Yousuf v. Entry Clearance Officer, Karachi

YOUSUF v ENTRY CLEARANCE OFFICER, KARACHI

Immigration Appeal Tribunal

[1990] Imm AR 191

Hearing Date: 27 October 1989

27 October 1989

Index Terms:

Appeal -- directions -- powers of appellate authorities to give directions -- whether such directions might be given after a determination had been promulgated -- whether appellate authorities have power to receive further evidence on an application for directions -- earlier cases reviewed. Immigration Act 1971 ss 19(3), 20(1), 33(4).

Held:

The appellant was a citizen of Pakistan. He had been refused entry clearance as a visitor. His appeal was allowed by an adjudicator. No directions were given by the adjudicator. There was subsequently a request that there should be a hearing for an application to be made for directions to be given. The adjudicator in the light of events which had happened considered that no direction should be given without the opportunity of considering further evidence which was known to exist. He concluded he had no authority to hear that further evidence, in the circumstances, without a direction from the Tribunal. On appeal, the Tribunal reviewed earlier cases on the giving of directions. Held: 1. Following Parry directions should normally be given only when requested by a party to the appeal. 2. There was a power, following Hashim to give directions after a determination had been promulgated. 3. The appellate authorities had power to hear evidence on an application for directions. Following Parry such evidence would be subject to the restrictions laid down in Kotecha.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Kotecha [1982] Imm AR 82. R v Secretary of State for the Home Department ex parte Mohammed Yousuf [1989] Imm AR 554. Parry (unreported) (6123). Patel (unreported) (6250). Hashim (unreported) (6421). Tutuaa (unreported) (6563).

Counsel:

D McConnell for the appellant; A Gammons for the respondent PANEL: Professor DC Jackson (Vice-President) AK Khandwala Esq JP, Major D Francombe

