R v. Immigration Appeal Tribunal, Ex parte Hubbard

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	5 July 1985
Citation / Document Symbol	[1985] Imm AR 110
Cite as	R v. Immigration Appeal Tribunal, Ex parte Hubbard, [1985] Imm AR 110, United Kingdom: High Court (England and Wales), 5 July 1985, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6a6c.html [accessed 17 September 2023]
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R v IMMIGRATION APPEAL TRIBUNAL Ex Parte HUBBARD

Queen's Bench Division

[1985] Imm AR 110

Hearing Date: 5 July 1985

5 July 1985

Index Terms:

Letter of consent -- refusal -- power of appellate authorities to determine appeals adversely to appellants on basis of matters not relied on by the Secretary of State -- distinctions between grounds and reasons -- refusal of applicant to attend any interview with immigration officer -- whether a factor to be taken into account. Immigration Act 1971 s 13, 14, 18 et seq: Immigration Rules HC 169, paragraphs 10,17

Held:

The applicant sought judicial review, which was refused, of the determination of the Tribunal upholding the dismissal by an adjudicator of the applicant's appeal against the refusal of the Secretary of State to give him a letter of consent to allow him to visit the United Kingdom. The applicant was the founder of the Church of Scientology. In 1968, following policy decisions in relation to that church the applicant was advised he would not be given leave to enter the United Kingdom. The ban against Scientology was lifted in 1980. In 1982 the applicant's solicitors sought an informal meeting with the Home Office with a view to the issue of a letter of consent. The Home Office refused to act through intermediaries. Reference was made to a conviction in France for fraud which could lead to a refusal of entry. The applicant's solicitors continued to attempt to resolve the issues but the Home Office refused to consider various matters until a formal application was made. In the fullness of time such an application was made. The Home Office indicated that they wished to interview the applicant so that the immigration officer might be satisfied as to the matters on which, under the rules, he had to be satisfied. Assurances in those regards by the applicant's solicitors were not alone sufficient. The applicant declined to be interviewed and the application was refused. Appeal was made to an adjudicator who found as a fact that the applicant was alive (that itself earlier having been in some doubt) but dismissed the appeal. He concluded that he could not be satisfied on the evidence before him that only a short visit to the United Kingdom, as claimed by the applicant, was intended. There was an appeal to the Tribunal which was also dismissed. When judicial review was sought, it was argued that the adjudicator and the Tribunal were restricted to reviewing the facts and issues on which the Secretary of State had come to his decision. It was also submitted that the Immigration Appeal Tribunal had erred in taking into account the exceptional history and reputation of the applicant, on which there was no -- or no sufficient -- evidence before it, and of which matter the applicant had had no notice.

Held: 1) That the appellate authorities were not confined to considering the matters on which the Secretary of State based his decision. Section 18(2) of the Immigration Act 1971's purpose is to avoid any dispute as to basis of the Secretary of State's decision. It does not affect the scope of appeals from that decision.

2) That where new matters were raised in the course of a hearing, it was necessary to give the parties an opportunity fully to prepare their case in relation to those matters.

3) On the facts the Tribunal had not erred in noting the exceptional position of the applicant, it being clear that the ratio of its decision were matters already known to the parties.

Obiter it was doubted whether the clear distinction between grounds and reasons accepted in ex parte Mehra was right or sensible.

It was conceded by counsel for the respondent and not argued that an appellate authority should not seek to go behind a finding of fact of the Secretary of State which is favourable to an appellant.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Mehmet [1978] Imm AR 46. R v Immigration Appeal Tribunal ex parte Kwok on Tong [1981] Imm AR 214. R v Immigration Appeal Tribunal ex parte Malik [QBD 16 November 1981], unreported.

R v Newham West Magistrates' Court ex parte Mohammed Akhtar [QBD 25 June 1982], unreported.

R v Immigration Appeal Tribunal ex parte Kotecha [1982] Imm AR 88. R v Immigration Appeal Tribunal ex parte Mehra [1983] Imm AR 156.

Counsel:

M Beloff QC and D Pannick for the applicant; A Collins QC and R Jay for the respondent.

PANEL: Woolf J

Judgment One:

WOOLF J: This is an application for judicial review brought by Mr L Ron Hubbard in relation to a decision of the Immigration Appeal Tribunal who heard the matter on 12 July 1984. In that decision, the Tribunal upheld a decision of an adjudicator who, in turn, had upheld the Secretary of State's decision to refuse to the applicant a letter of consent to enable him to visit this country for the period of one month.

