Parekh v. Secretary of State for the Home Department

PAREKH v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/5474/74(622)

Immigration Appeal Tribunal

[1976] Imm AR 84

Hearing Date: 20 January 1976

20 January 1976

Index Terms:

Business man -- Partnership in brother's goldsmiths business -- "Assets of his own" -- Visitor seeking variation of entry conditions in order to join brother's business -- Refusal to disclose source of funds claimed as "assets of his own" -- Deception of immigration officer as to intentions on entry as visitor -- Onus on applicant to show that using assets of his own -- Deception on entry and lack of candour in his financial affairs relevant factors when considering merits of application -- HC 80, paras 4, 21.

Held:

The appellant, a citizen of India 34 years of age, entered the United Kingdom as a visitor in June 1973 purportedly for only a month's visit. Questioned by an immigration officer at London Airport he said he had come at the request of his brother in this country in order to escort the latter's two young children who were on a short holiday from their school in India. He described himself as a married man with wife and three children in Gujerat State, where he owned a shop and worked as a goldsmith (evidently in a small way of business). The appellant's brother, also interviewed by the immigration officer, confirmed this account in every respect and added that he had no intention of employing the appellant in his jeweller's business here -- business was bad owing to the very high price of gold and he had insufficient work for two men. An application by the appellant for a 10 weeks' extension of stay as a visitor was refused by the Secretary of State in August 1973, and while his appeal against that refusal was pending the appellant (on 4 January 1974) requested permission to remain permanently in the United Kingdom as a partner in his brother's business. This application was refused under the provisions of para 21 of HC 80 n1. n1 Paragraph 21 of HC 80 is in the following terms: "People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicant's part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. Where the application is granted the applicant's stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment. A person admitted as a businessman in the first instance may be granted an appropriate extension of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially." In the course of giving evidence on his appeal to an adjudicator the appellant referred to sums of money which he claimed were "assets of his own" in compliance with para 21 of HC 80, but he refused to disclose the source of these sums, one a cheque for @ 4,025 'from an external account' made payable to him in December 1974 and a later sum of @ 900. The adjudicator dismissed the appeal under the provisions of para 21 and, on his finding that the appellant and his brother had willfully deceived the immigration officer as to their intentions on the appellant's arrival in June 1973, also held that this was a relevant fact to be taken into account under the general provisions of para 4 of HC 80 n2. n2 Paragraph 4 of HC 80 provides, so far as material, 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;..." On further appeal to the Tribunal, Held (dismissing the appeal): (i) the appellant's application could properly be refused under para 4 of HC 80 by reason of the deception practised by the appellant in collusion with his brother: Per curiam: While the appellant was not precluded, by reason of the straight-forward undertaking given on his entry, from making an application to remain in the United Kingdom permanently, his conduct was certainly relevant in considering his application. (ii) under para 21 of HC 80 it was for the appellant to show that he would be devoting assets of his own to the business here proportional to his interest in it, and on the facts -- his own small business and funds in India, and his refusal to disclose how he came into possession of some @ 5,000 -- it was not possible to find that he was devoting assets of his own to the proposed partnership here; (iii) the appellant's lack of candour about his financial affairs was also a factor which could rightly be taken into account when considering, on its merits, his application to set up in business in this country.

Counsel:

K. S. Nathan, counsel for the appellant. K. E. R. Rogers, for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Mrs J. M. Abrahams, Sir Gordon Whitteridge.

Judgment One:

THE TRIBUNAL: The appellant in this appeal is Chandrakant Maganlal Parekh, a citizen of India who was born on 26 December 1941. Mr Parekh arrived at London Airport on 16 June 1973 accompanied by two children whom he said were the son and daughter of his brother Hashabhai Maganlal Parekh who lives at 8 Capel Road, London, NW10. He told the immigration officer that he was accompanying them at his brother's request, as they were so young, from India where they were being educated, for a holiday in the United Kingdom. Mr Parekh said he would stay only one month and then return to India with the two children. He said he lived with his wife and three children in Navsari in Gujerat State and that he owned a shop and worked as a goldsmith earning about Rs 700 a month. He added that he had no intention of leaving India to work abroad. His brother Mr H. M. Parekh, who is also a goldsmith, confirmed that the appellant was visiting the United Kingdom at his request and would be returning to India in 4 weeks' time with the two children. The appellant was granted leave to enter for one month. Mr Parekh subsequently requested an extension of stay for a further 10 weeks as a visitor but this application was refused by the Home Office on 3 August 1973. The appellant appealed against this decision and after the Home Office had prepared an explanatory statement, on 4 January 1974 he wrote to the Home Office and requested permission to remain permanently in the United Kingdom as a partner in his brother's goldsmiths business. This application was also refused. The reasons for the refusal are set out as follows in the Home Office explanatory statement: "4. In considering the appellant's application to remain permanently in the United Kingdom as a partner in his brother's business the Secretary of State took the following relevant factors into account: (1) Judging by the contents of his letter, the appellant did not appear to be devoting assets of his own to the business, proportional to his interest in it. (2) Although the appellant claims to own property in India to the value of @ 5,500 he does not appear to have any other assets with which to meet any liabilities that the business might reasonably incur. (3) In view of statements made by the appellant's brother to the immigration officer in June 1973 (see para 3 of the Home Office statement dated 20 December 1973) to the effect that he had no plans to employ the appellant in his business; that business was bad owing to the exceptionally high price of gold, and that there was insufficient work for two men, the Secretary of State was not satisfied that there was a genuine need for the appellant's services and 'investment', nor was he satisfied, in the absence of any documentary evidence to the contrary, that the profits of the business would be adequate to support both men and their dependants. (4) The appellant's part in the proposed partnership appeared to the Secretary of State to amount to disguised employment for which a work permit is required." From the facts before him, the Secretary of State concluded that the proposed business partnership was an attempt by the appellant, assisted by his brother, to try to circumvent the immigration rules and obtain settlement in this country to which he was not otherwise entitled, by posing as a businessman with funds of his own which he wished to invest in a business venture. The appellant's application was therefore refused (para 21 of HC 80 refers n3) and he was sent a written notice of this decision on 27 March 1974. n3 Paragraph 21 of HC 80 is set out in footnote 1, ante. The appellant appealed to an adjudicator and at the hearing on 9 December 1974 he was represented by Mr J. Dhruv of counsel. Mr L. G. Mitchell, Chief Immigration Officer, appeared for the Secretary of State. The appellant gave evidence in the course of which he said:

"I was a goldsmith working at home. I also worked in making silver jewellery. I had no outstanding work left behind when I came here. I had no stock of silver or gold behind. It is a small business. I made some profits. I have an account in the Bank of Baroda. When I left there was about Rs 10,000 representing savings from the business. It is a joint account with my wife." Later the witness said: "I have not worked since I came here -- I amuse myself. I am being treated for sinus trouble. I help in the house. I produce a cheque made payable to C. M. Parekh dated 5 December 1974 for @ 4,025. I received it on Saturday (7 December) by post. It came addressed to me. No envelope no enclosures. I was expecting it. I am not prepared to say where it came from. I had been sending money out of India but I am not prepared to give any details of this transaction. I have a bank account in the Bank of India. No bank statement, only a cheque book. My brother gave me money about two or three weeks after I came here. I opened the account with @ 400 and I now have @ 200. It is my money but I am not prepared to say more."

On the appellant's cross-examination by Mr Mitchell, the adjudicator's note reads as follows:

"Two properties not yet sold. Cheque is nothing to do with two properties. The cheque represents the money that I have sent outside. (Witness refuses to answer any questions about the source of the @ 4,025). If I am allowed to stay I shall live with my brother. Until I receive the cheque, I have not put any money into the business. I will not pay the proceeds of the cheque into the Bank of India."

