R v. Immigration Appeal Tribunal, Ex parte Shezada Gul Hamayun Khan

R v IMMIGRATION APPEAL TRIBUNAL Ex parte SHEZADA GUL HAMAYUN KHAN, TH/2542/73(358)

Queen's Bench Division

[1975] Imm AR 26

Hearing Date: 19 July 1974

19 July 1974

Index Terms:

Student -- Entry -- clearance -- Ground for refusal -- Computer operators 13 weeks' course -- Entry clearance officer not satisfied that applicant's intentions' realistic' -- 'Genuineness' of application not referred to nor belief expressed that applicant would not leave the U.K. on completion of course -- Expenditure involved very great in applicant's circumstances and no local enquiries made about future job prospects -- Whether E.C.O. entitled to refuse entry clearance on sole ground that applicant's intentions not realistic -- Whether facts also showed that applicant did not intend to leave the U.K. on completion of course -- HC 79 paras 18, 19.

Evidence -- Entry clearance officer's explanatory statement -- No fresh evidence adduced before adjudicator -- Student appeal against refusal of entry clearance -- Refusal on improper ground that intentions not 'realistic' -- Whether on reviewing the facts recorded by the E.C.O. the adjudicator could properly find that the student application was not genuine -- Weight of evidence -- HC 79 paras 18, 19 -- Immigration Act 1971, s 19(1)(a)(i) & (2).

Discretion -- Student entry certificate -- Whether terms of relevant immigration rules mandatory or permitted exercise of discretion by entry clearance officer and adjudicator -- HC 79, paras 18, 19 -- Immigration Act 1971, s 19(1)(a).

Held:

On applications for Orders of Certiorari and Mandamus the question before the Divisional Court was whether the Immigration Appeal Tribunal should have granted the applicant ('K') leave to appeal against the determination of an adjudicator dismissing K's appeal against the refusal of the entrance clearance officer ('the E.C.O.') in Karachi to grant him a student entry certificate to enable him to attend a 13 weeks' computer operators course in the United Kingdom. It was submitted by counsel for the applicant, inter alia (a) that the E.C.O. had refused entry clearance on a ground which was not open to him under the relevant immigration rule (para 19 of HC 79), n1 namely on the ground that K's intentions were not 'realistic'; (b) that the adjudicator had wrongly inferred from the E.C.O.'s explanatory statement that the E.C.O. believed K's application was motivated by a desire to get employment in the United Kingdom; (c) that there was no evidence on which the adjudicator properly directing himself could find that K did not intend to leave the U.K. on completion of his course; (d) that the adjudicator had wrongly believed that he was reviewing the exercise of a discretion by the E.C.O. (under sub-para (ii) of s 19(1)(a) of the Immigration Act 1971) whereas the decision of the E.C.O. under paras 18 and 19 of HC 79 fell to be considered under sub-para (i) of s 19(1)(a) of the 1971 Act as a decision which was not in accord with the relevant immigration rule n2; and (e) that the Tribunal should have granted leave to appeal under r 14(2)(a) of the Immigration Appeals (Procedure) Rules 1972 as there was in the adjudicator's determination an arguable point of law. n1 The material part of para 19 of HC 79 is set out on p 29, post. n2 Section 19(1)(a) of the Immigration Act 1971 is set out on pp 30-31, post. For the respondent it was submitted, inter alia, that the word 'realistic' was in the circumstances a synonym for 'genuine' or 'honest'; that whatever error the E.C.O. may originally have fallen into, the adjudicator had since looked at the facts and his decision was a correct and competent decision on the facts, so that no arguable point of law arose. Held: (i) the E.C.O. had refused K's application for a student entry certificate on a ground (absence of realistic intentions) which was not open to him under paras 18 and 19 of HC 79 (pp 29, 30 post): Per curiam: There was no reason for accepting the respondent's argument that the word 'realistic' was in the circumstances a synonym for 'genuine' or 'honest' and indicated that the E.C.O. was not satisfied that the applicant would leave the United Kingdom at the end of his proposed course.... If the E.C.O. had felt doubts about the genuineness of K's application he would have said so in terms and not used the word 'realistic' (p 30, post). (ii) the adjudicator had misinterpreted the reasoning of the E.C.O. as meaning that he formed the opinion that the applicant would seek employment in the United Kingdom (p 31, post): (iii) it was open to the adjudicator (under s 19(2) of the Immigration Act 1971) to make a complete review of the material in order to decide as a question of fact whether K did genuinely intend to leave the country at the conclusion of his course, but the only facts before the adjudicator in this case were those contained in the E.C.O.'s statement, and the adjudicator was not reviewing the exercise of a discretionary power (pp, 30, 31 post); (iv) the adjudicator had read more into the E.C.O.'s conclusions that was justified or than he was entitled to do, because the facts set out in the E.C.O.'s statement went to realism and thrift, not to honesty and genuineness; and furthermore K's own statement in his original application and his sponsor's undertaking, together with K's possession of a return ticket to Pakistan, favoured K's application (p 33, post); (v) the Orders of Certiorari and Mandamus would go as asked, because it was at least arguable before the Tribunal that there was no evidence before the adjudicator to support his finding (p 33, post). n3 n3 The determination of the Tribunal, allowing K's appeal, is reported sub nom Khan v Entry Clearance Officer, Karachi, [1975] Imm AR 64.

