Immigration Appeal Tribunal v. Khalid Hussain

Immigration Appeal Tribunal v Khalid Hussain

Court of Appeal (Civil Division)

[1990] Imm AR 51

Hearing Date: 5 October 1989

5 October 1989

Index Terms:

Appeal -- before Tribunal -- by Secretary of State -- adjudicator had allowed appeal against refusal of entry clearance, on compassionate grounds -- no application by respondent's solicitor to call witnesses before Tribunal -- Tribunal allowed appeal -- whether Tribunal entitled so to reverse adjudicator without hearing witnesses. Immigration Appeals (Procedure) Rules 1984 r 18(3)(b).

Held:

Appeal from Nolan J. The respondent was a citizen of Pakistan, the fiancé of a young lady settled in the United Kingdom. He was refused entry clearance after his conviction for murder. The refusal was pursuant to paragraph 83 of HC 169, the offence being one listed in the Extradition Act 1870. An adjudicator allowed an appeal; he was swayed principally by the compassionate circumstances of the respondent's fiancée. The Secretary of State apepaled to the Tribunal on the grounds that the facts did not amount to 'strong compassionate circumstances' as required by paragraph 83. The Tribunal allowed the appeal. No request was made by the respondent's representative to call the sponsor as a witness. On application for judicial review it was argued that the Tribunal should not have reversed the adjudicator's decision without calling, or considering calling the sponsor. The learned judge at first instance concluded that the Tribunal had not been "wrong on Wednesbury principles or, indeed, wrong at all" but considered "that the interests of justice would best be served . . . for the decision to be quashed", for the case to be re-heard and for the Tribunal to consider whether the sponsor should be called as a witness. The Tribunal appealed. Held: 1. Allowing the appeal, there was no procedural unfairness on the part of the Tribunal in failing to consider whether or not they should admit further evidence. It was not a case in which the credibility of witnesses heard and seen by the adjudicator was in issue. Kwadwo Osei followed. 2. There was great difficulty in understanding how the decision of the Tribunal could be quashed unless there were an error of law and here there had been no error of law by the Tribunal.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Mahendra Singh [1984] Imm AR 1. R v Immigration Appeal Tribunal ex parte Kwadwo Osei (unreported, QBD, 10 May 1985). R v Immigration Appeal Tribunal ex parte Kwadwo Osei (unreported, CA 23 October 1985). R v Immigration Appeal Tribunal ex parte Khalid Hussain (unreported, QBD, 24 October 1988).

Counsel:

J Laws for the appellant; S Kadri QC and Miss H Grewal for the respondent PANEL: Lloyd, Glidewell, Stuart-Smith LJJ

Judgment One:

