Lokko v. Secretary of State for the Home Department

Lokko v Secretary of State for the Home Department

Immigration Appeal Tribunal

[1990] Imm AR 111

Hearing Date: 27 October 1989

27 October 1989

Index Terms:

Jurisdiction -- appellate authorities -- no explanatory statement produced by Home Office -- whether the appellate authorities have jurisdiction to hear an appeal when notice of appeal properly lodged but no explanatory statement produced. Immigration Act 1971 ss 13-17, 22(1), 33(4): Immigration Appeals (Procedure) Rules 1984 rr 6(1)(6), 8(1)(2).

Sole representative of overseas company -- appellant majority shareholder and virtually only member of staff in country where company was established -- offices there vacant when appellant abroad -- whether appellant could qualify for admission to the United Kingdom as a sole representative of an overseas company within the meaning of the rules -- the interpretation of the rule in the light of other provisions for business visitors and these setting up businesses in the United Kingdom. HC 169 (as amended) paras 19, 31(b), 35.

Held:

The appellant was a Ghanaian businessman who conducted an airline ticket brokerage business in Accra. The nature of the business was such that virtually no staff other than the appellant were employed: on his travels abroad the offices in Accra were empty. A great deal of his business originated in the United Kingdom and he was anxious to oversee that business by himself being here. He applied for entry clearance as the sole representative of the business. After very long delays the application was refused. The appellant lodged notice of appeal. An appeal came before the Chief Adjudicator. At that time no explanatory statement had been produced by the Home Office. The Chief Adjudicator ruled that the appellate authorities had no jurisdiction until such an explanatory statement had been received. On the merits of the case the Chief Adjudicator considered that the appellant could not qualify as a "sole representative", within the meaning of the rules. Both issues were argued before the Tribunal. Held: 1. The Tribunal had itself jurisdiction to review the Chief Adjudicaor's ruling on jurisdiction, it not being in the nature of interlocutory proceedings: Lila distinguished. 2. On a true interpretation of the relevant Procedure Rules, it was the service of a notice of appeal by an appellant that founded the adjudicator's jurisdiction to hear an appeal. 3. In the absence of an express rule to that effect, it could not be held that it had been the intention of Parliament to deny an appellant the right to appeal by the failure of the respondent to comply with his duty under the rules, to supply an explanatory statement. 4. As to the merits of the case, the term "sole representative" as employed in the rules had to be interpreted in the light of other provisions for business visitors and those setting up businesses in the United Kingdom. 5. It followed that a person seeking entry clearance as the sole representative of an overseas company would have to show that he was acting for a trading concern whose trading activities remained at all time centred overseas. 6. It was evident on the undisputed facts of this case that for the appellant "the trading activities follow him around". His intended activities amounted to setting up a business in the United Kingdom, rather than acting as the sole representative of an overseas company.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Nazaril Lila and ors [1978] Imm AR 50. Marspan Tusin v Secretary of State for the Home Department [1984] Imm AR 42. Hope (unreported) (832). Certilman (unreported) (4689). Baydur (unreported) (5442). El Busefi (unreported) (TH/5580/88)

Counsel:

G Warr for the appellant; EW Grove for the respondent PANEL: Professor DC Jackson (Vice-President), AA Lloyd Esq JP, BJS Edmond Esq Judgment By-1: PROFESSOR DC JACKSON (V-C)

Judgment One:

