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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kelly, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 326 (Admin) (17 February 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/326.html Cite as: [2005] EWHC 326 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		17th February 2005

Thursday, 17th February 2005

1. MR JUSTICE ELIAS: I have before me an application for judicial review in which the applicant challenges a decision of the Secretary of State of 6th July 2004 in which he issued directions for the removal of the applicant from the United Kingdom back to his country of origin in Jamaica.
2. The background to this application is as follows. The applicant arrived in the United Kingdom on 29th July 1996. He was granted six months' leave to enter as a visitor. He was subsequently granted further leave to remain until 28th February as a student. On 3rd January 1998, that is shortly before the extended period of leave was due to terminate, he married Diane Hylton. He had apparently met her very shortly after arriving in this country. An application for leave to remain on the basis of marriage was made in March of 1998 and that application was granted by a letter dated 4th March 2000, in which Secretary of State granted leave to remain for a period of one year, that is until 4th March 2001. That is the usual probationary period in cases of this kind. It was made plain that the claimant would have to make a subsequent application for indefinite leave shortly before that stay expired.
3. On 1st March 2001, shortly before the expiration of the one year's leave, there was an application for indefinite leave to remain based upon the marriage. That was considered and granted by the Home Office by a letter dated 19th March. They notified the claimant that permission had been granted. Shortly thereafter, they received on 27th March an undated letter, to which I have to return, where the claimant's wife informed the Home Office that the couple were no longer together and that the claimant was living with another girlfriend. No steps were taken specifically in relation to that until 2004 when the claimant was arrested in the context of a police investigation, which has no materiality for the purposes of this decision. However, that led on 27th May 2004 to the claimant being interviewed under caution by the Chief Immigration Officer. The basis of that interview was that authorities were suspicious that he may have obtained the ILR by deception, essentially claiming that he was in a subsisting marriage when he was not. Meanwhile, a police officer had spoken to his wife on this matter on 25th March 2004. I will come back to that interview in due course.
4. After the interview, the Chief Immigration Officer concluded that the claimant had obtained the ILR by deception and he issued him with a document indicating that the claimant was now a person subject to administrative removal. The claimant's representatives reacted very quickly and there was some correspondence with the Home Office. The claimant's representatives then lodged a claim on 28th May for asylum on behalf of the claimant. The claimant was transferred to the Oakington Reception Centre on 5th June 2004. The asylum and human rights forms were subject to the usual accelerated procedure and the claimant was interviewed in connection with his asylum claim.
5. On 28th June 2004 the asylum and human rights claims were refused and they were certified as clearly unfounded by the Secretary of State. In early July there were new representatives acting for the claimant who indicated that he was no longer pursuing his asylum claim. However, they reasserted that he had a right to indefinite leave to remain and indicated that they were going to challenge the decision of the Secretary of State who had, by then, issued the directions for removal which are the subject of challenge in these proceedings. The essential issue in this case is whether there was deception by the claimant when he made his application for indefinite leave to remain.
6. I will briefly set out the material legislation on this matter. Section 10 of the Immigration and Asylum Act 1999 provides:

"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if -

(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

(b) he uses deception in seeking (whether successfully or not) leave to remain."

7. The requirements for indefinite leave to remain for a person who has settled in the United Kingdom are set out in Rule 287 of the Immigration Rules. There are a number of requirements each of which has to be met if the indefinite leave is to be granted. The two in issue here are these:

At the time of making the application "(ii) the applicant is still the spouse of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and

(iii) each of the parties intends to live permanently with the other as his or her spouse."

8. It is agreed that in determining whether or not there has been deception in this case the burden is on the Secretary of State to demonstrate that there has. This is derived from the well-established principles in Khawaja [1984] 1 AC 74. The approach of the court was set out by Lord Wilberforce at page 105C:

"The court's investigation of the facts is of a supervisory character and not by way of appeal ... It should appraise the quality of the evidence and decide whether that justifies the conclusion reached eg, whether it justifies a conclusion that the applicant obtained permission to entry by fraud or deceit. An allegation that he has done so being of a serious character and involving issues of personal liberty, requires a corresponding degree of satisfaction as to the evidence. If the court is not satisfied with any part of the evidence it may remit the matter for reconsideration or itself receive further evidence. It should quash the detention order where the evidence was not such as the authorities should have relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularity."