In support of his application to this court, Mr Beloff relies on three grounds. One of those grounds raised a general issue as to the extent of appellate bodies' powers under the Immigration Act 1971 to determine an appeal adversely to an appellant on the basis of reasons or matters not relied upon by the Secretary of State or an immigration officer at the time of the original decision. The second and third grounds depend upon the facts of this particular case, the first of those two grounds being a natural justice point. The second of the two grounds involved a no evidence point.

In order to understand the issues which are involved, it is necessary to make reference to the long history leading to the decision of the Tribunal. That history is largely to be derived from correspondence between the Home Office and those who are acting on behalf of the applicant. The precise terms of that correspondence can be significant, but the adjudicator, in his decision, admirably set out the facts and therefore, although I have well in mind the precise terms of the correspondence, like the Tribunal, I propose to set out that history by adopting the adjudicator's summary which I regard as excellent.

What was said by Mr Healy, the adjudicator, is as follows:

"The appellant is a public figure known internationally as the founder of the Church of Scientology. In later years he has severed his official connection with the church and has lived the life of a recluse concentrating on his writing and leaving his extensive business affairs to be managed by others.

"For the purposes of this determination it is only necessary to record that in 1968 the appellant was informed by the British Government that having regard to its policy towards Scientology he would not be given leave to land in the United Kingdom. However on 16 July 1980 the so-called ban on Scientology was lifted and it was made clear that 'individuals associated with Scientology whose presence was not conducive to the public good will continue to be liable to refusal under ordinary immigration policy'. The appellant himself was told that if he presented himself at a port he would be likely to be refused admission and it was pointed out that it was open to him to apply for entry clearance from abroad which would enable all the relvant circumstances to be considered.

"On 9 June 1982 the appellant's solicitors wrote to the Home Office referring to this previous history and informing them that the appellant was minded to seek to visit the United Kingdom later that year although he had taken no final decision in this regard. They felt it would be desirable, in the light of the somewhat exceptional history of the appellant's case, to have an informal discussion as to the kinds of matters on which the Home Office might require satisfaction before issuing a letter of consent. They said it was the appellant's wish that he should be represented by his legal advisers including legal counsel as well as members of the church who look after his affairs. The delegation would consist of no more than four people.

"The Home Office did not agree to this course. By letter of 30 June 1982 they confirmed that the solicitors' understanding of the lifting of the ban on Scientology, in so far as it affected the appellant, was broadly correct and that if the appellant applied for entry clearance, he would have to fulfil the normal requirements of the immigration rules to qualify for entry. They explained that the reason the appellant would be refused entry if he presented himself at a port at that time was because he had been convicted of fraud in France in 1978 and the immigration rules provided that such a person be refused entry unless justified for strong compassionate reasons. They concluded that it would obviously be better for all concerned if consideration of these later matters took place other than at a port of entry.

"The solicitors made representations about the legal effect of the conviction which the Home Office agreed to take into account when the appellant applied for entry clearance.

"By letter dated 17 September 1982 the solicitors made efforts to ascertain from the Home Office what decision they would make if the appellant made an application for entry clearance and how they would justify any refusal of the application if made.

"By letter of 22 October 1982 the Home Office declined to consider the issues in advance of an application. By letter of 18 November 1982 the solicitors protested against the Home Office attitude and again put forward a series of questions regarding possible reasons for refusal which they required the Home Office to answer. By letter of 20 December 1982 the Home Office again declined to pre-judge the issues.

"Meanwhile by letter of 13 December 1982 the solicitors applied for a letter of consent to enable the appellant to enter the United Kingdom as a visitor for one month. They said the appellant would come as soon as possible and the purpose of the visit would be to see some friends, to do some writing and to attend to some personal matters. The visit would be private.

"They referred to a telephone call they had made to the Home Office on 9 December 1982 when they had said the appellant would on a visit, meet and possibly give privately, unpaid lectures to members of the Church of Scientology. They had also said they would seek confirmatory instructions in regard to this purpose.

"Their letter now went on to say they were specifically instructed that the appellant did not propose to give any private lectures. The visit was to be strictly private and one in which the appellant sought no publicity whatsoever.