STUART-SMITH LJ: THis is an appeal from a judgment of Nolan J given on 24 October 1988 in which he made an order of certiorari quashing the decision of the Immigration Appeal Tribunal which was given on 13 October 1987. The Tribunal had allowed an appeal by the visa officer from a decision of the adjudicator. The case concerned an application for entry clearance by Khalid Hussain, a citizen of Pakistan. He had applied for entry clearance so that he could join his fiancée, Nasreen Kausar, with a view to marriage and settlement in the United Kingdom. He had been granted entry clearace on 3 February 1981 when, uhappily, a few days after that he was involved in an incident in which a man was killed. The applicant was charged with murder and on 7 April 1984 he was convicted of murder and imprisoned. He appealed to the Pakistan High Court. His conviction was upheld, but his sentence of imprisonment, whatever it was, was varied, and the effect of the variation of sentence was that he was released from prison in July 1984 and was ordered to pay compensation in a sum of something between @5,000-@7,000 to the relatives of the victim. He renewed his application for entry clearance on 30 July 1984. The matter fell to be considered under the provisions of paragraph 83 of House of Commons Paper 169. That provides: "Any passenger, other than the wife or child under 18 of a person settled in the United Kingdom, who has been convicted in any country, including the United Kingdom, either of an offence included in the list of extradition crimes contained in the First Schedule to the Extradition Act 1870, as amended, or of an offence for which a person is returnable under the Fugitives Offenders Act 1967, is to be refused leave to enter unless the immigration officer considers admission to be justified for strong compassionate reasons." There is no doubt of course that the offence, whether it be murder or manslaughter, was one of the crimes referred to. The entry clearance officer did not think that there were strong compassionate reasons in this case. But, as I have indicated the applicant successfully appealed to the adjudicator. The Immigration Appeal Tribunal reversed that decision. They held that on balance there were no strong compassionate reasons to justify granting the leave to enter. It is convenient to take the facts of the case from the decision of the Tribunal where they themselves set out part of the decision of the adjudicator, (and I am reading from page 71 of the bundle). The adjudicator described the events which occurred shortly after the original grant of the entry visa: "'What in fact happened was thta within a few days of 3 February 1981, the drivers of two buses, Ghulam Shabbir and Ghulam Sarwar, stopped their buses at Stadium Chowk, to pick up passengers. The two drivers got out of their buses and immediately began a heated argument about the bus timetable and the evidence is that this was not the first time these two men had quarrelled. 'Close by the bus stop the appellant'" -- that is the applicant, Mr Hussain -- "'had a vegetable stall and he is the nephew of Ghulam Shabbir and seeing this argument going on, he rushed out and it is possible to infer that he thought that his uncle was getting the worst of it. Be that as it may, he hit Ghulam Sarwar with a piece of wood and unfortunately as a direct result of this blow the man died.'It is clear that the Appeal Court took the view that this offence was what might be called manslaughter in this country and account must have been taken of the period the appellant had spent in custody because he was released as soon as the fine was paid.'Before this incident, the appellant had completed all the formalities, obtaining a passport and a British visa, and was no doubt about to join his fiancée in the United Kingdom, to marry her and settle down. This was all thrown away in a thoughtless moment of aberration and it might well be said that the appellant got all that he deserved because murder is, of course the most serious of crimes; however, in my judgment it is important to look at all the circumstances in this case.'I am satisfied tht the Pakistan Appeal Court considered the offence to be something less than premeditated murder and that the appellant spent three and a half years in custody on remand or waiting for his appeal, and he was released as soon as the fine was paid and in these circumstances it is clear that the appellant paid his debt to society. Treating this matter with compassion, should the appellant be prevented from joining the person he would have married in February 1981.'Perhaps more important, however, is the position of the sponsor, Nasreen Kausar.'She is the appellant's first cousin and she became engaged to the appellant when she was sixteen years of age and she fully expected to be married in 1981 when she was nineteen. She went out to Pakistan in September 1982 to visit the appellant in prinson and she has never considered breaking off the engagement and her family clearly thought so much of the appellant that they subscribed @4,000 towards his fine. Nasreen Kausar is now twenty-four years of age and has been resolutely loyal to the appellant.'Looking at the evidence in this case as a whole I consider that there are compassionate reasons why the appellant should be allowed to enter the United Kingdom and to marry his fiancée. The question then arises, are the reasons strong ones. There is no guidance which I can find in the decided cases on this point and after very careful consideration, I say that in this case there are strong compassionate reasons why the appellant should be admitted to the United Kingdom'",and accordingly the adjudicator allowed the appeal. In their decision the Tribunal first of all draw attention to the plight of the respondent's fiancée. At page 73 they say this: "It is clear from the adjudicator's determination however that it was the circumstances of