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Commitment and contradiction in immigration law

Published online by Cambridge University Press:  02 January 2018

D. K. Marrington
D. K. Marrington*
Affiliation:
University of Manchester
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Extract

UK immigration law is changing rapidly. There have been four major revisions of the immigration rules since 1979, interspersed with numerous minor, but none the less significant, amendments. Moreover, in an increasingly complex field, litigation has flourished. Applications for judicial review have been lodged at a rate which has recently prompted the Court of Appeal to severely restrict access to the court - in all but the most exceptional cases - until the statutory appeal process has been thoroughly exhausted. One consequence of this level of activity has been that the provisions under which family members may join their relatives in the United Kingdom have changed radically during the short life of the Immigration Act 1971.

Type
Research Article
Information
Legal Studies , Volume 6 , Issue 3 , November 1986 , pp. 272 - 291
Copyright
Copyright © Society of Legal Scholars 1986

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References

1. Statement of Changes in Immigration Rules; HC Paper 1979–80 no 394; HC Paper 1982–83 no 66; HC Paper 1982–83 no 169; HC Paper 1984–85 no 503 (amending HC Paper 169).

2. For example, HC Paper 1985–86 No 306, prohibiting the admission of ‘child’ spouses.

3. R v Secretary of State for the Home Department, ex p Swati [1986] 1 All ER 717.

4. Section 39, amending s 2 of the Immigration Act 1971.

5. For an interesting discussion, see Harlow and Rawlings, Low and Administration (1984), chs 16 & 17.

6. Immigration Act 1971, s 3(2).

7. R v Chief Immigration Officer, Heathrow Airport, ex p Salamat Bibi [1976] 3 All ER 843, per Roskill LJ at 848. See also Baldwin and Houghton, ‘Circular Arguments: The Status and Legitimacy of Administrative Rules’ [1986] PL 239.

8. R v Secretary of State for the Horn Department, exp Hosenball [1977] 3 All ER 453, at 459.

9. But there are limits to such flexibility and the court will strike down an unreasonable rule: R v Immigration Appeal Tribunal, ex p Manshoora Begum, (1986) Times, 24 July.

10. HC 169, para 76.

11. For an excellent account of the ‘hidden agenda’ see Commission for Racial Equality, Immigration Control Procedures: Report of Formal Investigation (1985).

12. Eg children coming for adoption, see A. Khan (1986) 130 Sol Jo 213.

13. For example, the confidential Guidance for Entry Clearance Officers, published in [1984] Legal Action 119.

14. Amin v Entry Clearance Officer, Bombay [1983] 2 All ER 864 (HL) - an unsuccessful attempt to challenge the refusal of a Special Voucher.

15. Asif Mahmood Khan v Immigration Appeal Tribunal [1984] Imm AR 68.

16. Ibid.

17. Ibid at 77. See also Attorney-General of Hong Kong v Ng Yum Shiu [1983] 2 WLR 735.

18. Article 1, Aliens Order 1953 (SI 1953/1671).

19. For the judicial attitude towards aliens, see C. Vincenzi, ‘Aliens and the Judicial Review of Immigration Law’ [1985] PL 93.

20. Director of Public Prosecutions v Bhagwan [1970] 3 All ER 97, per Lord Diplock at 99.

21. 322 HL Offical Report (5th series) cols 660–735 (19 July 1971); 813 HC Offical Report (5th series) cols 42–173 (8 March 1971).

22. 813 HC Offical Report (5th series) col 48 (8 March 1971).

23. 322 HL Offical Report (5th series) cols 660 685 (19 July 1971).

22. 324 HL Offical Report (5th series) cols 239–242 (11 October 1971).

25. 823 HC Offical Report (5th series) cols 551–552 (19 October 1971).

26. Immigration Act 1971, s 2(3)(d).

27. Immigration Appc.1 Tribunal v Chelliah [1985] Imm AR 192.

28. R v Immigration Appeal Tribunal ex p Siggins [1985] Imm AR 14; cf Commonwealth Immigrants Act 1962, s 2(6).

29. [1973] 3 All ER 796.

30. Ibid at 807.

31. See, for example, Shah v Barnet LBC [1983] 1 All ER 226, HL.

32. Pakistan Act 1973, s 6(4).

33. R v Chief Immigration Officer, Heathrow Airport, ex p Salamat Bibi [1976] 3 All ER 843.

34. Ibid at 846.

35. Visa Officer, Islamabad v Saeedan [1983] Imm AR 95.

36. R v Immigration Appeal Tribunal, exp Ruhul, (1985) Times, 27 November (see n 56 below, and associated text).

37. Registration in one of the countries mentioned in s 1(3) of the British Nationality Act 1948 also gave exemption: CIA, s 1 (2A)(d).

38. Unless such a person was the subject of a deportation order: CIA, s 2(5).

39. Section 20, amending s 2 of the CIA.

40. Cmnd 4298 (admission); Cmnd 4295 (after entry).

41. Cmnd 4296 (admission); Cmnd 4297 (after entry).

44. Cmnd 4298, para 37.

43. Cmnd 4296, paras 37 and 39.

44. Ibid, paras 8 and 36.

45. Ibid, paras 37 and 40.

46. Ibid, para 37.

47. Ibid, para 37.

48. Section 6(2).

49. Which phrase, under s 1(2) of the British Nationality Act 1948, was synonymous with ‘Commonwealth citizen’.

50. See n 37 above, and related text.

51. [1970] 3 All ER 97.

52. Ibid at 100.

53. HC Paper 1972–73 no 81, para 35.

54. [1976] 3 All ER 843 at 846.

55. See n 35 above.

56. See n 36 above.

57. R v Immigration Appeal Tribunal, ex p Ruhul. Taken from approved transcript (CO/1072/84), p 13.

58. Afuah Poku v Secretary of State for the Home Deportment (4440) unreported, determination notified 26 March 1986.

59. Cmnd 4295.

60. See n 37 above, and related text.

61. Cmnd 4295, para 24.

62. She married after 1 January 1983: British Nationality Act 1981, particularly ss 6 and 8.

63. Cmnd 4298, para 34 — provided she possessed an entry certificate and was not the subject of a deportation order.

64. British Nationality Act 1981, s 37(1).

65. HC Paper 1984–85 No 503.

66. [1985] EHRR 471.

67. HC 503, para 10; see R v Immigration Appeal Tribunal, ex p Bhatia [1985] Imm AR 50, CA; Manington, ‘To Bhatia and Beyond: Primary Purpose in Immigration Law’, New Community Vol XII, No 3 Winter 1985–86, p 536; cf R v Immigration Appeal Tribunal, exp Kumar, (1986) Times, 13 August, CA.

68. HC 503, para 10.

69. Ibid.

70. HC 503, paras 1 and 10.

71. HC 503, para 10.

72. HC 503, para 26.

73. The Times, 6 March 1986; The Daily Telegraph, 21 March 1986.

74. See n 2 above.

75. On the validity of ‘under age’ marriages, see Mohamed v Knott [1968] 2 All ER 563.

76. Cmnd 4298, para 40; Cmnd 4296, para 41.

77. HC 169, para 51.

78. For a comprehensive account, see Vaughan Bevan, The Development of British Immigration Law (1986).

79. See n 66 above.

80. 100 HC Offical Report (6th series) col 274 (26 June 1986).

81. As when Labour and Conservative M.P.s, together defeated the government on an Opposition motion to annul HC 66, see 34, HC Offical Report (6th series) col 355 (15 December 1982).