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of Pakistan, appeals against a decision of an adjudicator (Mr G Smedley) delivered on 3 April 1989 by which he refused to give directions consequent upon an appeal which he had allowed on 2 March 1988. The proceedings in this case started with an application by the appellant for a visit entry clearance to visit his father. That application was made and refused on 12 August 1987. The appeal was allowed by an oral determination on 2 March 1988, followed by a written record promulgated on 7 March 1988. The sponsor, the appellant's father, gave evidence before the adjudicator to the effect that he had been in England since 1963, that he had tried to persuade his wife and son to come to England but they had not wished to do so. He was now intending to return to Pakistan but before he did, he wanted his wife and son to visit him in this country. His wife had been granted entry clearance and was here, but his son had been refused. The adjudicator referred to the grounds of refusal ie doubts about the appellant's income, a planned printing business venture by the family and the birth certificate of the appellant. At his interview on 12 August 1987 the appellant (who was then almost 24 years of age) said that he had a newspaper shop in Karachi in which he sold cards and newspapers. He said that he had had this business for four years and that the annual gross income was around 48,000 rupees. The entry clearance officer commented that there was no evidence to confirm this income. It is recorded in the adjudicator's determination of 7 March 1988 that the appellant's father said that his son's business was dealing in second hand newspapers and cards "He was not a newsagent, and his gross income (including remittances) was as stated". It appears from a letter dated 26 June 1988 from the British Consulate-General in Karachi to the Sheffield Law Centre that a copy of the determination was received at the Consulate-General on 5 April 1988. On 11 May 1988 the Consulate Officer visited Mr Yousuf's house in Karachi. The letter continues: ". . . After talking to neighbours and members of Mr Yousuf's household it was learned that Mr Yousuf was not engaged in any form of employment and that he had, indeed, been jobless for the previous eighteen months . . .". The letter continued that there were no directions given by the adjudicator and therefore the entry clearance officer had to consider whether, in the current circumstances, the appellant qualified for admission. The letter concluded: "In this case, there is a good reason to believe that the adjudicator was misled in respect of the appellant's business activities in Pakistan as he was, in fact, without employment. Given this deception the appellant did not qualify for admission to the United Kingdom as a visitor and an entry clearance could not therefore be issued". By letter dated 3 January 1989 the Sheffield Law Centre wrote to the clerk to the adjudicator requesting a hearing to enable an application to be made for directions to the entry clearance officer in Karachi. Concurrently (the order of events not being entirely clear from the file) the appellant sought judicial review of a refusal confirmed by the letter of 26 June 1988. It does not appear from the papers before us when leave was obtained, but obtained it was and the matter came before Rose J on 6 July 1989. The learned judge dismissed the application although making it clear that it would be "wholly improper" for any attempt to be made by entry clearance officers to circumvent an adjudicator's decision by pursuing further enquiries with a view to denying entry on a different basis. However the learned judge did say that in the absence of directions by the adjudicator, the entry clearance officer had an obligation to ask questions under HC 169 paragraph 17 in order properly to consider the circumstances at the time the matter came before him again. Rose J said in effect that this obligation was not affected by the right of appeal which the entry clearance officer had from the decision of the adjudicator. Thirdly, thought the learned judge, the questions of fact -- as he put it, "hotly disputed factual questions" -- were best dealt with through the appellate procedures and not by judicial review. It has to be stressed that the judicial review proceedings were concerned with the second refusal of the application which was apparently communicated in the letter of 26 June 1988. However, we have set out the comments of Rose J, for they serve to emphasise the fundamental effect of the giving of directions. It follows from the view expressed by Rose J that if directions are given to issue entry clearance then the entry clearance officer has no function save issuing the entry clearance in accordance with the directions. Any control on leave to enter would be exercised at the port through HC 169 paragraph 13 and limited to the matters therein set out. On the other hand, if directions are not given then in effect the matter takes on the guise of a fresh application but not only with the adjudicator's findings being binding on the entry clearance officer, but also in the lack of power in the entry clearance officer to deny entry on a different basis. As the Tribunal have said on previous occasions, the purpose of directions is "to give effect to the determination". Whether or not in any particular circumstances the giving of directions would have an effect apart from that, is a matter for the adjudicator or Tribunal considering giving them. Where the appeal being allowed concerns limited leave (particularly that of a visit or a student) the giving of directions may or may not go further than give effect to the determination. This depends upon the purpose of and circumstances surrounding the initial application. Where the application is for indefinite leave then the chances that the giving of directions would go further than giving effect to the determination, perhaps are somewhat less. However, again it all depends on the circumstances of the particular case. This case raises the issue of the procedure to be followed when directions are requested and in particular, whether evidence could be heard going to the issue of directions and therefore involving post-decision events. There is, in addition, the issue as to whether an adjudicator has power to give directions subsequent to the determination. The adjudicator commented that the preferable course for the appellant was to appeal against the second refusal. In relation to the proceedings then before him, he said: "I am of the opinion that I have no authority to consider further evidence without a direction from the Tribunal to do so. I also am of the opinion that, knowing that further evidence is available, I ought not to give any direction in this case even if I still have power to do so". The issues before the Tribunal The issues are: i whether there is an appeal before the Tribunal from a determination; ii if