Entry Clearance Officer, Islamabad v. Thakurdas

ENTRY CLEARANCE OFFICER, ISLAMABAD v THAKURDAS

IMMIGRATION APPEAL TRIBUNAL

[1990] Imm AR 288

Hearing Date: 14 February 1990

14 February 1990

Index Terms:

Appeals -- determination by adjudicator without an oral hearing -- before proceeding so to determine a case an adjudicator must give both parties an opportunity to indicate whether a hearing is sought -- the need for the adjudicator himself seized of the case to exercise discretion as to whether so to determine the case even if the parties do not seek a hearing -- the proper interpretation of the relevant procedure rule. Immigration Appeals (Procedure) Rules 1984 rr 12, 34.

Held:

The entry clearance officer, Islamabad, appealed against the determination of an adjudicator in which he had allowed an appeal against the refusal to grant the respondent entry clearance as a visitor. Various misdirections in law were alleged against the determination; in addition it was submitted that the procedure followed had been defective, in that the entry clearance officer had had no opportunity to indicate whether he sought a hearing of the appeal, before it was determined by the adjudicator on the papers before him. Held: 1. Although the wording of the relevant rule was somewhat confusing, it was essential in judicial proceedings to give every party to an appeal the opportunity to put a case to the appellate authorities. 2. It followed that before an adjudicator exercised his discretion under the rule, to determine a case without a hearing, both parties had to be given the opportunity to indicate whether or not a hearing was requested. 3. The rule envisaged the exercise of a discretion as to whether or not to accord the parties a hearing: that discretion had to be exercised by the adjudicator determining the case, after he had satisfied himself that the case in any event came within the ambit of the rule.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Weerasuriya [1982] Imm AR 23. Jusyk (unreported) (6923).

Counsel:

A Gammons for the appellant; The respondent was not represented PANEL: Professor DC Jackson (Vice-President) GW Farmer Esq (Vice-President), BJS Edmonds Esq