Counsel:

E. Cotran, counsel for the applicant. A. Collins, counsel for the respondent. PANEL: Lord Widgery, C.J., Bridge and May, J.J. Judgment By-1: MAY, J.

Judgment One:

MAY, J.: In this matter Mr Cotran moves on behalf of one Shezada Gul Hamayun Khan, first, for an order of certiorari to bring up and quash the determination and reasons of the Immigration Appeal Tribunal of 22 January 1974 refusing Mr Khan's application for leave to appeal against the determination and reasons of an adjudicator; and secondly, for an order of mandamus directed to the Appeal Tribunal to grant the applicant leave to appeal and to hear and determine that appeal. The matter arises in this way. The applicant is a citizen of Pakistan. He is now some 23 or 24 years of age. On 9 January 1973 he applied in Karachi to the United Kingdom entry clearance officer for entry clearance to enable him to attend a computer operators course at the London Computer Operators' Training Centre. It is convenient to mention at this point that at the time that he made tha application he had been accepted for that course, and it is also agreed for the purposes of this application that his full fees had been paid, that he had a return ticket to Pakistan and that he had a sponsor, his cousin, a Mr Aziz, living in Scotland, who was prepared to maintain and stand for the applicant during his stay in this country. On 11 May 1973 the entry clearance officer in Karachi refused entry clearance to the applicant on the ground that he was not satisfied that the applicant's intentions were 'realistic'. n4 n4 The refusal (on Form APP 200) was in the following terms: --

"You have applied for an Entry Certificate with a view to admission to the United Kingdom for the purpose of attending a course of study at the London Computer Operators Training Centre but I am not satisfied that your intentions are realistic. I therefore refuse your application."

It is clear that this applicant's application for entry clearance fell to be considered under paragraphs 18 and 19 of the Statement of Immigration Rules for Control on Entry as applicable to Commonwealth Citizens, HC 79, paragraph 18 of which provides: --

"A passenger seeking entry to study in the United Kingdom should be admitted... if he presents a current entry clearance granted for that purpose. An entry clearance will be granted if the applicant produces evidence which satisfies the officer to whom he applies that he has been aaccepted for a course of study at a university, a college of education or further education, an independent school or any bona fide private educational institution; that the course will occupy the whole or a substantial part of his time; and that he can meet the cost of the course and of his own maintenance and that of any dependants during the course."

Paragraph 19, in so far as it is material, provides: --

"An applicant is to be refused an entry clearance as a student if the officer is not satisfied that the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it."

There is in para 19 no reference whatever to any question that the applicant's intentions should be 'realistic'. That arises only under para 21 of the same rules, a paragraph which does not apply in the circumstances of this case, but which provides, in so far as is material, that: --

"A passenger who satisfies the Immigration Officer that he has genuine and realistic intentions of studying in the United Kingdom but cannot satisfy the requirements of the preceding paragraphs may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case."