9. Lord Scarman at page 112 also confirmed that although there is an initial burden upon an applicant, once he has established an arguable case, then it is for the Respondent who bears the burden of justifying the legality of the decision to remove. He considered whether the standard of proof was a criminal standard of beyond reasonable doubt or the civil standard, and commented:

"I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice."

10. He quoted in that connection some observations of Denning LJ in Bater v Bater [1951] P 35 who had observed that:

"... in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability that that which it would require when asking if negligence is established."

11. The Home Office has its own internal guidelines which are designed to assist immigration officers when determining whether there is a breach of section 10. It says this:

"The evidence of deception should be clear and unambiguous in order to initiate action under section 10. Where possible, original documentary evidence, admissions under caution or statements from two or more witnesses should be obtained which substantiate that an offence has been committed before authority is given to initiate action under section 10 of the 1999 Act. The deception must be material - in other words, had the officer known the truth, the leave would not have been given. The evidence must always prove to a high degree of probability that deception had been used to gain the leave, whether or not an admission of deception is made. The onus - as always in such situations - is on the officer making the assertion to prove his case."

12. I am, of course, bound by the observations in the Khawaja case and not specifically by the guidelines which the Home Office uses for its own internal purposes, although no doubt they are carefully drafted and prudent guidelines and provide the necessary assistance to immigration officers who have to apply the legal principles.
13. I acceded at the hearing today to an application by Miss Broadfoot on behalf of the Secretary of State to cross-examine the claimant. That was not, in fact, resisted by Mr Ghaffar for Mr Kelly. I also have a witness statement provided for the purposes of these proceedings by the claimant. In that statement he says that he had a serious relationship with Diane Hylton shortly after his arrival in this country until they were engaged in December 1997 when they began to live together and they got married on 3rd January 1998. It is his case that there was a continuing and subsisting relationship until after he had been notified of the letter from the Home Office on the 19th March 2001. It was very shortly after that that he heard that his wife had been having an affair with another man and was expecting that man's child. In addition, he became aware of the letter that had been sent to the Home Office, because a copy had been sent to his solicitors who told him about it. This created friction in the marriage. He left briefly for a cooling-off period, but he went back when he discovered that his wife was very ill as a result of the pregnancy. He took her to hospital, where she remained for a day or two. He then stayed at the marital home for a few more days until leaving at the end of March. The defendant submits that I can be satisfied to the higher standard of probability, which is required in a case of this kind that the claimant did indeed deceive the Home Office.
14. Miss Broadfoot initially sought to contend that the relevant date for the purposes of determining whether there had been deceit was 19th March 2001, that is when the decision was made. She relied for that purpose on the application form which is adopted by applicants making applications of this kind. This specifically requires the applicant to make a declaration in which he must say the following:

"I declare that we are still married and are living as husband and wife and intend to do so permanently. The information that I have given is complete and true to the best of my knowledge. I am aware that it is an offence under the Immigration Act 1971 to make to a person acting in execution of the Act a statement or representation which the maker knows to be false or does not believe to be true. I confirm that, if before this application is decided, there is a material change in my circumstances or new information relevant to this application becomes available I will inform the Home Office."

15. Miss Broadfoot submitted that a failure to notify the Home Office of a material change would involve deception. It seems to me that although it may do, it need not do so. Deception suggests that there is some deliberate attempt to mislead the authorities and it may be that the Home Office is not notified of a material change through oversight or lack of understanding or something of that nature. Accordingly, in order to establish deception in this case, I consider that the issue is whether there was the necessary subsisting marriage with the intention of the parties to live permanently together at the date when the application was made on 1st March. In that connection, too, I note that the letter sent to the claimant's solicitors from the Home Office on 28th May 2004 specifically referred to the fact that the marriage was not subsisting at the time he made his application. So for both those reasons it seems to me that that is the material date for the purposes of this issue.
16. Miss Broadfoot relies upon a number of documents in support of her submission that in this case there has plainly been deception. First, there is the letter received on 27th March 2001 from the claimant's wife. The relevant parts of that letter are as follows:

"1. I no longer wish to support my husband's application to remain in the UK and we are no longer together.

2. In the entire period of our marriage, my husband has had numerous affairs and has hardly been a husband.

3. My husband is currently residing with his new girlfriend at an address currently unknown to me.

4. I would like that all my documents be expeditiously returned to me as you would no longer require them.

5. I am currently seeking legal advice regarding my getting a divorce.

6. In the entire period of our marriage my husband's constant affairs plus his present one have subjected me to sustained distress and humiliation which I no longer wish to tolerate."

