Ach-Charki v. Entry Clearance Officer, Rabat

ACH-CHARKI v ENTRY CLEARANCE OFFICER, RABAT

IMMIGRATION APPEAL TRIBUNAL

[1991] Imm AR 162

Hearing Date: 17 October 1990

17 October 1990

Index Terms:

Primary purpose -- application for entry clearance as husband -- marriage not valid in English law -- entry clearance refused -- whether entry clearance officer should have considered the application as that of a fiancé -- appeal to adjudicator -- assertion by appellant and sponsor that they would marry in United Kingdom if, in changed circumstances, marriage still invalid -- whether adjudicator should have approached the case as that of a fiancé. Immigration Act 1971 s 19: HC 388 para 50.

Held:

A British citizen settled in the United Kingdom married the appellant, as her second husband, in Morocco on 8 August 1988. At that time she was not divorced from her first husband, the decree absolute not being pronounced until 5 June 1989. Both parties to the marriage in Morocco believed, on the date it was celebrated, that they were free to marry. On 22 August 1989 application was made in Rabat for the appellant to be granted entry clearance to join the sponsor in the United Kingdom as her husband. The application was refused, the entry clearance officer not being satisfied that the marriage was valid. The appellant appealed. The grounds of appeal asserted, inter alia, that if the marriage were still regarded as invalid, the parties would go through a civil ceremony in the United Kingdom. There was some doubt whether that assertion was before the entry clearance officer when she reviewed the case. In any event she confirmed the original refusal on the ground that the application had been made on the basis of marriage and she therefore had not considered it as a fiancé application. The adjudicator was asked to allow the appeal to the extent that the application (as a fiancé) had not been determined by the entry clearance officer. The adjudicator declined to do that, holding that the appeal before him was only against the decision taken by the entry clearance officer. On appeal, the Tribunal analysed in detail the powers and duties of the entry clearance officer and the appellate authorities. Held: 1. At the date of the refusal there was no implied or deemed fiancé application before the entry clearance officer and there was no duty, flowing from the refusal, that she should indicate to the applicant the possibility of a fiancé application. 2. Once the entry clearance officer received the grounds of appeal and assuming that they contained the assertion that the parties would marry, if need be, in the United Kingdom, there was a duty on her to consider the application as that of a fiancé. 3. In that application had been before the entry clearance officer, then on appeal the appellate authorities were obliged to deal with it, adopting whatever course was most appropriate in the circumstances. 4. If the application had not been before the entry clearance officer, the appellate authorities still had the power to deal with it, provided "there was a sufficient degree of connection to bring it within the principle of Tohur Ali". 5. The connection between an application as a husband and as a fiancé was sufficiently close to bring it within that principle.

Cases referred to in the Judgment:

Re HK (an infant) [1967] 2 QBD 617: [1967] 1 All ER 226. R v Immigration Appeal Tribunal ex parte Kwok On Tong [1981] Imm AR 214. Kanchanlal Prajapati v Immigration Appeal Tribunal [1982] Imm AR 56. R v Immigration Appeal Tribunal ex parte L Ron Hubbard [1985] Imm AR 110. Tohur Ali v Immigration Appeal Tribunal [1988] Imm AR 237. Mohammed Fazor Ali v Secretary of State for the Home Department [1988] Imm AR 274. Nadeem Tahir v Immigration Appeal Tribunal [1989] Imm AR 98. Jamaldeen Ashraf v Immigration Appeal Tribunal [1989] Imm AR 234. R v Immigration Appeal Tribunal ex parte Hawa Uddin [1990] Imm AR 309. Kaur (unreported) (2828). Thakrar (unreported) (3387). Kessori Khatun (unreported) (4272). Mohammed Naeem (unreported) (6413).

Counsel:

M Chatwin for the appellant; D Wilmott for the respondent PANEL: Professor DC Jackson (Vice-President), AK Khandwala Esq JP, RE Hunte Esq JP

