Immigration Officer, Heathrow v. Salmak

IMMIGRATION OFFICER, HEATHROW v SALMAK

IMMIGRATION APPEAL TRIBUNAL

[1991] Imm AR 191

Hearing Date: 20 November 1990

20 November 1990

Index Terms:

Leave to enter -- refusal -- applicant held current re-entry Leave to enter -- immigration officer considered there had been change of circumstances -- what may properly be considered a change of circumstances. HC 388 para 17.

Held:

The respondent was a citizen of Iran who was refused leave to enter the United Kingdom when she arrived at Heathrow on 14 November 1989. She was in possession of a re-entry visa. She had previously entered the United Kingdom on 21 July 1989 when she had been given leave until 21 November 1989. During the currency of that leave she had returned to Iran on family business. Before she left the United Kingdom she has prudently secured a re-entry visa. While she was abroad and because she believed that she might not be able to return to the United Kingdom by 21 November 1989, an application was made at the Home Office for an extension of the period of leave granted on 21 July 1989. That was then withdrawn. Another application was then made while the respondent was in Ireland. The bases of those two applications gave rise to the view of the immigration officer that the purpose for which the respondent sought re-entry to the United Kingdom was different from that which had grounded the application for and the grant of leave in July 1989. Leave to enter was accordingly refused. The adjudicator was obliged to consider the extent to which, if at all, there had been a change in the basis of the application. He concluded that the essential basis, that of a family visit had not changed. He allowed the appeal. The immigration officer appealed, contending that the purpose had duration of the visit for which leave had been sought in November 1989 had been significantly different from that on which the re-entry visa had been granted. Held: 1. A "change of circumstances" would often be a question of degree and to that extent would depend on the facts. 2. A change in the anticipated duration of a visit would not itself necessarily lead to a "change of circumstances" within the relevant rule. 3. To come within the ambit of the rule the change of circumstances had to be such as to remove the basis for admission. 4. In the circumstances the respondent was properly held by the adjudicator to be seeking leave to enter, as before, as a "family visitor".

Counsel:

RW Lonergan for the appellant; I Macdonald QC for the respondent PANEL: Professor DC Jackson (Vice-President), GW Farmer Esq (Vice-President), Mrs M Padfield JP

