Ullah, R (on the application of) v Secretary of State for the Home Department

1. MR JUSTICE MAURICE KAY: In this application for judicial review, the claim form takes issue with a decision of the Chief Immigration Officer made on 29 September 2000. On that date the Officer wrote to the claimant's solicitors indicating satisfaction that on the date when the claimant had entered the United Kingdom he was an illegal entrant.

2. The origins of the case go back to 1994. The claimant came to this country on 1 March 1994. About five weeks later, he married Zahida Bashir, a woman with whom he had previously gone through a ceremony of marriage in Pakistan. That marriage did not survive. She petitioned for divorce in July 1995. Soon after the immigration authorities concluded that the claimant had been an illegal entrant because he had obtained leave to enter as a foreign spouse at a time when he knew, but did not disclose, that the marriage was not genuine and subsisting.

3. In due course the claimant married again in this country. That is a genuine and subsisting marriage. The claimant and his present wife have children and a home and he is employed in this country. In November 1997 he sought leave to remain in this country on the basis of his present marriage. That leave was refused. The refusal is explained in a letter from the Immigration and Nationality Directorate dated 4 February 2000. It states:

"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.

4. I refer to these matters at the commencement of this judgment because, whilst it is a case which is in form concerned with the challenge to a decision made on 29 September 2000, the categorisation by the Immigration Authorities of the claimant as an illegal entrant goes back to September 1995. When Richards J refused permission to apply for judicial review on 10 April 2001, he did so principally on the basis of delay. However, Schiemann LJ subsequently granted permission and remitted the matter to the Administrative Court for hearing.

5. As in any case where there is a challenge to a decision to the effect that a person is an illegal entrant within the meaning of the Immigration Act 1971, it is necessary to keep in mind the legal framework. In this case the illegality is said to flow from section 26(1)(c) of the 1971 Act on the basis that the claimant deceived the Entry Clearance Officer by falsely representing his marriage to Zahida Bashir to be genuine and subsisting. Following the case of Khawaja v Secretary of State for the Home Department [1994] AC 74, it is common ground that in these proceedings the burden is upon the Secretary of State to establish to a high degree of probability that the claimant is an illegal entrant. The challenge is put on two alternative bases. The first relates to procedural fairness, not in relation to any decision of an immigration officer but in relation to this application for judicial review. It is founded on Article 6 of the European Convention on Human Rights. The second is to the effect that the Secretary of State has not discharged the burden of proof to the requisite standard.

6. I turn, first, to consider the fairness of these proceedings, particularly by reference to Article 6. This ground of challenge is based on a criticism of the material which is before the court. This includes the report of the Immigration Officer, Ellen Bedson, dated 14 September 1995 which was instrumental in bringing about the decision that the claimant was an illegal entrant. The report discloses that Miss Bedson had contacted Zahida Bashir who told her that:

"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."

7. Miss Bedson's report also discloses that she had interviewed the claimant under caution in September 1995. His account had been 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 as soon as possible. The report goes on to describe how Miss Bedson had concluded that the claimant had obtained his entry clearance by deception and gave her reasons for that conclusion.

8. The second category of material before the court was in the form of copy letters written by Zahida Bashir to the Home Office. I apprehend that these are at least some of the documents referred to by Miss Bedson in her report. The letter of the greatest potential significance was received by the Home Office on 18 October 1993. That date may be of considerable significance because it was the day after the entry clearance visa was issued in Islamabad. In the letter Miss Bashir begged the Home Office not to grant the visa to the claimant. She said 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. She added:

"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.

9. The third item of documentation of potential significance is the divorce petition which Miss Bashir issued in the Bow County Court in July 1995. It was based on an allegation of unreasonable behaviour, the particulars of which were expressed in this form:

"(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."

10. The Secretary of State is seeking to rely on that material to establish that the claimant deceived the Entry Clearance Officer. There is no witness statement from Zahida Bashir. It is apparent that about week ago an application was made in this court to Elias J whereby the claimant sought an order that the Secretary of State obtain and disclose a witness statement from Zahida Bashir and for her to attend court today for cross-examination. That application was refused.

11. On behalf of the claimant Mr Moll submits that to permit the Secretary of State to run his case in this court on the basis of the material which I have described, and in the absence of a witness statement from Zahida Bashir and preferably cross-examination of her, contravenes the claimant's rights under Article 6(3)(d) of the ECHR, because it is implicit in the Secretary of State's case that the claimant committed an offence under section 26(1)(c) of the Immigration Act. In effect he stands charged with a criminal offence and has already experienced a deprivation of liberty in respect of it when he was detained for three weeks in May 2000.