the proposed marriage and the plight in particular of the respondent's fiancée that principally moved him to come to the conclusion that he did." Then, omitting a sentence, they refer to the submissions made by the solicitor for the applicant, and say: "He pointed to the devotion of the sponsor, her family's contribution to the compensation, her loyalty to the respondent in his difficulties and to complications and disadvantages to her if she were obliged to go to Pakistan to live after marriage." They then say that the Tribunal were invited to take a different view from the adjudicator "on an issue which in the end depends on the evaluation of the facts within the principles guiding immigration control". As to the part referring to the principles that there should be fairness between one immigrant and another that the same principle should apply, the Tribunal came to the conclusion that there were no strong compassionate reasons in this case, and they say this: "We think that the anxiety of a wife to continue married life in the United Kingdom would not, as a rule, be regarded as an overriding compassionate circumstance: nor would a fiancé's anxiety to remain in the United Kingdom to marry be regarded as a strong compassionate circumstance against the normal course of deportation." They then went on to say this: " . . . we can think of no other immigration rule in which the denial of the opportunity to marry and settle in the United Kingdom per se and without other factors would be held to be strong compassionate grounds. There are of course no children of a marriage. So far as we know the parties are in good health as well as young, and even accepting the slightly less serious characterisation of the offence accorded it by the adjudicator, we consider that there are no circumstances which individually or cumulatively amount to 'strong compassionate reasons'." Before Nolan J, as before us, Mr Kadri submitted that the Immigration Appeal Tribunal should not have reversed the decision of the adjudicator without hearing, or at least considering whether they should hear, the evidence of the sponsor as to the effect which the refusal of leave would have upon her. Mr Kadri in that submission before the judge relied upon the decision of R v Immigration Appeal Tribunal, ex parte Mahendra Singh [1984] Imm AR 1. That was a deportation case, and the question was whether there were strong compassionate grounds against making the deportation order. The adjudicator had held that there were no compassionate circumstances in respect of the applicant himself, but that there were in relation to his wife. That decision was appealed to the Immigration Appeal Tribunal who allowed the appeal. The matter came for judicial review before Woolf J (as he then was) and he granted judicial review and an order of certiorari. In the course of his judgment at page 6 Woolf J said this: "The Tribunal did not interfere with the findings of fact of the adjudicator. However, the adjudicator heard Mrs Singh describe what would be the consequences to her of going to live in India and the Tribunal could only read her evidence about that. I take, for example, the phrase that was recorded in the adjudicator's decision, which related to the evidence of Mrs Singh, that she hated India and did not want to live there. The impact of evidence of that sort can differ very much depending on the manner in which it is expressed. The Tribunal in this case did not have the advantage of the adjudicator of hearing that evidence being given. The Court of Appeal and Glidewell J have indicated the care which a Tribunal, who have not seen the witnesses, should exercise before interfering with a finding of fact made by an adjudicator based on oral evidence which he has heard -- the sort of situation which Mr Blom-Cooper would describe as a 'soft data' situation. It seems to me that the same caution should be exercised by a Tribunal which has not seen the witness when it is trying to assess the weight of compassionate circumstances. The uprooting which will be involved in moving one's home from this country to India would inevitably be something which, in general terms, a Tribunal can appreciate, but what a Tribunal will not be able to appreciate as well as an adjudicator who has heard the evidence, will be the particular impact on the individual concerned of such a move. This is the sort of feature which is similar to the features which cause a Tribunal to be at a disadvantage when assessing the credibility of a witness. That being so, it seems to me that in the ordinary way where it is being alleged in a case where leave to appeal has been granted that the Tribunal should re-assess the balance between the demands of the public interest in favour of deportation and the compassionate circumstances of the individual, then the Tribunal should exercise its undoubted discretion to require oral evidence to be given. If an immigrant is not prepared to give evidence, or make evidence available, then, of course, he cannot complain if the Tribunal acts without that evidence. If they are prepared to co-operate -- and there is certainly no suggestion in this case that the applicant and his wife would not have co-operated -- then it seems to me that the Tribunal should approach the matter on the basis that if they have not heard the evidence, the cases in which they can interfere with an adjudicator's exercise of the balancing act will be very rare." That decision of Woolf J was followed by Webster J in a case called Kwadwo Osei, another deportation case. However, the decision of Webster J in that case was overruled in the Court of Appeal, and it is necessary to refer to one of the grounds upon which the Court of Appeal decided that matter. Mr Kadri in his submissions to us has submitted that the passage to which I am about to refer, which is in the judgment of Robert Goff LJ at page 14 of the transcript because the case is