When the hearing was resumed (on 14 May 1975) the witness refused to say where amounts of @ 959 and @ 300 paid into his account since the hearing in December 1974 had come from. The appellant's brother, Mr H. M. Parekh also gave evidence. In his determination the adjudicator, Sir John Cotton, set out the facts, the evidence he had heard and the submissions made to him, at length in careful and accurate detail. The adjudicator then said: "My findings on the issues of the present case are as follows: (a) I am satisfied that from the very outset there has been collusion between the appellant and his brother in the United Kingdom. I do not believe the story that I have been told that the appellant came to this country in June 1973 for the purpose of bringing his brother's children for a short holiday at the conclusion of which they would all return to India. In my opinion there is ample circumstantial evidence to show that the appellant never had any intention of returning to his country, either with or without the children. It is my belief that the appellant's brother had all along wished to bring him here to join his business which required a second skilled designer of jewellery. (b) Both the appellant and his brother wilfully deceived the Immigration Officer on the former's arrival in this country by convincing him that in any event there was no room for the appellant in the brother's business which was not doing very well at the time. (c) When the appellant's application for an extension to remain in this country was refused, he and his brother between them conceived the idea of setting up as joint business partners, and applied for permission accordingly. (d) The statement shows that the Secretary of State was not prepared, in the light of the categorical warnings administered to the appellant and his brother at the time of the former's arrival in this country, to postpone his decision on the appellant's application to remain in this country as a businessman until such time as he had produced evidence of having injected assets of his own into the jewellery business. In any event when the Secretary of State decided on 27 March 1974 to refuse the appellant's application to remain here as a businessman, the latter had little or no assets of his own in this country, nor up to that time had he made any contribution whatever to the so-called joint partnership. (e) However, availing himself of the long delay which occurred before this appeal came up for hearing, the appellant somehow acquired a sum of over @ 4,000 which he told me at the hearing that he wished to invest in the business. (f) I am not prepared to accept the fact that 11 months after his original application was rejected the appellant is now entitled to a favourable consideration of his application by reason of the fact that 4 days before the hearing of this appeal he received a cheque for @ 4,025 from an undisclosed source. (g) The appellant has produced no evidence to satisfy me that the proceeds of the cheque for the L4,025, supplemented as it was by a further @ 900 odd at a later stage, belonged to him. He has consistently refused to disclose how this money came to the United Kingdom, and through what channels. I do not believe that it could have originated from India, where the regulations against unauthorised foreign exchange transactions are exceedingly strictly administered. It could not in any case possibly be the proceeds of the appellant's two houses, because he tells me that they still belong to him. What I suspect may have occurred is that some third party, very possibly the appellant's own brother, arranged for the transfer of @ 4,000 or so to some overseas territory in the sterling area. Having done this, some friend living in that territory in the position of having a non-resident account in the United Kingdom, arranged for the money to be returned to the United Kingdom and paid over by his bank to the appellant. In view of the fact that the appellant's own brother has played such a leading part in all the activities of the former since he left India, I do not think it is unreasonable to speculate that the monies which have reached the appellant from undisclosed sources abroad emanated originally from the brother. (h) Although both the appellant and his brother have maintained that the former has never worked at any time in the jewellery business, I cannot help feeling that there is a strong probability that he had been so engaged for at least 12 months. I ask myself how, otherwise, the business could possibly have prospered as well as as it is claimed to have done since the appellant arrived in the United Kingdom. In my opinion there is good reason to suppose that the appellant had worked alongside his brother as a jeweller and that, in consideration of this, he was reimbursed by the said brother for his services in the shape of free board and lodging and occasional pocket money whenever he required it. In my view this arrangement would amount to disguised employment which itself is strictly precluded under the terms of para 21 of HC 80 n4. In these circumstances, I find that the Secretary of State was perfectly correct when, in March 1974, he declared himself as not satisfied that the appellant qualified to remain in the United Kingdom under the Immigration Rules. I am prepared to go further even than this, and to state that I am satisfied that the appellant does not qualify in any event for admission as a businessman under the provisions of para 21 of HC 80 n4. But, even if it could be argued that he is so qualified, it would still be my view that the behaviour of both the appellant and his brother to circumvent the Immigration Rules are relevant facts which have to be taken into consideration under the provisions of para 4 of the same Rules." n5 n4 Paragraph 21 of HC 80 is set out in footnote 1, ante. n5 Paragraph 4 of HC 80 is set out, so far as material, in footnote 2, ante. After the adjudicator had read his determination dismissing the appeal Mr Dhruv asked for leave to appeal to the Tribunal on the grounds that there was an arguable point of law. The adjudicator did not agree and refused to grant leave. The appellant then applied to the Tribunal for leave to appeal but leave to