Secretary of State for the Home Department v. Georgiou

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v GEORGIOU TH/23/70

Immigration Appeal Tribunal

[1972] Imm AR 179

Hearing Date: 10 November 1970

10 November 1970

Index Terms:

Visitor -- Genuine visitor -- Support during proposed period of stay without working -- Whether conflict betwen Statute and Instructions to Immigration Officers -- Commonwealth Immigrants Acts 1962 and 1968, s 2(3)(c) -- Cmnd 4298, para 13.

Held:

This case concerned the refusal of an entry certificate to a Cypriot citizen who wished to enter the United Kingdom as a visitor. On the appeal by the Secretary of State against the determination of an adjudicator the issue before the Tribunal was whether on a true construction there was any conflict between s 2(3)(c) of the Commonwealth Immigrants Acts 1962 and 1968 and para 13 of the Instructions to Immigration Officers, Cmnd 4298. The Tribunal held that there was no conflict between s 2(3)(c) of the 1962 Act as amended and para 13 of the later Instructions, n1 and that in the result the respondent had been rightly refused an entry certificate as a visitor. n1 Section 2(3)(c) of the Act is set out on page 181, post; and para 13 of Cmnd 4298 is set out on page 180, post.

Introduction:

The facts are set out in the Tribunal's determination.

Counsel:

W. J. Bohan for the appellant. K. S. Nathan of the United Kingdom Immigrants Advisory Service, for the respondent. PANEL: Sir Derek Hilton (President), P. N. Dalton, Esq. (Vice-President), Miss M. F. Hardie

Judgment One:

THE TRIBUNAL: This is an appeal by the Secretary of State against the determination of an adjudicator, Mr. E. J. T. Housden, who allowed the respondent's appeal against the refusal by the Assistant Passport Officer, Nicosia, to grant her an entry certificate. The grounds of appeal are:

"The Secretary of State does not accept the interpretation which the adjudicator has sought to put upon s 2(3)(c) of the Commonwealth Immigrants Act, 1962; nor does he accept that paragraph 13 of Cmnd 4298 conflicts with s 2(3)(c) of the Act."

The respondent, Miss Panayiota Georgiou, who was born in 1947 and is a citizen of Cyprus, applied for an entry certificate on 6 July 1970 in order to travel to the United Kingdom to spend a holiday of about a month. Miss Georgiou informed the entry certificate officer that she was going to stay with a Mr. H. A. Mischaelides, a restaurant owner living at Working, and that her stay was in return for hospitality given by her family to Mr. Michaelides, who is an annual visitor to Cyprus. The cost of the appellant's airline ticket would be met by her unmarried elder brother Fanos. The entry certificate officer ascertained that the appellant has not been employed since she left school aged 16 and that her parents had no savings or a car. These financially poor domestic circumstances belied her assertion that her farther earned @ 7 a day and the entry certificate officer strongly suspected that Miss Georgiou intended to settle in the United Kingdom and seek employment. Her application was refused, the notification of refusal stating: --

"You have applied for a 'Visitor' Entry Certificate to spend one month in the United Kingdom, but I am not satisfied that you are seeking entry only for this period, as stated by you, or that the support available is adequate. Your application is therefore refused according to paragraph 13 of Command Paper 4298."