17. In addition to that letter, the claimant's wife was also interviewed by a police officer, Officer Milton, on the 25th May 2004. He discloses in a witness statement the content of those discussions. In part, they report what she has set out in her letter, that her husband was having affairs and has left the family home shortly after the marriage. She says that what prompted her to write the letter was not wishing to be perceived as misleading the Immigration Service as to her having a true relationship with Mr Kelly. She specifically denied that she was acting out of jealousy or malice. She was asked expressly about the time when Mr Kelly left the family home and she stated that the marriage had broken down prior to her visit to the USA in about December 2000. It is accepted by the claimant that she did indeed visit the USA at about that time on her own. He was working in this country. But of course he denies that he had left the family home by that stage.
18. Mr Ghaffar makes a number of observations on that letter and the subsequent interview and submits that little weight should be given to it. First, looking at the letter itself, independently of the subsequent conversation, it does not identify precisely when the claimant is alleged to have left the matrimonial home. Second, he rightly points out that the statement to the effect that she no longer supports the application implies that she did originally support it. Was that on the basis that it was a proper application or was she in some way a party to the deception? If the former, it supports the claimant's case, and if the latter, one ought to look carefully at her subsequent statements. He makes the observation that this is 26 days after the submission of the application and it is, of course, possible that matters, so far as the relationship was concerned, turned sour in that period. I accept that one must adopt some care in looking at evidence of this nature. The wife has not been subject to cross-examination. Her evidence, therefore, is untested and her conversation with PC Milton remains hearsay. A question mark has been posed by the claimant as to her motive in writing this letter. It seems to me that notwithstanding these matters, this letter is something on which some weight can properly be placed, but I do approach it with some caution.
19. The second document relied upon is the interview conducted with the immigration officer who was looking into the question of deception (referred to as "the deception interview"). That was conducted on 27th May. In the course of that interview the claimant gave the different accounts of how long the relationship had lasted. He said at one stage in interview that he had been together with his wife for about four years, then he said, maybe five. Later in the interview he said this:

"You can't be with somebody over three years and you having got a feeling for her, you understand?"

20. Miss Broadfoot submits that that is a very telling observation. It was not a considered response to a direct question about how long the marriage had lasted, it was a spontaneous response to a different question. Mr Ghaffar makes a number of observations about this response and the interview generally. First, he says that the claimant had indicated that he had been with somebody over three years, yet for the rest of the interview it was conducted on the premise that it had been just three years. He also objected to an observation by the officer conducting the interview that he had to determine matters on the balance of probabilities. In fact, the officer has made a witness statement in these proceedings which indicated that that was intended as no more than a shorthand for the test which the Home Office applies to section 10 cases, and is set out in the guidance to which I have made reference. It is also pointed out that at other stages the claimant was saying that the relationship had lasted longer. Mr Ghaffar submits that it is perfectly natural for somebody, when asked questions of this kind, not to have some computer-like recollection of dates and times and lengths of relationships, and so forth, and that it is not surprising that the answers given, on any view, three years after a separation were varying in accuracy. That is not, he submits, a matter on which great weight should be placed. Again, however, it does seem to me that it is a material factor which I should bear in mind.
21. More significantly, in my view, in connection with the reference to three years is a further document relied on which is a letter sent by the then solicitors of the claimant, no longer representing him, to the Home Office on 28th May 2004. In the course of that letter the lawyers say this:

"Further to our instruction, Mr Kelly married Diane Hylton Kelly some time in 1997 at the Brixton Register Office. He submitted an application in Croydon and he was allowed 1 year. They both were living together as man and wife at Threyle House, Stockwell Park Estate until 1999."