"The solicitors gave an assurance on behalf of the appellant that he would leave the United Kingdom at the conclusion of his visit and they referred to the fact that the appellant had always observed his conditions of stay.

"There was some delay in dealing with the application and on 15 March 1983 the solicitors wrote to the Home Office pressing for a decision. They took the opportunity to submit evidence that the appellant was alive as an allegation had been made in court proceedings in America that he was dead.

"On 27 April 1983 the Home Office wrote to the solicitors to say they were considering the implications of the French judgment in the case in which the appellant had been convicted of fraud and wished to interview him before making a decision on his application. They asked which consular post would be most convenient for the appellant.

"By letter of the 6 May 1983 the solicitors stated that before they could properly advise their client in relation to the proposal that he should attend for interview, it would be useful to know the purpose of the proposed interview. They asked for an indication as to what matters the interview would be directed. Once again they attempted to ascertain the grounds upon which the application might be refused. They asked whether, if the appellant declined an interview, the Home Office would make a decision forthwith.

The Home Office replied on 26 May 1983 again pointing out the requirement of the immigration rules that a visitor must satisfy an immigration officer, inter alia, that he is genuinely seeking entry for the period of the visit as stated by him. They referred to the fact that there had been concern recently about the state of the appellant's health and the fact that he had not made a public appearance for some years. They said they wished to satisfy themselves that the appellant was genuinely intending to visit the United Kingdom and that he would leave at the end of the period for which he sought admission. They did not regard the evidence submitted, which was a copy of a letter allegedly written by the appellant to the judge trying a case in which he was involved in an American court, as satisfactory evidence that he was alive.

"The Home Office referred to the assurance made through the solicitors, that the appellant wished to come for a strictly limited and private visit but they considered, in all the circumstances, it was reasonable that the appellant should make a personal appearance before a British representative so that they could be satisfied the requirements of the immigration rules would be met. They indicated that no specific documentary evidence would be requested at the interview although the appellant might be asked for evidence of his identity. They said the interviewing officer might also wish to ask him one or two questions about his proposed visit. They saidthat once the interview had taken place they would be able to consider all the circumstances of the application including the French conviction and a decision would then be made.

"On 8 September 1983 the solicitors replied to this letter. They dealt with what they regarded as the three fresh matters now raised by the Home Office; that the appellant might not be alive, that the appellant might not genuinely intend to visit the United Kingdom and that he might not leave at the end of his visit. They supplied better evidence that the appellant was alive and they asked that their letter be regarded as formal application for a letter of consent and if the application was refused, sufficient grounds for refusal. They pressed for a reply to this letter on 25 October 1983 and on 3 November the Home Office replied refusing the application on the grounds that the respondent was not satisfied that the appellant gas genuinely seeking entry for the period of the visit as stated by him. It was confirmed that this decision was made after taking into account all the previous correspondence in the case and all the circumstances including the fact that the appellant was not inclined to present himself for interview as requested."

I interpose there to say that the last sentence to which I have referred was contained not in the notice itself, but in a letter accompanying the notice.

"An explanatory statement was prepared in due course summarising the main features of these facts and stating" -- this was for the purpose of the appeal to the adjudicator -- "The Secretary of State needed to be satisfied as to the genuineness of the appellant's intentions as a visitor and the motives behind his application; including whether he would actually come to the United Kingdom. The appellant however, was disinclined to present himself for interview as requested. The Secretary of State was not satisfied therefore that the appellant was genuinely seeking entry for the period of the visit as stated and on 3 November 1983 he refused the application.'"

When the appeal came before the adjudicator, an affidavit was produced sworn by a Mr Lenske, who described himself as the appellant's "personal legal counsel". The affidavit referred to the fact that because of the secluded life that the appellant led, his contacts with the appellant were sporadic and unscheduled, but the appellant had no wish to remain in the United Kingdom after the expiry of any permitted period of stay.

The adjudicator dismissed the appeal. He did so in these terms;

"So at the end of the day I am satisfied that the respondent has reasonable grounds at the various material times for not being satisfied that the appellant intended only a short private visit. It was reasonable therefore for him to ask the appellant to appear in person rather than to accept at face value the various statements and assurances made on the appellant's behalf.

