Secretary of State for the Home Department v. Thaker

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v THAKER, TH/6557/75(641)

Immigration Appeal Tribunal

[1976] Imm AR 114

Hearing Date: 17 March 1976

17 March 1976

Index Terms:

Evidence -- Evidence of facts occurring subsequent to refusal of application to immigration authority -- When appellate authority may properly take such evidence into account in determining appeals -- Relevant considerations in different types of appeal -- Abdullah's Case, [1973] Imm. A.R. 57, considered.

Practice and procedure -- Evidence -- Facts occurring subsequent to refusal of application to immigration authority -- Refusal of student application for extension for purpose of accountancy studies -- Appeal before adjudicator on basis of projected 3-year economics degree course -- Whether evidence about 3-year course should be taken into account by adjudicator -- Abdullah's Case, [1973] Imm. A.R. 57, considered.

Student -- Extension of stay -- Application for extension with view to accountancy studies -- Refusal -- Economics degree course the basis of appeal to adjudicator -- Whether evidence relating to this project properly taken into account by adjudicator -- Abdullah's Case, [1973] Imm. A.R. 57, considered.

Student -- Extension of stay -- Breach of condition of entry prohibiting employment -- Relevant facts for consideration when deciding whether application for extension should be granted -- Whether para 4 of HC 80 should be invoked only in extreme cases -- HC 80 (& HC 82) para 4.

Held:

In their determination on the student appeal reported below the Tribunal considered the general applicability to a variety of cases of the principle enunciated in Abdullah's Case ([1973] Imm. A.R. 57), namely that evidence of facts subsequent to the refusal of an application to the immigration authority should normally form the basis of a fresh application. In the opinion of the Tribunal no hard and fast direction could be given, since facts in appeals were infinitely variable; a pragmatic approach was therefore necessary, involving questions of expediency, and different considerations might be relevant in cases when the applicant was already in the United Kingdom and when his application was made overseas; likewise, inter alia, when the fresh evidence did not relate to the decision which was the subject of the appeal (see pp 117, 118-119, post). T, a citizen of Kenya, was admitted to the United Kingdom for 12 months as a student of accountancy at a local authority college; a condition of his admission prohibited him from entering into employment. Having failed certain examinations he left the college 6 months later and -- without seeking Home Office permission -- took employment as an ordinary clerk with a firm of chartered accountants while continuing to study privately at home. Shortly before his limited leave to enter expired T applied for an extension with a view to pursuing further his studies in accountancy and -- if successful in 'A' Level examinations -- taking articles with the firm already employing him; he had not, however, been accepted for any full-time course of study n1. His application was refused. When some months later his appeal came before an adjudicator the basis of his appeal was that he had decided not to take articles but instead had enrolled on a 3-year degree course in economics which was to commence shortly. The adjudicator, taking this fresh evidence into account, allowed T's appeal. n1 Under para 13 of HC 80 "students or would-be students" applying for extensions of stay are required to produce evidence that they have "enrolled for a full-time course of daytime study which meets the requirements for admission as a student". The Secretary of State appealed to the Tribunal. The two main grounds of appeal were (i) that the adjudicator should not have taken into account facts which were not before the Secretary of State at the time T's application was refused, and (ii) that the adjudicator gave insufficient weight under para 4 of HC 80 n2 to T's breach of his conditions of entry in taking employment. For T it was urged, inter alia, that he was a bona fide student who had passed 2 'A' Level examinations since his application was refused and had now commenced an economics degree course at a polytechnic college; and with regard to his breach of conditions in taking employment he had left that employment as soon as his application was refused, and para 4 of HC 80 n2 should only in extreme cases be invoked to defeat an application for extension of stay or variation of conditions. n2 Paragraph 4 of HC 80 is set out in footnote 3, post. Held (allowing the Secretary of State's appeal): (i) the fresh evidence should not have been taken into account by the adjudicator, for T's economics degree course was a project which materially altered his original application. Principle enunciated in Abdullah's Case ([1973] Imm. A.R. 57 at p 61) considered and explained. (ii) T had taken ordinary full-time employment in breach of a condition of his admission; this was a "relevant fact" under para 4 of HC 80, and the "general considerations" set out in the paragraph n3 were to be taken into account in all cases and were not to be reserved for application only in extreme cases. n3 Under the heading "General considerations", para 4 of HC 80 provides as follows: "The succeeding paragraphs set out the main categories of people who may be given limited leave to enter and who may seek variation of their leave, and the principles to be followed in dealing with their applications, or in initiating any variation of their leave. In deciding these matters account is to be taken of all the relevant facts; the fact that the applicant satisfies the formal requirements of these rules for stay, or further stay, in the proposed capacity is not conclusive in his favour. It will, for example, be relevant whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain; whether he represents a danger to national security; or whether, if allowed to remain for the period for which he wishes to stay, he might not be returnable to another country."

