Entry Clearance Officer, Atlanta v. Vlastimil Patrick Broz

ENTRY CLEARANCE OFFICER, ATLANTA v VLASTIMIL PATRICK BROZ

Immigration Appeal Tribunal

[1988] Imm AR 59

Hearing Date: 14 August 1987

14 August 1987

Index Terms:

Appeals -- appeal successful before appellate authorities -- the powers of the appellate authorities to give directions -- where it is appropriate for directions to be given. Immigration Act 1971 ss 19(3), 19(4), 20(2).

Held:

The appellant was refused a visa as a visitor. An adjudicator allowed his appeal and directed, almost a year after the date of refusal, that "the appellant be granted a two weeks visitor's visa at whatever time is most convenient to him, to enable him to make the appropriate arrangements with his employers and his wife." The entry clearance officer appealed against those directions. In its determination the Tribunal reviewed the appellate authorities' powers to give directions and gave guidance on when it was appropriate to give them. Held: 1. The power to give directions is discretionary. Unless either party seeks directions, there is no obligation to consider giving them. 2. If a party seeks directions, there is then an obligation to consider whether directions are necessary "for giving effect to the determination". 3. Only if the appellate authority concludes that directions are so necessary is there then an obligation to give them. 4. Before directions are given, the parties should have an opportunity to express their "views as to the desirability and content of those directions". 5. It will be rare for directions to be appropriate where an appeal relates to issues concerning limited leave and circumstances existing at the date of decision (which will be sometime in the past), Marand followed. 6. Where the appellate authorities decline to give directions, it would be open to them to give the party concerned liberty to apply were it subsequently found that the substance of any determination was being ignored. 7. On the facts, the directions given were misconceived. The adjudicator should have gone no further than to record that the original refusal was not justified.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte L Ron Hubbard [1985] Imm AR 110. R v Secretary of State for the Home Department ex parte Raju [1986] Imm AR 348. R v Secretary of State for the Home Department ex parte Connhye and ors [1987] Imm AR 478. Ashraf (unreported) (5328). Marand (unreported) (5207).

Counsel:

A Cunningham for the appellant; K Drabu of the United Kingdom Immigrants Advisory Service for the respondent PANEL: Professor DC Jackson (Vice-President), GW Farmer Esq (Vice-President), ML James, Esq

Judgment One:

THE TRIBUNAL: The entry clearance officer, Atlanta, appeals against a decision of an adjudicator (Mr AC Whitaker) in so far as allowing the respondent's appeal, he directed that a visit visa be issued to him. In this case, Mr Broz applied on 17 October 1985 to the British Consul in Atlanta for a visa to allow a two week visit to his wife and child in the United Kingdom. This was refused on 7 March 1986. The appeal was heard before the adjudicator on 5 January 1987 and the determination delivered on 23 February 1987. The adjudicator allowed the appeal and directed that "the appellant be granted a two week visitor's visa at whatever time is most convenient to him, to enable him to make the appropriate arrangements with his employers and his wife". The entry clearance officer appealed on the grounds that such a direction was contrary to a number of Tribunal decisions, which indicated that it would only be in the rare case where an appeal was allowed from the refusal of limited leave to enter. Mr Drabu said that this case (as did the others cited on behalf of the entry clearance officer) raised a fundamental question of the scope of the power of an appellate authority to give directions and the exercise of that power. The discretion to give directions stems from the Immigration Act 1971 section 19(3) which reads: "19(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite, and may also make recommendations with respect to any other action which the adjudicator considers should be taken in the case under this Act; and, subject to section 20(2) below, it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them." That provision is applied to the Tribunal in its first instance jurisdiction in regard to deportation appeals by section 19(4). Section 20(2) referred to in section 19(3), applies section 19(3) to the Tribunal in the exercise of its appellate jurisdiction. It reads:' "20(2) Directions given by an adjudicator under section 19(3) above need not be complied with so long as an appeal can be brought against his determination and, if such an appeal is duly brought, so long as the appeal is pending; and if the Tribunal affirm his determination allowing the appeal, they may alter or add to his directions and recommendations under section 19(3) or replace them with their own directions and recommendations, and the provisions of that subsection shall apply to directions given by them accordingly." The discretion therefore exists whenever an adjudicator or the Tribunal allow an appeal from a decision by the Secretary of State or if the Tribunal affirms the determination of the adjudicator allowing an appeal. In our view, the provision does not impose on an appellate authority an obligation either to consider directions unless requested by other parties so to do, or necessarily to issue directions if so requested. It does impose an obligation if directions are requested to consider whether any directions are necessary "for giving effect to the determination". Further, in our opinion, the appellate authorities should contemplate giving directions only if each party has had the opportunity to express its view as to the desirability and content of those directions. As indicated above, the Tribunal has on many occasions said that it must be rare that directions are appropriate where an appeal is from a decision related first, to limited leave and secondly, to circumstances existing at the date of the decision. Both Mr Drabu and Mr Cunningham accepted the view of the Tribunal as stated in Marand (5207): "The powers of an adjudicator and the Tribunal to make directions are set out in section 19(3) of the Immigration Act 1971, and they are to give such directions "for giving effect to the determination as the adjudicator thinks requisite . . .". That provision confers upon the adjudicator a discretion which of course must be exercised in each individual case. The exercise of that discretion is appealable and in considering appeals on this point, the Tribunal has said that in a visit case it would be rarely appropriate to give directions when time has gone by and circumstances may have changed. In so stating, the Tribunal were recognising that the Act conferred a discretion on adjudicators and could not limit that discretion. The Tribunal were indicating that it was relevant to the exercise of that discretion that the refusal which had been found unjustified related to circumstances which may no longer be extant. The Tribunal is content to stress that any directions must be "to give effect to" the determination and that this should be borne in mind when considering directions in relation to a determination dealing with circumstances which are no longer in being." We can appreciate that an applicant who pursues and wins his appeal may feel a sense of frustration, if not of injustice, if having won he then has to make a fresh application. This is particularly so if a further fee is charged. As Mr Drabu said, the problem becomes the more acute, the longer the period between a decision and final resolution of the issue. Mr Drabu argued that an appropriate course for an adjudicator would be to hold an enquiry into the question of whether circumstances had changed since the original refusal. However, in our opinion, Mr Cunningham is right in saying that such a course would be contrary to the functions of the appellate authorities as review bodies of decisions of the executive. Limits on the relevance of directions in, for example, 1987, to a decision taken in 1985 are an inevitable consequence of the combination of the period taken for appeals to be heard and the functions of the appellate authorities. We take Mr Drabu's point that because of the statutory obligation on appellate authorities only to allow an appeal if the decision is "not in accordance with the law", matters not canvassed initially by an entry clearance officer or immigration officer are relevant on appeal (see R v Immigration Appeal Tribunal ex parte Hubbard [1985] Imm AR 110). Further, it is established that evidence not considered initially may be led on appeal so that, in effect, the case before the appellate authorities may be quite different to that before the Secretary of State, an entry clearance officer or immigration officer. However, in considering fresh evidence or further factors the concentration of the proceedings before appellate authorities remains on the date of decision and the circumstances existing at that date. This is so even in the limited type of case where it is permissible to have regard to post decision evidence. To accept Mr Drabu's suggestion would be to deny this fundamental principle -- for ex hypothesi as a matter of fact, a direction that a person be permitted entry cannot relate to the date of decision which has long passed. The question for the appellate authority is whether an applicant should have been permitted entry at that date. Further, to follow Mr Drabu would offend a second fundamental principle -- that the matter on appeal is the initial application made or deemed to have been made. It is the decision on that application which must be in