Haji and Others v. Secretary of State for the Home Department

HAJI AND OTHERS v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/11051/75(991)

Immigration Appeal Tribunal

[1978] Imm AR 26

Hearing Date: 1 August 1977

1 August 1977

Index Terms:

Business man -- Shop-keeper on own account -- Application by visitor to set up as shop-keeper -- "assets of his own" -- Bank loan required for 87% of purchase price of premises -- Security for loan a mortgage on house property not wholly owned by applicant -- Whether applicant devoting assets of his own to the business, under immigration rule -- Joseph's case ([1977] Imm. A.R. 96, DC) distinguished -- HC 80 para 21.

Business man -- Application by visitors, two brothers, members of large family, to set up in businesses -- Misrepresentation by family members to obtain entry as visitors -- Long-term and carefully devised family plan to conceal intention to set up in business after gaining admission as holiday visitors -- Deceitful conduct relevant fact to be taken into account under general rule governing variations of conditions of entry -- HC 80, paras 4, 21.

Held:

It was not contemplated under the immigration rules relating to applications to set up in business in the United Kingdom (in the present case under para 21 of HC 80) that immigrants should be permitted to do so on borrowed money. Furthermore, where entry as holiday visitors had been obtained by a family's calculated deception with a view to concealing their long-term and carefully devised plan to settle here -- conduct which had amounted to a conspiracy to defeat the exercise of immigration control -- this fact was a very relevant matter of which account should be taken unde the "general considerations" set out in para 4 of HC 80 when members of that family sought a variation of their conditions of entry with a view to setting up in business under para 21 of HC 80. The Tribunal so held when dismissing the appeals of two brothers and their respective wives, citizens of Tanzania, who with younger members of their family had variously entered the United Kingdom as holiday visitors. R v Immigration Appeal Tribunal, ex p Joseph ([1977] Imm. A.R. 70, QBD) distinguished.

Introduction:

The facts and the law are set out in the determination.

Counsel:

Michael Beloff, counsel for the appellants. B. Hunter for the respondent. PANEL: D. L. Neve Esq (Vice-President), J. A. Noble Esq, Sir Gordon whitteridge.

Judgment One:

THE TRIBUNAL: The four appellants are citizens of Tanzania. The first two appellants, Kamruddin Haji and Sadrudin Haji, are brothers. The third appellant, Sherbanu, is Kamruddin's wife, and the fourth appellant, Dolat, is Sadrudin's wife. The outcome of the appeals of the two wives depends upon the outcome of their husbands' appeals. The husbands arrived in this country as visitors and subsequently applied to be allowed to remain as businessmen. Their applications were refused. They appealed to an adjudicator against the refusals. Their appeals were heard by Mr W. E. M. Dawson and dismissed on 6 October 1976. Against Mr Dawson's determination they now appeal to the Tribunal. It is first convenient to set out the members of the families involved and the circumstances of their arrival in this country. Kamruddin and Sadrudin have a brother called Shamsuddin. Kamruddin has a wife, a son (Nasruddin), and four daughters, one of whom is called Anaar. Sadrudin has a wife, a son (Hanif), and a daughter (Azmina). Their arrivals in this country, in chronological order, were as follows: Shamsuddin arrived in 1954 and took a job (as at that time he was entitled to do) with the Post Office. Anaar (Kamruddin's daughter) arrived in October 1971, saying she wished to visit her uncle Shamsuddin for one month. She subsequently obtained extensions of stay -- first as a visitor, then as a pupil nurse. Later she applied to be allowed to remain in employment, but this was refused. She is apparently still here. Hanif (Sadrudin's son) arrived in November 1971, stating that he was coming for a holiday of one month. He subsequently applied to be allowed to remain as a student. He was granted extensions of stay as a visitor -- but not as a student, because the school which he was attending was a state school. He has apparently been here ever since. Next to arrive was Azmina (Sadrudin's daughter) -- in September 1972. She said she was coming for a one-or-two months' holiday, and was admitted as a visitor for two months. She later applied for an extension of stay and has apparently been here ever since. On 25 October 1972 Kamruddin's wife and son (Nasruddin) arrived. They said they had come to spend a two-month holiday with Anaar and produced return tickets. They were admitted as visitors for this period. They are still here and Nasruddin attended the same state school as his cousin Hanif. Four days after their arrival Kamruddin arrived. He made no mention of the presence of his family here and said he had come for a three-week holiday. He was admitted as a visitor for one month. Some twenty-seven days later he applied to be allowed to remain here as a business man. The last arrivals were Sadrudin and his wife, who came on 18 February 1973. They produced return-tickets and said they had come for a three-week holiday. They were admitted for one month as visitors. Twenty-seven days later Sadrudin applied to be allowed to remain here as a business man. When Kamruddin Haji made his "business man" application in November 1972, and Sadrudin Haji made his in March 1973, no specific propositions were put forward. But in March 1973 Kamruddin mentioned a dairy and grocery shop (which by letter of 11 June 1973 he said was at Drayton Park, N5), and in June 1973 Sadrudin specified a general store at Franciscan Road, SW17. Both Kamruddin and Sadrudin had been shopkeepers in Tanzania, and their applications were accepted for consideration by the Home Office. Before any decision was made, the two brothers set up in their respective businesses which they have been running (it is fair to say, with great success) since June 1973. After their applications had been accepted protracted correspondence ensued before they were eventually refused -- in each case on 10 April 1975. The reason for the delay is said by the Home Office to have been the reluctance of the appellants to divulge information and their desire to protract the correspondence; and by the appellants to have been (a) and tardiness of the Home Office in dealing with their applications, and (b) the inefficiency of their solicitors (who are not the solicitors now involved in this case). Whichever is the case, Kamruddin was refused in the following terms:

"The Secretary of State is not satisfied that you will be devoting assets of your own to the business, proportional to your interest in it, or that you will be able to bear your share of any liabilities the business may incur. You failed to supply relevant information on the financial position requested on 4 May 1973."

The refusal in the case of Sadrudin was similar, except for the last sentence. In his case this read:

"Moreover you failed to respond to requests for information and you have engaged in business contrary to your conditions of entry."

The relevant immigration rules governing the appellants' applications were contained in HC 80, paras 21 and 4. Paragraph 21 reads:

"21. 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."

Paragraph 4 reads: --

"4. 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."

The adjudicator had before him a bundle of agreed correspondence and other documents, and he heard evidence from three witnesses -- Shamsuddin and the two male appellants. He records:

"I found all three witnesses difficult to follow on matters of financial detail and I was not favourably impressed by the first and second appellants' unwillingness to commit themselves to specifics."

In an effort to ascertain whether the assets put into the two businesses were assets of the two male appellants, the adjudicator in a most conscientious determination went into the family finances in great detail, tracing their business affairs in Tanzania as far back as 1971. He eventually came to this conclusion:

"On the evidence before me I was not satisfied that the appellants had, for the acquisition and starting up of the two businesses in question, when account is taken of the fact they had also to provide for Shamsuddin's proposed business, the assets as required by paragraph 21 of HC 80."