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of Morocco appeals against the decision of an adjudicator (Mr JG Storry) dismissing his appeal against the refusal of entry clearance to join Zohra Raffai in this country as her husband and settle here. The application for entry clearance was refused solely on the ground that the entry clearance officer was not satisfied that the marriage between the parties was valid in English law, and this conclusion is not contested. The primary issue before us is whether, once the entry clearance officer had so concluded, there was any obligation on her to consider the application as by a fiancé. Further issues arise as to whether or not at any time whilst the application was being considered the entry clearance officer should have considered it as a fiancé application and secondly whether the adjudicator should have done so and if so how the issue should have been dealt with. We were told by Mr Chatwin that since the hearing before the adjudicator the appellant had made a fresh fiancé application and a visa had quickly been granted. However, as this is one of a number of like cases the appeal was being pursued. The background facts These are largely taken from the evidence of the sponsor which the adjudicator accepted in its entirety. On 20 June 1987 the sponsor (who is a British citizen and lives in London) married Ali Mahrach at the Camden Registry Officer. This marriage was entered into at the insistence of the sponsor's father. It was never consummated and the relationship seems to have ended in every substantive sense after about three months. The sponsor brought divorce proceedings but the decree absolute was not pronounced until 5 June 1989. The sponsor said it seemed that the divorce took a long time because of legal problems. The sponsor believed that once she and her then husband had decided to divorce she was free to re-marry. Acting on this belief (and as the adjudicator found acting bona fide), on 8 August 1988 the sponsor and appellant went through a marriage ceremony in Morocco. It appears that the appellant too believed that in the circumstances as they then existed that the sponsor was free to marry. The ceremony was properly and regularly conducted. There is no evidence as to the status of the "marriage" under Moroccan law. On 22 August 1989 the appellant applied to join the sponsor as her husband. They were interviewed on that day. Among the supporting papers was the decree absolute dated 5 June 1989 and it was therefore obvious to the entry clearance officer that at the date of the ceremony of the marriage between the appellant and the sponsor in English law the sponsor was still married to her first husband. She was not therefore free to marry the appellant. The explanatory statement simply records the documents presented and that from that evidence the entry clearance officer was not satisfied that the marriage between the sponsor and the appellant was valid. The application was therefore refused on the day of the interview on that ground. On 26 September 1989 notice of appeal was received by the British Embassy in Rabat. That notice reads: "1. It is accepted that marriage as celebrated would not have been recognized in English law, but sponsor is now divorced 2. Marriage would be valid in Moroccan law and should therefore now also be recognized in England as there is no longer any impediment to the sponsor contracting a second marriage 3. Should the marriage not be recognized as valid still, the couple are willing to complete a further, civil ceremony of marriage on the appellant's arrival in England 4. If the entry clearance officer was not satisifed as to the validity of marriage consideration should have been given to the issue of clearance as a fiancé 5. Once an applicant has correctly lodged an application in unambiguous terms there arises a duty upon the ECO to categorize it according to the terms of the Immigration Rules and give consideration accordingly 6. All other requirements of the applicable rules for husbands/fiancés are adequately met" As the document appears on the file grounds two and three are crossed through. However it would appear that when the notice of appeal reached the entry clearance officer reliance was placed on all the grounds and we so approach the case. On receipt of the notice of appeal the entry clearance officer reviewed the case and the explanatory statement contains points made in answer to the grounds of appeal. Included in those points is the comment that the application was not considered as a fiancé application because it had been made on the basis of marriage. The adjudicator's view It was argued before the adjudicator that once the entry clearance officer realised the marriage was invalid she should have considered the case as a fiancé. The adjudicator was asked by Mr Chatwin to allow the appeal to the extent of declaring that the application was still before the entry clearance officer. The adjudicator declined to do this largely on the ground that on the authorities, as he saw them, the appeal before him was from the decision taken ie the refusal of the application as a husband. The proceedings before the Tribunal Mr Chatwin and Mr Wilmott referred us to a considerable number of authorities and we hope they will forgive us if we do not make specific reference to them at all. Mr Chatwin submitted, as he had done before the adjudicator, that there was a duty on the entry clearance officer to investigate the fiancé application. Mr Wilmott submitted that whatever we thought an entry clearance officer might have done out of kindness there was no legal duty on her to do anything but respond to the application made as a husband. We consider first the duty of the entry clearance officer and secondly the powers and duties of the appellate authorities in the circumstances of this case. (i) The making of the application -- the duties of the applicant and entry clearance officer In arguing that the duty on the entry clearance officer was limited to considering an application made, Mr Wilmott referred us to the Court of Appeal