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The entry clearance officer, Islamabad, appeals against a decision of an adjudicator (Mr CR Sinclair-Morris) allowing the appeal of Sohail Ernest Thakurdas against the refusal of a visit entry clearance. The background facts The respondent, a citizen of Pakistan, applied for a visit entry clearance either on 5 or 12 April 1988. He was interviewed on 12 April and his application was refused on that day. The respondent had formerly been employed as a receptionist at the British Embassy, but that employment ended on 29 February 1988. On form IM2 which appears to be initially dated as 8 February but altered to 5 April 1988, the respondent stated that he was employed as a receptionist and had so been for a period of 8 months. He gave his annual income as 2,155 rupees per month. He said he wished to stay in the United Kingdom for two weeks, leaving on 15 April, and gave as his sponsor the name of Dr H Thakurdas who was his grandfather's brother. In answer to the question as to how much money was available to him, he stated "1,000". At the interview, Mr Thakurdas said that his mother had filled in form IM2 some 2 months before. He had been unemployed since leaving the service at the Embassy. His ticket would be bought by himself and his mother. She was a principal in a school in Pindi. He said that he wished to go to the United Kingdom to see Dr Thakurdas. He had never met him nor corresponded with him. However his parents and Dr Thakurdas did correspond with each other. The interview concluded with the following questions and answers: "Q31 Can you justify expenditure on visiting a man you've never met and never corresponded with? A1 It's very hard. Q32 What would you do in my position? A It's very hard. Q33 Why is it hard? A1 Difficult for you to believe me. Q34 Why? A1 Hard to convince you." The entry clearance officer noted that the status as a former employee was not relevant to the application save insofar as that had now ended and the applicant was unemployed. It was further noted that the cost of the ticket amounted to almost three months of his mother's salary, the great-uncle had not known of the visit and had never met the applicant. Following refusal of the application, Mr Thakurdas submitted grounds of appeal indicating that in his view, his interview had been postponed until after his employment with the Embassy had ended. It was asserted that "the indefinite delay" of the interview and the "biased attitude" of Mr Thakurdas' immediate supervisor was probably the main reason for delay and refusal. He said that he had not been given a fair chance to prove his case and he stressed that he had no intention to settle in the United Kingdom and that he was financially sound. The explanatory statement records that an entry clearance officer considered the grounds of appeal, commenting: "(a) The appellant seems to be under the mistaken impression that the mere fact that his position as a British Embassy employee would have been sufficient to ensure a favourable consideration of any application for a visa that he might make. This is not true. (b) The appellant states that his "interview was kept pending/postponed indefinitely". This is difficult to understand, since anybody at all can submit an application for a visit visa at any time and they are dealt with immediately. I note that the original date on form IM2 appears to have been 8.2.88, and it may well be that the appellant conceived the idea to visit the United Kingdom whilst he was still employed here, but no formal application had been lodged by him until 12.4.88. Whether or not he sought advice on the chances of success of any visa application I simply do not know. (c) It should be stated that the appellant's former supervisor in this Embassy had no influence on, or for that matter knowledge of, this application. (d) Finally, the appellant states that he can provide documentary evidence of his means of support etc, but he has not enclosed them". The explanatory statement was dated 2 October 1988 and received by the Immigration Appeals Authority on 18 October 1988. On 12 May 1989 form ADJ 12 was sent to Mr Thakurdas in Rawalpindi. That form reads: "Enclosed is a copy of the respondent's explanatory statement and related documents in the above appeal. A hearing of the appeal has not been requested. Under Rule 12(1)(a) of the Immigration Appeals (Procedure) Rules 1984 the appeal will therefore be determined by an Adjudicator on the basis of these documents together with any further written submissions received in this office by 12 July 1989. Any submissions or documents in a language other than English must be accompanied by certificated full translations. A copy of the Adjudicator's determination will be sent to you in due course". There is also on file a document signed by an adjudicator (Mr Parkes) dated 19 July 1989, stating that the appeal seemed to him to be in order to place before the adjudicator for determination without a hearing pursuant to rule 12 of the Immigration Appeals (Procedure) Rules 1984. The ground on which Mr Parkes came to this conclusion is indicated on the form as being that the respondent was outside the United Kingdom and that no person was authorised to represent him at a hearing (rule 12(1)(c)). The determination by Mr Sinclair-Morris was promulgated on 21 August 1989. The adjudicator noted that form ADJ 12 indicated to Mr Thakurdas that the further written submissions would be taken into account by the adjudicator. None had been received. The adjudicator then said that he considered the merits of the appeal in accordance with "rule 12(a) of the Immigration Appeals (Procedure) Rules 1984". In allowing the appeal, the adjudicator commented: i that the case had not been approached "subjectively" as it should be but by "measuring the applicant's position against whatever it is the ECO concerned believes to be the norm"; ii there was no reason why the entry clearance officer could not "procure whatever was necessary to assuage his doubts about the applicant's case"; iii the issue of the employment may have affected the extent to which the entry clearance officer was prepared to accept the applicant's overall credibility; iv the only reason apart from the employment matter on which the refusal was based was the relative amount of the fare to the salary of Mr Thakurdas' mother -- no questions being asked by the entry clearance officer as the likely contribution to the costs of the trip by the relatives in the United Kingdom; v the fact that no enquiries of the relatives in the United