"When a person has been asked to present himself for interview and is not prepared to do so it is natural to wonder why. It can be a suspicious circumstance in itself but when an explanation is given, that may be the end of the matter. I have only the faintest of residual reservations on that aspect myself and there is no reason to believe much weight was given to this factor by the respondent.

"I consider the respondent's decision was in accordance with the law and the immigration rules. The evidence the respondent had has only been supplemented by the affidavit of Mr Lenske but in view of his lack of real contact with the appellant, while I do not doubt his personal bona fides, I cannot accept that he is in a position fully to speak for the appellant or that an affidavit can in a case such as this carry the same weight as the appellant's own statements.

"I am satisfied the appellant was alive at the date of the respondent's decision but without knowing how the appellant would answer such questions as the respondent would wish to put to him and what general impression he made, I am not satisfied on the balance of probability, even taking into account his previous record that the appellant intends only a short private visit of one month to the United Kingdom on this occasion."

Pausing there and without going on to the reasons which the Tribunal gave for dismissing the appeal, it will be observed that the history has three stages. First of all, there is the prelimary enquiry stage. Secondly, there is the stage during which the applicant had made an application for an entry certificate which ended with the letter of refusal. Thirdly, there is the stage which covered the statement of reasons relied upon by the Secretary of State before the adjudicator and the appeal hearing before the adjudicator, culminating with his decision.

So far as the first and second stages are concerned, there is no doubt that there was a considerable degree of delay. That is unfortunate and a matter which, in some cases, can cause hardship. It is fair to say, so far as those periods are concerned in this case, that the matter was being presented on behalf of the applicant as being an unusual one. There were clearly difficult decisions to be made and, furthermore, on one occasion, the delay was due to the absence of the applicant's own legal adviser who had no doubt been advising him throughout.

Secondly, it can be observed, when those three stages are considered, that the matters which the Home Office were raising differed as the time progressed. At an early stage, it was clearly being accepted by the Home Office that the applicant's connection with the Church of Scientology would not be relied upon in itself as a ground for refusing the application. In addition, it was also accepted as time went on that the French conviction would not be relied upon in itself as a ground for refusal of the application. Furthermore, the question of the applicant's health was clearly resolved by the decision of the adjudicator who found, as a fact, that the appellant was alive at the date of the respondent's decision.

I turn now to consider the point of law of general application which has been argued before me. In considering that point, it is important to bear in mind that the Immigration Act contains a complex set of interlinked appeal procedures, each of which is directly connected with a power of the Secretary of State or in his immigration officers acting on his behalf, to control the entry into and visitors in this country. First of all, there is the right of appeal under section 13 of the Act in relation to a refusal of leave. Secondly, there is the right of appeal under section 14 in respect of a refusal to vary a leave already granted. There is the appeal under section 15 in respect of a decision of the Secretary of State to make a deportation order or his refusal to revoke an order. Finally, under sections 16 and 17, there are the appeal procedures in respect of directions for removal and objections to removal to a specified destination respectively. For each of those appeal procedures there is the power of the Secretary of State to make regulations as to the notice which potential appellants are to receive as to their rights.

Section 18(1) provides that the Secretary of State may make regulations providing for written notice to be given to a person of any decsison or action taken in respect of him as is appealable under the relevant part of the Act and for that notice to contain reasons for the decision or action. Subsection (2) of that section is important since it provides: "For the purpose of any proceedings under this Part of this Act" -- that is the part dealing with appeals -- "a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action is taken."

The regulations that have been made under section 18 are the Immigration Appeals (Notices) Regulations 1972. Regulation 4(1) of those regulations provides that the notice which must be given has to include a statement of the reasons for the decision or action to which it relates.

Section 19 sets out the jurisdiction of adjudicators which, having regard to section 20, also affects the jurisdiction of the Appeal Tribunal. Subsection (1) of section 19 provides:

"Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act (a) shall allow the appeal if he considers (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal.

"(2) For the purposes of subsection 1(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.

"(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite, and may also make recommendations with respect to any other action which the adjudicator considers should be taken in the case under this Act; and, subject to section 20(2) below, it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them."