decision in Prajapati [1982] Imm AR 56 and its holding, as Mr Wilmott contended, that the application had to be in "quite unambiguous terms". Mr Wilmott also referred us to the Tribunal decision in Thakrar (3387) in which the Tribunal approved a principle set out in a previous decision in Kaur (2828). That principle is: "In considering the obligation of adjudicators and indeed the Secretary of State in respect of applications, it is clear that a balance must be struck between (1) artificially limiting the consideration of an application for entry because of chance wording of the application and (2) imposing an impossible burden of conjecture on those considering applications as to the possibility of rules not obviously relevant being so. In considering the duty the content of applications cannot be considered apart from the situation in which they are made". The dispute in Prajapati concerned not the nature of the application (as here) but whether an application had been made. The court cited the phrase in "unambiguous terms" as being helpful in resolving that issue and inferred from an appointment fixed and visit made to a High Commission that an application was made. This case therefore in our view stands for the entirely understandable proposition that whether or not an application is made is a matter to be deduced from the facts and that even though there is no direct evidence of an application being made, the making may be inferred. In Thakrar the issue was closer to the question before us. It was there argued that a letter written in support of a claim as a dependent relative could be taken as founding a claim as a returning resident. Applying the principle of Kaur the Tribunal held that there was not sufficient information in the letter to impose on the Secretary of State an obligation to consider the returning resident claim. The claim based on dependency did not automatically "trigger off" a claim as a returning resident and there had therefore to be some information supplied by the applicant to impose the duty on the Secretary of State to consider such a claim. Mr Chatwin referred us to the Tribunal decision in Kessori Khatun (4272). In that case the Tribunal held that where an applicant sought to join a husband or father in the United Kingdom the entry clearance officer should consider not only the granting of leave but whether leave was necessary. In other words an applicant may have a right of abode as the wife or child of a British citizen or may need an entry clearance. An applicant could not be expected to appreciate and specify the legal route of entry but could and should be expected to specify the factual basis of the application (ie as a wife or child). Mr Chatwin also cited the Court of Appeal decision in Fazor Ali [1988] Imm AR 274, which was concerned with the construction of an application for leave to enter as a returning resident under HC 169 paragraph 56. At the material time that paragraph contained two grounds on which a person could base such a claim and in the case the applicant had based his claim on the first ground. The Court of Appeal held that once on the facts it became apparent that the second ground might be open to the applicant that ground should also have been considered. In delivering judgment with which the other two members of the court agreed Mann LJ said: "I do not intend to suggest that it is any part of an immigration officer's duty to conduct a roving expedition through all the paragraphs to see whether the person before him is eligible under any of them; but, in my judgment, the two limbs under paragraph 56 should be looked at together". As Mr Wilmott said we are faced in this case not with different legal routes based on the same factual foundation (as in Kessori Khatun) but different legal routes based on different factual foundation (as in Thakrar and possibly Fazor Ali). Nevertheless the underlying principles of Kessori Khatun and Thakrar seen to be identical and are consistent with the approach of the Court of Appeal in Fazor Ali. They are all applications of the general principle that it is for the applicant to present the entry clearance officer with the factual foundation and for the entry clearance officer or immigration officer to apply the appropriate statute or rule. Mr Chatwin seeks to apply that general principle to the fiancé/spouse rule so as to impose a duty on an entry clearance officer, when a marriage is patently invalid, to point the applicant to the fiancé rule. Mr Wilmott seeks to place the initiative firmly on the applicant to make an application on the factual foundation of a claim to be admitted as a fiancé. Particularly, he argued, no such application may be said to be made until there is an indication of a willingness to marry in this country. It is well established that it is the duty of an entry clearance officer and immigration officer to act fairly in the sense that an applicant must be given the opportunity to put his case (Re HK [1967] 1 All ER 226). There may be circumstances in which it is arguably unfair simply to refuse a marriage application without reference to the fiancé route. Further, it may well be that at the time of refusal of a marriage application because of the invalidity of the marriage an opportunity should be given, if the applicant so desires, for a case to be made as a fiancé. However, in our opinion, within the ambit of the entry clearance officer's legal duties it is not arguably unfair simply to refuse a marriage application without any suggestion that a fiancé application be made. On the other hand, once the parties indicate they are willing to "marry" in this country the entry clearance officer is then under an obligation to consider the application as by a fiancé. The factual basis of the application is made clear. Approaching the matter as indicated in Fazor Ali, Thakrar and Kessori Khatun in all material aspects the application is then by a fiancé. Further it matters not if the parties say in effect -- "we still say the marriage is valid but if in English law it turns out not to be we will marry according to English