Kingdom were contemplated by the entry clearance officer and the other factors specified above led to the conclusion that the adjudicator was not satisfied that the application had been "correctly approached or fairly decided"; vi on the approach adopted, it appeared that the entry clearance officer had required satisfying on all issues beyond all reasonable doubt and, that being so, this was an application of the wrong standard of proof which in turn was an error of law. The adjudicator therefore concluded that the appeal had to be allowed by virtue of section 19 of the Immigration Act 1971. The adjudicator's determination concludes: "The matter of consequent directions is a more complicated issue. Something like 16 months have passed since the appellant has applied for and has been refused entry clearance as a visitor. In the premises I cannot direct that the successful appellant be admitted as a visitor lest, inadvertently, I were to direct something which constitutes a breach of the immigration rules. In the event it follows that Mr Thakurdas, if he so wishes, must make a further application for entry clearance. In the light of my findings I am content to say no more than that, in the absence of some serious and weighty reasons against such tolerance, I have no doubt that Mr Thakurdas will receive what he asks for. If he should encounter difficulties in that behalf he has liberty to apply. Mr Thakurdas should take steps to ensure that the meaning and import of "liberty to apply" is made clear and explained to him. Appeal allowed. Directions accordingly". Leave to appeal was granted on grounds first going to the standard of proof and, as asserted, the placing of the onus of proof on the entry clearance officer; secondly the determination of the appeal under rule 12(a); thirdly the alleged failure of the adjudicator to decide whether the application had satisfied the requirements of HC 169 paragraph 17 and fourthly, the appropriateness of the directions. The determination of the application for leave to appeal was sent to Mr Thakurdas in Pakistan on 7 November 1989 together with notification of the hearing date. A copy of this notification was also sent to Dr Thakurdas who was named as the sponsor. On the day of the hearing there was no appearance by or on behalf of Mr Thakurdas. As notice of the time and place of the hearing had been given, the Tribunal decided that it was proper to proceed with the hearing in the absence of Dr Thakurdas or anyone representing him (see Immigration Appeals (Procedure) Rules 1984 rule 31(2). Mr Gammons stressed that the Tribunal could deal with this case, for there was no evidence before the adjudicator that was not before us. He asked us to consider the substance of the case and to decide that the application was properly and fairly decided. Mr Gammons emphasised the limited nature of the documentary evidence and the opportunity given to the applicant by interview to enlarge on his case. Mr Gammons pointed to the questions and answers we have set out above, saying this showed that the matters were put to the applicant and yet no evidence was provided either then or since. Mr Gammons also adverted to the procedure adopted leading to the adjudicator considering this case without any representations from the Home Office and asked us to consider whether this procedure complied with the Procedure Rules. The appeal procedure Adjudicators are given the power to determine an appeal without a hearing by rule 12 of the Immigration Appeals (Procedure) Rules 1984. This rule reads: "12(1) An appellate authority may determine an appeal without a hearing if -- (a) no party to the appeal has requested a hearing; or (b) the appellate authority has decided, after giving every other party to the appeal an opportunity of replying to any representations submitted in writing by or on behalf of the appellant, to allow the appeal; or (c) the appellate authority is satisfied that the appellant is outside the United Kingdom or that it is impracitcable to give him notice of a hearing and, in either case, that no person is authorised to represent him at a hearing; or (d) the appellate authority is satisfied that no matter arises on the appeal other than an objection by the appellant to removal to a particular country or territory or a claim by him that he ought to be removed (if at all) to a different country or territory and is of opinion that matters put forward in support of the appeal in pursuance of Rule 9 do not warrant a hearing; or (e) such a preliminary issue as is referred to in Rule 11 arises and the appellate authority has afforded the appellant a reasonable opportunity to submit a statement in writing of matters put forward in rebuttal of the respondent's allegation, and -- (i) the appellant has not submitted such a statement, or (ii) the appellate authority is of the opinion that matters put forward by the appellant in such a statement do not warrant a hearing; or (f) the decision appealed against has been withdrawn or reversed by the respondent, and the appellate authority is satisfied that written notice of the withdrawl or reversal, as appropriate, has been given to the appellant by the respondent". (There is no 12(2)) It will be seen that in its introductory sentence, the rule confers a general discretion. That discretion is to be exercised following the establishment of one of the grounds specified in paragraphs (a) to (f). It is important to emphasise that when the circumstances fit into one or more of the paragraphs (a) to (f) this simply provides a foundation for the exercise of the discretion. On the face of the rules, paragraphs (a) to (c) of rule 12(1) are not easy to fit together in a consistent way. Rule 12(1)(b) specifically requires the appellate authority to provide an opportunity to every party to reply to any representations made by the "appellant". On the other hand, neither rule 12(1)(a) nor 12(1)(c) have such a specific requirement. In our view, it would be impossible so to read the rules as to authorise the determination of an appeal without any opportunity given to all parties to make representations in regard to that appeal. It has been held that the appellate authorities are judicial in character (see R v Immigration Appeal Tribunal ex parte Weerasuriya [1982] Imm AR 23), and this simply underlines the need for each party to be given the opportunity to put its case to the adjudicator or the Tribunal. A discretion conferred by rule 12 therefore must be exercised in the context of the need to act fairly. In the context of the present issue, it follows that in relation