Counsel:

B. Hunter for the appellant Secretary of State. K. S. Nathan, counsel for the respondent. PANEL: D. L. Neve Esq (Vice-President), G. J. Brown Esq, A. J. Coles Esq.

Judgment One:

THE TRIBUNAL: The respondent, Amitkumar Navinchandra Thaker, a citizen of Kenya now some 21 years of age, was issued with a "student" entry certificate in Nairobi to enable him to come to this country to follow a course in accountancy at Barking College. He was admitted at Heathrow on 20 December 1973, as a student, for an initial period of 12 months, but was by the terms of his admission prohibited from taking employment. After 6 months at Barking College Mr Thaker failed some examinations and decided to leave. In July 1974, without reference to the Home Office, he took employment with a firm of chartered accountants as a clerk, at a salary of L16 per week, it being his stated intention to enter into articles with them on obtaining the necessary 'A' Levels. At the same time he studied privately at home. The Home Office knew nothing of this until they received an application from Mr Thaker, dated 3 December 1974, for an extension of his permitted stay. In this application he stated that he would be taking 'A' Levels in January 1975 and June 1975, and that if he was successful he would be taking articles with the chartered accountants who were employing him. A letter from the firm in confirmation of this was enclosed. Further correspondence with the Home Office ensued from which it was clear that he had not been accepted for any full-time course of day-time study. In view of this and the fact that Mr Thaker had broken his conditions of admission by taking employment, his application was refused on 27 March 1975. He appealed to an adjudicator (Sir John Pestell) against this refusal, and his appeal was allowed on 23 September 1975. Against the adjudicator's determination the Secretary of State now appeals. When the adjudicator heard the appeal, evidence was adduced that the appellant had passed one 'A' Level in January 1975, and (subsequent to the refusal) a further 'A' Level in June. Also subsequent to the refusal, the adjudicator was told that the appellant had decided not to take articles with the chartered accountants but, instead, had decided to take a 3-year degree course in economics at Manchester Polytechnic, for which he had been accepted, commencing in September 1975. The adjudicator decided to take account of these new developments, in the following words: "Some of the evidence before me related to facts subsequent to the decision by the Secretary of State. Some of these new facts however relate to the course of conduct of the appellant since he arrived in this country. The appellant has a place to start at the Manchester Polytechnic at the end of this month. Taking all these circumstances into consideration I believe that justice would be done if I were to take all the facts into consideration in coming to my determination, and I do not believe that any useful purpose would be served by my excluding the subsequent evidence and merely determining upon the facts which were before the Secretary of State when he made his refusal on 27 March 1975. Indeed there was some evidence available in the appellant's favour at that time which he had not placed before the Secretary of State. I must take into account of course that the appellant is still a young man, only 20 years of age. I find that the appellant is a bona fide student with the intention of applying himself to his BA degree in Economics at the Manchester Polytechnic for a period of three years." and allowed the appeal. The two main grounds of the Secretary of State's appeal to the Tribunal -- at least the two grounds which seem to us to have the most substance -- are, first, that the adjudicator should not have taken into account facts which were not before the Secretary of State at the time of the refusal; and secondly, that the adjudicator failed to attach sufficient weight to para 4 of HC 80, relating to 'general considerations' n4 to be taken into account in the consideration of applications. In amplification of these grounds, Mr Hunter has referred us to the appeal of the Entry Certificate Officer, Lahore v Abdullah n5. In their determination of that appeal, the Tribunal said (at p 61): n4 Paragraph 4 of HC 80 is set out in footnote 3, ante. n5 [1973] Imm A R 57. "Evidence of subsequent facts which if before the immigration officer might have influenced his decision by indicating some change in the applicant's original circumstances should normally form the basis of a further application." This was referred to in the appeal of the Entry Certificate Officer, Bombay v Thakerar n6 but not followed owing to facts peculiar to that appeal. And the third case cited by Mr Hunter was Entry Clearance Officer, New Delhi v Umarjeet Kaur, heard on 4 December 1975. n7 In that appeal the Tribunal held that the principle laid down in the case of Abdullah should not lightly be departed from. n6 [1974] Imm A R 60. n7 TH/5497/74(552), unreported. Having regard to these matters, Mr Hunter submits that the adjudicator was wrong to take the "fresh evidence" into account. Mr Hunter further submits that in allowing the appeal the adjudicator purported to exercise a discretion which he did not possess, since the relevant rule was para 13 of HC 80 and one of the requirements of that rule is that students making application for an extension shall produce evidence that they are "enrolled for a full-time course of daytime study"; this requirement is a sine qua non which was not satisfied in this case, and the adjudicator had no discretion to overlook it. Mr Hunter has also referred us to para 4 of HC 80, which provides that in deciding applications "account is to be taken of all relevant facts", the first-mentioned of which is whether the applicant "has observed the time limit and conditions