PROFESSOR DC JACKSON (V-C), (reading the Determination of the tribunal). The appellant, a citizen of Ghana, appeals to the Tribunal against the decision of the Chief Adjudicator (Mr M Patey MBE) dismissing his appeal against the refusal of entry clearance to allow him to be the sole representative of an overseas company in ths country. The case raises two questions -- first, whether the jurisdiction of the appellate authorities depends upon the forwarding of an explanatory statement by the Home Office and secondly, the question relating to the definition of a sole representative. Both matters were of general application. We deal first with the jurisdiction issue. The jurisdiction of the appellate authorities and the provision of an explanatory statement The relevant background facts These are somewhat complicated and, as seems to have been common ground before the adjudicator, show regrettable delay by the Home Office in dealing with the appellant's application. The appellant applied on 11 June 1984 to enable him to enter the United Kingdom as the representative of an overseas firm. On 21 August 1984 an unsigned and undated copy of the notice of a decision was sent to the appellant's then solicitors, refusing the appellant an entry clearance as a businessman or self-employed person. On 3 December 1984 notice of appeal against that decision was lodged with the entry clearance officer. There then followed protracted correspondence about the failure of the decision to meet the application. First the Home Office, by letter of 22 February 1985, said that the decision had been taken on the grounds that it had because, in its view, that was the appropriate rule. This, however, was followed on 20 August 1986 by a variation of the original notice so that the refusal now related both to an application for entry as a businessman and as the representative of an overseas company. On 6 April 1987 the Home Office had a further change of mind and wrote to the solicitors stating that it was now of the view that the notice of 21 August 1984 was a nullity, with the consequence that the amendment on 28 August 1986 was also a nullity. In the Home Office view, the application of 11 June 1984 remained undetermined. On 16 February 1988 the appellant's then solicitors wrote a letter which, it may be said, says it all. This reads: "As we are now celebrating the fourth anniversary of acting for our client in this matter, is there any prospect of anticipating a reply shortly from you in respect of our client's application under Paragraph 31(b)?" That somewhat plaintive and resigned comment brought no immediate response. However, after two further reminders the Home Office wrote to the solicitors as follows: "I refer to our previous correspondence regarding the above-named. After careful consideration it has been decided to refuse Mr Lokko's application for entry clearance in order to enter the United Kingdom as the sole representation of Afro-Asian Travel Centre for the reason stated on the enclosed copy of the APP200 form". Attached was a notice of refusal by an entry clearance officer. It was unsigned and undated. However, it appears to have been accepted by all parties that this was the effective long awaited decision. On 18 July 1988 the solicitors wrote to the Chief Adjudicator seeking directions in view of (a) the delay in production of an explanatory statement and/or (b) the status of the existing appeal already lodged. The Chief Adjudicator scheduled these matters for hearing before him and promulgated a ruling on jurisdiction on 12 October 1988. In that ruling the Chief Adjudicator followed his own ruling in the case of El Busefi (TH/5580/88) in holding that there was no jurisdiction in the appellate authority until the forwarding of documents which, under the Procedure Rules, gave the authority notice of the appeal. Jurisdiction of the Tribunal in respect of the ruling In the ruling the Chief Adjudicator stated that he had drawn Mr Warr's attention to the Divisional Court judgment in Lila [1978] Imm AR 50 "from which it appeared that there was no right of appeal against such a ruling to the Tribunal". It is to be noted that in El Busefi an application for leave to appeal against the ruling was lodged, but as the appeal itself was withdrawn in that case, the issue was never settled. This matter was not argued before us but we in turn draw attention to the fact that the decision in Lila was concerned with the question of admissibility of evidence during the hearing of an appeal. It was therefore clearly, as the Court there held, an incidental or interlocutory decision arising in the course of the appeal. In our view, a decision that an adjudicator lacks jurisdiction cannot possibly be said to be "interlocutory". In effect it declares that the appellant has no right to be heard and therefore, however the matter is labelled, it is in effect a determination of the appeal (see Tusin [1984] Imm AR 42). In any event, at this point the ruling is clearly before us, for the Chief Adjudicator, in his determination, stated that his "ruling" "may be deemed to be part of this determination". As matters have developed it has been overtaken by events, in the sense that an explanatory statement was produced but nevertheless the ruling raises an important point of principle and Mr Warr asked us to consider it. Mr Grove asked us to uphold the Chief Adjudicator's view of the Procedure Rules and the limits on jurisdiction of the appellate authority. The rules which formed the basis of the Chief Adjudicator's view are rules 6(1)(6) and 8(1)(2). Rule 6(1) provides that the notice of appeal should be given