unreported, is obiter. For my part I do not think that it is. It is the second ground upon which the learned judge held that Mr Riza's third submission was not sound. Be that as it may, even if it is only obiter it is, as Mr Kadri accepts, very powerful obiter, being concurred in by Dillon LJ without qualification. At page 14 at letter F Robert Goff LJ said this: "At the end of his judgment Webster J referred to a certain matter. He pointed out that, in a case like this, to a very large extent the position of all concerned depended on compassionate considerations. He then referred to an unreported decision of Woolf J in R v Immigration Appeal Tribunal, ex parte Mahendra Singh". Then he cites from the passage of the judgment of Woolf J which I have already read. He goes on: "Webster J then continued: "'The reasons for Woolf J taking that view are to be found in the preceding paragraphs of his judgment. I respectfully agree with and adopt that view; and this does seem to me to be a case in which, if the matter goes back before the Tribunal and if they are minded to allow the appeal, they should not consider doing so without being satisfied that they are in as good a position as was the adjudicator to weigh the compassionate issues. It seems to me that that is something which could not properly be done without hearing evidence going to those matters.'" The learned Lord Justice then continues as follows: "For my part, I hope that that passage in the learned judge's judgment will not be read as placing any fetter upon the Immigration Appeal Tribunal's powers under the Act and the rules. I have already referred to the power of the Tribunal and its jurisdiction under section 20(1) of the Act of 1971. Under rule 18 of the Immigration Appeals (Procedure) Rules 1972 (now the Immigration Appeal (Procedure) Rules 1984, in which the wording of rule 18(3) is identical to that in the 1972 Procedure Rules) a discretion is vested in the Tribunal to decide whether or not to admit oral evidence. Now, the passage from Webster J's judgment which I have just quoted suggests that in compassionate cases the Tribunal is effectively precluded from allowing an appeal without hearing oral testimony. In my judgment, that is not correct. There is no such fetter upon the power of the Tribunal. There is a discretion vested in the Tribunal and the simple fact is that, if anyone wishes to challenge the exercise of that discretion in any particular case, then the appropriate course to take is to challenge the exercise of that discretion on the ordinary Wednesbury principles." It is perhaps just worth referring at this stage to the rule in question which is, as Robert Goff LJ indicated, regulation 18(3)(b), which provides: "In any proceedings on an appeal -- (a) . . . (b) if, to enable it to arrive at a proper determination of the appeal, the Tribunal requests the furnishing of further evidence relating to specified matters, it shall receive such further evidence" It is quite clear in my judgment from the decision in the Osei case that the decision not to hear oral evidence on the question was one within the discretion of the Tribunal and it can only be attacked on Wednesbury principles or other well-recognised grounds on which judicial review is granted. Nolan J recognised this and he said in his judgment that it was quite impossible to hold that the decision of the Immigration Appeal Tribunal in this case was wrong on Wednesbury principles. In the light of the fact that there was no application before the Immigration Appeal Tribunal to hear evidence of the fiancée, for my part I think that it is quite impossible to disturb that conclusion of the learned judge. How then did the judge reach his conclusion that the decision of the Tribunal should be quashed? I think it is necessary that I read certain passages from his judgment which deal with that matter. At page 12 at letter D he said this: "One feature of the case before me which distinguishes it from the normal deportation case is that the applicant was not heard" -- and it was true that he did not give evidence. "The critical evidence in the mind of the adjudicator was that of the sponsor. It is true, as Mr Laws rightly points out, that the adjudicator referred to the facts not being in dispute. That, however, does not appear to me to show clearly where the decision should lie. On the contrary, I think it may be said to emphasise the necessity for the adjudicator, against a background of undisputed basic or primary facts, to form his own judgment of the effect of refusing an entry clearance upon the individual sponsor who gave evidence before him. This was really at the heart of the case, and thus at the heart of the appeal to the Immigration Appeal Tribunal." Having concluded that there was no ground for saying that the decision could be attacked on Wednesbury principles the learned judge continued as follows: "What troubles me is the lack, in the terms of their decision, of any indication that they considered the matter" -- and I add in parenthesis here that the matter is clearly the question of whether or not oral evidence should be admitted. "I would emphasise in this connection that in the case before me, as in the Mahendra Singh case, the Tribunal appeared to have been applying a general rule as to cases of the sort before them rather than directing their attention to the impact of the particular matrix of fact upon the principal witness." He then refers to the affidavit of Mr Maddison, who was the very experienced chairman of the Appeal Tribunal, to the effect that the Tribunal were aware of their powers to call for oral evidence. The deponent said that to the best of his recollection during the course of the hearing there was no application that they should do so, "nor did the Tribunal consider it appropriate or necessary. The facts were not in dispute, and in particular there was no dispute as to the effect on the sponsor