there is, whether there is a power in an adjudicator to give directions subsequent to a determination; iii whether in the consideration of giving directions, whether subsequent to a determination or concurrently with it, an adjudicator has power to hear evidence going to the issue of directions. The applicable law The Tribunal has considered issues going to directions in a number of cases recently. To some extent, the views have changed following a distinction drawn between "determination" and "directions" in Parry v Entry Clearance Officer, Accra (6123) promulgated on 13 October 1988. In Parry the Tribunal expressed its view that under the statutory scheme, the separation between determination and directions had as a consequence that no appeal would lie from an adjudicator to the Tribunal simply on the basis that directions should have been given or were given when they should not have been. In that case the matter as to jurisdiction was not argued but the Parry view was accepted by both parties and the Tribunal in the case of Patel (6250). In Parry the Tribunal indicated that in its view directions should normally be given only on request, both parties should be heard on whether they should be given and it was open to an applicant to return to an adjudicator or the Tribunal subsequent to a determination to seek directions thought by the applicant to be necessary. The Tribunal pointed out that in some cases, it may well be only after the determination that the necessity for the directions becomes known. In considering the question of whether an adjudicator or the Tribunal could or should hear evidence going to the issue of directions, the Tribunal considered the application of the principle of R v Immigration Appeal Tribunal ex parte Kotecha [1982] Imm AR 88. That principle is that (with some exceptions for decisions which involve an estimate as to the future) the appellate authorities are concerned only with evidence as to the facts existing at the date of decision. The Tribunal said: ". . . While we do not think it appropriate for an appellate authority to conduct an enquiry as to whether there has been a change of circumstances, if the appellant can show that the nature of the application is such and the circumstances existing at the date of the appeal hearing are such that any direction would "give effect to" the determination, there is no reason why such a direction should not be given on request. In most of the cases which have come before the Tribunal on this point, there has simply been a request for directions on the basis that there is no evidence that circumstances have not changed and in those circumstances, it seems to us clear that no directions can be given (see eg Ghosh (5975), Abbey (5988)). We think the distinction is whether the adjudicator is being asked to decide (a) whether entry should be permitted at the date of the appeal hearing given the circumstances existing at that date and (b) whether entry clearance should be directed to allow entry at the time the direction is received in order to give effect to the determination that the refusal of the application was unjustified. We take as an example a visit application refused on the grounds that the required intention to depart from the country at the end of the visit was not present and an appeal allowed on the basis that that ground was unjustified. Whether directions should be given to give effect to the determination would depend upon whether the direction would give effect to the original application or would in effect be to give effect to a new application. We would not see such a direction as that to which we refer as offending against the Kotecha principle. It has to be remembered that Kotecha was specifically geared to the question of evidence going to an application. It does not go to the question of whether directions should be given to give effect to the determination, itself based on the facts existing at the date of decision. A direction to issue an entry clearance for settlement raises no problem insofar as the lapse of time between the appeal hearing and the refusal does not affect the relationship of the decision to the application. Similarly it seems to us that evidence going to show that the application is of such a nature and that the circumstances existing at the date of appeal are of such a kind that a direction would give effect to the determination would be admissible. We however stress that it is for the appellant to show that the direction would give effect to the determination. This applies in all cases. Further, it is always open to an appellate authority to give directions other than a direction for entry clearance. It does not seem to us to be improper to consider whether a direction be given that a particular determination be taken into account rather than an expression of confidence that it will. If entry clearance officers ignore appellate authority decisions, no doubt the appellate authorities would take action to ensure that there was a statutory duty so to do. It would be regrettable if this was necessary". The question of the ability to give directions subsequent to a determination was a central feature in the Tribunal decision in the case of Hashim (6421) promulgated on 3 April 1989. This was therefore promulgated on the very day that the adjudicator gave his decision and could not be taken into account by him. The case concerned the giving of directions by the Tribunal but the principle is precisely the same. The directions given have since been quashed by the High Court with the consent of Dr Hashim and the Tribunal, the Order being limited to the particular facts of that case and being based on events subsequent to the decision under review in that case and indeed, the appeal itself. The principles of Hashim therefore stand. In Hashim the Tribunal approved of the approach suggested in Parry and indeed after a full hearing, gave directions on 3 April 1989 to give effect to a determination promulgated on 1 November 1988. The question of the consideration of evidence in the giving of directions was considered in the Tribunal decision in Tutuaa (6563). In that case the entry clearance officer had failed to consider all aspects of a case put to him and had seen fit to make serious assertions in regard to the sponsor's record and conduct without apparently any supporting evidence being available and without putting the matters to the sponsor. The appeal was allowed, the presenting officer not being able to lay an evidential foundation for refusal. On the question of directions, the Tribunal was concerned at the delay already created by the way in which the case had proceeded, but was faced with lack of evidence. This was a case in which the application was for entry clearance as the wife of the sponsor and in the circumstances of the case, the Tribunal adjourned the matter of directions for 4 weeks. The Tribunal indicated that unless the Home Office produced evidence that circumstances