It is only in those circumstances, as I say, that the question of realistic intentions arises. This applicant was dissatisfied with the decision of the entry clearance officer and accordingly appealed to the adjudicator under s 13 of the Immigration Act 1971 and the provisions of the Immigration Appeals (Procedure) Rules 1972. By rule 8(1) of those last-mentioned Rules it is provided that: -- "... the respondent in an appeal" -- and that in the present circumstances is the entry clearance officer -- "shall, as soon as practicable after notice of the appeal is given, prepare a written statement of the facts relating to the decision or action in question and the reasons therefor". This the entry clearance officer did prepare. It is encessary to refer to it in a little detail. First of all in para 1 of the statement: --

"The above named applied for an entry certificate to enable him to attend a Computer Operator's Course at the London Computer Operators' Training Centre. I considered Mr Khan's application under para 19 of HC 79... but I was not satisfied that Mr Khan's intentions were realistic and I therefore refused his application."

This repeats the original opinion of the entry clearance officer tht the applicant's intentions were not realistic. As I have already indicated, that ground of refusal was not one which was open to the entry clearance officer under the appropriate rules 18 and 19. Thus the entry clearance officer's explanatory statement, which went forward to the adjudicator and then through to the Tribunal, contained this unfortunate inaccuracy right from the start. The point was elaborated in para 7 of the explanatory statement. It is not necessary to read the paragraph in full, but what it says is that the applicant had passed an aptitude test for the Computer Training Centre, although the entry clearance officer thought that Mr Khan's academic qualifications were more on the arts side than on the science side. The officer then went on to express his view that it was 'unrealistic' that Mr Khan should involve his cousion, Mr Aziz, in an expenditure of some @ 262 for the course fees plus the cost of Mr Khan's return air tickets, particularly when in Karachi there were local computer operator schools much cheaper than those in the United Kingdom. The entry clearance officer went on to say: -- "Mr Khan's course is of short duration and I would have considered it realistic if he had made specific enquiries with companies in Karachi who operate computers as regards employment on his return." He had not done so, and that was another factor which weighed with the entry clearance officer. Mr Khan told the officer that having a foreign degree was advantageous but he appeared to have made no enquiries locally to ascertain how advantageous such a degree might be. Then, in the last sentence of para 7, the entry clearance officer said: --

"For the above reasons I was not satisfied that Mr Khan's intentions were realistic, and I therefore refused his application under para 19 of HC 79."

It is submitted by Mr Collins for the respondent that by 'realistic' in his decision and his explanatory statement the entry clearance officer meant that Mr Khan's application was not genuine; that 'realistic' was in the circumstances a synonym for 'honest' or 'genuine' and that he was not satisfied that Mr Khan intended to leave the country at the end of the course that he was proposing to take in London. For my part I see no reason to accept that argument. That it might in the circumstances have been foolhardy and certainly less than thrifty to come all the way from Karachi to London for the course without making enquiries may be so and perhaps this may be said to be unrealistic, but in my judgment it in no way follows that it was dishonest or that the application was not genuine. One of the things I am quite satisfied that entry clearance officers are always on the look-out for, if I may put it that way, is the genuineness of an applicant; and I have no doubt, for my part, that if this entry clearance officer had felt doubts about the genuiness of Mr Khan's application, he would have said so in terms and not used the word 'realistic'. The plain fact of the matter is, as I see it, that the entry clearance officer unfortunately misapplied the rules and on the face of his explanatory statement refused this application on a ground upon which he was not entitled to refuse it. This, however, is not vital because on an appeal in the present circumstances, by s 19(2) of the 1971 Immigration Act, the adjudicator has substantial powers in these terms: -- "For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based". It was accordingly open to the adjudicator to review the question of fact whether Mr Khan did genuinely intend to leave the country at the conclusion of his course -- as ought the entry clearance officer to have considered it originally in Karachi. It should, however, be remembered that unless on an appeal to an adjudicator an applicant does adduce any material or evidence of his own, the only facts before the adjudicator are those contained in the entry clearance officer's explanatory statement prepared pursuant to rule 8 of the Immigration Appeals (Procedure) Rules 1972. The adjudicator's determination and reasons were given on 12 December last year. Before turning to them in detail I first refer to sub-s(1) of s 19 of the 1971 Act, which provides that "... an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case: or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that he discretion should have been exercised differently." Mr Cotran submits, as I think rightly, that this is a case coming within sub-para (i) of sub-s (1)(a) of s 19: that is to say, tht it is a case concerned with the relevant immigration rules and not one in which the exercise of a discretion fell to be reviewed -- a discretion, for example, which might have had to be reviewed if it had been exercised under the provisions of para 21 of HC 79 to which I have already referred. The fact remains, however, as I have indicated, that the adjudicator under sub-s(2) of s 19 does have the power to make a complete review of the material, and I now turn to his actual determination. It is clear tht he at once realised that the entry clearance officer had applied, as it were, the wrong standard or test in using the word 'realistic' in his decision and then in his explanatory statement. He went on to say: --