in writing to "the appropriate officer". That officer according to Rule 6(2) is either an entry clearance officer, immigration officer or Secretary of State depending upon the nature of the application. Rule 6(6) directs what is to be done with the notice of appeal. This reads: "6(6)(a) Subject to paragraph (7) below, an officer to whom notice of appeal has been given in accordance with these Rules shall, unless the appellant subsequently gives that officer written notice of the withdrawal of his appeal, take such steps as are necessary to ensure that the notice of appeal is referred to the appropriate appellate authority together with such particulars relating to the nature and grounds of the appeal as have been given by the appellant. (b) The steps required by sub-paragraph (a) above shall be taken, in the case of an immigration officer, as soon as practicable after the giving of the notice of appeal or, in any other case, as soon as practicable after the written statement of facts required by Rule 8 has been prepared". (Paragraph 7 relates to a decision which has been reversed, withdrawn or varied). It will be seen that rule 6(b) links the obligation to forward the notice of appeal to the preparation of the written statement of facts ie the explanatory statement unless the service of the notice has been on an immigration officer. Rules 8(1) and (2) provide: "8(1) Subject to the provisions of paragraphs (2) and (3) below, the respondent in an appeal shall, as soon as practicable after the notice of the appeal is given, cause to be prepared 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 therof is given to the appellant. (2) It shall not be necessary for an immigration officer who is the respondent in an appeal to comply with the requirements of paragraph (1) above if he is of the opinion that it is not practicable to do so, having regard to the time available before the hearing of the appeal; but he shall then, as soon as practicable after notice of the appeal is given, give written notice to the appellate authority and the appellant that he is of that opinion and that a statement of the facts relating to the decision or action in question and the reasons therefor will be given orally at the hearing of the appeal". (Paragraph 3 relates to the provision of the explanatory statements where the issue is whether an appeal will lie). n El Busefi it was argued that rules 25 (concerning the power to require particulars) and 37 confer power to give directions and to regulate procedure. We agree with the Chief Adjudicator that neither of these rules could outflank the effects of rules 6 and 8 if that effect is as the Chief Adjudicator has ruled. Before the Chief Adjudicator, Mr Warr argued that the Procedure Rules were subordinate to the Act and could not limit the jurisdiction of the appellate authority and that "it would be unfortunate if the Home Office were permitted to thwart the appeal process by failing to submit an explanatory statement to the Authority". The Chief Adjudicator ruled: ". . . I must reiterate the ruling I made in El Busefi, cited, that, for the reasons stated therein, the Appellate Authority is only seised of an appeal when it is referred to the Authority by an "appropriate officer" as defined in Rule 6(2) of the Procedure Rules. The provisions of Rule 8(2), cited by Mr Warr, relate to the special circumstances arising in appeals lodged at port of entry where there may be insufficient time to prepare an explanatory statement but, in any event, this rule requires the Immigration Officer to give written notice to the Appellate Authority of the appeal and of the reasons why an explanatory statement has not been prepared. It certainly cannot alter the substance of my earlier ruling. Furthermore, had it been the intention of Parliament that the Appellate Authority was seised of an appeal at the outset, I am in no doubt that some power or sanction would have been vested in the Authority to allow an appeal for want of prosecution where an explanatory statement was not produced within a reasonable period. It could well be argued that the Appellate Authority should be seised of an appeal from the outset and that the legislation should include some form of sanction for non-production of the explanatory statement, but this must properly be a matter for the legislature and I certainly would not wish to trespass on those functions". The rules of procedure must be read in the context of the appeal rights conferred by the Immigration Act 1971 (as amended by the Immigration Act 1988). The rights of appeal are conferred in respect of certain decisions or actions by sections 13 to 17. These rights are specified by these sections to be the rights to appeal "to an adjudicator". Section 33(4) provides: "33(4) For purposes of this Act an appeal under Part II shall, subject to any express provision to the contrary, be treated as pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn; and in the case of an appeal to an adjudicator, the appeal shall not be treated as finally determined so long as a further appeal can be brought by virtue of section 20 nor, if such an appeal is duly brought, until it is determined or withdrawn". Whilst an appeal is pending a person may not be required to leave the United Kingdom or have a deportation order made against him (sections 14(1), 15(2)). By section 22(1) the Secretary of State may make rules of procedure: "(a) for regulating the exercise of the rights of appeal conferred by this Part of this Act; (b) for prescribing the practice and procedure to be followed on or in connection with appeals thereunder, including the mode and