It will be appreciated that if there was no power to review questions of fact provided by subsection (2) of section 19, the scope of the appeal under section 19(1)(a) would be limited. However, as there is such a power to review questions of fact, the role of the adjudicator is an extensive one and in the normal case, although it is right to regard the adjudicator as reviewing the decision of the Secretary of State, the review will be one which will require the adjudicator to consider the facts de novo. Clearly, situations will arise where the view of the adjudicator on the facts will be wholly different to that of the Secretary of State and indeed the evidence which will be before the adjudicator will be different from that which is before the Secretary of State. However, because the function of the adjudicator is to review the determination of the Secretary of State, the matter has to be considered having regard to the circumstances existing at the date of the Secretary of State's decision. That this is the correct approach to the role of the adjudicator is made clear by the decision of the Court of Appeal in the case of R v Immigration Appeal Tribunal, Ex parte Kotecha [1982] Imm AR 88.

In support of his contention that the adjudicator is further restricted to considering the matters relied upon by the Secretary of State for his decsion, Mr Beloff relies strongly on section 18(2), considered in the context of section 19, and the statutory instruments relating to the right of appeal provided by this part of the Immigration Act. He submits that although the provisions do not expressly spell out the result for which he contends it is the effect of what is laid down by the Act; this is the clear implication from the provisions as a whole. He submits that the whole object of giving notice of the reasons for the Secretary of State's decision would be defeated if those reasons could subsequently be changed. He submits that the statement that section 18(2) contains, that the notice shall be conclusive of the person by whom and of the ground on which any decision or action was taken, shall be binding upon the Secretary of State, both in relation to the actual decision and to the appeal which flows from that decision.

The difficulty I find with Mr Beloff's submission is that it could lead to results quite contrary to the manner in which the control of immigration is intended to be exercised by the immigation authorities under the Act. The Act requires that the Secretary of State shall from time to time lay down rules as to the practice to be fiollowed in the administering of the Act; see section 3(2). The rules which the Secretary of State has laid before the Houses of Parliament in accordance with the requirements of the Act set out circumstances in which leave to enter this country is to be refused, circumstances where leave may be refused and circumstances where leave is to be granted.

In the course of an appeal, in reviewing the facts on evidence wholly different from that which was before the Secretary of State, the adjudicator can be faced with a situation where the effect of the facts as found by him is clear and unequivocal: leave should be refused. This is not a situation where the applicant is entitled to enter this country. However, because on the facts which were before him, the Secretary of State based his decision upon a different part of a rule, he could have come to a decision which was the right decision, for the wrong reasons having regard to the facts found by the adjudicator. If the adjudicator was then to be circumscribed by the reasons for the decision given by the Secretary of State, because the case did not, on his findings of fact, fall within the grounds relied upon by the Secretary of State, he would have no option but to come to a decision which was contrary to the rules when viewed as a whole, although it would accord with a particular rule or part of a rule relied upon by the Secretary of State. This would clearly be a result quite contrary to the intent of the Act. Furthermore, I regard it as one which would be contrary to the wording of section 19(1)(a)(i) which refers to any immigration rules applicable to the case. A preferable interpretation of the Act is one which leads to the result that the adjudicator, having found the facts, is entitled to apply the immigration rules as applicable to the case, having regard to the facts that he has found, subject to important provisos.

The first proviso is this. It is necessary, of course, to make sure that the appellant before the adjudicator has a proper opportunity of fairly stating his case. He must be given proper notice of the case which he has to meet. If, at the outset of the hearing, it is not apparent that a particular point is going to arise for consideration, then it may be necessary for the matter to be adjourned to enable the applicant to deal with the matter properly. The construction of the provisions which I would adopt does not need to involve any risk of injustice to the appellant, if the adjudicator bears in mind, as he is bound to in my view, that the procedure must be one which is fair to the appellant.

The second proviso is one which Mr Collins made as a concession at the close of the argument before me, namely, that the adjudicator should not seek to go behind a finding of fact of the Secretary of State which is favourable to the appellant. Mr Collins made this concession having regard to his interpretation of the provisions and I express no personal view as to whether he was obliged to make that concession or not. I am content to deal with it in the way in which he dealt with it, namely, as a concession. Section 18(2) is not intended to have the effect Mr Beloff submits. Its purpose is to avoid any dispute as to the basis of the Secretary of State's decision. It does not affect the scope of appeals from the decision.