12. Although the claimant was never prosecuted for an offence under section 26(1)(c), the words "charged with a criminal offence" under Article 6(3)(d) have a special meaning. Article 6(3) provides:

"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."

13. It is common ground that the special and extended meaning of the words "charged with a criminal offence" is that laid down by the European Court of Human Rights in Engel & Ors v The Netherlands 1 EHRR 647. In that case Engel and others were conscript soldiers in the Netherlands' armed forces. They had had various penalties imposed upon them for offences against military discipline. Mr Moll draws attention to paragraph 81 of the judgment of the court and in particular this passage:

"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.

14. On behalf of the Secretary of State Mr McCullough takes issue with this analysis. He acknowledges Engel and its concern with three relevant criteria: (i) the classification of the proceedings; (ii) the nature of the offence; and (iii) the severity of any penalty. He submits that in the application those criteria to the present case do not bring it within article 6(3)(d). I wholly agree with that submission. The present proceedings are not criminal in their nature, they are in the form of an application for judicial review. Although the criminal offence of entering by deception is identical in composition to the concept of illegal entry in the present context, it is not its existence as a criminal offence which is under examination here. Most importantly, this case is not concerned with any punishment or penalty in the Engel sense. Any detention or interference with liberty is based on the requirements of administration and enforcement of immigration control and not with punishment for an offence (see R (on the application of West) v The Parole Board [2003] 1 WLR 705). In my judgment Article 6(3)(d) does not apply to the present proceedings.

15. Mr Moll also seeks to rely on the right to a fair trial in a civil case by reference to Article 6(1) and/or at common law. 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.

16. I, therefore, turn to the alternative way in which Mr Moll puts his case by reference to the evidence and material that is before the court. The case for the claimant is that he has provided evidence in the form of witness statements to which I should briefly refer. His first witness statement is made on 19 March 2001. He described his marriage to Zahida Bashir in Pakistan on 16 December 1987, and the subsequent cohabitation in Pakistan "for a period of two months and during this time the marriage was consummated".

17. He then refers to his visa applications which were initially refused before the eventual successful application. He states that Zahida Bashir supported his appeals against the refusal of entry clearance and he refers to the eventual success. The statement continues:

"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."

18. He then addresses the report of Miss Bedson and states:

"(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.

19. In the face of that evidence, Mr Moll suggests that the case for the Secretary of State relies wholly on documentary hearsay. There is no witness statement from Miss Bashir and no explanation for the absence of one. The material upon which the Secretary of State is seeking to prove his case to a high degree of probability is unimpressive and insufficient.

20. In answer to that, Mr McCullough relies on the following:

(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.

21. Bearing in mind the burden and standard of proof to which I have referred, the question therefore is: 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 cohabitation 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.

24. MR MOLL: I have two applications. First, would your Lordship grant detailed legal aid assessment of the claimant's costs?

25. MR JUSTICE MAURICE KAY: Is the certificate on file?

26. MR MOLL: I believe it is.

27. MR JUSTICE MAURICE KAY: Certainly.

28. MR MOLL: My Lord, would you consider granting leave to appeal?

29. MR JUSTICE MAURICE KAY: On what grounds do you want to appeal?

30. MR MOLL: My Lord, on the grounds that Article 6 is applicable to these proceedings in the context outlined by myself in my submissions to your Lordship; alternatively that fairness would dictate in these particular circumstances, on the grounds outlined to your Lordship, in my submission on the grounds that fairness would dictate that, under Article 6(1), Miss Bashir should be called to give evidence or provide a witness statement.

31. MR JUSTICE MAURICE KAY: That is an appeal against Elias J's decision.

32. MR MOLL: My Lord, I believe the application rather passed the buck to your Lordship.

33. MR JUSTICE MAURICE KAY: I understand how you put it. It seems to me your proposed grounds relate entirely to the first ground of challenge, not to the second ground of challenge. In those circumstances, I do not consider that they have a real prospect of success, nor is there any other compelling reason so I shall refuse permission to appeal. You are at liberty to seek such permission from the Court of Appeal.

34. MR MCCULLOUGH: My Lord, the claimant is legally aided. I do not make any further application in the light that the claimant is legally aided.

35. MR JUSTICE MAURICE KAY: Very well. Thank you very much.