22. They are solicitors acting on instructions and indicating to the immigration section of the Home Office what their instructions were. I think it highly unlikely that they would have got a matter of that kind materially wrong. Mr Ghaffar does point out, quite rightly, that there is a mistake in the letter because it refers to the fact that the marriage is in 1997, yet it was on 3rd January 1998. But it has to be said that in an answer to the immigration officer on the previous day, the claimant had said that the marriage was in 1997, so it does not suggest that the lawyers were inaccurately or falsely representing what they had been told. Here we have a document in which the claimant is disclosing his understanding of the facts in circumstances where he has no need to be suspicious and where he assumes that the solicitors will assist him.
23. The fourth document relied upon was the asylum interview which was conducted on 19th June 2004. In the course of that interview, a specific question was asked of the claimant, "When did you stop living with Diane Hylton?" and the answer was, "February 25th 2001." That, of course, is not consistent with the relationship ending in 1999 or 2000 but, if correct, it would be inconsistent with his claim.
24. The claimant submits that in both interviews, the deception interview and the asylum interview, he felt under great stress. He says that reference to February was a mistake and that the real reference should have been to March 2001. That is odd because that does not sit happily with his evidence, nor could he point to any other incident that occurred on 25th February to make that a day of some particular significance.
25. In addition to the specific documents to which I have made reference, Miss Broadfoot says that the claimant has changed his story on a number of other matters. For example, in his witness statement he said that he started to live with his wife once they became engaged at the end of 1997, but he had represented in the interviews different dates commencing many months before then. I would not put very much weight on that, given that it can be difficult to recollect many years later when particular events occurred. Perhaps of more significance here is that he contends that the factors which caused the breakdown of the relationship and led to arguments arose after he was notified of indefinite leave to remain on 19th March. They were, as I have indicated, his wife's affair leading to a pregnancy which he said he discovered only at that stage, and also the letter which she sent to the Home Office and which he said his solicitors showed to him. He submitted in evidence before the court that these were factors which caused him to leave for a few days, which he describes as a cooling-off period, prior to returning when his wife became ill.
26. But none of that really fits together. The letter from his wife was not received by the Home Office until 27th March and, even if sent relatively quickly back to his solicitors, it would not have got there for another day or two. It seems to me he could not have known of the existence of this letter from his solicitors until very much at the point when he was, on his own case, leaving the matrimonial home. However, he says that by then there had been discussion and argument on that very point, then a short separation, and then a few more days living together before he finally left. Moreover, I have a witness statement from a Miss Streek from the Home Office in which she indicated that the relevant files had been scrutinised and apparently a copy of the letter received on 27th March had not been sent to anyone. That would be consistent with the general Home Office policy of respecting the confidentiality of such correspondence. Of course, the Home Office may have made a mistake about that but, nevertheless, it does seem to me likely that the solicitors did not receive that letter, in which case there could have been no discussion about it at all at the time of the break-up of the marriage.
27. Miss Broadfoot also contends that the claimant is not telling the truth when he says that both he and his wife completed the original application form for indefinite leave to remain. Unfortunately, neither the Home Office nor the claimant's lawyers are able to provide a copy of the original application. But I have a witness statement from Mr Meyer, the immigration officer who carried out the deception interview, and he did have the application form before him at that stage. He says he specifically noted that whilst the declaration requires a signature in the normal case from both the applicant and his or her spouse, on this occasion, although Mr Kelly had signed the declaration, his wife had not, and instead it had been signed by a solicitor. He says he noticed that at the time and mentioned to it Mr Kelly during the interview, and I have been referred to the passage in the interview where that is done. Again, whilst this information on its own would be nowhere near enough to question the bona fides of the claimant, it does suggest that the wife did not go along with him and complete the relevant form. It is, however, plain, and this is in his favour, that she did initially support the application, or otherwise she would not have sent a letter indicating that she was no longer supporting it.
28. I have to review these various matters and bear in mind the fact that the onus of proof is on the Home Office, as indicated by the House of Lords in Khawaja. I am satisfied even to that high standard that there was deception in this case. I am not able to accept the account given by the claimant. I do consider that he has tailored his answers to fit what he considers to be a desirable answer at a particular time. I am influenced in particular, I have to say, by the instructions he gave his own original solicitor, but in addition it seems to me the various dates he has given at various stages to different officers cannot be explained solely on the basis that he was under stress, nor that these are matters of detail which he could not accurately recollect. The reference to three years in the deception interview, I do agree with Miss Broadfoot does seem to have been a spontaneous response to a question which did not alert him of the need to take care of the answer he gave in that context. Accordingly, this application fails.
29. I should record the fact that I have had a very full and detailed skeleton from Mr Ghaffar which really has said all that is possible to say on behalf of his client and he has made, where he can, proper points of criticism of the Home Office case. Thank you.
30. MISS BROADFOOT: My Lord, I was just seeking instructions. We would seek the costs of defending the application. Mr Kelly is not legally aided. Whether or not that costs order would be enforceable is a matter for the Secretary of State, but in principle we would ask for an order for our costs.
31. MR JUSTICE ELIAS: Can you resist that?
32. MR GHAFFAR: My Lord, I cannot. Costs follow.
33. MR JUSTICE ELIAS: Yes. You may have your costs.
34. MISS BROADFOOT: Thank you.