"One of the requirements of para 19 (of HC 79) is that an applicant should satisfy the entry clearance officer that he intends to leave the country on the completion of his course. The entry clearance officer comments in para 7 of his explanatory statement that he would have considered it realistic if the appellant had made specific enquiries with companies in Karachi who operate computers as regards employment on his return. It seems to me that the significance of the entry clearance officer's observation is that he formed the opinion, although expressing it in an oblique fashion, that the appellant, being unconcerned with employment prospects in Pakistan, would seek to obtain employment in the United Kingdom. A vital question, therefore,is whether the appellant will leave the United Kingdom on the completion of his course."

It will be seen, therefore, that the adjudicator did pose to himself the correct question in the circumstances of this case: namely, whether the appellant would leave the United Kingdom on the completion of his course. Be that as it may, I do not agree with the view which he expressed of what he thought the entry clearance officer meant, however oblique. To answer that correct and indeed vital question, whether the appellant would leave the United Kingdom on the completion of his course, what evidence did the adjudicator have before him other than his, as I think, misinterpretation of the entry clearance officer's reasoning? He had, first of all, the facts in the explanatory statement to which I have already referred and which, as I have indicated, were facts which might go to realism but to me in no way went to genuineness. He also had before him what he himself said in his determination. He mentioned that the course was a course for 13 weeks, but tht the applicant was asking to stay in the United Kingdom for six months. For my part again I do not find that a very compelling argument. It would not be surprising if an applicant who is intending to take this course arrived in the United Kingdom some little time before the date of the start of the course; and it might of course very well be that the academic qualifications of the applicant were such that he had to stay rather longer than the 13 weeks stipulated in order satisfactorily to complete it. Then the adjudicator went on to refer to the failure to call before him the applicant's sponsor, Mr Aziz, who would, the adjudicator said, have assisted him to a substantial extent on the genuineness or otherwise of this particular applicant's application. I comment, however, that at this stage of the proceedings what it appeared from the documents was being challenged was Mr Khan's realism, not the truth, for instance, of Mr Aziz's support of him should he be permitted to enter the United Kingdom. The adjudicator, as Mr Collins submits, thought that he would be helped about the applicant's bona fides by seeing Mr Aziz. n5 For the reason I have indicated I do not think tht any proper criticism can be made of the applicant in not calling Mr Aziz to give evidence at the hearing before the adjudicator. In the result the adjudicator concluded in his last paragraph in these terms: -- n5 The adjudicator in his determination referred in the following terms to the absence of Mr Khan's sponsor from the hearing before him: --

"The appellant's sponsor in the United Kingdom, Mr Abdul Aziz, was not called to give evidence. Mr Abdul Aziz, who lives in Fauldhouse, Lanarkshire, states in his sponsorship declaration that he has his own businesses at Crofthead Stores, 72 Sheephousehill Road, Fauldhouse and 64/66 Kelvin Road, Bellshill. He refers to the appellant's 13 week training period at the London Computer Operators' Training Centre but I note that the appellant himself stated, in his answer to question 18 on his 'application for entry clearance' form, that he wishes to stay for 6 months. I was not told whether the appellant had been successful at his BA examination in November 1972. Even if he passed, employment prospects for arts graduates are probably at least as uncertain in Pakistan as they are in the United Kingdom. I observe that the appellant's sponsor in the United Kingdom appears to have businesses at two addresses. The sponsor felt able in his declaration to hold himself responsible for the appellant's conduct and behaviour during his stay in the United Kingdom, and I think that failure to call him as a witness represents a serious deficiency in the appellant's case. It seems to me that the character and circumstances of the sponsor,and the events leading up to his assumption of responsibility for the conduct of a prospective student, may afford valuable evidence of an appellant's intentions. I have not had the opportunity of forming an opinion on these matters."