law". That would be a sensible way of dealing with what may well be a complex issue of law. It follows that in this case that at the date of refusal there was no implied or deemed fiancé application before the entry clearance officer and there was no duty flowing from the refusal that she should indicate the possibility of a fiancé application. Once however the notice of appeal was received (provided ground 3 was included) there was a duty to consider the application as by a fiancé. (ii) The powers and duties of the appellate authorities (a) Where an application made has not been considered If on the evidence an application has been made to the entry clearance officer but has not been considered it is a matter within the ambit of the appellate authorities. There is in substance an appeal from a decision taken (ie the refusal or failure to decide the application) and the appellate authority must deal with it. In so doing it may hear the matter, adjourn it pending consideration by the entry clearance officer or declare it outstanding before the entry clearance officer and remit it for decision. Which course is appropriate is a matter for the adjudicator and the particular case. Where, as here, an application is in effect made through the appellate process founded on an earlier application it will be a matter of construction as to whether the second application is before an adjudicator in proceedings stemming from the first. In our view where on review of the case following receipt of the ground of appeal the entry clearance officer considers the matter then presented, it would be unduly technical to require a yet further notice of appeal from a decision taken in response to a notice already lodged. Where an alternative application comes into existence through grounds of appeal which if in existence at the date of the initial application would have created a duty on the entry clearance officer to consider it, the failure to consider it on receipt of the notice of appeal brings the matter within the ambit of the earlier appeal. This approach is consistent with the scope of the appellate authorities' powers and duties in relation to grounds closely connected with an application but not considered by the entry clearance officer. (b) Where no application has been made to the entry clearance officer Where on the evidence no application has been made to the entry clearance officer the extent of appellate jurisdiction in respect of a ground on which leave may be granted is unclear. It is established that the appellate authorities are not restricted to the grounds of decision. Where an initial ground of refusal was held unjustified the appeal is not necessarily to be allowed. To allow an appeal requires that the decision be not in accordance with the law and any applicable immigration rule (section 19 of the Immigration Act 1971) and it will not be so unless all the requirements of statute or applicable rule are met (see Nadeem Tahir v IAT [1989] Imm AR 98 approving the approach of Woolf J in ex parte Hubbard [1985] Imm AR 110). Moreover if facts emerge during the appellate process on which the case may be decided there is no necessary obligation to remit the matter to the Secretary of State for consideration of the grounds not initially considered. In Tahir Ralph Gibson LJ held that it was open to the appellate authorities to decide that although a decision was unjustified on the facts relied on by the Secretary of State it could be justified "by the facts proved in the process of appellate review". In that event there was no ground "for requiring the decision to be quashed in order for the administrative procedure to be started again". This approach supports the view that an application made but not initially considered could be considered on appeal on its merits but it does not go to the issue of the power where an application has not been made. That issue arose in Tohur Ali [1988] Imm AR 237, ex parte Hawa Uddin [1990] Imm AR 309 and Mohammed Naeem (6413). In Tohur Ali the question was whether the Tribunal, in considering an application for admission as an adopted son should also have considered the possibility that the applicant might have been entitled to admission as the nephew of his adoptive father. No application had been made on that ground although both admission routes would lead to the same end -- the joining of the family of the uncle/adoptive father. The Court of Appeal was unanimous in thinking that in the circumstances of the case this possible ground of admission should have been considered. It was not unanimous in setting out the boundaries of any duty in respect of rules not applicable to the application actually made. The two possible grounds of admission in Tohur Ali were both included within the same rule (ie that concerning the admission of children under 18). The extent to which other rules should be taken into account remains uncertain. All three members of the court took the point (which had been taken in the earlier case of ex parte Kwok On Tong [1981] Imm AR 214) that the appellant authorities could and should look at the whole of any rule relevant to an application. Balcombe LJ reserved for future consideration the question of whether there was any duty to look at any other rule. Woolf LJ indicated where the link between the different ways in which a case could be put was not so obvious because the ways were not included within the same rule he would not necessarily take the view that there was a duty on the appellate authorities to have regard to the different ways. In Uddin the applicant was admitted to this country as a visitor and while here went through a marriage ceremony with Mr Sharif Uddin. An application for leave to remain as his wife was refused on the basis that the marriage was invalid as Mr Uddin was already married. After appeals against that decision had been dismissed by an adjudicator and the Tribunal and leave to move for judicial review had been refused a judicial review application was renewed, as the judge said, on "a brand new basis". This basis was that the Tribunal should have