Immigration Officer, Heathrow v. Adae-Bosompra

IMMIGRATION OFFICER, HEATHROW v ADAE-BOSOMPRA

Immigration Appeal Tribunal

[1992] Imm AR 579

Hearing Date: 10 July 1992

10 July 1992

Index Terms:

Leave to enter -- refusal -- visa national -- visit abroad during currency of earlier visitor leave -- re re-entry visa -- whether under the Act and the rules the immigration officer was obliged to refuse leave to enter -- whether he had a discretion which he had not exercised to admit the appellant outside the rules. Immigration Act 1971 s 3(3)(b): Immigration Act 1988 sch 1 para 1: HC 388 para 14.

Dirctions -- adjudicator directed that appellant's passport be altered in relation to a refusal of leave to enter stamp -- whether the adjudicator should have given any directions in the circumstances -- whether a direction could be given to alter the stamps in a passport.

Held:

The appellant had been granted leave to enter the United Kingdom as a visitor. He was a citizen of Ghana, a visa national. He went to Europe for a short visit during the currency of his visitor's leave. On return to the United Kingdom he was refused leave to enter: he was not in possession of a re-entry visa. He appealed. His appeal was allowed by an adjudicator who held that under section 3(3) of the 1971 Act, the immigration officer had had a discretion to admit the appellant, he had not exercised that discretion in favour of the appellant and on the facts, the adjudicator concluded that the discretion should have been so exercised. He directed that the appellant's passport be altered, there having been inserted a refusal of leave to enter stamp. The immigration officer appealed to the Tribunal. Held 1. Under the provisions of the Act as then in force and under the rules, the immigration officer had no discretion to grant leave to enter, in the circumstances. 2. It was clear from evidence not before the adjudicator that the immigration officer had exercised his discretion outside the rules, albeit adversely to the appellant. 3. Directions should not have been given without the representative of the immigration officer having the opportunity to make submissions thereon. 4. There was no reason however why directions should not be given to amend a passport entry, in appropriate cases.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Tolba [1988] Imm AR 78. Barmak Saemian v Immigration Officer, Heathrow [1991] Imm AR 489.

Counsel:

W Patterson for the appellant; The respondent did not appear and was not represented PANEL: Professor DC Jackson (Vice-President) Mrs A Weitzman JP, JLS Harrison Esq

Judgment One:

THE TRIBUNAL: The Immigration Officer, Heathrow, appeals against the decision of an adjudicator (Mr IMS Donnell) allowing the appeal of Joseph Adae-Bosompra against the refusal of leave to enter as a visitor. The Tribunal considered two issues in this case at separate hearings. The Tribunal was satisfied that notice of the date, place and time of the hearing had been sent to the respondent in accordance with the Immigration Appeals (Procedure) Rules 1984. The Tribunal therefore decided, pursuant to its powers under Rule 34(2) of those rules, to proceed in the absence of the respondent. The respondent entered the United Kingdom on 30 September 1989 holding a single visit visa. He was granted leave for six months. On 5 October 1989 he left London for Hamburg on a week's visit on business. In his written submission to the adjudicator, he said that he noticed, after he had gone through passport control, that no entry had been made in his passport to indicate his departure. The respondent returned on 12 October 1989, and on that occasion he was refused leave to enter on the grounds that as a visa national he required a visa, and he had no such visa. The respondent, in his submission, expressed considerable surprise at being refused leave to enter, and said that he provided the immigration officer with details of his business transactions and his booked return flight to Ghana on 15 October 1989. He was instructed to call at Departure Gate 3 on 15 October 1989 to collect his passport. The respondent comments that the stamp in his passport is not the usual departure stamp, but the arrival stamp of 12 October superimposed with a "big cross". The respondent takes the point that when he booked his ticket London/Hamburg and returned with British Airways, he should have received some warning that he needed a re-entry visa. Further, says the respondent, on his departure on 5 October 1989 his attention should have been drawn to the fact that he needed such a visa to return. The explanatory statement is succinct, and relies entirely on the fact that under the immigration rules (HC 388 paragraph 14) the respondent had to be refused leave to enter. The adjudicator set out the background to the case, and took the view that section 3(3) of the Immigration Act 1971 conferred a discretion on an immigration officer to re-admit a person to the United Kingdom for the unexpired portion of previous stay. The adjudicator thought that the immigration officer had not exercised the discretion and that, on the facts, the discretion should be exercised in the respondent's favour. The adjudicator allowed the appeal, and directed the refusal of entry stamp in the respondent's passport to be marked as incorrectly affixed. Before us, on the first occasion, Mr Patterson contended that contrary to the adjudicator's view, the immigration officer had no power to admit the respondent by virtue of section 3(3). Subsequent to the hearing the Tribunal raised with Mr Patterson the question as to whether the immigration officer had considered waiving the requirement of the visa, this being a requirement of the rules in exercising discretion in the respondent's favour to admit him. In connection with this point on 6 May 1992 Mr Patterson produced a supplementary explanatory statement, a copy of which was sent to the respondent. The immigration officer states that in reaching the decision he: "considered that there were no compelling or compassionate reasons which might have lead me to exercise discretion outside the rules and admit the passenger despite his lack of a visa". In relation to that statement Mr Patterson said that it was based on the immigration officer's notes. In connection with the directions Mr Patterson submitted first, that it was wrong of the adjudicator to give directions when they had not been requested, they did not "give effect to the determination" as required by the Act and the presenting officer had had no opportunity to express views about them. Further, said Mr Patterson, it was inappropriate to direct that a passport be altered. Conclusions The effect of section 3(3) of the Immigration Act 1971 Section 3(3)(b), prior to its amendment in 1991, provided: 3(3) In the case of a limited leave to enter or remain in the United Kingdom -- (a) . . . (b) the limitation on and any conditions attached to a person's leave may be imposed (whether originally or on a variation) so that they will, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave". As Mr Patterson said, the prerequisite for admission under section 3(3)(b) is that, as part of the leave stamp preceding the re-entry leave, there is a rubric authorising the continued imposition of the conditions and duration of the re-entry leave (see eg R v Immigration Appeal Tribunal ex parte Tolba [1988] Imm AR 78 at page 82). Section 3(3)(b) was amended as from 16 May 1991 by the bringing into force of paragraph 1 of the schedule to the Immigration Act 1988 (see Commencement Order No 2 SI 1991/1001). The provision now reads: The limitation on and any conditions attached to a person's leave (whether imposed originally or on a variation) shall, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave." It would appear, therefore, that as from the date at which the amendment came into force, the limitation and conditions of earlier leave will continue unless an immigration officer takes a decision that it should not. As the decision in this case was on 12 October 1989, Mr Patterson is right in his submission that there was no room for the immigration officer to act under section 3(3)(b). Even under the amended provision, it remains arguable whether the imposition of duration and conditions of the lapsed leave, of itself, removes the necessity under the immigration rules for a visa. It seems to us certainly arguable that admission without a visa requires the exercise of a discretion directed to that entry requirement -- an exercise usually evidenced presumably by a visa exempt stamp. It seems to us therefore that, with respect, the adjudicator erred in holding that section 3(3)(b) of the Immigration Act 1971 conferred any discretion on the immigration officer to grant leave on the basis of conditions and duration of earlier leave. However, as we have inferred above, the visa requirement may be waived by an immigration officer, and the explanatory statement makes no reference to the existence of this power. The production of the supplementary statement, with Mr Patterson making it clear that this statement was based on the immigration officer's notes, means that there is now unchallenged evidence that the immigration officer did consider whether the respondent should be admitted even though he had no visa. As the requirement of a visa is a requirement of the rules, any question of granting leave to enter without having such a visa is a matter of departure from the rules. The jurisdiction of the appellate authority in regard to such issues is confined to assessing whether the decision is in accordance with the law. There is no review of the merits of the decision to refuse leave to enter (see eg Saemian v Immigration Officer, Heathrow [1991] Imm AR 489 and authorities there cited). There is no evidence that the decision taken by the immigration officer was not in accordance with the law, for example, being procedurally improper, being based on an error of law or being perverse. On the substantive issue, therefore, the appeal must be allowed. As to the directions, as the appeal has been allowed on the substantive matter and, thereby, the refusal of leave to enter restored, the directions fall away. We should just say, however, that we agree with Mr Patterson that directions should not normally be contemplated without providing the Home Office with an opportunity to comment upon them and, preferably, only if they are requested. However, we disagree with Mr Patterson that it would be inappropriate to make directions so that stamps in passports reflecting decisions which have been reversed are not themselves altered so as to reflect the reversal. The Tribunal has said on many occasions that it sees little administrative difficulty in creating some recognisable sign which would indicate that the sign of refusal (the large cross in this case) was to be taken to have been put there in error. The appeal is allowed, and the immigration officer's decision to refuse leave to enter re-instated.

DISPOSITION:

Appeal allowed