Ahmed v. Entry Clearance Officer, Islamabad

(1) AHMED v ENTRY CLEARANCE OFFICER, ISLAMABAD, TH/4192/75(774)

Immigration Appeal Tribunal

[1977] Imm AR 25

Hearing Date: 16 August 1976

16 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 Keadar Ahmed K.E.R. Rogers for the respondent. B. Hunter for the respondent in Taj Bibi's Case. PANEL: D. L. Neve Esq (Vice-President), G. J. Brown Esq, J. A. Noble Esq

Judgment One:

THE TRIBUNAL: The appellant Keadar Ahmed is a citizen of Pakistan born on 26 March 1959. He has made two applications for entry clearance to enable him to come to this country to join a Mr Mir Ahmed, alleging that this gentleman is his father. His first application was made in July 1971 and was refused. Against the refusal he appealed to an adjudicator and his appeal was heard by Mr G. W. Farmer and dismissed on 21 March 1973. On 23 July 1973 the appellant made his second application for entry clearance, upon the same basis as the first. He produced nothing new by way of evidence of his relationship and this application was also refused. Against this second refusal he again appealed to an adjudicator and his appeal was heard by Mr T. D. Healy and dismissed on 1 September 1975. Mr Healy dismissed the appeal without a hearing, under r 35 of the Immigration Appeals (Procedure) Rules 1972, n1 for the following reasons: 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." "At the outset Mr Brown (for the respondent) submitted that the issue raised on this appeal had been determined before another adjudicator and he relied on the provisions of r 35(1) in asking that the appeal be determined without a hearing on the basis that the facts now relied on did not materially differ from those put forward in the previous proceedings. Mr Chishti submitted that the appeal ought not to be so determined (r 35(2)) because he now had a certificate from four prominent people in the appellant's locality and there was additional evidence as well in the form of an independent certificate from one of these persons and also letters from the appellant and evidence of remittances. In fact an almost similar certificate had been rejected by the previous adjudicator on the grounds that he was not satisfied it was genuine. There was nothing to indicate the present certificate was genuine either. In addition Mr Chishti quite properly conceded that the document was not of the type which would automatically cause an entry certificate officer to issue an entry certificate or an adjudicator to allow an appeal. The other evidence was not materially different from that given in the previous proceedings and I accordingly decided to determine the appeal without a hearing as I was not satisfied that the facts on which it was proposed to rely differed materially from those in the previous proceedings." The appellant, through the sponsor, applied for leave to appeal to the Tribunal by means of a lengthy letter, and the President granted leave to appeal in order to enable further evidence to be considered. With the application for leave to appeal a large number of documents were produced. Nearly all these documents, however, had been produced before the adjudicator, Mr Healy. At the hearing of the appeal before us today, Mr Chishti informed us that the only fresh documents produced before us which were not produced before Mr Healy are three affidavits, all dated 4 November 1975. One is sworn by the Chaukidar of the appellant's village, another by the Numberdar of the village and the third by a midwife who says that she was responsible for delivering the appellant when he was born. Mr Chishti assured us that he has written repeatedly to the appellant and the sponsor in an effort to obtain further evidence, but that his efforts have met with no response. In the opinion of the Tribunal the three affidavits which constitute the only fresh evidence before them are documents of a nature which neither Mr Farmer nor Mr Healy found convincing, and in the Tribunal's view they do not constitute facts which are "materially different" from those before either Mr Farmer or Mr Healy. In the Tribunal's view Mr Healy correctly dealt with the appeal under the provisions of r 35 of the Immigration Appeals (Procedure) Rules 1972, and there is nothing to lead the Tribunal to the conclusion that he should not have done so. The reasons given by him for dismissing the appeal appear to the Tribunal to be cogent reasons, with which the Tribunal sees no reason to interfere.

DISPOSITION:

Appeal dismissed.