require leave. The phrase 'without let or hindrance' in s 1 cannot in my view carry with it the right to bring forthwith a wife or relatives who themselves require leave. If it did there would be no need in s 1(4) to make provision by rules for dependants to come. Moreover, s 2(2), as originally enacted, which gave the Commonwealth wives of British citizens right of abode, would have been otiose. The amendment which replaced it has in any event made it clear that such wives require leave and the meaning of s 1(1) cannot have altered simply because s 2 has been amended. Counsel for the Secretary of State referred me to a decision of the Court of Appeal on similar facts which supports the view that the argument of counsel for the applicant is misconceived. It is Brahmbhatt v Chief Immigration Officer, Heathrow Airport, Terminal [1984] Imm AR 202. In that case Slade LJ said (at 209):

'Though [counsel for the appellant applicant] made some reference to the past history of our immigration laws going back beyond 1971, I confess that it never became completely clear to me upon what grounds he asserted that immediately before the passing of the [British Nationality Act 1981] a wife in the position of the appellant would have had a right to enter this country at common law,apart from the statutory rights given her by section 2(2) of the 1971 Act. If I understood him correctly, he submitted (inter alia) that a woman in this position would have possessed such a right at common law as a by-product of the statutory right of her husband under section 1(1) of the 1971 Act to come into the United Kingdom ''without let or hindrance''. I would, for my part, find great difficulty in accepting any such submission. However, I think it unnecessary to consider further what rights (if any) to enter this country the wife of a person who is now to be termed a British citizen would have enjoyed at common law immediately before the passing of the 1981 Act. For, in my opinion, it is quite clear that such common law right, if indeed it existed, must have been removed by the 1981 Act. In this context, I need do no more than refer to section 3(1)(a) of the 1971 Act, as amended in 1981 . . . which makes it clear that a person who is not a British citizen has no right to enter the United Kingdom ''except as otherwise provided by or under this Act'', unless he is given leave to do so. In other words, whatever may have been the position before the passing of the 1981 Act, the rights of entry of any such person now stem from statute and statute alone. A person such as the appellant can gain a right of entry only by qualifying under the Act and the Rules. This, I think, is the combined effect of sections 1(1), 1(2) and 1(4) and 3(1) and 3(2) of the 1971 Act as amended in 1981.' (Slade LJ's emphasis.)

It is true that the argument in that case was put on the basis that the wife herself acquired a right to come as a by-product of the husband's right to live here without let or hindrance, whereas counsel for the applicants before us simply relies on the husband's right. However, the reasoning is analogous and in my view equally fallacious. Even if there were any merit in the broad submission that 'without let or hindrance' implies a right to have one's wife and family, the exception here in relation to the wife requiring entry clearance is lawfully imposed. It depends on s 3(1) and (2) and the rules made thereunder.

Counsel for the applicants concedes that if his main submission on s 1(1) fails, as I hold it does, he is in difficulty in pursuing his remaining contentions. They are that the delay is unreasonably long and that there is no reason why wives should not be interviewed in the United Kingdom rather than be sent back to Dhaka.

I accept the submission of counsel for the Secretary of State that the Secretary of State's decision is only open to challenge if it could be said to be illegal, irrational or involve a procedural impropriety. Apart from his point on s 1(1) of the 1971 Act, counsel for the applicants does not suggest that this decision was illegal. Nor does he suggest that it involved any procedural impropriety in the sense of denying the applicant a hearing or failing to consult or any of the other manifestations of the phrase 'procedural impropriety'.

What he contends here is that the decision was irrational. The irrationality he relies on is based on the factual background to the delay which has been mentioned. The delay, it is common ground, is due to the large number of applicants and the small number of entry clearance officers. There is no suggestion here of bad faith on the part of the authorities. There is no suggestion that the delay is being deliberately created in order to slow down or bar immigration and there is no suggestion that the Secretary of State has prescribed, as it were, a period of delay in order to postpone the arrival of those eligible to join their spouses.

What is accepted to be the position is that, having regard to the numbers, the period of delay in fact works out currently at about 13 months. Counsel for the applicants says that this could be overcome by appointing more entry clearance officers. Of course, that would involve further expense. Counsel for the Secretary of State relies on the fact that the expenditure is one which would have to be considered by the Secretary of State and that he would be responsible to Parliament for considering what added expenditure would be justified. In those circumstances counsel for the Secretary of State says that the court should be, and habitually has been, slow to interfere with the exercise of discretion by a Secretary of State. He relies further on the dicta in Nottinghamshire CC v Secretary of State for the Environment [1986] 1 All ER 199, [1986] AC 240. That was a rate-capping case and it is perhaps sufficient if I read, from the headnote, the second holding in that case, which is as follows ([1986] AC 240 at 241):

'. . . in the absence of some exceptional circumstances such as bad faith or improper motive on the part of the Secretary of State it was inappropriate for the courts to intervene on the ground of ''unreasonableness'' in a matter of public financial administration that had been one for the political judgment of the Secretary of State and the House of Commons.'So far as the second argument of counsel for the applicants is concerned, namely that interviews could take place in the United Kingdom rather than that the applicant's wives be sent back to Dhaka, a further consideration arises. The Secretary of State takes the view that it would be unfair to allow priority to those who enter in defiance of the requirement of entry certificates being obtained over those who abide by the rules and take their turn back in Bangladesh. In other words, it is the argument of fairness which failed in Phansopkar's case because there it was sought to rely on it where there was a right to come. Here, however, there is no such right. There is an eligibility subject to procedural rules which it is for the Secretary of State to make and place before Parliament and, unless it could be shown that the system was one which was irrational in the sense that it was one which no reasonable Secretary of State could properly arrive at, such challenge as counsel for the applicants makes to it must fail.

In my judgment, both on the question of additional expense in providing further entry clearance officers and in relation to the argument on interviews taking place in the United Kingdom where someone has sought to jump the queue, the approach which has been adopted by the Secretary of State is a reasonable one. One could not possibly say that it was one which was irrational or which no reasonable Secretary of State could have reached.

In those circumstances, the challenge on that basis must fail and, accordingly, these applications must be refused.

DISPOSITION:

Applications refused.

SOLICITORS:

Norton & Coker (for the applicant Ullah); Suriya & Co (for the applicants Ali and Uddin); Treasury Solicitor.

Topics: Arrival,