subject to which he was admitted". n8 In this case it is not disputed that the respondent took employment having been prohibited from so doing. n8 Paragraph 4 of HC 80 is set out in full in footnote 3, ante. In reply, Mr Nathan submits that the respondent is a bona fide student who has been quite frank with the Home Office throughout as to his intentions. He has obtained two 'A' Levels, and is now a satisfactory student at the Manchester Polytechnic (a letter to this effect has been produced). As soon as the respondent was refused an extension he left his employment with the chartered accountants. Mr Nathan submits that para 4 of HC 80 n8 should only be invoked in extreme cases, and that the adjudicator was entitled to take all relevant matters into consideration: the adjudicator was evidently impressed by the respondent's achievements and frankness. n8 Paragraph 4 of HC 80 is set out in full in footnote 3, ante. We have considered these matters. The appellant's first ground of appeal -- that the adjudicator should not have taken into account evidence of facts subsequent to the Secretary of State's refusal -- raises an important question and one with which adjudicators have to deal almost daily. It would be useful if we could lay down a hard-and-fast answer to this question, but -- as we think appears from the cases mentioned -- immigration appeals arise from facts which are so infinitely variable that this is not possible. Furthermore, because it is usually necessary for an appellant to make a fresh application if the "new" evidence proffered is not received, it is necessary to consider what this may entail: if the appellant is in this country, and seeking an extension of his permitted stay, the time taken to consider a fresh application (and possibly to determine an appeal arising from it) may well, given the present state of affairs, afford him the extension he seeks irrespective of any lack of merit in the application itself. By contrast, if the appellant is in Bangladesh, for example, and has to make a fresh application to the High Commission there, in the present circumstances this may take him as long as a year (he having probably already waited a year for an appointment before he could make his original application). n9 Considerations of this nature make it clear that a pragmatic approach to the problem, involving questions of expediency, is necessary if as much justice as possible is to be done between the parties; because the application of legal precedents in vacuo could obviously lead to unjust results. n9 For a case in which the Tribunal held that fresh evidence should have been admitted by the adjudicator, see Huda v Entry Clearance Officer, Dacca, a case in which evidence relevant to an application for entry as a visitor arose during the two years between the date of the application and the appeal hearing before the adjudicator, reported at [1976] Imm AR 109 With this in mind, how should the problem be approached? We consider that it would be helpful in each case to consider the nature of the "fresh" evidence which it is proposed to adduce: if it is evidence which strictly refers to the application made to the Secretary of State or entry clearance officer (such as, for example, social service reports in cases involving "family or other considerations", or evidence of income tax allowances in cases involving family relationships), it may well be helpful and right to accept it -- but only after the opposite party has been given an adequate opportunity to consider it, by adjournment if necessary. How much weight should be attached to the fresh evidence is another matter -- for example, evidence of improved attendance by a student at a course of study subsequent to a refusal would in normal circumstances be of little weight, if taken into account at all. On the other hand, if the "fresh" evidence alters the nature of the original application, it will probably be better to refuse to accept it and require the appellant to make a fresh application if he so wishes. Such cases would occur, for example, when a "businessman" appellant who has been refused an extension of stay to run business 'A' seeks to adduce evidence that he has now acquired business 'B'. In our opinion this appeal was one such case. The respondent had been granted an entry certificate to enable him to take a course in accountancy. He had applied (by letter of 2 January 1975) for an extension to enable him to take a course of chartered accountancy, to enter into articles with a firm of chartered accountants, and to take a 9-months' "foundation course". The basis of his appeal was that he should be allowed to take a 3-year course leading to an economics degree at Manchester Polytechnic. In our view this was a project which materially altered his original application, and the adjudicator misdirected himself in taking it into account. We also feel that the adjudicator should have given greater weight to the fact that the respondent had broken his conditions of admission. The statement in his determination "I must accept that the employment was in the nature of training" was hardly in accordance with the evidence of the respondent himself when he said "I was just an ordinary clerk getting @ 16 a week -- full-time each day -- five days a week". We do not accede to Mr Nathan's submission that para 4 of HC 80 is only applicable to extreme cases. In our view it sets out general considerations to be taken into account in all cases. n10 n10 Paragraph 4 of HC 80 is set out in full in footnote 3, ante. Mr Hunter also addressed us on the question of the respondent's intentions, but it is not necessary for us to consider this matter since, for the reasons given, this appeal is allowed and the Secretary of State's refusal is to stand.

DISPOSITION:

Appeal allowed.

SOLICITORS:

Nazerali, Suchak & Co.

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