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

In judicial review alleging fraudulent entry, the Secretary of State bears the burden of proving illegal-entry status to a high degree of probability. The court must determine the relevant precedent fact itself, rather than merely ask whether the immigration officer had reasonable evidence.

Hearsay statements and documents may be considered, and there is no automatic entitlement to a witness statement or cross-examination. Whether cross-examination is permitted remains a matter for the court’s discretion. Fairness is assessed by considering the proceedings as a whole. Article 6(1) does not apply to proceedings concerning the entry, stay or deportation of non-nationals.

The appellant entered the United Kingdom as a foreign spouse after marrying Zahida Bashir in Pakistan. Following the breakdown of the relationship, the Secretary of State treated him as an illegal entrant on the basis that he had obtained leave to enter by concealing that the marriage was not genuine and subsisting.

The appellant challenged that decision by judicial review. Maurice Kay J dismissed the application, finding that the Secretary of State had satisfied the burden of proof and that the proceedings were fair despite the absence of a witness statement from, and cross-examination of, Ms Bashir.

The appeal concerned the applicability of Article 6, common-law fairness, access to and testing of the evidence, and whether the documentary material established fraudulent entry to the requisite standard.

The appeal was allowed unanimously. The appellant’s challenge succeeded because the Secretary of State had not proved fraudulent entry to the required standard.

1. Proceedings concerning the entry, stay or deportation of a non-national do not involve the determination of civil rights or obligations for Article 6(1) purposes. The court applied the approach in Maaouia v France (2001) 33 EHRR 1037. Nevertheless, the appellant was entitled to a fair hearing at common law. Fairness was to be assessed by reference to the proceedings as a whole, having regard to their context and nature. The proceedings had been fairly conducted because the appellant had access to the evidence, legal representation and an opportunity to seek cross-examination.
2. Following Khawaja v Secretary of State for the Home Department [1984] AC 74, the Secretary of State had to prove fraudulent entry and resulting illegal-entry status to a high degree of probability. The court itself had to determine the precedent fact. It was not confined to asking whether the immigration officer had evidence on which he could reasonably act. Hearsay material and documents from unavailable witnesses could be admitted and considered, but their weight remained a separate issue. There was no automatic entitlement to a witness statement or cross-examination; cross-examination remained discretionary.
3. The essential question was whether, when he entered, the appellant knew or believed that the Pakistani marriage was no longer valid and subsisting. The judge had instead placed weight on whether the parties had lived together as man and wife. The decisive allegation depended on an untested assertion that Ms Bashir had made one telephone call before the appellant travelled to the United Kingdom. The surrounding documents were inconsistent or equivocal, and the appellant’s contrary account had not been tested through oral evidence.
4. On a wholly documentary record, the Court of Appeal was in as good a position as the judge to assess whether the burden had been discharged. It concluded that the evidence was insufficient. The appeal was allowed, and the respondent was ordered to pay the appellant’s costs of the appeal and below.

1. Court of Appeal (Civil Division): Appeal allowed. The court held that the Secretary of State had failed to prove fraudulent entry to the requisite standard.
2. High Court, Queen’s Bench Division: Maurice Kay J dismissed the judicial review application on 19 March 2003, holding that the proceedings were fair and that the burden of proof had been satisfied.
3. Earlier procedural history: Richards J refused permission on grounds of delay. On 21 November 2001, Schiemann LJ granted permission to appeal and remitted the matter to the High Court.