burden of proof and admissibility of evidence on such an appeal; and (c) for other matters preliminary or incidental to or arising out of such appeals, including proof of the decisions of the adjudicators or the Appeal Tribunal". The rules provide that a notice of appeal should be lodged with an officer of the Home Office. By providing for a notice of appeal, the rules are linked with section 33(4) of the Act. By that provision, it is clear that the appeal is then in being. Indeed, even without that provision, it would be curious if it were not. There is nothing in the Act nor in the rules, in our view, to indicate that although an appeal has started, the appellate authorities have no power to hear it. Indeed, it would require an express exclusionary provision for us to hold that an appeal to an adjudicator is provided by statute, that it is started by the lodging of a notice of appeal (wherever this may be lodged) but that in some way an adjudicator has no jurisdiction until a further procedural step is taken by one of the parties. In our view, once the notice of appeal has been lodged, the appeal to the adjudicator is commenced and the appellate authorities have jurisdiction. The Chief Adjudicator, in arriving at his view, seems to have relied on three reasons. First, he concluded that had the legislature intended the appellate authority to have control of the proceedings, it would have provided for notices of appeal to be served on the authority, and would also have provided for an appeal to be allowed for want of prosecution. Further, the Chief Adjudicator thought it would be assuming an inherent jurisdiction to act where "in the opinion of the appellant, the respondent has failed to comply with a requirement that the explanatory statement should be referred to the authority". As to the first of these reasons, first as we have indicated, the fact that the notice of appeal is by the Procedure Rules served on the respondent cannot lead to the conclusion that the control of the proceedings are thereby vested in the respondent. This is particularly so because of the statutory provisions. Secondly, there is a good administrative reason why the notice of appeal (or at least a copy) should be served on the respondent, for the power to remove an appellant from this country is suspended once that notice is lodged. There is, therefore, a substantive reason for the provision and there is no reason why in addition the requirement that the service be on the respondent should be read as passing the control of the proceedings to the Home Office. The second and third reasons seem to us, with respect, to give the explanatory statement a role which it does not have. That statement is a statement of the Home Office case and in many instances, is the whole of that case. As the Courts have said, it is evidence which is put before the appellate authority. The linking of the forwarding of the notice of appeal with the provision of the explanatory statement, in our view, supports the conclusion that the jurisdiction of the appellate authority does not depend upon the forwarding of the notice of appeal to it. It would be even more curious if the appellate authority had no jurisdiction over an appeal until one party to the appeal had forwarded its basic case. We do not agree with the Chief Adjudicator that jurisdiction in the absence of an explanatory statement or notice of appeal is somehow "inherent". Neither do we agree, with respect, that such jurisdiction would be assumed in the absence of legislative provision. The jurisdiction of the appellate authorities is rooted in statute and it seems to us clear from the wording of the statute that jurisdiction commences on the lodging of the notice of appeal. The jurisdictional trigger is not whether in the opinion of the appellant, the respondent has not complied with some duty under the Procedure Rules but it depends simply on the lodging of the notice of appeal. Finally, we disagree that the lack of a power to allow an appeal for want of prosecution indicates that the appellate authority is not "seised of an appeal at the outset". As we have said, the explanatory statement is evidence and an adjudicator having jurisdiction to hear an appeal may hear it. If the Home Office chooses not to supply an explanatory statement, that is a matter for the Home Office. Clearly, if an adjudicator exercised the jurisdiction so that the Home Office were not given the opportunity to provide an explanatory statement, then that determination could not stand anymore than where either party is not given the opportunity to provide and to inspect such evidence as is adduced. It would require an express rule for us to hold that the failure to comply with any duty under the Procedure Rules to provide an explanatory statement has the effect of denying the appellant the right to appeal. Such an intention could not be imputed to the legislature without the clearest provision. In our view, Rule 8(2) of the Procedure Rules insofar as it is relevant supports this view. It shows that on occasion an explanatory statement is not required but that the case will be presented in a different way. We conclude therefore, that the jurisdiction of an adjudicator depends upon the notice of appeal. On the evidence, is the appellant a "sole representative"? The applicable immigration rule is that set out in paragraph 31(b): "31. Passengers in the following categories, although coming for employment, do not need work permits and may, subject to paragraph 13, be admitted for an appropriate period not exceeding 12 months if they hold a current entry clearance granted for the purpose:

. . .

(b) representatives of overseas firms which have no branch, subsidiary or other representative in the United Kingdom". There is no dispute that Mr Lokko conducts a genuine business connected with the provision of airline tickets. There is no dispute that this is done in the name of the Afro-Asian Travel Centre Limited, a company set up in Ghana on 26 October 1972 and authorised to commence business on 12 February 1973. It also seems agreed that this company has no branch or subsidiary in this country nor does it have any other representative here than Mr Lokko. The issue is a narrow one but a difficult one ie whether, in the way that the business is set up and conducted, Mr Lokko can be said to be the representative of Afro-Asian Travel Centre in this country within the meaning of the rule. The relevant background facts The office of Afro-Asian Travel Centre is in the Ambassador Hotel Annex in Accra. A letter dated 11 June 1984 states that Directors are Adolphus Lokko, Jacob Williamson and Adeyemi Sawyerr. A letter from the appellant's then solicitors dated 29 September 1987 states that Mr Lokko is the majority shareholder with the controlling interest in the company. For the first 10 years or so of its existence the company was in the business of chartered travel. According to the letter to which we have just referred, until 1979 it had a staff of ten and operated by leasing aircraft from airlines (primarily, it appears, British Caledonian) and re-selling the seats to members of organisations. In 1979 the charter business, it is said, became uneconomic and the company then entered the brokerage business "introducing passengers to the airlines who have excess capacity". Again the letter states that because of the nature of this business, administrative staff are not required and the company uses secretarial and telex bureaux. Mr Lokko comprises the only sales and administrative staff. A letter from Mr Lokko in 1984 states that London is the centre of the kind of business in which he then was entering and it was necessary that there should be a presence in London. The market required considerable personal attention and he avoided the business being badly managed on account of his absence. A statement from British Caledonian dated 11 June 1984 sid that it was their opinion that Mr Lokko's presence in the United Kingdom would substantially influence the volume of business to the benefit of both BCAL and Mr Lokko's company. A number of registered share certificates were produced before the Chief Adjudicator, showing that the Afro-Asian Travel Centre was the registered owner of a number of shares in various companies and that Mr Lokko was also the owner of shares. Further evidence was produced of contracts between the Afro-Asian Travel Centre and airline, and travel agents relating to the provision of tickets and the fares to be charged. In 1982 Sierra Leone Airways appointed Mr Lokko and his organisation as their general dealer in Ghana and additional marketing adviser for all countries in West Africa. Mr Lokko explained to the Chief Adjudicator that his business was negotiation of purchase and sale of cut price tickets. He said that to operate a business in Ghana he must have a limited company registered with the Ghana authorities. He could not set up his travel business without this. Mr Lokko said that face to face contact was absolutely essential in his business and that it was essential for the company to operate in London. There was a large West African population in Europe which he could channel to British concerns. Depending on the volume of business, he would later consider establishing a branch on the Eastern seaboard of the United States. Mr Lokko told the Chief Adjudicator that at the time of the hearing, Afro-Asian Travel had two Directors -- himself and Julian Tetehlaate. He held 90% of the shares and the other 10% were held by Ernest William Edusei. He had offered those shares to Mr Lokko who thought he would buy them. Mr Lokko said there had been several changes of Directors over the years. Mr Edusei did nothing much but was a business friend of his. As to the company he said it was "absolutely my company. I run it myself". He said that his offices in Accra were unoccupied when he was not there -- now and again he asked a friend to sit in part of a suite to show the landlord it was occupied. The friend had nothing to do with the business. It appeared that for some years Mr Lokko used other citizens and companies to transact his business in this country but that he was dissatisfied with the type and quality of the service he was getting. He also bought into an English company -- Glynsdale Limited. When he found out that he was not permitted to do that, he decided to do the work himself. The Chief Adjudicator held that it was undisputed that at the date of decision: ". . . and indeed at the date of hearing, the company personnel consisted solely of the appellant and that when he left Ghana on overseas visits, no business was contracted by the company which appears to have gone into a state which could aptly be described as one of "suspended animation". It certainly did not operate during the appellant's absence abroad". In assessing the criteria which the appellant had to satisfy, the Chief Adjudicator referred to and applied the Tribunal decision in Hope (832), Baydur (5442) and Certilman (4689). The