He went on to consider the provisions of paragraph 4 also, and concluded that the appellants could properly have been refused under the provisions of this paragraph even if they met the requirements of paragraph 21. Upon the appeal coming before us, our task has been considerably simplified by virtue of an agreement between the parties as to certain facts. They have agreed that funds totalling about @ 20,000 were sent to this country by the two male appellants, that these funds were dissipated in the maintenance of members of the family (in its widest sense), and that consequently bank loans were necessary to enable the two appellants to set up in their respective businesses. This being so, we are left to consider how the two businesses were set up. In the case of Kamruddin, the premises at Drayton Park were purchased for @ 4,000. The opening balance sheet shows 'capital introduced' as @ 2,966. This balance sheet was prepared by accountants without an audit upon the basis of information supplied by Kamruddin. A loan was obtained from Lloyds Bank for the setting up of the business, amounting to @ 3,500. In the case of Sadrudin, the premises at Franciscan Road were purchased for @ 17,000, and some @ 2,000 is alleged to have been expended on stock. A loan was obtained from Lloyds Bank for the setting up of the business amounting to @ 15,000. These loans from the bank were secured by mortgages on three properties -- at Shaftesbury Road, Avenue Crescent and Franciscan Road. The last address was that of Sadrudin's proposed business, the other two were properties which had been bought by Shamsuddin. He had bought the Shaftesbury Road house in 1958, and the Avenue Crescent house in 1965. In passing, the evidence was that the Avenue Crescent house had been gutted by fire in 1971 and one wonders (there is no evidence on the point) whether the bank were aware of this. It was the case for the appellants that Shamsuddin's investments in this country were made with money remitted to him by the two male appellants, upon which indeed he depended for support from November 1969 to June 1973. Thus although the two houses were nominally bought by him, morally he owed his two brothers more than their purchase price, and any assistance emanating from him in respect of the purchase of the two businesses was no more than a partial repayment of his debts. Mr Beloff has submitted that the two appellants qualified for extensions as businessmen under para 21 of HC 80. The bank loans are conceded, but nonetheless Mr Beloff points out that they did not provide for the purchase of all the assets of the businees, and in any event they were secured loans. He has referred us to the case of Joseph n1, heard by the Divisional Court on 9 February this year. In that case it was held that the factors referred to in para 21 which had to be considered in determining an application were not all prerequisites to a successful application, but were matters which had to be taken into account when coming to a decision upon it. Such cases had to be "looked at in the round". The personality of an applicant might be a relevant factor to consider. Mr Beloff submits that the two male appellants are experienced shopkeepers, and in each case their experience was a valuable asset. n1 R v Immigration Appeal Tribunal, ex p Joseph, [1977] Imm A R 96. In reply to these points, Mr Hunter submits that it is not the purpose of para 21 of HC to enable immigrants to come to this country to set up businesses on borrowed money. The amount of capital introduced into each business only appears from unaudited accounts prepared on the basis of information supplied by the two male appellants, but in respect of the purchase price of the two premises involved, which is known, the bank loan amounted to 87% in the case of Kamruddin, and 90% in the case of Sadrudin. It is true that the appellant in the case of Joseph n1 contributed only some 6% of the capital of the proposed business, but that case was distinguishable because the proposed business there was a partnership, and the two partners between them put up all the capital required: there was no question of borrowing. In the instant case it is proposed that the two male appellants should be the sole proprietors of the businesses. n1 R v Immigration Appeal Tribunal, ex p Joseph, [1977] Imm A R 96. With regard to the provisions of paragraph 4 of HC 80 Mr Beloff has conceded that there was a family plan to remove to the United Kingdom, but he submits that the adjudicator overlooked the difficult position in which the appellants found themselves in Tanzania and paid insufficient regard to the pressures and dangers to which Asians there are subjected. The appellants freely admitted their deceptions at the hearing before the adjudicator. In so far as their conduct after arrival is concerned, the adjudicator did not pay sufficient attention to (a) the delay occasioned by the inefficiency of the appellants' solicitors (b) the tardiness of the Home Office in dealing with their applications, and (c) the fact that to some extent (particularly in the case of Kamruddin) the Home Office appear to have condoned their setting up in business before permission to do so had been granted. We have considered the evidence before us and these submissions. So far as paragraph 21 of HC 81 is concerned we agree with Mr Hunter that the rules do not contemplate that immigrants should be permitted to set up in business on borrowed money. Whilst it is true that the male appellants in this case have contributed more of the financial assets than the appellant in Joseph's case, we are of the opinion that that case was distinguishable for the reasons advanced by Mr Hunter, and that in cases of proposed partnership different considerations may apply. We are not overly impressed by the argument that the bank loans were secured, because two of the three properties constituting the security did not belong to either of the male appellants -- they belonged to their brother Shamsuddin: and one of them (Shaftesbury Road) had been bought by him as far back as 1958, before independence in Tanganyika (as it then was), and evidently before the brothers decided to get their assets out of that country. He paid @ 1,900 for it, but according to his evidence it was worth about @ 15,000 in 1972/73. For these reasons, looking at the matter in the round, we consider that the adjudicator's finding that neither of the male appellants qualified under para 21 of HC 80 for a variation of their conditions of admission was correct. We now consider the "paragraph 4" aspect of this case. In our opinion there is some force in the argument that the appellants' conduct after arrival should not be held too strongly against them, in view of the latitude extended to them by the Home Office; but nevertheless it should not be forgotten that this latitude was initially extended to them before the Home Office realised that this large family had all gained admission by deception. We have not the slightest doubt that the transfer of the appellants' assets and the subsequent admission of the various members of their families to this country was the result of a long-term and carefully devised plan, which involved considerable deception and dishonesty. It was a conspiracy to defeat the exercise of immigration control and in our opinion precisely the sort of behaviour which paragraph 4 of HC 80 was designed to combat. We are not impressed by the plea that they admitted their deceptions to the adjudicator, because the circumstances of their various arrivals and subsequent history could have led to no other conclusion: and in order to advance their case under paragraph 21 the admissions were necessary. We therefore consider -- as did the adjudicator -- that even if they fulfilled the provisions of para 21 of HC 80 they should have been refused under para 4. The appeal of each of the four appellants is consequently dismissed.

DISPOSITION:

Appeals dismissed.

SOLICITORS:

Bindman & Partners, NW1.

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