appeal was refused. Subsequently leave was granted to move the Queen's Bench Division of the High Court for an Order of Certiorari and an Order of Mandamus. Thereafter it was ordered by consent that the determination of the Tribunal refusing to grant leave to appeal be quashed. It is in these circumstances that this appeal now comes before the Tribunal. At the commencement of this appeal, Mr Nathan referred to the cases of Abdullah n6 and R v Peterkin, ex p Soni n7 and then asked that he be permitted to adduce evidence to show that the appellant meets the requirements of para 21 of HC 80 n8. Mr Rogers said that he would not press any objection if the Tribunal considered that the evidence could help at arriving at a correct decision. Mr K. N. Shah, a chartered accountant of Regent Street, London, was called and he put in evidence the 1974 and 1975 accounts of H. M. Parekh, T/A Navsari Jewellers. The witness said that these accounts showed a great increase in the business done in 74/75 as compared with 73/74. This witness, however, did not appear to agree with the statement made by Mr H. M. Parekh to an immigration officer in June 1973 that the business was bad owing to the exceptionally high price of gold and that there was insufficient work for two men, since he, the witness, said trade was not bad in 1973, and in 1974 was much better. Mr Nathan did not call any further evidence as he accepted that all the evidence necessary was before the adjudicator. n6 Entry Certificate Officer, Lahore v Abdullah, [1973] Imm A R 57; TH/1070/71(109). n7 [1972] Imm A R 253; TH/112/71; this was an application in the Queen's Bench Divisional Court for orders of certiorari and mandamus. n8 Paragraph 21 of HC 80 is set out in footnote 1, ante. Referring to para 4 of HC 80 n9 Mr Nathan argued that this paragraph applies only to a limited class of person and is a discretionary one and all matters have to be taken into consideration. Though the appellant gave an undertaking when he arrived, it might have been given under duress or in his anxiety when arriving at London Airport. In any event the undertaking did not expressly preclude the appellant from making his application. Furthermore the appellant did not come as a visitor and then disappear; he made the application within the time limit. n9 Paragraph 4 of HC 80 is set out, so far as material, in footnote 2, ante. For his part Mr Rogers submitted that the appellant gained admittance by misrepresentation and had he declared his true intention, that is to say to join his brother's business, he would not have qualified for admittance under the Rules. He, therefore, should not be here and the Secretary of State would be failing in his duty if he had not refused the application. After considering the arguments put before us regarding para 4 of HC 80 n9 we are of opinion that, by reason of the deception practised by the appellant in collusion with his brother, the application could properly be refused under para 4. This paragraph applies to "the main categories of persons who may be given limited leave to enter and who may seek variation of their leave" and we do not think it accurate to say, as Mr Nathan claimed, that the paragraph applies only to a limited class of person. However, that may be, it is clear that the Secretary of State did take all relevant matters into consideration. The appellant and his brother gave a straight-forward undertaking at London Airport and it is proper to conclude from their subsequent conduct that they had no intention, at the time of giving the undertaking, of keeping it once the appellant had been admitted to this country. The appellant of course is not precluded, by reason of his undertaking from making his application to remain permanently but his conduct is certainly relevant in considering the application. This matter does not, however, rest there. The Secretary of State was not satisfied that the appellant was qualified to remain here as a businessman under the Rules. The portion of the adjudicator's determination which we have quoted, shows, as indeed does the record of proceedings, that the appellant refused to say how the sums of @ 4,025, @ 955 and @ 300 came to be his. In this case it is for the appellant to show n10, inter alia, that he will be devoting assets of his own to the business proportional to his interest in it and on the facts, that, on his own evidence his business in India was only a small one from which he made some profits and when he left he had some Rs 10,000 in his account, n11 and furthermore since he has adamantly refused to disclose how he came to be in possession of some @ 5,000, how can it be possible to find that there is satisfactory evidence that he is devoting assets of his own to the business. Besides, this lack of candour on the part of the appellant in his financial affairs is a factor which, in our view, can rightly be taken into account when considering, on its merits, the appellant's application to set up in business in this country. n10 On the burden of proof see the case of A. D. Patel [1975] Imm A R 95 at p 99; TH/4839/73(370). n11 In an earlier case, Samji v The Secretary of State for the Home Department (TH/4148/74(473) unreported) the Tribunal held that the immigration rules relating to businessmen (in that case rr 33 and 34 of HC 79 and r 21 of HC 80) "deal with visitors who have assets of their own which they can bring into this county or which they have brought to this country themselves"; Mr Samji's appeal failed because, inter alia, he had brought no assets into this country but had sought instead to claim as "assets of his own" under para 21 of HC 80 sums of money paid into his account by his father who was already established in the United Kingdom. The Tribunal said: "The method employed, that is of the father giving his son substantial sums of money which were thereafter claimed to be the appellant's own assets, does not... accord with the intention and indeed the specific requirements of the relevant rules." We find that the adjudicator properly dismissed the appellant's appeal and this appeal is consequently dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

T. H. Lambert & Co, Wembley.

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