Chief Adjudicator concluded: "After reviewing the totality of evidence before me I am satisfied that "Afro-Asian Travel Centre Limited" was a genuine business and, furthermore, that the appellant's role fulfilled the criteria set by the Tribunal in Hope and Baydur as summarised in paragraphs 1-5 above. Nevertheless since the parent company effectively ceased operating whilst the appellant was in the United Kingdom, it would be inappropriate to recognise the appellant as the representative of an oveseas firm; to all intent and purpose the company transferred its operation to the United Kingdom during those periods. As the Tribunal noted in their determination in Certilman, cited above, the use of the word 'may' in paragraph 31(b) imports a discretion and in Baydur the Tribunal held that the question of whether a person qualified to be regarded as a representative depended on the particular circumstances in each case. In the particular circumstances of the present case, I must find that the appellant's plans are not such as are envisaged by this rule and the appeal must fail. I should perhaps note that I am satisfied the appellant has been rendering a useful service in his airline ticket brokerage business and I appreciate his statement that many of these transactions are best negotiated by himself personally in this country. Indeed I see no cause why the appellant should experience any difficulty in obtaining entry to the United Kingdom as a business visitor and, perhaps at some future date, he may wish to apply for the rights of settlement as a businessman under the terms contained in paragraph 35 of the rules. Be that as it may this appeal must be dismissed". Proceedings before the Tribunal Before us Mr Warr submitted that the case raised the question first, of whether a majority shareholder veil could be pierced so as to declare that the director or majority shareholder was in fact not the employee of the cmpany but was the company itself. Mr Warr submitted that the true test was first, to look at the overseas company and decide if it was a genuine organisation and secondly, whether it facilitated its United Kingdom operation. Then attentin should be given to the United Kingdom base and the questions asked as to whether the representative was genuinely working in a commercial sense for the company or whether the company had been set up as a vehicle to secure his entry. The concern of the Home Office, said Mr Warr, was with the bogus company, but in this case the company was clearly genuine. Mr Warr raised the question of the ambit and role of "discretion" within the rule -- a discretion said by the Tribunal in Certilman to follow from the use of the word "may". He said that the true question was whether a person qualified or not although he surmised that the discretion might be exercised to exclude a person where the business was against public policy. Mr Warr added that an empty office may be a necessity in a business such as the appellant's. Finally, said Mr Warr, we could take into account post-decision evidence as this concerned the development of a business. Mr Grove argued that the appellant could not be a "representative". This had to be somebody who took the place of another or somebody accredited to another. He was in substance either a business visitor or seeking to set up business here. In these cases, the appropriate rules were paragraphs 17 or 35. It may be, said Mr Grove, that a majority shareholder could be a representative, but in this case the only person in the business was the appellant. Mr Grove urged that we look at the date of decision (ie 1984). Taking that approach, he argued that the company traded overseas but it did not trade when the appellant was here. It shut down in Ghana and the only use of the premises was to keep the landlord out. Mr Warr responded that the company was trading while Mr Lokko was here and that whether the office was empty could not be the critical test. Interpretation of the rule As we have said, the Chief Adjudicator initially took his guidance from the three Tribunal decisions in Hope, Baydur and Certilman. In Hope the proposition was put that, to be a representative within the meaning of the rule the person had to have "considerable plenipotentiary powers". It had to be someone "fully versed in all aspects of the firm's activities and policies and with responsibility for making important decisions on behalf of the firm". In referring to the facts before it, the Tribunal held that a "representative" did not include "someone whose authority is limited to that of distributor and sales agent . . .". Mr Warr said he was content for the purpose of this case to accept that definition although he raised the question as to whether the rule was intended to encompass persons lower down the company scale of responsibility. For ourselves, we too are content to follow the definition of Hope, for undoubtedly the word "representative" includes a person with plenipotentiary powers and whatever else is clear in this case, Mr Lokko certainly had those in relation to Afro-Asian Travel. In Baydur the Tribunal held that in order to qualify, an applicant should be required to show that the company's affairs occupied an appreciable amount of his time and efforts, and that his functions were necessary for the better operation of the company. We agree. Once again, as the Chief