Miss Georgiou appealed to an adjudicator under the provisions of s 2(1)(c) of the Immigration Appeals Act 1969. After setting out the facts, the adjudicator, Mr. Housden, referred in his determination to para 13 of Cmnd 4298 which is as follows: -- "13. A Commonwealth citizen seeking entry as a visitor is to be admitted if he satisfies the Immigration Officer that he is genuinely seeking entry for the period of his visit as stated by him and can, without working, support himself and any dependants for this period and meet the cost of his return journey. A visitor who depends for support on a relative or a friend in this country may be admitted if the Immigration Officer is satisfied that no more than a visit is intended and that the support available is adequate. In either case admission should be refused if the Immigration Officer is not so satisfied." The adjudicator went on: -- "Thus it appears that before an immigration officer may admit someone who states that he is to be maintained by a relative or friend during the period of his visit, he must be satisfied: -- (a) that the support available is adequate, that is that the intending host is in a suitable financial position and has adequate accommodation, so that the guest will not have to provide board, lodging or, presumably, entertainment at his own expense; and (b) that the intending guest is not coming for any reason other than a visit, that is he does not intend to settle here permanently, or to seek work here, or to enroll as a full time student, to mention only three alternative possibilities. It is clear from the evidence, and it is not disputed by the respondent, that Mr. H. A. Michaelides is in a position to entertain Miss Georgiou as his guest for one or two months. Requirement (a) mentioned above is not therefore in dispute. The dispute arises out of requirement (b), and here it appears to me that part of para 13 of Cmnd 4298 is in conflict with s 2(3) of the Commonwealth Immigrants Act 1962 as amended by the Commonwealth Immigrants Act 1968. The amended sub-s 2(3) of that Act reads as follows: --

'Without prejudice to sub-s (2) and (2A) of this section, the power to refuse admission under this section shall not be exercised, except as provided by subsections (4) and (5), in the case of a Commonwealth citizen who satisfied an immigration officer...

(c) that he is in a position to support himself and his dependants, if any, in the United Kingdom otherwise than by taking employment or engaging for reward in any business, profession or other occupation;'

Section 2(3)(c) has been the subject of judicial interpretation in the case of R v Lympne Airport Chief Immigration Officer, ex p Amrik Singh ([1968] 3 All ER 163), in which a revised judgment was delivered in a Divisional Court of the Queens Bench Division of the High Court on 31 July 1968. LORD PARKER C.J. said (at pp 165, 166 ibid): "This case, as it seems to me, depends on the true construction of s 2(3)(c) of the Act. As is well known, sub-s (1) gives an immigration officer an absolute discretion whether to refuse or to admit a Commonwealth citizen, or to admit him for a period subject to conditions. But sub-s (3) in effect provides that admission shall not be refused if the Commonwealth citizen satisfies the immigration officer

"(c) that he is a position to support himself and his dependants, if any, in the United Kingdom otherwise than by taking employment or engaging for reward in any business, profession or other occupation."

LORD PARKER then considers an argument by counsel for the applicant, with which we need not concern ourselves, and goes on

'Accordingly counsel for the applicant, if he is wrong, and I think that he is on this point, goes on to submit that the immigration officer in the first instance, and the Home Office in the second, did not apply their minds to the proper criteria under the Act, and in particular s 2(3)(c) . As I have already said, Mr. McDermott (the immigration officer concerned) gave as one of his reasons at any rate in the first instance that the applicant arrived with no funds, and it is submitted by counsel for the respondent that that of itself shows that the applicant could not bring himself within s 2(3)(c) to which I have referred, since that paragraph refers to the fact that he must satisfy the immigration officer that he is in a position to support himself.

'I confess that that as it seems to me is a very narrow construction, and that in order to understand what is meant by having sufficient funds to support himself, one must look at the concluding words of s 2(3)(c) which are 'otherwise than by taking employment or engaging for reward in any business, profession or other occupation'. It seems to me that if an immigrant shows that he has the cash or that he has money or resources to draw upon in the country, or that a relative is in a position to and genuinely is undertaking to be responsible for him and to pay for his stay in this country, then the applicant prima facie brings himself within para (c) .

'What else must he prove? As it seems to me he must prove that the funds on which he is entitled to draw will not only be available but will in fact be used for the purposes of his support without his working or engaging for reward in any business. Once those two matters are shown to the satisfaction of the immigration officer, then, it seems to me, the immigration officer must under sub-s (3) admit him to this country and provide by way of condition the proper period of his stay.'"

