HC Deb 01 August 1984 vol 65 cc386-93 1.31 pm
Mr. Fred Silvester (Manchester, Withington)

I wish to bring to the attention of the House the case of Mr. Himat Singh and Miss Suwinder Kaur. The opportunity provided at the end of the Session to raise individual cases is one which is much prized in the House, and it is appropriate that I should bring to the attention of Parliament a case which has been going on now for some years in my constituency and about which I have growing concern.

In 1946 Mr. Kalyan Singh came to the United Kingdom. He settled in Manchester, where he became a grocer. He is now in his seventies. In the 40 years that he has been here Mr. Singh has sought to be a good citizen, but he has maintained the customs of his religion and his culture. He has eight children. Three of his daughters and all four of his sons are married. All have had their marriages arranged for them, according to the custom, without the parties meeting. In each case both husband and wife were from within the United Kingdom.

Mr. Singh's youngest daughter is Miss Suwinder Kaur. She was born in Manchester on 15 October 1964. When this saga began she was 15 years of age. She is now an attractive and articulate 19-year-old. It is expected that Miss Kaur and her husband will live with her parents and be part of that household. Mr. Singh regards it as his duty and his care to ensure that his youngest daughter is appropriately married, and he is now getting very old.

In 1979 the husband of another of Mr. Singh's daughters went to India to discuss the possibility that his cousin, Mr. Himat Singh, might be betrothed to Miss Kaur. Mr. Singh was then nearly 18. It was agreed that the marriage should take place and that the couple should live with Mr. Kalyan Singh in Manchester. The boy was shown a photograph. It was agreed that the marriage should not take place until the girl left school in 1981. The parents corresponded but, according to custom, it would have been frowned upon for the couple to write to each other direct.

In July 1981 Mr. Himat Singh, following the agreement, undertook the three-day journey to New Delhi to make his application to marry Miss Kaur.

I was first approached in this case on 24 April 1982, three years after the marriage agreement. The question then was a simple one: was it possible to secure the interview in Calcutta to avoid the three-day journey to New Delhi?

In March 1982 Miss Kaur's mother travelled to India to satisfy herself about the satisfactory nature of the match.

The interview of Mr. Himat Singh was eventually granted in Calcutta on 11 January 1983, 18 months after the original application. The entry clearance officer rejected his application on the twin grounds that the couple had not met and that the marriage was for the primary purpose of obtaining admission. An appeal was lodged.

In July 1983 Mr. Himat Singh came to the United Kingdom and met his bride. The forthcoming marriage was acknowledged in the temple in Manchester. However, Mr. Singh was refused permission to remain until the hearing of the appeal in October. The Minister claimed that Mr. Singh would be jumping the queue if he stayed here, which is a curious description of someone who had already been standing in line for more than two years. Without the slightest attempt at avoidance, Mr. Singh left the country on 25 September 1983, a mere 10 days before the appeal was due to be heard.

An appeal is allowed to consider only the facts obtaining at the date of refusal. It could only consider the facts, which were already nine months old. The adjudicator could take no account of the fact that the couple had met, so Miss Kaur's solicitor was forced to withdraw the appeal and start all over again.

On 28 October 1983 Mr. Himat Singh submitted his second application. It was now four years since the marriage agreement and 27 months since his journey to New Delhi. Back in England, Miss Kaur had celebrated her 18th birthday and come of age. Within a week the entry clearance officer had referred the second application to the Home Office, but it took him another two months to turn down the application. There was no further interview, and the matter was treated as a repeat of the previous occasion.

I am not in the habit of discussing this type of case with my hon. and learned Friend the Minister of State, but in February of this year I raised the matter with him in his office and got nowhere. If I recall it correctly, his conclusion was that the words used by Mr. Himat Singh in his interview were as clear a case as he could find of immigration being the primary purpose for the marriage. He based his conclusion on words translated from the Hindi in answer to the question put to Mr. Singh about what he would do if he was unable to go to the United Kingdom for marriage. The entry clearance officer says that Mr. Singh replied, "What is the point of getting married then?" Mr. Singh says that he replied "It is up to you. It is in your hands." Similar discrepancies exist in other questions and answers and, without a complete transcript, it is not possible to assert which is right. But the selectivity in this form of report is manifest.

If we consider the questions that Mr. Himat Singh remembers were asked but which the ECO felt it unnecessary to quote, one question, for example, was that if he got married and the girl left him, what would he do? What sort of question is that to be asked?

The truth is that Parliament has laid on the ECO and the Minister a huge task, and I sympathise with them, but we have to see each case, not as an exercise in the precise analysis of words which are uttered in a very difficult context and in a second language, but in the context of what the policy was meant to achieve. Everything turns upon whether the primary purpose of the marriage was to obtain admission to the United Kingdom.