Adjudicator said, Mr Lokko satisfies these criteria. In Certilman the Tribunal said that rule 31(b) was intended to deal with situations involving "representatives of companies which are in existence and trading overseas". In the situation as it was in that case, the Tribunal was of the view that the applicant was intending to set up a business in this country and that there was no evidence that the company had ever traded where it was incorporated. In this case, there is considerable evidence that the company had traded in Ghana but it remains a live issue whether the facts show an intention to set up a business here rather than to act as a representative of an overseas firm. The Chief Adjudicator also referred first, to a statement in Baydur that whether a person is a representative, is a question of fact depending on the particular circumstances of an individual case, and secondly to a statement in Certilman that the use of the word "may" imports a discretion. We agree that whether a person is a representative in any case is partly a question of fact -- but it is a question of fact as to whether the applicant meets the criteria of the rule as construed. In other words, the more "representative" is defined the more the question becomes a matter of law. So it cannot be said that the criteria may apply in some cases and not in others because the matter is a question of fact. Secondly, we think that the Tribunal in Certilman referred to the discretionary element of the rule in the sense that it must be established that the overseas firm is an active trading organisation and that the representative in the United Kingdom is an active realistic representative. This, therefore, as the Tribunal in Certilman implied, goes to the genuineness of the arrangement. As Mr Warr himself said, one of the main concerns (and justified concerns) of the Home Office is that the arrangement is not created as a means simply to achieve the entry of a person into this country. We add that we agree that the discretionary element of the rule could also cover activities which were against the public policy of this country. In this case, there is no suggestion that the activities are against such policy nor is there any suggestion that the organisational structure is anything but a genuine commercial enterprise. As the Chief Adjudicator said, the criteria gathered from Hope and Baydur are not exclusive. Indeed, in those cases, the criteria emerged because they were relevant to the issues then before the Tribunal. In this case, the issue is different and is essentially raised because of the principle of corporate personality. That principle runs through English law and English commerce, and we do not think that simply because a company has been created and a person is a majority shareholder in that company or a director of it or both, necessarily removes that person from the ambit of paragraph 31(b). It is entirely possible for a person to establish a corporate trading organisation in which he plays an predominant part. We do not see why such a person could not in appropriate circumstances qualify as a "representative". The difficulty for the appellant in this case, as the Chief Adjudicator indicated, is that there was nothing left in Ghana when he was physically not present. We agree entirely with Mr Warr that the question of whether there was an office which was inhabited in Ghana cannot control the issue of whether a person is a representative. It is however necessary to show that the overseas firm is an active trading concern overseas apart from the activities in this country. In our view, it is right to construe paragraph 31(b), bearing in mind both the category of business visitor (paragraph 19) and the criteria for setting up in business in this country (paragraph 35). The requirements of paragraph 35 are stringent and it clearly could not be intended that a person who, in effect, (as the adjudicator said) was transferring his operations to this country could do so under the broad rule of paragraph 31(b) and thereby avoid paragraph 35. It does seem to us that there is a possible overlap between the business visitor and the representative of the overseas firm. However, it would seem that the representative of the overseas firm is envisaged as someone who is resident in this country for 12 months or less, and whereas the business visitor would seem to be geared to the person whose business activities are carried out through temporary visits here. Be that as it may, we think that to qualify as a representative of an overseas firm in this country in addition to the criteria set out in Baydur and Hope, an applicant must show that he is acting for a trading concern whose trading activities remain centred overseas. In this case, in our view, the appellant has not shown that. The trading activities follow him around and in our view, 31(b) is not intended to encompass that kind of trading activity. That kind of activity does amount, in our opinion, to the setting up of business in this country rather than acting for a concern whose chief activities remain abroad. For these reasons which are in essence the reasons of the Chief Adjudicator, we agree with him that the appellant has not made his case. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

For the appellant: Kingsley Napley, London

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