of the applicant being refused an entry clearance." The learned judge, after referring to that affidavit, says this: "In view of the concern I feel over this matter and the course which I propose to take, I would say no more by way of comment upon that passage in Mr Maddison's affidavit than that it is arguable, to put it no higher, that there was an important dispute as to the effect on the sponsor of the applicant being refused an entry clearance." I found that passage somewhat difficult to understand because it is clear from the affidavit there was no dispute as to the primary facts. It was simply really a question of assessing, and this was a matter of opinion which the Tribunal were charged to assess as to the effect on the sponsor and the balancing exercise, to which I have referred. The learned judge then goes on: "As I have said, I do not consider that it lies with this court to say that the decision of the Tribunal was wrong on 'Wednesbury' principles or, indeed, wrong at all. I do feel, however, that the interests of justice would best be served in this case for the decision to be quashed and for the matter to be remitted, so that it can again come before the Tribunal who can reconsider, in the light of the authorities and in the light of this judgment, whether or not it is necessary or desirable for the evidence of the sponsor to be called." I confess that I have had great difficulty in understanding how the decision of the Tribunal can be quashed unless there is an error of law for which it can be quashed. Such an error must be established on well-known principles of public law. Yet the judge, it seems to me, expressly negatives any such error. Mr Kadri submits that in spite of this either the learned judge found or meant to find that there was a procedural unfairness or impropriety here because the Tribunal did not consider whether they should hear oral evidence as to the effect of the refusal on the sponsor, or if he did not so find he ought to have found, and by leave granted today we permitted him to put in a respondent's notice to that effect. The nearest the learned judge came to saying that there was procedural unfiarness is in the passages to which I have referred, and I am bound to say that I do not think he was considering any such matter; and indeed he makes it perfectly clear, when he says there was nothing "wrong on 'Wednesbury' principles or, indeed, wrong at all", that he was not subscribing to any such view. For my part I find it impossible to hold that there was any procedural unfairness on the part of the Tribunal in failing to consider whether or not they should admit further evidence in this matter. They were considering the matter de novo as to whether or not there were strong compassionate reasons. No doubt in a situation where the Appeal Tribunal are considering a matter afresh, there may be circumstances in which they ought not to reverse a finding of primary fact which depends upon the credibility of a witness without having the same opportunity to assess the evidence as the adjudicator, unless of course it is a clear and obvious case. But in this case there was no dispute as to the primary facts. At best it can be said that different people might give different weight to the effect of those facts upon the sponsor. This is part of the judicial balancing exercise that the Tribunal were empowered and required to do by section 20(1) of the Immigration Act 1971. The applicant was represented by a solicitor before the Tribunal. There is no suggestion that the solicitor was not competent, and judging from the submissions that he has made he plainly was competent to conduct the case. No application was made to call the sponsor to give evidence. It cannot have been thought by the applicant or his advisers that the impact upon her was a matter which needed to have been seen and heard by the Tribunal. It may be, if an applicant is not represented and the Tribunal are minded to reverse a decision of an adjudictor who has heard oral evidence on the question whether there are strong compassionate grounds, that they may wish to consider whether they should give him an opportunity to call oral evidence. But I am very far from saying there should be some rule of practice or procedure that they should always do so. It will depend upon the facts of each case, and they will probably only consider doing so if it appears that the adjudicator placed particular reliance upon the impression made upon him by a particular witness. I have come to the conclusion that there was no error of law by the Tribunal here. I have been unable to detect from the judgment of the learned judge what error of law he found existed, and if he did so find in my judgment he was wrong. For those reasons I would allow this appeal.

Judgment Two:

GLIDEWELL LJ: I agree. Because we are differing from the learned judge I was, at one time, minded to add a few words of my own, but if I were to do so I should only be repeating in less felicitous words what Stuart-Smith LJ has already said. I therefore refrain from adding anything.

Judgment Three:

LLOYD LJ: I also agree. This is the fifth tribunal to have considered Mr Hussain's case since it was first considered by the entry clearance officer in Islamabad on 17 April 1986. Since then, it has been considered by the adjudicator, the Immigration Appeal Tribunal, the Divisional Court and now the Court of Appeal. On each occasion the decision of the tribunal below has been reversed. This is at the very least regrettable, because it must have kept the sponsor in suspense and added greatly to her distress. One cannot but express sympathy for her. But I have absolutely no doubt that the appeal must be allowed for the reasons given by my Lord.

DISPOSITION:

Appeal allowed. Leave to appeal to the House of Lords refused

SOLICITORS:

Treasury Solicitor; Penmans, Coventry

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