The original refusal in January 1983 was under the old rules. The new application is caught by the more stringent new rules. What is the purpose of the rules? In the eyes of most of us, it is to prevent the honourable institution of the arranged marriage, which can be and is readily established in this country, being used as a mechanism for evading the otherwise strict control on the primary immigration of young males. That is a wise provision, but its effectiveness depends on the quality of its administration. It cannot hold if we fail to distinguish between the cynical and the genuine pursuit of marriage.

I draw the attention of my hon. and learned Friend to two recent cases in my constituency.

Mr. N came to the United Kingdom for private medical treatment. Six months later he was refused permission to stay. Within seven days of that refusal he applied to marry.

He returned to his country, having been refused permission to marry, and three years later he returned here with full clearance to marry. He married and was given an indefinite stay permit. Within nine months that marriage had broken down and Mr. N had left his wife. My hon. and learned Friend the Minister wrote to me: Deportation would have been justified only if there was evidence that the marriage was contracted solely to obtain settlement. He added that the fact that Mr. N had left the country following refusal of his application to remain for marriage … and had properly applied was sufficient to justify the conclusion that the marriage was not one of convenience. There was strong evidence in that case that a marriage of convenience had taken place but it cannot be said that there is evidence that a marriage of convenience is to take place between Mr. Singh and Miss Kaur.

Another example is the marriage of Mr. A, who won permission on appeal to come to the United Kingdom as a student. He was not a serious student and was refused an extension. He withdrew his appeal against that decision and instead applied to stay for marriage. The couple went off to Gretna green and married, but the Home Office decided that it was a marriage primarily to obtain settlement and his application was refused. However, the couple lived together and so the Home Office changed its mind. My hon. and learned Friend wrote a revealing letter to me, in which he said that we are bound to consider the state of marriage of a British born citizen … The reasons for the marriage did point to a marriage of convenience but, surprisingly, it does appear that there is a genuine relationship between Mr. and Mrs. A. That illustrates vividly the difficulty of making such a distinction. My hon. and learned Friend assumes that a marriage that is arranged cannot lead to a stable relationship, but that is not true in the Indian community.

I am not offering an opinion on whether the decisions made in the cases of Messrs N and A were right or wrong, but in two recent cases in the past year in my constituency my hon. and learned Friend permitted stays for marriage when there was a strong prima facie case that the marriages were primarily for the purpose of admission. It would not be surprising if law-abiding citizens who go painstakingly through the system become cynical and wonder whether it would not be better to chance their arm by taking one of the less above-board routes.

What does my hon. and learned Friend want? We know that the desire of Mr. Singh and Miss Kaur to marry is genuine. It has been so from the beginning and it is even more so now that the two young people have met. We know that it is no fly-by-night affair. The matter has been carefully and slowly conducted by British citizens of long standing who have no intention of seeking to evade immigration controls. We can never be sure of the future, but by all rational tests my hon. and learned Friend has cross-checked in this instance more thoroughly than in other cases where he has given his approval. We know that there is no threat of queue jumping. This couple have already waited for three years.

I imagine that my hon. and learned Friend will back off from a reconsideration of this case, because he can always hide behind the appeal. If he takes that route, which I shall be sorry to hear, but which I am half expecting, he cannot escape responsibility for the disgraceful way in which the appeal has been handled. The delay continues. Mr. Himat Singh made his application in July 1981. We are still waiting, three years later, for the appeal to be heard. I have a letter from my hon. Friend the Under-Secretary of State for Foreign and Commonwealth Affairs, who is responsible for the entry clearance officer. He stated in his most recent letter about the appeal that the explanatory statement from the ECO had been delayed. He explained that it was to be sent and he added: However, having completed his statement a number of discrepancies were noted and the ECO decided to refer the matter to the Home Office for further inquiries. The ECO is currently still awaiting their instructions. That letter was dated 5 July.

This is impossible. There is yet more delay and this is a careless and inconsiderate way of proceeding. Do the officials not realise that they are dealing with people's lives? Would they take the same cavalier attitude if their own daughter's marriage was involved? At the very least, the Minister owes it to these young people to secure an early hearing of the appeal. I know that that is not the direct responsibility of my hon. and learned Friend, but he has some responsibility to make up for the previous lackadaisical behaviour of his Department and that of the Foreign Office. He should use his most powerful endeavours to secure an early hearing of the appeal.

These young people have done everything by the book. The marriage was planned by their parents, but it is now their own and they want it of their own will. Their marriage creates no precedent. It cannot be said that hordes are waiting behind them ready to charge. I have watched the family squirm on this nail for three years and there is now further delay. For God's sake let us keep a sense of proportion and a sense of humanity. Let us allow Mr. Himat Singh into the United Kingdom to marry his fiancee.