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The Immigration Officer Heathrow appeals against the decision of an adjudicator (Mr AF Hatt) allowing the appeal of Mrs Asieh Beigom Salmak against the refusal to grant her leave to enter notwithstanding the fact that she held a current United Kingdom re-entry visa. The background facts There is not dispute about the essential facts, the issue turning on the inference to be drawn from those facts. Mrs Salmak is a widow. Her husband died in 1988. She has six children and it appears that they are all in this country. She owns two houses in this country and a house and property in Iran. She runs a business in Iran and she told the adjudicator that it was worth about two million pounds. Understandably because of the family circumstances Mrs Salmak has made frequent visits to this country. Mr Salmak died in this country and Mrs Salmak took his body back to Tehran where he was buried. Since her husband's death and prior to the refusal against which the present appeal is brought Mrs Salmak had made two or three visits to this country. It appears that the entry immediately previous to the refusal was on 21 July 1989 when Mrs Salmak was given leave until 21 November 1989. In October 1989 she wished to visit her husband's grave in Iran and in order to maintain her eligibility for entry into this country applied for a re-entry visa. As Mr Macdonald said to us this was a wise if not essential step to take bearing in mind the difficulties of obtaining a visa in Tehran. This re-entry visa was granted on 29 August and Mrs Salmak therefore had a visa relevant to entry as a visitor, to complete the leave which was originally granted on 21 July. On 6 October at the Home Office the appellant's son applied on her behalf for an extension to her visit leave. The adjudicator accepted that the extension was applied for because of the possibility that Mrs Salmak could not return to the United Kingdom by the end of her previous leave and also because her daughter-in-law was pregnant and the appellant was needed to help before and after the birth of the baby. The application was withdrawn following an indication by the desk officer that it would be refused. A trip to Ireland had been arranged and during that trip a further application was made for an entry clearance. This application was refused and the copy of the IM2 was before the adjudicator and is before us. One response to a question on the IM2 appears to have caused considerable confusion, for Mrs Salmak indicated that she proposed to stay in the United Kingdom for two years. She also indicated that she wished for a multiple entry clearance but the application was refused on the grounds that she was applying for a period of leave for which there was no provision under the immigration rules. Mr Macdonald said that in the circumstances it was clear that Mrs Salmak was seeking a multiple entry clearance. The adjudicator formed the view that this was so. We see no reason to differ from the adjudicator as regard the purpose of the two applications. Mrs Salmak did return to this country before the expiry of the period of the leave granted on 21 July 1989, arriving at Heathrow on 14 November. It was on this occasion that she was refused leave to enter on the basis that a change of circumstances since the issue of the re-entry visa had removed the basis of her claim for admission. The issue therefore for the adjudicator and for us is whether that refusal was justified. On arrival at Heathrow Mrs Salmak told the immigration officer that she wished to stay in the country until April 1990 when her daughter-in-law was expecting her first child. Questions were put to Mrs Salmak about the applications for extension made at the Public Enquiry Office and about the application in Dublin. Mrs Salmak's son, it is recorded, told the immigration officer that the purpose of the visit was to look after his wife and the baby after birth. Mrs Salmak would then return to Iran. There appears to have been some change of emphasis between Mrs Salmak and her son as to whether and at what stage Mrs Salmak would return to this country. The grounds of refusal appear to have been that Mrs Salmak now sought entry for a period beyond that which would simply be a completion of the previous visit and for a purpose (ie looking after her daughter-in-law's baby) which was not that for which the re-entry visa had been granted. The adjudicator heard evidence from Mrs Salmak and her son. In the determination the adjudicator set out the background facts and commented that he had no reason to doubt the credibility of the respondent or her son. The adjudicator held that there was no fundamental or real change of circumstances between those relevant to the re-entry visa and those sought on entry. The adjudicator said: "The appellant wants to be able to visit this country, possibly frequently, to see her children. This was the situation at the time of the issue of her visa which was valid until 21 November 1989 and also when she returned to the UK from Iran on 14 November, 1989." The adjudicator also found that there was no evidence that Mrs Salmak had ever been in breach of her conditions and he was satisfied that she had no desire to settle permanently in the United Kingdom. Conclusions Mr Lonergan reiterated that the case for the immigration officer was that the purpose and duration of the visit sought on 14 November differed in considerable degree to that relevant to the issue of the re-entry visa. Mr Lonergan argued that the adjudicator had taken into account irrelevant circumstances in referring to the fact that Mrs Salmak had never been in breach of any conditions. The adjudicator, argued Mr Lonergan, had not placed sufficient weight on the unsuccessful applications made in Dublin and the Public Enquiry Office and that when these had been refused she had attempted to gain entry using the original visa granted for a purpose different from that which was then extant. Mr Macdonald stressed that as Mrs Salmak had a visa, in order for the refusal to be justified the change of circumstances had to be such that it "removed the basis of the holder's claim to admission". (HC 388, paragraph 17). It followed, contended Mr Macdonald, that as the re-entry visa had related to a visit entry clearance the change of circumstances must be such that Mrs Salmak was no longer eligible as a "family visitor". Mr Macdonald gave as a prime example of a change of circumstances the claim to admission on a different ground to that on which the current entry clearance or visa was granted (eg a change from visitor to student). Mr Macdonald agreed however that there could be a change of circumstances even though the current visa related to a visit visa and the entry sought was also as a visitor. We agree that the question of change of circumstances is a matter of degree and that it is important to stress, as did the adjudicator, that the change of circumstances must remove the "basis for admission". So the duration and purpose may differ as between the granting of the visa and the visit sought so as to remove the basis of the granting of the visa. However in this case we agree with the adjudicator and with Mr Macdonald that the purpose of the visit remained essentially the same. The fact that Mrs Salmak sought to look after her daughter-in-law's baby when born does not in our view change the essential focus of the visit ie the family. As the adjudicator said the change in duration of the visit which was sought does not necessarily of itself mean a change of circumstances removing the basis of admission. It all depends upon the circumstances. We agree with that proposition and with the adjudicator's finding that in this case the basis of admission was not removed. It is clear that Mrs Salmak sought entry as part of a pattern of regular visits to her family. Approaching it on a commonsense view we do not think that because on entry she sought in effect what she had been seeking in Dublin and at the Public Enquiry Office meant that the basis of admission of the re-entry visa was removed. All that she was seeking was the maximum permitted under the immigration rules, her previous leave having lapsed. That in the context of her regular visits was not a factor which could be seen as inconsistent with the re-entry visa so as to remove the basis of the admission. As did the adjudicator so do we accept the explanation for the applications made at the Public Enquiry Office in Dublin. In our view these applications as they are now explained are only of peripheral relevance to the question of the connection between the entry sought on 14 November and the re-entry visa issued on 29 August in turn connected to the entry on 21 July. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Howlett Cree & Co, Worthing