Immigration Officer, Heathrow v. Mehmet Ekinci

Immigration Officer, Heathrow v Mehmet Ekinci TH/32905/87 (6213)

Immigration Appeal Tribunal

[1989] Imm AR 346

Hearing Date: 16 January 1989

16 January 1989

Index Terms:

Adjudicator -- conduct of appeal -- no request for an oral hearing -- documentary evidence submitted -- necessity for adjudicator to ensure other party had opportunity to comment on documentary evidence. Immigration Appeals (Procedure) Rules 1984 r 12.

Crew member -- arrival in United Kingdom to join vessel or aircraft -- powers of immigration officer to grant limited leave. Immigration Act 1971 s 8(1), sch 2 paras 2(3), 12(1).

Held:

The respondent was a Turkish citizen who was refused leave to enter when he arrived in the United Kingdom stating he was to join a Turkish ship as a crew member: investigations failed to satisfy the immigration officer that his claim was true. When the appeal went before the adjudicator further documentary evidence was before him which supported the appellant's case. That was not seen by the immigration service. The adjudicator allowed the appeal, basing his decision on the provisions of s 8(1) of the 1971 Act and accepting the additional documentary evidence. The immigration officer appealed, asserting inter alia that the adjudicator had erred in not giving the immigration service the opportunity to comment on the evidence, and had misdirected himself as to the ambit of s 8(1) of the 1971 Act. Held 1. The adjudicator had erred in failing to give the immigration service an opportunity to inspect and comment on the documentary evidence. 2. An adjudicator determining an appeal without a hearing where neither party had requested one should always give the other party such an opportunity, when documentary evidence was submitted which that party has not seen. 3. It was arguable s 8(1) did not apply on the facts: however it was clear that the circumstances came within the provisions of para 12(1) of the second schedule to the 1971 Act.28: G Maguire for the appellant; The respondent did not appear and was not represented

Cases referred to in the Judgment:

No cases are referred to in the determination. PANEL: Professor DC Jackson (Vice-President), RE Hunte Esq JP, Mrs A Weitzman JP

Judgment One:

THE TRIBUNAL: The immigration officer, Heathrow, appeals against a decision of an adjudicator (Mr JM Simons) allowing the appeal of Mehmet Ekinci against the refusal of leave to enter this country. Mr Ekinci arrived at Heathrow on 18 May 1987 on a flight from Istanbul. He was accompanied by a Mr Osmanagoglu and a Mr Aycicek. The respondent said that he was due to join a Turkish ship, the mv Topaz, in Hull as a crew member. Mr Osmanagoglu was the ship's new captain and Mr Aycicek (as the explanatory statement said) "claimed to be a steward". The captain had with him a letter from the ship's owners, Damla Shipping, and this letter identified the master, Mr Aycicek as a sailor and Mr Ekinci as a steward. The immigration officer questioned the respondent as to his past employment and his savings. On examination of his luggage, there was revealed among other documents a school certificate. Enquiries were mounted of the ship's agents in Hull who did not know how many new crew members were expected and subsequent enquiries of the ship elicited the information that two new members were expected. The respondent was refused leave to enter in the following terms: "You have asked for leave to enter the UK as a seaman under contract to join 'M/V Topaz' at Hull, but I am not satisfied that this is your true purpose, nor do you qualify for entry under any of the provisions of the Immigration Rules". Accompanying the grounds of appeal was a letter from Damla Shipping, indicating that Mr Ekinci was a steward and was expected to join the mv Topaz. The letter expressed with some force the objections to admission of the respondent and demanded compensation for the cost of the respondent's plane fare and loss or damage resulting from the vessel being undermanned. A letter dated 1 March 1988 was received prior to the hearing before the adjudicator, challenging the validity of the grounds of refusal and enclosing a letter from the then captain of the mv Topaz. He denied that he had told the immigration officer that the respondent was not required for the ship. The adjudicator noting that neither parties requested a hearing of the appeal, determined the appeal on the documentary evidence he had received. This included the letters to which we have referred. The adjudicator was of the opinion that the respondent's case fell within section 8(1) of the Immigration Act 1971 and held that only if the immigration officer was not satisfied that the respondent had come here for the purpose of joining his ship should entry have been refused. The adjudicator was satisfied that the respondent had come here to join the ship and therefore allowed the appeal. The immigration officer was granted leave to appeal to the Tribunal on the following grounds: "1 The adjudicator has erred in law in finding that the case should have been considered under Section 8(1) of the Immigration Act 1971. That section deals with persons arriving as crew members. However, the appellant arrived as a passenger and sought entry to join a ship. Therefore, Section 8(1) has no relevance in this case. 2 The adjudicator has erred in law in that the respondent was not given the opportunity to inspect and comment upon the documentary evidence submitted by the appellant's representatives contrary to the provisions of Paragraphs 30(1) and 12(1)(b) of the Immigration Appeals (Procedure) Rules 1984. 3 The adjudicator has erred in law in that he has given no reasons for his decision. To say, as he does, merely that "on all the evidence I am satisfied that the appellant had come here to join the ship" is wholly unsatisfactory. 4 The adjudicator has placed too much weight on the evidence of Captain Vurhal that he did not say that the appellant's services were not required on board. The Immigration Officer has clearly recorded in Paragraph 4 of the explanatory statement that this information was given by the ship's captain. The adjudicator has erred in giving no reason for preferring the captain's account to that of the Immigration Officer." Further documentary evidence was provided regarding the enquiries made of the master of the mv Topaz in which the chief inspector stated that he was told that only two new members of crew were required. Conclusions Mr Maguire asked us to allow the appeal on the grounds submitted. In our view, the adjudicator should have given the immigration officer the opportunity to inspect and comment on the documentary evidence. As the Tribunal has commented in other decisions where there is no request for a hearing and documentary evidence is submitted by either party which has not been seen by the other party, an adjudicator should not determine an appeal without giving an opportunity to that other party to comment. However, as the case comes to us, there has been ample opportunity for the immigration officer to comment and we have indeed further documentary evidence. Had we thought that there was an arguable case for the appeal to be allowed, we ourselves would have adjourned the matter to allow the respondent an opportunity to comment on the report concerning the visit by an immigration officer to the ship. As to the provisions applicable to the case, we agree that it is arguable that section 8(1) would not apply to the case for again it is arguable that Mr Ekinci was not arriving as a member of the crew of the ship. That, presumably, would turn on the fact as to when he technically became a member of the crew. However, even if he were not a member of the crew, the case would appear to be governed by schedule 2 paragraph 12(1) of the Immigration Act 1971. This paragraph reads: "12(1) If, on a person's examination by an immigration officer under paragraph 2 above, the immigration officer is satisfied that he has come to the United Kingdom for the purpose of joining a ship or aircraft as a member of the crew, then the immigration officer may limit the duration of any leave he gives that person to enter the United Kingdom by requiring him to leave the United Kingdom in a ship or aircraft specified or indicated by the notice giving leave". It is further to be noted that paragraph 2(3) provides: "2(3) A person, on being examined under this paragraph by an immigration officer or medical inspector, may be required in writing by him to submit to further examination; but a requirement under this sub-paragraph shall not prevent a person who arrives as a transit passenger, or as a member of the crew of a ship or aircraft, or for the purpose of joining a ship or aircraft as a member of the crew, from leaving by his intended ship or aircraft". These provisions indicate how persons in the respondent's position are removed from the general category of visitors. Even if he was not, we cannot see why the normal visit rule would not apply to Mr Ekinci's case. It would only be if the immigration officer was not satisfied that Mr Ekinci did not intend to depart from the country at the time he indicated that he would not fall within the compass of the rule. As to grounds 3 and 4 we agree with the adjudicator that on the totality of the evidence, the respondent was clearly coming to join mv Topaz. There may have been some misunderstanding in regard to the enquiry made of the ship but on the evidence before the adjudicator and before us, it seems to be established on the balance of probability if on no greater standard of proof, that Mr Ekinci was to be employed as a member of crew of the mv Topaz. The letter from Damla Shipping dated 22 May 1987 establishes that, and provides a sufficient reason for the decision. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

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