"The evidence before me does not satisfy me that the appellant intends to leave the country on completion of his course." -- He there answers the correct question in that way. -- "I do not think tht the entry clearance officer's discretion should have been exercised differently and I therefore dismiss this appeal."

The applicant was dissatisfied with that determination and sought leave to appeal from the Tribunal (set up under the Act of 1971 and the Rules), and we have his application for leave to appeal. In it I notice that he asks for a hearing of the appeal -- an actual hearing -- and states that he wishes to adduce further evidence before the Tribunal, namely oral evidence from his sponsor Mr Aziz. Of course by that time, having regard to the comments in the adjudicator's determination and his reasons, it had been brought home to the applicant's mind that Mr Aziz's evidence might be of assistance to him. As I have indicated, I can see no reason why that should have been in his mind at any earlier stage. In the circumstances of this particular case the only ground upon which the Tribunal could grant leave to the applicant to appeal would have been if on any such appeal there would have been an arguable point of law. That that is so can be seen from r 14(2)(a) of the Immigration Appeals (Procedure) Rules 1972. Mr Collins on the respondent's behalf submits that there was no arguable point of law. He contends that this was and has throughout been essentially a question of fact; that whatever error the entry clearance officer may originally have fallen into, the adjudicator has since looked at the facts and put the matter right; that the onus throughout has been on the applicant to satisfy the authorities that he would leave the United Kingdom at the completion of his course; that the adjudicator had found that he had not done so; and that this was a perfectly correct and competent decision on the facts, and that consequently no arguable point of law arose. Mr Cotran on behalf of the applicant, on the other hand, put forward what he contended were four arguable points of law for the Appeal Tribunal. He will perhaps forgive me if I condense them into one, namely, that no reasonable adjudicator properly directing himself on the material that he had before him could have come to the conclusion that he did; or, to put it another way, that there was no evidence before the adjudicator upon which he could reach the conclusion that he did. As will be appreciated, this is by no means in any case an easy contention to make good, but in the circumstances of this particular case I think that it is made good. I suspect, and indeed I think it is apparent from the adjudicator's determination that he, the adjudicator, read more into the entry clearance officer's conclusion that Khan's application or intention was not realistic than was justified or than he was entitled to do. As I have said, the facts set out in para 7 of the entry clearance officer's explanatory statement in my judgment go to realism and thrift, not to honesty and genuineness; and in addition the further matters to which I have already referred, set out by the adjudicator in his determination, do not impress me. In addition one must bear in mind that there was before the adjudicator the applicant's own statement in his original application that he would leave the United Kingdom when he should do so. There was also the sponsor's written undertaking to maintain and look after the applicant whilst in this country. Finally there was in the possession of the applicant his return ticket to Pakistan. In my judgment it was at the least arguable before the Tribunal that in truth there was no evidence before the adjudicator to support his findings, that is to say that the finding to which he came was one to which, properly directing himself, no reasonable adjudicator could have come. I would just add one further point. Though ultimately, of course, this must be entirely a matter for the Tribunal, I for my part would think it appropriate that the applicant should have the opportunity in this particular case to adduce the evidence of Mr Aziz before it. Indeed as the matter has now been canvassed, no doubt the Tribunal would like to have it. n6 n6 The applicant's sponsor Mr Aziz gave evidence before the Tribunal on 17.9.74. The determination of the Tribunal, sub nom Khan v Entry Clearance Officer, Karachi, is reported at [1975] Imm AR 64. As I have indicated, however, and for the reasons which I have sought to give, I would let these Orders go as asked. Judgment By-2: BRIDGE, J.

Judgment Two:

BRIDGE, J.: I agree. Judgment By-3: LORD WIDGERY, C.J.

Judgment Three:

LORD WIDGERY, C.J.: I agree.

DISPOSITION:

Orders accordingly.

SOLICITORS:

Milners, Curry & Gaskell.