R v. Immigration Appeal Tribunal, Ex parte Nader Zandfani

R v Immigration Appeal Tribunal Ex parte Nader Zandfani

Queen's Bench Division

[1984] Imm AR 213

Hearing Date: 10 December 1984

10 December 1984

Index Terms:

Independent means -- Application for entry refused on ground of failure to demonstrate "close connection" with United Kingdom -- Whether residence alone irrespective of its length sufficient to establish this within the meaning of the immigration rules -- HC 169 para 38.

Held:

The applicant, a citizen of Iran, was admitted in 1973, at the age of seventeen, as a student. He remained in that capacity, being granted the appropriate extensions of stay, until February 1982. Shortly afterwards, on 13 May of the same year, he applied in Sao Paulo for entry clearance as a person of independent means. Although he met the financial requirements the application was refused. Successive appeals to an adjudicator and the Immigration Appeal Tribunal were dismissed, the Tribunal coming to the conclusion that residence alone, no matter for how long, could not by itself establish a sufficiently close connection with this country. The present case arose from an application for judicial review of the Tribunal's decision. Held: Residence such as the applicant's was capable of amounting to sufficient connection: whether it did or not was a matter for a tribunal.

Cases referred to in the Judgment:

Shah v Barnet London Borough Council and other appeals [1983] 1 All ER 226, HL.

Counsel:

Miss J Beale for the appellant; J Laws for the respondent. PANEL: Woolf J

Judgment One:

WOOLF J: This is an application for judicial review in respect of a decision given by the immigration appeal tribunal presided over by the chairman, Mr Neve. It raises a question as to the proper interpretation of the immigration rule dealing with the obtaining of entry clearance for admission to this country by persons of independent means. The rule (in its present form) appears in HC169 at rule 38. Although the rule which was being considered by the tribunal was an earlier rule, there is no practical difference. It is therefore preferable that I should refer to the current rule, which is in these terms: "A passenger seeking entry as a person of independent means must hold a current entry clearance issued to him for that purpose. He should, subject to paragraph 13, be admitted for an initial period of up to 12 months with a prohibition on the taking of employment. For an applicant to obtain clearance he will need to show that he has, under his control and disposable in the United Kingdom, a sum not less than @150,000 or income of not less than @15,000 a year. He must also be able and willing to maintain himself and support and accommodate any dependants indefinitely in the United Kingdom without working, with no assistance from any other persons and without recourse to public funds. An entry clearance is not, however, to be granted solely because these financial conditions are met. In addition the applicant must demonstrate a close connection with the United Kingdom (including for example the presence of close relatives here or periods of previous residence) or that his admission would be in the general interests of the United Kingdom." I would draw attention to the reference in the rule of the requirement that "in addition the applicant must demonstrate a close connection with the United Kingdom (including for example the presence of close relatives here or periods of previous residence)". As I understand this tribunal's decision, they came to the conclusion that because of the examples given in the passage in the rules to which I have just referred, residence alone, no matter for how long, by itself cannot establish a sufficiently close connection to enable a person of independent means to obtain an entry clearance under rule 38. Mr Laws, as I understand his argument, would seek to persuade me to interpret the tribunal's decision in a rather different way, and would not submit that there could be no circumstances where residence alone would not be sufficient to establish a close connection with this country. Speaking for myself, I have no hesitation in coming to the conclusion that there are circumstances where residence by itself could amount to a sufficient connection with this country to satisfy the additional requirement of rule 38. I would take an extreme case where someone may have been resident in this country for many years, but have no obvious connection apart from that which is a necessary consequence of residence for that substantial period. In argument, I referred to someone who had been here 50 years. Clearly, in that situation, residence by itself could constitute sufficient connection. Where you have residence by itself for a lesser period, one is in the area of fact and degree and where the tribunal must exercise its judgment. Turning to the facts of this case, the appellant before the tribunal was an Iranian, who is now 28 years of age. He applied to the viza officer at Sao Paulo for entry clearance under the rule. His application was refused by that officer, he appealed to the adjudicator against that refusal, his appeal was dismissed on 9 June 1983 and he appealed to the tribunal, who dismissed his appeal on 16 November 1983. There was no dispute as to the facts of the case, according to the decision of the tribunal. From 1973, when he was 17, until February 1982 when he was 27, the appellant was living in this country, having been admitted and granted extensions of his permitted stay as a student. He left the country in February 1982 and made an application, which is the subject of the present proceedings, within a very short time on 13 May 1982. So far as the financial requirements are concerned, there was no problem. He was able to produce evidence before the adjudicator from a bank in London showing that he had @1/4 million in his account at the bank. He apparently had been at school in London and friends with whom he had been at school gave evidence that he had a cousin in this country. He also told the tribunal that he regarded this country as his home, all his friends being here. The tribunal set out certain findings of the adjudicator and submissions of the advocate appearing on behalf of the appellant, where it was submitted that he had spent virtually all his adult life in this country and that he regarded this country as his home, having left Iran in the days of the Shah and not having returned since the revolution. The tribunal referred to certain cases, including the House of Lords decision in Shah [1983] 1 All ER 226 and two earlier tribunal decisions. It went on to say: "After careful consideration we do not consider that the appellant's connection with this country is as strong as the connections established in either of the cases cited", which refers to the tribunal decisions. "We take note of the fact that paragraph 38 requires an applicant to demonstrate a close connection with the United Kingdom including for example periods of previous residence. The fact that the word "including" is used would seem to us to imply that periods of residence by themselves are not sufficient to satisfy the requirement. We fully appreciate that the appellant was indeed resident in this country from the age of 17 to the age of 27 but, as Mr Hunter has pointed out, this is the sole matter on which he can rely and he has no other claim to a connection with this country. Accordingly we consider that the adjudicator's determination in this regard was justified and in accordance with the rule." At the end of the decision, the tribunal said: "However this is perhaps a borderline case, and if the appellant should be able to demonstrate an intention to employ his wealth in a manner which will benefit this country, and satisfy the Secretary of State that such intention is genuine, we hope that a further application would be favourably considered." That last paragraph is in regard to an alternative submission which was being made before the tribunal that because of the amount of money that the applicant had, it would clearly be beneficial to this country if the money was invested here. The fact that it is put in that way underlines what I am quite satisfied is the position here, that the tribunal were taking the view, on this sort of residential pattern at any rate, that it would be quite impossible for them as a matter of law to come to the conclusion that this applicant was a person who could fall within rule 38. In my view, as I indicated at the beginning of this judgment, that view is wrong. Residence of this sort is capable of amounting to sufficient connection; whether it does so or not is a matter for a tribunal. I fully accept that the fact that the applicant was here while he was a student may tend against his having sufficient connection. On the other hand, he was saying that this residence was not only because he was a student, but because he had also left Persia because of the demize of the Shah and regarded this country not only as a place for studying, but also his home. That sort of quality of residence is the sort of quality of residence which could cause a tribunal to come to the conclusion that he had sufficient connection. Miss Beale sought to persuade me that, in this case, the facts are so strong that it is not necessary for the matter to go back for reconsideration by the tribunal. I am afraid that although I found the way she presented the matter extremely attractive, I cannot accept this submission. It seems to me that this is a case par excellence for reconsideration by the tribunal, approaching the matter on the basis that this residence by this applicant is capable of being sufficient connection for the purposes of rule 38 and approaching the matter on the basis that they are quite wrong to draw the inference they did, that because of the word "including" appearing in rule 38, residence by itself is never sufficient. Accordingly, I grant certiorari quashing the decision of the immigration appeal tribunal, who will now have to reconsider the matter.

DISPOSITION:

Application granted.

SOLICITORS:

Messrs Manches; Treasury Solicitor.