appreciated that the appellant could have sought indefinite leave on a basis different to that of wife. The ground suggested was that of living in permanent association with a man -- a category of an on-entry applicant included within the "close relatives" rule of HC 169 paragraph 133 and therefore able to switch to indefinite leave from the visit leave without departing from the country. After referring to the views of the Court of Appeal in Tohur Ali Simon Brown J said: "This is no occasion and I am not the Tribunal to attempt any definitive resolution of the wide question expressly reserved for further consideration in Tohur Ali. In my judgment, however, the present case plainly falls at the extreme end of the spectrum of cases in which it could be contended that there was an alternative, but wrongly unconsidered basis for granting the immigrant the leave desired. It seems to me quite absurd on the facts of the present case, having regard to the not merely strikingly different but wholly inconsistent bases of suggested entitlement to leave here, to suggest that the appellate authorities should themselves have devised, introduced and considered this imaginative new route to eligibility that Mr de Mello lays before me. I am not prepared in this case to criticise the Immigration Appeal Tribunal in any way whatever. Whether it may be appropriate in some future case to quash a determination on the footing that an appellant's claim might have prospered had it been considered under some rule quite other than that primarily relied upon, I know not. In my judgment, however, that is certainly not appropriate here." Both before the adjudicator and before us Mr Chatwin relied on the Tribunal case of Mohammed Naeem, decided prior to the decision in Uddin. In that case the application was made and refused as one by a husband. The validity of the marriage was not raised until the case went on appeal and the entry clearance officer considered the substantive requirements of a husband application and in particular that of the purpose of the marriage. It appears that the validity of the marriage was first raised by the adjudicator who was then asked to consider the case as an application by a fiancé so that the applicant could come and marry in this country. The adjudicator refused that request and to make any finding on primary purpose. He then granted leave to appeal to the Tribunal on the question of whether he was right in taking this view. The Tribunal pointed to the uncertainty of the law but expressed its view that the adjudicator had the power to consider the application as one by a fiancé. After a review of the authorities the Tribunal said: "It seems to us that in practice there may well be cases where it is reasonable to consider a case on a basis and in relation to a rule other than that on which the decision was made. The requirements of the fiancés and husband rules are, in essence the same. There are subtle differences of approach, but little if any difference in the evidential basis. It so happened that the visa officer had based his refusal on the question of primary purpose as well as support and accommodation and had fully explored the background of the marriage, as his explanatory statement demonstrates. This was not a case in which, it seems, areas material to full consideration of the case on another basis had not been covered at the original interview. Indeed, when the validity of the marriage was put in issue, and the case stood adjourned before the adjudicator, the case was referred back to the visa officer who felt no useful purpose would be served by re-interviewing the appellant. That is the first reason why, if we had been in the position of the adjudicator, we would have acceded to the request of both representatives before him that he should determine the basic issues of the case on their merits. That joint application itself would also have moved us to that course. It would give us pause if one representative or both representatives objected to the hearing of a case on a different basis and we would then have to satisfy ourselves that it was proper to proceed and to do so would put neither party at a disadvantage. However, where two properly instructed experienced representatives urge a common course not itself contrary to law or the rules, some very good reason ought to be established for not acceding to it. We should also have agreed to do so in this case because the situation had arisen it appears through no fault of the appellant or the sponsor. There is no evidence to suggest that either, at any time, misled the immigration authorities on the circumstances of the marriage. Insofar as a refusal to consider the case on a different basis would lead to further delay for the appellant (and in some cases further expense) it would often be inequitable, in our view, so to refuse where no fault attached to the appellant." In expressing this view the Tribunal cited and adopted the views of Ralph Gibson LJ in Tahir that where facts were proved in the process of appellate review it did not follow that the case necessarily had to be remitted to the Secretary of State for decision. It has to be borne in mind in Tohur Ali and Uddin the contention was that even though the appellant's representative had not relied on a particular ground there was a duty on the appellate authorities to raise that ground and consider it. In Mohammed Naeem and the present case the appellant's representative specifically raised the ground and the question therefore goes to the power of the appellate authority rather than any duty to raise the matter for itself. We agree with the approach adopted by the Tribunal in Mohammed Naeem both as to the ambit of the legal power and its practicality. It would follow that in this case once it had been made clear to the adjudicator that the parties were prepared to marry in this country he had the power to consider the application as a fiancé application. Arguing that the powers of the appellate authorities were restricted to the decision taken by the entry clearance officer Mr Wilmott referred us to