1.47 pm
The Minister of State, Home Office (Mr. David Waddington)

I am grateful to my hon. Friend the Member for Manchester, Withington (Mr. Silvester) for raising this matter. He has seen me about it and I know the depth of his concern. I welcome the opportunity that the debate gives me to explain why the Home Office made the decision that it did and where matters now stand. The debate gives me the opportunity also to express my regret that the letter that my hon. Friend sent me some time ago about the appeal was not answered. That was due partly to a mistake that was made in the referencing of the papers, and partly to the intervention of another hon. Member.

My hon. Friend has argued his case as strongly and as cogently as anyone could. As he said, Miss Kaur wants her fiance, Mr. Singh, to join her in this country. No one present for the debate could fail to have considerable sympathy for Miss Kaur and no one could doubt her sincerity. One of the difficulties that I have in cases of this sort is explaining that it is the motives of the man and not of the woman with which we are primarily concerned when considering whether the primary purpose test has been met.

Mr. Singh's first application for entry clearance to come to the United Kingdom to marry Miss Kaur and to settle here in right of that marriage was made in Calcutta in September 1981. My hon. Friend will forgive me if I correct him on one matter. It is not correct that Mr. Singh is still waiting for the hearing of his appeal in respect of the 1981 application. He is awaiting the hearing of an appeal in respect of the second application, which was made by him towards the end of 1983. It is the right of an individual to make repeated applications, but it cannot be the right of anyone to complain that he has been kept waiting for the hearing of an appeal for X number of years when he is talking about the date of his original application and not his second, third or fourth application as a result of all his previous applications being turned down.

In any event, Mr. Singh was interviewed in January 1983 in respect of his first application. His application was refused because the entry clearance officer could not be satisfied that the marriage was not being entered into primarily to obtain admission to the United Kingdom, and because Mr. Singh and Miss Kaur had not met. The officer's decision on primary purpose was based on what the applicant said during the interview. Mr. Singh made it clear that he had not met his fiancee. When then asked what he would do if he were unable to enter the United Kingdom for marriage, he replied: What is the point of getting married then? He was asked about the possibility of marrying his fiancee and taking her to live with him in India. To that he was frank enough to reply: No, I would not marry her. The implication was that there was no point in marrying her if she wanted to live in India and not in England where he had decided that he wanted to live.

Obviously, those were damning statements. If they were made, it is difficult to understand how anyone in his right mind could conclude that the young man's primary purpose was not to obtain entry to this country. In fairness to the applicant, and simply because the statements were so destructive of Mr. Singh's case, the entry clearance officer put the questions again, and he received those same damning replies.

Mr. Singh was asked what he would do if his fiancée said that she wished to live in India after their marriage. Again, there was a most surprising reply if this man's principal motive had not been to get into this country at almost any cost. Mr. Singh replied that he wished to live in England and said, "Anyway, she is only a girl." In other words, he was the one who would make decisions, and his decision was that he would live in England. He said also, "I would tell her that she had to stay in England. I want to live in England."

I do not believe that there could be any doubt about what he said. The interview was conducted in Hindi through an interpreter. I have no reason to believe that the entry clearance officer made a mistake. I do not believe that anyone would seriously suggest that the entry clearance officer would have been so wicked as to invent all those replies, which he has recorded. I have been to the Indian subcontinent to see our entry clearance officers at work, and I believe that they carry out a difficult job with skill, care and fairness. I repeat: anyone, having heard those replies by Mr. Singh, would have reached no conclusion other than that the primary purpose in Mr. Singh's mind of contracting that marriage was to obtain entry into Britain.

Wherever there is a law or a rule there will, inevitably, be borderline cases about which it is difficult to judge whether they fall on one side of the line or another. The primary purpose rule has attracted much comment. In particular, the difficulty of applying it has been emphasised. I concede that some cases may be difficult, but this case cannot by the remotest stretch of imagination be called a borderline case. When he came to this country Mr. Singh's own words permitted no other conclusion than that—I use the words in the 1980 and 1983 rules—the primary purpose of the intended marriage was to obtain admission to the United Kingdom.

Mr. Singh had a right of appeal to an independent adjudicator. He lodged an appeal, but later withdrew it. I do not understand the suggestion by my hon. Friend that Mr. Singh had to withdraw the appeal. He could have had the evidence reviewed by the adjudicator, but he decided not to use that right. Instead, he travelled to Britain without any entry clearance and sought entry as a visitor. Not surprisingly, he was refused entry as a visitor, because the immigration officer was not satisfied that Mr. Singh was genuinely seeking entry for just two months and that he would leave the country at the end of that period. Mr. Singh was, therefore, refused leave to enter, and after a period of temporary admission was sent back to India.