I turn to the previous decisions of this court dealing with this question to see whether they throw any light upon the matter. I turn to the latest of those decisions first of all because it is the decision which at least in part is in support of the arguments which Mr Beloff has advanced although it does not go as far as he submits that it should go in his favour. It is the decision of R v Immigration Appeal Tribunal, Ex parte Mehra [1983] Imm AR 156. In that case, a notice of refusal was given in respect of an application for an entry certificate which indicated that the entry clearance officer was not satisfied that the applicant had any close connection with the United Kingdom or that his admission would be in the general interest of the United Kingdom. There was an appeal against that decision and the Home Office, in support of their decision sought to rely upon an entirely new matter, namely, an expressed lack of satisfaction as to the applicant's means. It was on the basis of the lack of means -- a matter not originally relied upon -- that the adjudicator and the Immigration Appeal Tribunal dismissed the appeal.

On the matter coming before Mann J on an application for judicial review, he came to the conclusion that the tribunal could take into account reasons not given in a notice of refusal, but not grounds other than those stated in the notice. He also dealt with the allegation that the tribunal applied the wrong standard of proof. Mr Beloff, who appeared for the applicant in that case as well as in this case, argued that it was not permissible to do what the adjudicator and the tribunal had done. Counsel appearing on behalf of the Immigration Appeal Tribunal, Mr Simon Brown, argued the contrary. The way that the learned judge dealt with the matter is as follows:

"Mr Brown, for the Immigration Appeal Tribunal, argues that Mr Beloff's argument is based upon a false premise. He says that Section 18(2) provides that a 'ground' is conclusive, but is silent upon 'reasons'. 'Reasons' may therefore be added to or subtracted from. Mr Brown suggests a statutory structure which recognises decision, ground, reasons. Of course, as Mr Beloff has pointed out, linguistically the word 'ground' and the word 'reason' may be interchangeable. However, it does appear that the draftsman of the Act has distinguished between 'ground' in Part II of the Act (that is the part dealing with appeals). There are seven of them anterior to Section 18(2). I take as an example Section 13(5)." The learned judge then referred to that subsection. He went on to say: "The word 'reasons' appears in Section 18(1)(b) which I have already read. It does not appear elsewhere in Part II, but it does appear in the subordinate legislation to which I have referred. The statutory structure, says Mr Brown, is one where there is a decision for which there is a ground for which there are reasons. The ground, he says, is conclusive and I can readily perceive why a ground should be conclusive in that it would prevent an unappealable ground being added so as to shut out an appellant or so as to avoid difficulty in relation to the forum for an appeal. Although Mr Brown suggests a ground is conclusive, a reason for that ground is not, in the sense that the reason may be added to in order to support the conclusive ground. It seems to me that the draftsman of the subordinate legislation, in particular the draftsman of the Procedural Rules and, most specifically, Rules 8(1) and 8(4), took the view that reasons could not be added to. I have already made a comment on the two sub-paragraphs. It may be that on a future occasion a question will arise as to the propriety of a particular explanatory memorandum. That is not a question before me today."

For the purposes of that case, it was sufficient to mount an argument of the sort that was mounted by counsel on behalf of the Immigration Appeal Tribunal. The wider argument which was advanced before me by Mr Collins was apparently not advanced before the Immigration Appeal Tribunal. With the greatest respect to the way in which the matter was dealt with in those circumstances, I would disagree that it is right or sensible to draw a distinction between grounds and reasons. The argument against limiting the powers of the appellate body appears to me to be equally strong whether one applies it to grounds or reasons. I do not myself find there is room for a halfway house. Indeed, I would question whether it is right to say that the fact that the grounds are conclusive would prevent an unappealable ground being added or avoid difficulty in relation to forum. First of all, so far as grounds are concerned, there is specific provision in section 13(5) which removes a right of appeal if the Secretary of State certifies that he has given directions for the appellant not to be given entry into the United Kingdom on the ground that his exclusion is conducive to the public good. Such a direction can be given quite independently of any application for leave to enter and its operation would be quite independent of any ground relied upon for refusing leave to enter apart from that specific ground. Therefore, the fact that the Secretary of State had not relied, in considering an application for leave to enter or for entry clearance on the public good ground, would not stop him from preventing an appeal by relying on section 13(5).

So far as forum is concerned, again if the provisions of the Act are examined, I do not consider that the result would be achieved that it was anticipated would be achieved if the grounds could be changed. The provisions of the Act clearly deal specifically and separately with the situation with regard to a ground such as exclusion for the public good. It is clearly provided that the appellate machinery should not interfere with the Secretary of State's power to give directions in that regard.