were such that a direction should not be made or was unnecessary, the direction would be made. We cite this decision in order to emphasise the width of discretion which an adjudicator or the Tribunal has in considering whether to give directions. It is very much a question depending on the circumstances of the case, how the case has proceeded and the evidence which has been adduced and may be adduced before the body considering giving directions. The present case Is there an appeal before us? In our view, there is a determination from which an appeal may be brought. This case is to be distinguished from Parry and Patel and other like cases in which the Tribunal has, since Parry, refused leave to appeal. This is an appeal first, from a declaration that the adjudicator had "no authority" to consider further evidence and secondly, and more fundamentally, an inference that the adjudicator had no power to give directions. There is in this case not an appeal against the refusal to give directions or the giving of directions, but from a decision in substance that ther was no power to give directions and in any event no authority to receive evidence as to the issue. This is a determination as to the ambit of section 19(3) (and indeed section 20(2)(3)). It is therefore appealable under section 20(1). Is there a power to make directions subsequent to the determination? In Hashim the Tribunal held specifically that there was such a power. In particular it considered the arguments raised before us in this case by Mr Gammons against that conclusion. These arguments are first, that schematically the giving of directions is linked to the promulgation of the determination. Alternatively, argued Mr Gammons, the giving of directions was limited to the period within which an appeal was pending. He referred to section 33(4) of the Act defining a "pending appeal" and, he argued, underlining the importance of the giving and ending of the appeal. In Hashim the Tribunal rejected these arguments. As to the linking of the determination and directions, the Tribunal referred to and relied upon the reasoning in Parry which we have set out. As to the alternative argument that the time for giving directions was limited to the time within which an appeal may be brought, the Tribunal saw section 33(4) as defining the concept of a pending appeal for the purposes of sections 14(1) and 15(2). The Tribunal accepted the argument that the purpose of these provisions was to ensure that the Secretary of State would know whether he could require a person to leave the United Kingdom. The question of directions on the other hand arose only under the Act if an appeal was allowed and the concept of "pending appeal" has no relevance to that matter. We reiterate the principle on which Parry and Hashim are based, that the purpose of directions is "to give effect to the determination". There is nothing in the statute which would require directions to be given contemporaneously with the determination and indeed it is arguable that the giving of directions is simply an administrative act. However while, if this is so, the directions could be given ex parte it no doubt would be wise to consider the matter in the presence of both parties, each having had the opportunity of arguing the point. Following Parry and Hashim, therefore, we hold that the adjudicator did have power to give directions. We stress that whether those directions are given or not is entirely a matter for the adjudicator. Has an adjudicator power to hear evidence as to whether directions should be given? We agree with the view expressed in Parry that an adjudicator has power to consider evidence and we therefore disagree with the conclusion of the adjudicator that he had no authority so to do. We are not quite clear whether the adjudicator was expressing this view as a matter separate to the question as to whether there was jurisdiction to give directions subsequent to a determination. It seems to us, with respect, that once it is decided that there is a power to give directions after the determination, it would be difficult to say that an adjudicator should refuse to listen to evidence going to the factors relevant to whether those directions should be issued. In our opinion, the issue of directions is no different a question that any other matter within the adjudicator's jurisdiction. They go to the remedy which may follow from the allowing of a determination, and representations and evidence concerning it must be as relevant to it as they would be to any other matter. There is a greater emphasis on evidence directly relevant to directions simply because the relevant point of time differs as between the determination and directions. It does not, however, somehow put the question of the giving directions in a category all on its own apart from the consideration of the merits of a case and other types of remedy which might follow (eg remittal, the granting of leave). It is possible that a case might occur in which an adjudicator would refuse to hear evidence, being of the view that the directions requested could not possibly give effect to the determination. It is not, in our opinion, for the Tribunal to direct an adjudicator to hear evidence but it suffices for us to declare that in our view, the matter of the giving of directions is to be considered on a basis similar to that of any other issue which the adjudicator has to decide. There being an appeal from a determination before the Tribunal, the Tribunal would have power to give directions in the matter. At the hearing we agreed to hear evidence from the sponsor so that, should we decide that we had power to give directions and to exercise that power, we would have the evidence before us on which we could base such exercise. The sponsor told us about the employment of his son and about information which he said had been given to the British High Commission. However, as Mr Gammons said the evidence before the Tribunal was incomplete and Mr Gammons was in no position to cross-examine the sponsor, for he had no detailed knowledge of the entry clearance officer's view and no report from him as to the enquiries he said he had made. In these circumstances, it seemed to the Tribunal that whether or not it had power to give directions, the place for the hearing of evidence was before an adjudicator. This would fit with the scheme, as the Tribunal sees it, that where there is no issue apart from directions, that should remain in substance a matter for the adjudicator. In this case this is particularly so, for a remittal to the adjudicator will enable both parties to obtain up-to-date evidence which will assist the adjudicator in exercising his discretion. The appeal is allowed insofar as the matter is remitted to Mr Smedley for consideration of whether directions should be issued in accordance with the principles set out in this determination.

DISPOSITION:

Appeal allowed and remitted to the adjudicator

SOLICITORS:

Sheffield Law Centre