to rule 12(1)(a) each party must be given an opportunity to request a hearing and any procedure which realistically deprives any party from having that opportunity is one which would render a decision in pursuance to it not in accordance with the law. Rule 12(1)(c) is in essence a rule of necessity based on the lack of availability or representation of the applicant. Nevertheless, again this rule does not mean that such lack of availability or representation of itself entitles an adjudicator to determine an appeal without a hearing. In this case, Mr Parkes was of the view that the case was fit to place before an adjudicator for determination without a hearing under rule 12(1)(c). The indication to Mr Thakurdas and according to form ADJ 12, to the presenting officers unit of the Home Office, was that the applicable rule was rule 12(1)(a) while the adjudicator simply referred to 12(a). The rule on which reliance was actually placed therefore, seems to be 12(1)(a). We are not clear about the purpose of the preliminary enquiry by Mr Parkes. In this connection it is enough to say that in our view, the discretion conferred by rule 12 must be exercised in relation to any particular case by the adjudicator who is to determine the appeal. Further, and more fundamentally, in our opinion, the process reflected by form ADJ 12 does not comply with rule 12. As we have said, rule 12 necessarily imports a discretion as to whether a hearing will be held. Form ADJ 12 is the first intimation to either party as to whether a hearing will be held and its wording clearly indicates that a decision has been taken that a hearing will not be held. First, this may well offend against the principle that it is the adjudicator determining the appeal in whom the discretion rests. Secondly, the form records a decision which has been taken without either party having any opportunity to argue that a hearing should be held. It is regrettable that the form of appeal used in this case (form APP 201) does not contain (as such forms often do) a question as to whether or not a hearing is requested. The form provides a space for the specifying of the applicant's representative and contains a somewhat enigmatic explanatory note, reading: "2. You may if you wish ask a relative, friend, solicitor, voluntary organisation or other person in the United Kingdom to act as your representative. He will be given an opportunity to appear before the adjudicator and/or to submit evidence to him in writing". So far as the entry clearance officer is concerned, the first that his representative (ie the presenting officer) knew of the appeal process applicable to the case is the receipt of ADJ 12. As we have said, the effect of this is simply to inform the presenting officers' unit of the decision that because no hearing has been requested, the appeal will be determined without such a hearing (see also ADJ 2 and comments on that form by the Tribunal in Jusyk (6923)). In our view, for the process to meet well established standards of enabling a party to argue that a hearing should be held, the applicant should be given the opportunity specifically to opt for a hearing and the Home Office should receive notification that in the circumstances of the case, it will be open to the adjudicator to whom the matter is allocated to determine the appeal without a hearing. If the applicant opts for a hearing but nobody turns up, the adjudicator may proceed under rule 34. If it appears that the case is such that it could be determined without a hearing, the Home Office should be informed of this possibility. This would put the Home Office on notice so that if desired, a hearing could be requested. Such a reading of the rules would not only fit with the general duty to provide both parties with an opportunity to be heard but also would give a construction to rules 12(1)(a) and 12(1)(c) consistent with the provisions of 12(1)(b). It follows that the procedure adopted in this case was defective. That defect resulting in the Home Office being denied an opportunity to argue whether there should be a hearing has now been corrected. There has however now been a hearing before us and Mr Gammons was content that we should decide the merits of the case. In our opinion, the grounds of appeal are largely made out. In particular, the adjudicator erected for himself the error of law on which he based his decision. There is no evidence that the entry clearance officer applied any standard of proof other than that of the balance of probabilities. There is not the slightest evidence that the entry clearance officer applied a standard of proof of "beyond unreasonable doubt". There was no error of law in that regard. If the entry clearance officer's decision is to be attacked, it would be that the grounds of refusal were not justified in the terms of HC 169 paragraph 17. Regrettably, as the grounds of appeal assert, the adjudicator did not refer to paragraph 17 and did not assess the respondent had made his case under that paragraph. The adjudicator commented on the fairness of the entry clearance officer's approach and the duty, as the adjudicator saw it, to enquire into the strength of the applicant's case. We agree with Mr Gammons that there is no duty on an entry clearnce officer to pursue further enquiries to assess whether, what the applicant has told him is borne out through testimony of others or other evidence. The entry clearance officer's duty is to permit the applicant the opportunity to make his case and again, as Mr Gammons said, this opportunity was provided both through the IM2 and the interview. It should have been quite clear to the applicant that the entry clearance officer had doubts about the case made and it would have been open to the applicant to provide, for example, letters from the sponsor to support his contentions. In our view, the approach was fair and reasonable. Turning to the content of paragraph 17, there was no supporting documents and the whole application seems to have been bedevilled by the issue of the former employment with the British Embassy. In substance, as Mr Gammons said, the case is an example of an application unsupported by any evidence save that of the applicant. There was no evidence from the applicant's mother and none from his uncle. In these circumstances, in our view, the entry clearance officer was justified in refusing it. This means that no issue arises as to the directions. We add only that we have doubts as to the utility of the phrase "liberty to apply" unless it is used in a case in which there is representation.

DISPOSITION:

Appeal allowed.