Mr. Singh's second application was made in November 1983, when he made a fresh application in Calcutta. By this stage he had met Miss Kaur, because he had been able to meet her when he was in this country on temporary admission. In view of the categorical statements made by Mr. Singh when he was interviewed in connection with his previous application, there was clearly nothing to be gained by a further interview, and the new application was also refused because the entry clearance officer had no reason to believe that the primary purpose had changed. An appeal has been lodged against the entry certificate officer's decision, and that is where the case now stands.

I shall say a little about the appeal arrangements before I conclude, but first I want to say something about the principles on which the primary purpose rule, under which Mr. Singh's application has failed, is based, since I know that it concerns my hon. Friend. As I have said, the entry clearance officer and the other officials who have considered this case were not passing judgment on Miss Kaur. They were concerned with Mr. Singh's motives, not hers. It is worth reminding ourselves of a bit of the history of husband applications under the rules, to see why the primary purpose rule is necessary.

Successive Governments have recognised that the pressure to obtain admission to this country is such that marriage can be abused as a device to get here. Indeed, the first safeguards to prevent abuse of the marriage provisions were introduced by the Labour Government in 1977. The then Minister who held my responsibilities, Dr. Shirley Summerskill, said that evidence left no doubt that there was substantial abuse. In other words, the right on the part of a woman settled here to bring in her husband was being substantially abused. As a result, the Labour Government changed what was then the rule so as to provide for refusal of entry clearance if the entry clearance officer had reason to believe that the marriage was one of convenience entered into primarily to obtain admission into the United Kingdom with no intention that the marriage should subsist thereafter.

In 1979 the Conservative Government decided to strengthen what by then had come to be known as the safeguards. In the debate on immigration on 4 December 1979, my predecessor, my right hon. Friend the Member for Aylesbury (Mr. Raison), said: we are not talking about the marriage of convenience that takes place purely to secure entry and then collapses. That is dealt with under the present rules, if somewhat imperfectly. We are talking about marriages that may last but are merely for the purpose of immigration. Later in the same debate, referring to the new primary purpose test, he said: Our proposals will help to seal off an avenue of primary immigration".—[Official Report, 4 December 1979; Vol. 975, c. 368–72.] In 1979 we knew what we wanted to do, and we did precisely what we said we would do—take steps to seal off a new avenue to primary immigration which was being exploited. We were not attacking the traditional Asian custom of arranged marriages. We were out to stop that system being abused—to prevent marriages being used by people to get into this country. I want to make it clear that what is being applied is not a policy decided by me, but a set of rules approved by Parliament.

I know that my hon. Friend shares the Government's concern to prevent the abuse of marriage for immigration purposes. Indeed, he made that clear when he discussed this case in February. On that occasion, and again today, he contrasted this case with another one where a marriage had broken down after the person concerned had been admitted and granted settlement. However, the cases were not alike. In any event, it is not profitable to compare one case with another without going into all the facts, and there is no time to do that today. In the case of Mr. Singh, it is clear, for the reasons I have explained, that emigration to this country was his intention. That is the abuse of marriage for immigration purposes to which I have referred.

That is not, however, the end of the matter. As I have already said, Mr. Singh has appealed. It is sometimes forgotten how generous our rights of appeal are. Decisions in cases like this do not depend solely and simply on my views and that of my officials. As I have said, the case appears clear to me. Mr. Singh can now take it before an independent adjudicator. This is what he is doing. This is his right. The adjudicator will review the case and make his decision in the light of all the evidence. Even that will not be the end of the matter. I have already told my hon. Friend that I shall look at the case again in the light of the adjudicator's determination and any recommendations that he may make.

My hon. Friend will be aware that many years ago Parliament set up the appellate authorities to provide for a statutory review of decisions taken under the immigration rules about which there is a dispute. The adjudicators and members of the immigration appeal tribunal are judicial officers, who act independently of the Home Office.

The position regarding the latest appeal which Mr. Singh has lodged is that under the procedure rules governing immigration appeals the entry clearance officer, who is the repondent to the appeal, will, as soon as possible, prepare a written statement of the facts relating to his decision and the reasons for it, and submit it to the appellate authorities.

The appeal was lodged on 27 January, six months ago. That is a long wait, and I regret it. I am afraid that a delay occurred after the entry clearance officer reported to the immigration and nationality department that Mr. Singh had lodged his appeal against the refusal of his new application. Due to an unfortunate slip in the referencing of the papers, the preparation of the appeal statement was held up for a time. I apologise to my hon. Friend for this in view of the interest he has taken in the case, and through him I extend my apologies to Mr. Singh and Miss Kaur.

The preparation of the explanatory statement is now well in hand. As soon as it is ready—which should be very soon—the appellate authorities will get in touch with Mr. Singh's representatives with a view to fixing an early date for the hearing. I shall ensure that the appellate authorities know of the unfortunate delay that has occurred. I shall do everything within my power to ensure that the hearing takes place as soon as possible.