Mr. Housden then summarised LORD PARKER'S interpretation of para (c) as showing than an intending immigrant, to bring himself within the protection of para (c) , must satisfy the immigration officer (i) that adequate funds are available for his support, and (ii) that those funds will in fact be used for that purpose. The adjudicator said that while (i), just mentioned, is much the same as requirement (a), earlier set out, and with this we agree, he did not think that (ii) corresponds with requirement (b). With this we also agree; we think (ii) is part of requirement (a). Requirement (b), it seems to us, means simply that the intending guest is coming as a genuine visitor and LORD PARKER, C.J. in his judgment does, we consider, refer to a genuine visitor when he says in the passage: -- "it would only be if they (the immigration officers) were not satisfied or if they felt that he (the immigrant) was likely to obtain a job during the period that they allowed him to come in, notwithstanding that the brother was paying for him, that they would be entitled to refuse him enter." In our view this passage in no way conflicts with the provision in para 13 of Cmnd 4298 that a visitor who depends for support on a relative or friend in this country may be admitted if the immigration officer is satisfied that no more than a visit is intended. Mr. W. J. Bohan representing the Secretary of State drew our attention to the judgment of SALMON L.J. in the case of Khan v London Airport Immigration Officer, n2 decided by the Court of Appeal in April 1969. It appears that the adjudicator's attention was not drawn to this case as he did not refer to it in his determination. In the course of his judgment SALMON L.J. said: -- n2 Unreported. A unanimous decision of SALMON, WINN and FENTON ATKINSON, L.JJ.

"It seems to me that s 2(3)(c) requires an applicant to satisfy the authorities of two things: first of all, about the time for which he is genuinely seeking entry into this country; and secondly, that he is in a position to support himself during that period. For example, if a man makes an application to enter the country for say a month and can show that he has @ 100 on him this sum would no doubt be adequate to support him during that period. If, however, the material before the officer does not satisfy him that the man genuinely intends to reside here only for a month but may well in reality intend to reside here for as long as he can, the officer would be entitled under this Act to refuse entry into the United Kingdom."

In other words, this seems to mean that the person seeking entry must satisfy the Immigration Officer that he is a genuine visitor for the stated period of his visit and that he can support himself during that time; we see no conflict with the terms of para 13 of Cmnd 4298. Another case to which the adjudicator was not referred was that of R v Immigration Officer, Ringway Airport, ex Surinder Singh Grewal n3, decided in July 1969. In his judgment LORD PARKER C.J. said: -- n3 Unreported. QBD (Divisional Court), LORD PARKER C.J., MELFORD STEVENSON and BRIDGE JJ.

"In order to gain admittance in the case of what we may loosely call a visitor the proposed immigrant has to satisfy the immigration authorities that he is a true visitor, that there is money in this country available for his support, and thirdly, the most important, that that money will be used for his support and that he will not therefore work."

We are satisfied that there is no conflict, as the adjudicator found, between the provisions of s 2(3)(c) of the Commonwealth Immigrants Act 1962 and para 13 of Cmnd 4298. Mr. K. S. Nathan on behalf of the respondent said that if the Tribunal took the view that there was no conflict he would argue that Miss Georgiou has sufficient finance and that she wishes to come here for nothing more than a visit. In other words, that she was a genuine visitor. Mr. Nathan said that it was not in dispute that funds were available for her support during her visit. Furthermore there were no documents or other evidence to show that the respondent was going to look for employment. Mr. Nathan submitted that it was held in R v Lympne Airport Chief Immigration Officer, ex p Amrik Singh ([1968] 3 All ER at p 166) that suspicion was not enough. What LORD PARKER said towards the end of his judgment was

"In so far as that suspicion had been directed to the fact that at the end of six weeks he might get work, that, as I have already said, would not justify refusal to enter; it would only be if they were not satisfied or if they felt -- and I am not dealing with onus of rroof -- that he was likely to obtain a job during the period that they allowed him to come in, notwithstanding that the brother was paying for him, that they would be entitled to refuse him entry."

In this case the assistant passport officer felt or suspected for the reasons he gave and which have been set out herein that Miss Georgiou would seek employment whilst she was here and that she was thus not a genuine visitor. Though there was no documentary evidence, as there has been in other cases, to support the passport officer's suspicion, we cannot say that such suspicion was unjustified or without foundation.

DISPOSITION:

Appeal allowed.