Mann J referred to an earlier decision of Ex parte Tong [1981] Imm AR 214. In that case, Glidewell J as he then was, as I understand his judgment, was taking a similar view to that which I would adopt. Reading from the headnote in that case, it states:

"When hearing appeals under the Immigration Act 1971 the immigration appellate authorities are required under s 19(1) (the adjudicators) and s 20(1) (the Tribunal) to consider whether the decision of the immigration authority which is appealed was 'not in accordance with . . . any immigration rules applicable to the case.'

"Thus, the adjudicator and the tribunal were entitled to take into account a reason which might have justified refusal of an application . . . though that reason had not figured in the statutory notice of refusal which had specified a number of other reasons for refusal contained in that relevant rule."

So far as the Immigration Appeals (Procedure) Rules are concerned, Mann J referred to the fact that rule 8 anticipates that at the commencement of a hearing the authority shall give to the respondent an opportunity to amplify the written statement and he regarded that as drawing a distinction between amplifying and amending the statement.

For my part, I would not regard it as being significant as to whether there was express power to amend that statement or merely to amplify it. In my view, the procedure rules cannot, in themselves, affect the proper interpretation of the Act. In so far as it is relevant to have regard to those procedure rules in construing the Act, the position is correctly indicated in Halsbury's Laws of England, Volume 44, 4th Edn, paragraph 884 and, in particular, by the notes referred to in that paragraph.

The issue here is not as to whether the statement or reasons can be amended, but as to whether or not the Secretary of State is confined to the reasons and grounds which he gave or had at the time of his refusal. A number of other authorities were referred to in the course of argument. I do not propose to do more than to refer to them shortly. First of all, there was the case of R v Immigration Appeal Tribunal, Ex parte Mehmet [1978] Imm AR 46. I do not regard that decision as being helpful because in that case, the applicants sought to change horses midway through the deportation process and the Divisional Court said that that was not permissible. That was a wholly different situation to that under consideration here.

I was referred to the case of Akhtar. This was a decision of McNeill J. This case is unreported, but I was provided with a copy of the transcript. The case was concerned with the position of the appellate authority in relation to possible illegal entrants. The conclusion was reached by the learned judge that if the Secretary of State was not treating an immigrant as an illegal entrant, it was not open to the immigration appellate body to do so. I do not quarrel with that conclusion at all. It is clearly right, but in the course of giving judgment, the learned judge said this: "There are two aspects of this reading of the rules. The first is that the appellate authorities' powers -- jurisdiction, if that be the appropriate word -- are wholly restricted to deciding that which is referred to them for decision by the notice and grounds of appeal, varied or amended as they may be by Rule 6(3) and the respondent's wirtten statement."

So far as that deals with the situation at the outset of the tribunal's investigations, again I do not dissent. However, if in the course of properly carrying out the jurisdiction referred to by the learned judge, facts are found which make it appropriate to consider a different part of a rule, or a different rule, or a different circumstance, then in my view, the passage in the judgment should not be taken as suggesting such a consideration is not possible. It is to be noted that the reference which the learned judge makes to the respondent's written statement includes a possible expansion or amendment of that statement.

Both McNeill J in that case and Glidewell J in the case of Tong stressed the importance of safeguarding the appellant against unfairness. As I have already indicated, I fully endorse their views -- in particular the views of Glidewell J in the case of Tong.

The final case to which I should make reference is the judgment of Forbes J in the case of Malik. That was a case which went to the Court of Appeal but the Court of Appeal did not deal with the point which is relevant to this case. However, as I read the approach indicated by Forbes J in that case, he was taking the view that an adjudicator could act under the provisions of a different rule if he came to the conclusion that that rule was applicable rather than the rule relied upon by the Secretary of State, but he was concerned with the question as to how the adjudicator's conclusion was then to be put into effect. Should the matter be determined by the adjudicator or should the matter be remitted by the Secretary of State if the question of discretion was involved? This is not the problem here and I therefore come to the conclusion that the argument advanced by Mr Beloff in support of this general point is incorrect and not decided in his favour by the previous decisions.