accordance with the law: an applicant cannot on appeal contend that he is entitled to admission on some ground unconnected to the application at issue (see Ashraf (5328)). It follows that the view of the Tribunal expressed in Marand stands unqualified by any enquiry into circumstances existing at the date of hearing. That said, there is the other side of the coin. The successful appeal reverses an initial decision and it is open to an individual where he so wishes, to seek directions that any record of that decision at least reflects the successful appeal. It is particularly in relation to stamps in passports that the record of a decision may adversely affect a successful applicant. Where leave to enter is refused, a passport is endorsed with a date stamp crossed through. Mr Cunningham agreed that the presence of such a stamp may -- at least temporarily -- have adverse consequences for the passport holder in seeking entry not only to this country but to other countries. That view was accepted on all sides in two cases dealing with the function of passport stamps recently before the High Court. Mr Drabu referred us to one of these -- the decision of a Divisional Court (May LJ and Macpherson J) in R v Secretary of State ex parte Connhye [1987] Imm AR 478. The court in that case referred to the earlier decision of Nolan J in R v Secretary of State ex parte Raju [1986] Imm AR 348. In both decisions, the applicant was apparently asking the court to make at least a declaration affecting a stamp in a passport. In Connhye, judicial review was sought of a refusal of leave to enter of ten Mauritian citizens who had no wish to enter this country. It appears from the judgment that at least as part of the argument on behalf of the applicants, reference was made to the detrimental effect of the stamp indicating the refusal. The court stressed that it was concerned only with whether there was a power to refuse leave and, if so, whether the exercise of that power could be challenged on Wednesbury principles. Having held in favour of the Home Office on both points, the court did not deal further with the stamp except in the words of Macpherson J, to say that its presence was "an unfortunate consequence which these men have to bear". In discussing the detrimental effect of the stamp, the court in Connhye referred to Raju, a case in which an Indian citizen sought a declaration that, when refusing leave, an immigration officer had no power to place a date stamp with a cross on the passport. Nolan J held that the applicant had no right to object to entries in the passport which stated that it was the property of the Government of India. In both Connhye and Raju, the stamp recorded a decision which stood. In Connhye, because of the direct approach to the High Court, the exercise of the discretion in refusing leave could be challenged only on Wednesbury grounds. In Raju, the whole purpose of the proceedings was to attack the power of an immigration officer to stamp a passport to record a refusal -- the challenge to that refusal was, it was said, to come later by appeal under section 13 of the Immigration Act 1971. In our view, neither of these decisons goes to the power of an appellate authority to give directions to ensure that a stamp detrimental to a successful applicant, at least reflects the reality of the decision after appeal. The objection to the stamp is not, as in Raju, on the basis that there is no power to stamp the passport as a document. Indeed it is the converse for the objection is that the basis for the stamp has been removed and therefore the stamp should, at least, record that it does not have and never had any validity. Any directions to endorse the passport to reflect the decision is no different in kind than a direction to endorse it by the issue of an entry clearance. In effect, it is a direction that the decision on appeal be recorded in the document provided to an individual (in words used in Raju) "for the purpose of enabling him to identify himself to the officials of other countries and for the purpose of enabling them to make entries on it such as the granting of visas". Whether in any case directions of any kind are to be given, is a matter for the appellate authority in the circumstances of the case before it. There is no restriction on the scope of such directions other than that specified in section 19(3) of the Immigration Act 1971. However, we have to say that no examples were put before us indicating that in practice, there is any tendency not to give proper weight to a determination in considering a fresh application or that any record of refusal reversed on appeal has had adverse affects. We add finally, first that any directions given by an adjudicator would come into effect only on the expiry of the time limit for seeking leave to appeal or if such an appeal is brought, so long as the appeal is pending (see section 20(2)). Secondly, it would be open to the adjudicator or the Tribunal where asked to give directions not to accede to that request, but to give liberty to either party to apply, should it become apparent that the substance of any decision was being ignored. It was accepted by Mr Drabu that the adjudicator's direction was too broad but Mr Drabu contended that unless there had been a material change of circumstances, a direction should be given. That direction may be that an entry clearance should be granted if the applicant applied within a reasonable time. Mr Cunningham for his part, contended that this was a case which comes plainly within the guidelines set out in Marand and that no directions should be given. First, we should say that it does not appear that any directions were requested and in those circumstances, as we have said, we have doubts whether an adjudicator should give directions. Secondly, (and accepting that Mr Drabu was now asking for directions) his suggestion would, in our view, offend against the principle to which we have adverted above ie that the issue of whether Mr Broz is entitled to a visit entry clearance in 1987 cannot be decided on the basis that he was so entitled in 1986. As a matter of general principle and in respect of this case, Mr Drabu argued from the proposition that not to give directions would make the appeal meaningless. We do not agree. As is evident from this determination, it is far from meaningless to establish that a refusal is unjustified and we have no evidence that entry clearance officers considering applications made following successful appeals do not take into account the matters established on appeal. Mr Drabu's application for directions went only to directions to issue an entry clearance. We agree with Mr Cunningham that this is not a case in which such directions should be given. As the Tribunal has said in other cases, we have confidence that the entry clearance officer in considering a fresh application, will bear in mind the very careful and detailed determination of the adjudicator. The appeal is allowed in so far as we substitute for the adjudicator's directions, the declaration that the refusal was unjustified.

DISPOSITION:

Appeal allowed