a number of cases laying stress on the limitation of consideration on appeal to applications actually made -- and in particular the case relied on by the adjudicator -- Ashraf [1989] Imm AR 234. In Ashraf the issue was whether an appellant could obtain consideration of a refusal of an asylum application during the course of an appeal against an earlier refusal of leave to enter as a transit visitor. In the context of the case it was critical for no appeal lay from the refusal of asylum itself while the appellant was in this country. In rejecting the contention that the asylum matter could be considered on the visit appeal Nourse LJ (in a passage relied on by the adjudicator in this case) said: "The Act makes no express reference to an application for leave to enter, but the reference in s 13(1) (of the Immigration Act 1971) to a refusal of leave presupposes that an application has been made. It is obvious that such an application can only be made on a specific ground or grounds. It necessarily follows that the refusal, when made, is a refusal for leave to enter on that ground or grounds and that it is that refusal, and none other, against which the right of appeal is given." The key to the consistency of Ashraf and other cases emphasising the necessary link between an appeal and the application actually made and Tohur Ali lies in the connection between the application made and refused and the matter not considered. In Ashraf the appellant sought to introduce into a refusal of a visit application the issue of asylum, the subject of a subsequent application and decision. The purposes of the two applications were wholly inconsistent and there was therefore an attempt to feed into one appeal matters which had nothing to do with that appeal. It was in that context that Nourse LJ stressed the exclusive focus of the appeal. The issue of Tohur Ali was not before the court in Ashraf and (as with the Tribunal's views expressed in other like cases) has to be viewed in the light of those cases which are concerned with jurisdiction to consider a matter closely connected with the application made and refused. It follows from Tohur Ali that it cannot be argued that the appellate authorities are restricted by law to the ground on which the applicant actually relied. Any duty on the appellate authoriites to consider any other ground depends on the degree of the connection. Such an approach accords with that adopted by the Tribunal in Kessori Khatun and Thakrar -- did the factual outline in the application create a duty to categorise it legally in alternative ways? If, as the case was put to the entry clearance officer or immigration officer a decision should have included consideration of a point, it follows from the principle of Tohur Ali that the appellate authorities may be under a duty to raise the point and certainly under a duty to consider it if the point is raised by a representative. Where the alternative claim emerges only during the appeal process we agree with the approach in Naeem. So, whether or not the entry clearance officer should have considered a claim, an adjudicator or Tribunal has the power to consider it provided there is a sufficient degree of connection to bring it within the principle of Tohur Ali. It may be arguable that the jurisdiction of the appellate authorities to consider a claim not considered by the entry clearance officer may be wider if the matter is raised by a representative than if it is not. However, we are content in this case to assume the power to consider a matter is coincident with the duty as outlined in Tohur Ali. As with the Tribunal in Naeem we think that the connection between husband and fiancé applications is so close that once it is apparent that an applicant and sponsor who have based their application on marriage were prepared to marry in this country to cure an invalidity of the marriage the application as a fiancé comes into existence. The factual connection is more akin to that which was the subject of Tohur Ali that that which was the subject of Uddin. In Uddin the alternative route involved an entirely different basis of claim in that marriage played no part. On the other hand a fiancé application has marriage at its heart just as has a marriage application. The rules approach both in an identical manner and impose the same stringent criteria although in some instances at different dates. Both in substance and in immigration terms the link is strong. In this case the willingness to undertake a marriage ceremony in this country was expressed in the grounds of appeal and was certainly expressed in evidence before the adjudicator. Therefore even if the matter was not before the entry clearance officer the adjudicator had power to deal with it. In refusing to consider the fiancé application in our view the adjudicator erred in law. As the Tribunal said in Naeem how any such application is to be dealt with is a matter for the adjudicator depending on the facts. In this case (unlike Naeem) the entry clearance officer has not considered any element relevant to the fiancé application and it may well be that the proper course was remittal for consideration or adjournment pending consideration by the entry clearance officer. In the event as the application has been made again and the visa granted we need take this matter no further. The appeal is dismissed in that we find that there was no duty on the entry clearance officer to consider the application based on marriage as one by a fiancé. The appeal is allowed in so far as we declare that: 1. (Assuming that the grounds of appeal indicated a willingness to undertake a marriage ceremony in this country) the entry clearance officer erred in not then considering the application as a fiancé application. 2. The adjudicator erred in not considering the fiancé application either because of the refusal of the entry clearance officer to consider it or because the facts establishing it emerged in the appellate process.

DISPOSITION:

Appeal allowed in part

SOLICITORS:

Camden Community Law Centre

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