Next, it is necessary to consider the two matters on which he relied arising out of the facts of this case. Having regard to the length of this judgment already, I do not intend to set out in full the reasoning of the Tribunal for their conclusion. It is sufficient if I draw attention to the fact that the relevant part of their decision starts at page 119 and continues to the end of their decision. In that passage, the Tribunal refer to the fact that the applicant is hardly an ordinary citisen. They say: "He is the founder of an organisation (a so-called Church) which caused a public outcry and whose members were denied entry to this country from 1968 to 1980. He is also the author of two 'bestsellers'. An immigration officer or entry clearance officer is entitled to take into account the sort of person with whom he is dealing and in our view it would have been unreasonable to have regarded the appellant as any run-of-the-mill applicant."

In particular, having regard to that passage which I have just read, Mr Beloff submits that no evidence was before the Tribunal which supported the adverse conclusion which he says is implicit in those remarks. Furthermore, no warning had been given to the applicant that these matters were going to be relied upon against him. With the greatest of respect to the forceful argument -- and on this matter it was an extranely foreful argument advanced by Mr

Beloff, I consider that the whole of his attack against the Tribunal's decision misunderstands the basis upon which the Tribunal came to their decision that the appeal should be dismissed. When read as a whole, it is quite clear that what was motivating the Tribunal was the fact that the applicant had declined the invitation to be interviewed. The Tribunal were saying that having regard to his history and the sort of person he appeared to be, in their view it was not unreasonable for the officer to consider that he could not be satisfied without interviewing the applicant himself. That was the basis of the decision. That was something which I find reflected in the letter which accompanied the original notice of refusal, in the statement of reasons for the refusal, in the adjudicator's decision (although he deals with it in two different ways; one more favourable to the applicant than the other) and in the Tribunal's decision.

The reference to the immigration officer not being satisfied arises because, in an ordinary case where entry clearance is being sought under rule 17 of HC 169, it says that a visitor is to be admitted if he satisfies the immigration officer that he is genuinely seeking entry for the period of the visit as stated by him. The obligation is upon him to satisfy the immigration officer of that. He can, if he wishes, take the course which is encouraged by rule 10 of applying for entry clearance, including seeking a letter of clearance as was sought here. If he obtains entry clearance, then he is in an advantageous position as rule 13 provides that a passenger who holds an entry clearance, which was duly issued to him and is still current, is not to be refused leave to enter unless the immigration officer is satisfied of the three specified matters referred to in that rule. Once he has entry clearance, there are only very limited grounds on which he can be refused leave to enter.

Where a person seeks to enter this country without entry clearance, in the normal way, he will be interviewed. The Act specifically provides in schedule 2 that an immigration officer may examine any person who has arrived in the United Kingdom. In the light of that background, the Home Office were entitled to invite the applicant to come to an interview. It seems to me as was the case here, that when such an invitation was declined, that was a matter which, in itself, could cause the Home Office to have reservations about whether or not this was an applicant who wished, in accordance with the rules, to undertake a visit of the type there specified. I understand the Immigration Appeal Tribunal's decision as doing no more than indicating that the proper inference to be drawn from that matter had to be considered in the light of the person who was the appellant before them. In making reference to his background, they were doing no more than referring to undisputed facts which had been placed in evidence before them and which had been previously found to be correct by the adjudicator in the decision which I have set out.

That there was an intention to rely upon the failure of the appellant to attend the interview was apparent because at page 117 in the bundle, Mr Beloff, before the Tribunal, had submitted that the demand for the appellant to attend the interview was unreasonable, as was the refusal of his application. The Tribunal came to the conclusion that the requirement to attend the interview was not unreasonable. In my view, that was a decision to which they were entitled to come. I do not regard them, in doing that, as attaching some adverse significance to the Church of Scientology which went beyond what were the agreed facts, namely, that between 1968 and 1980, members were denied entry to this country.

I would therefore take the view that properly understood, there was nothing inferred by the Tribunal which involved them having to give any specific notice to Mr Beloff of the basis on which they were going to decide the matter. They were not going into any new areas of fact which were outside the consideration of the questions which it could reasonably be anticipated were going to be dealt with by the Tribunal. There was certainly evidence to support the matters to which they referred. Indeed, they were ones which were not in dispute. That being so, so far as the facts of this matter are concerned, I would come to a view adverse to Mr Beloff on those two issues on which he relies. Accordingly, I refuse this application.

DISPOSITION:

Application refused

SOLICITORS:

Alan Taylor; Treasury Solicitor. C03: