Akhtar Jan and Others v. Entry Clearance Officer, Islamabad

AKHTAR JAN AND OTHERS v ENTRY CLEARANCE OFFICER, ISLAMABAD, TH/14010/75(970)

Immigration Appeal Tribunal

[1977] Imm AR 107

Hearing Date: 9 March, 9 June 1977

9 June 1977

Index Terms:

Practice and procedure -- Explanatory statement -- Entry clearances refusal in Pakistani family dependants' case -- Applicants interviewed in Islamabad and sponsor interviewed in United Kingdom -- Explanatory statement prepared by Home Office -- Whether irregularity under Immigration Rules one of form or of substance -- Immigration Appeals (Procedure) Rules 1972, rr 7(1)(b), 8(1), 26 (1)(b) & (2), 29(1), 38.

Held:

An explanatory statement, prepared by the Home Office (Immigration and Nationality Department) and not by the respondent (the entry clearance officer in Islamabad) in respect of his refusal to grant entry clearance to three persons who sought entry as the dependent family of their sponsor in the United Kingdom, was not a nullity although there might have been a technical irregularity in the terms of r 8(1) of the Immigration Appeals (Procedure) Rules 1972. n1 However, in the circumstances of this case -- in which the sponsor had been interviewed in the United Kingdom with a view, inter alia, to clarifying certain discrepancies in the accounts of family matters given by the appellants -- a 'combined' explanatory statement (incorporating notes made by the entry clearance officer) was not unreasonable and, if it was irregular, the Tribunal considered the irregularity to be one of form and not of substance. n1 Rule 8(1) of the Immigration Appeals (Procedure) Rules 1972 (S.I. 1972 No 1684) provides as follows: "... the respondent in an appeal shall, as soon as practicable after notice of the appeal is given, prepare a written statement of the facts relating to the decision or action in question and the reasons therefor and take such steps as are necessary to ensure that the statement is referred to an adjudicator or the Tribunal, as appropriate, and that a copy thereof is given to the appellant." The Tribunal's ruling reported below is extracted from their full determination in this Pakistani 'family case'.

Counsel:

S. Kadri, counsel for the appellants. K. E. R. Rogers for the respondent. PANEL: Sir Derek Hilton (President), Miss P. G. Liverman, j. a. n/oble Esq

Judgment One:

THE TRIBUNAL: We heard this appeal on 9 March and 9 June 1977. ... At the hearing of the appeal on 9 March the appellants filed further grounds of appeal as follows: "1. The appellants contend that the explanatory statement in the matter is not a statement by respondent in accordance with rule 8(1). n1 The learned adjudicator could not rely on anything contained in that statement. In particular he could not have given any weight in law to matters contained in para 13 of that statement. n1 Rule 8(1) of the Immigration Appeals (Procedure) Rules 1972 (S.I. 1972 No 1684) provides as follows: "... the respondent in an appeal shall, as soon as practicable after notice of the appeal is given, prepare a written statement of the facts relating to the decision or action in question and the reasons therefor and take such steps as are necessary to ensure that the statement is referred to an adjudicator or the Tribunal, as appropriate, and that a copy thereof is given to the appellant." 2. The appellants contend that in the absence of a statement by respondent reqd by rule 8(1) the only evidence is that of the sponsor which proves the case of the appellants." On a preliminary point Mr Kadri submitted at length that the Home Office statement was a nullity. The entry clearance officer was the respondent and the statement was not his and did not therefore meet the requirements of r 8(1) of the Immigration Appeals (Procedure) Rules 1972. n1 There were no special circumstances in this case for the Secretary of State to give a direction under r 7. n2 As matters stood, Mr Kadri submitted, there was no evidence before the Tribunal put forward by the respondent and the appeal should be allowed. n3 n1 Rule 8(1) of the Immigration Appeals (Procedure) Rules 1972 (S.I. 1972 No 1684) provides as follows: "... the respondent in an appeal shall, as soon as practicable after notice of the appeal is given, prepare a written statement of the facts relating to the decision or action in question and the reasons therefor and take such steps as are necessary to ensure that the statement is referred to an adjudicator or the Tribunal, as appropriate, and that a copy thereof is given to the appellant." n2 Rule 7, under the heading 'parties', provides (so far as here relevant) as follows: "(1) The parties to an appeal shall be the appellant and... (b) in the case of an appeal under s 13(2) of the Act by a person refused an entry clearance or a certificate of patriality on an application duly made to an entry clearance officer, that officer;... except that, in the case of such an appeal as is mentioned in sub-para... (b) above, where the Secretary of State is satisfied that, by reason of special circumstances, it is impracticable or impossible for the... entry clearance officer concerned to take part in the proceedings, the Secretary of State may direct that he, or such immigration or entry clearance officer as he may designate for the purpose, shall be treated as a party to the appeal in place of the officer concerned; and thereupon any notice or other document sent or given by or to the officer concerned for the purposes of the appeal shall be deemed to have been sent or given by or to the Secretary of State or the designated officer." n3 Mr Kadri also submitted that in the present case it was too late to 'cure the irregularity' under r 38 of the Procedure Rules. Rule 38 provides as follows: "Any irregularity resulting from failure to comply with these Rules before an appellate authority has reached its decision shall not by itself render the proceeding void, but the appellate authority may, and shall if it considers that any person may have been prejudiced, take such steps as it thinks fit before reaching its decision to cure the irregularity, whether by amendment of any document, the giving of any notice or otherwise." [The hearing was then adjourned.] At the resumed hearing Mr Rogers submitted that for the reasons he gave r 8(1) had been complied with. n4 n4 In the course of his submissions Mr Rogers also referred to r 38 of the Procedure Rules (set out in footnote 3, ante) and to r 26(1)(b) & (2) and r 29(1). Rule 26 provides as follows:

"(1) In any proceedings on an appeal, a party to the appeal may act in person or be represented or may appeal... (b) in the case of the Secretary of State or any officer, by... any officer of the Home Department;... (2) A person representing a party to an appeal in accordance with para (1) above may take all such steps and do all such things relating to the proceedings as the person whom he represents is by these Rules required or authorised to take or do." Rule 29(1) provides that "An appellate authority may receive oral, documentary or other evidence of any fact which appears to the authority to be relevant to the appeal, notwithstanding that such evidence would be inadmissible in a court of law."

After retiring to consider the submissions we ruled against Mr Kadri on his preliminary point. In this case the respondent had referred the application to the Home Office for the sponsor to be interviewed. After the appeal was lodged the Home Office prepared a statement comprising the respondent's notes and those taken at the sponsor's interview. Such a procedure has been adopted in many such cases. In this appeal no objection had been raised to the statement in the appeal before the adjudicator. In our view a 'combined' statement was not unreasonable in the circumstances and although there might have been a technical irregularity in the terms of r 8 we considered it to be one of form and not of substance.

SOLICITORS:

Gardner & Son, Birmingham.

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