Taj Bibi v. Entry Clearance Officer, Islamabad

(2) TAJ BIBI v ENTRY CLEARANCE OFFICER, ISLAMABAD TH/14702/75(777)

Immigration Appeal Tribunal

[1977] Imm AR 25

Hearing Date: 19 August 1976

19 August 1976

Index Terms:

Practice and procedure -- Summary determination of appeals -- Res judicata -- Successive applications for entry clearance on same basis (claimed relationship to sponsor) -- Appeal against refusal of first application dismissed after oral hearing -- Appeal against refusal of second application dismissed without oral hearing -- Whether appeal against refusal of second application raised issues previously determined on the basis of facts not materially different in second appeal -- Whether second appeal properly determined without a hearing -- Immigration Appeals (Procedure) Rules 1972, r 35.

Held:

The determination of the Tribunal reported below concern admission to the United Kingdom (1) of a purported child of the sponsor, (2) of a purported wife of the sponsor, illustrate circumstances in which (1) it would be right for an adjudicator to proceed to determine an appeal summarily (i.e. without a hearing) under r 35 of the Immigration Appeals (Procedure) Rules 1972, and (2) it would be wrong to do so. n1 n1 Rule 35 of the Immigration Appeals (Procedure) Rules 1972, under the heading "Summary determination of appeals", is in the following terms: "35-(1) Subject to the provisions of paragraph (2) below, where it appears to an appellate authority that the issues raised on an appeal have been determined -- (a) in the case of an appeal before an adjudicator, by the same or another adjudicator or by the Tribunal, or (b) in the case of an appeal before the Tribunal, by the Tribunal, under Part II of the Act or the former appeal provisions, in previous proceedings to which the appellant was a party, on the basis of facts which did not materially differ from those to which the appeal relates, the authority may forthwith determine the appeal without a hearing. (2) Before an appellate authority determines an appeal without a hearing in accordance with paragraph (1) above, the authority shall give the parties an opportunity of making representations to the effect that the appeal ought not to be so determined. (3) Where an appeal is determined without a hearing in accordance with paragraph (1) above, the appellate authority shall give written notice to the parties that the appeal has been so determined, and any such notice shall contain a statement of the issues raised on the appeal and specify the previous proceedings in which those issues were determined. (4) In paragraph (1) above the reference to the former appeal provisions is a reference to Part I of the Immigration Appeals Act 1969 or Part II of the Aliens (Appeals) Order 1970."

Introduction:

The relevant facts are set out in the determinations.

Counsel:

Z. H. Chishti of the United Kingdom Immigrants Advisory Service, for the appellant Taj Bibi B. Hunter for the respondent. PANEL: D. L. Neve Esq (Vice-President), E. A. Lewis Esq, A.S.W. Newman Esq

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Pakistan, who is now 22 years of age. In August 1971 she applied for entry clearance to enable her to join a Mr Abdul Rehman in this country as his wife. This application was refused. She appealed against the refusal and her appeal was heard and dismissed by Mr M. Patey on 10 October 1971. n3 n3 Mr Patey accepted that the sponsor Abdul Rehman was married to one Taj Bibi in August 1969 but was not satisfied that the appellant had identified herself as being that wife in view of discrepancies between statements given to the Entry Certificate Officer by the sponsor's mother and by the appellant and in view of the inability of the appellant to describe correctly the occupants of the family home. The Tribunal refused leave to appeal against the adjudicator's decision and observed that on the evidence and facts before him he could not have come to any other decision. In December 1973 the appellant made a fresh application at Islamabad for entry clearance upon the same grounds. No further material evidence was produced and her (second) application was refused on 5 March 1975. She appealed against this second refusal and her appeal came up for hearing on 8 June 1976 before an adjudicator at Leeds, Mr A. B. Auckland. The respondent's representative at this second appeal invited Mr Auckland to determine the appeal summarily under the provisions of r 35 of the Immigration Appeals (Procedure) Rules 1972, suggesting that the issues raised had been determined in the previous proceedings on the basis of facts which did not materially differ from those to which the appeal before Mr Auckland related. Mrs Baker of the UKIAS, who represented the appellant, argued that materially different facts did exist, inasmuch as the appellant had borne a child on 18 September 1975 (her application having been refused on 5 March of that year). Mrs Baker produced a statutory declaration made by the sponsor relating to the date of conception and the bith of this child. The adjudicator made the following finding:

"The sponsor's statutory declaration does not, in my view, produce any new facts which materially affect the issue previously determined, namely that for the reasons mentioned in the adjudicator's determination the appellant had not succeeded at the earlier appeal in identifying herself as being Taj Bibi, the wife of the sponsor."

He proceeded to deal with the appeal summarily and dismissed it. Since he clearly appreciated that it might be arguable that he should not have dealt with the appeal in this way, he very properly granted leave to appeal to the Tribunal. Upon the appeal coming before us Mr Hunter (who was not the respondent's representative before the adjudicator) conceded that the alleged birth of a child to the appellant was a fact which materially differed from the facts existing at the date of the earlier appeal and that consequently the adjudicator should have been precluded from determining the person's appeal summarily. The Tribunal entirely subscribed to this view. We therefore suggested a possible form of order which we might make, to which both parties readily agreed and which is as follows. The determination of Mr Auckland of 8 June 1976 is quashed and the appeal is remitted to him, or to any other adjudicator, pursuant to r 21 of the Immigration Appeals (Procedure) Rules 1972, n5 for a full oral hearing. The adjudicator who deals with the appeal pursuant to this order may well feel that the most effective course of action would be to remit the case to the entry clearance officer for further investigation, which course would save the appellant having to wait many months before being interviewed on yet another (a third) application; but this is a matter for the adjudicator concerned to decide. n5 Rule 21 provides, so far as here material, as follows: "(1) The Tribunal may, if in the circumstances of a particular appeal it thinks is appropriate so to do, remit that appeal to an adjudicator for determination by him in accordance with any directions given to him by the Tribunal. (2) The adjudicator to whom an appeal is remitted under this Rule may be either the adjudicator whose determination is the subject matter of the appeal, or some other adjudicator."

DISPOSITION:

Determination of adjudicator quashed and appeal remitted for full oral hearing.

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