R v. Immigration Appeal Tribunal, Ex parte Mohitul Islam and Others

R v Immigration Appeal Tribunal Ex parte Mohitul Islam and Others

Queen's Bench Division

[1984] Imm AR 48

Hearing Date: 3 April 1984

3 April 1984

Index Terms:

Practise and procedure -- Function of Immigration Appeal Tribunal when hearing appeals and applications for leave to appeal from adjudicator -- Remittal to adjudicator to hear further evidence and submissions thereon -- Whether Tribunal could give directions limiting the ambit of the remittal, or only directions to consider certain matters -- The Immigration Appeals (Procedure) Rules 1972, rr 14(2), 18 and 21.

Held:

The five applicants, together with Rehelun Nessa, were refused entry clearance certificates to join Mohammed Mohiuddin as his children and wife respectively. Their appeals to an adjudicator were allowed. On appeal by the entry clearance officer to the Tribunal the appeals were remitted to the adjudicator to consider fresh evidence and any submissions on it, and then to indicate in a further determination if the further evidence altered his original decision. In his fresh evidence the adjudicator dismissed all of the appeals. Applications were made to the Tribunal for leave to appeal against those decisions, and once more the matter was remitted to the adjudicator to consider yet further evidence. On this occasion he allowed the appeal of Rahelun Nessa, but dismissed those of the applicants. Their applications for leave to appeal were refused by the Tribunal, whose decision is the subject of the present application for judicial review by way of certiorari and mandamus. Obiter: (i) Rule 21 of the Immigration Appeals (Procedure) Rules 1972 could not properly be exercised on an application for leave to appeal. (ii) Rule 18 was operative unless there was an appeal. Orders of certiorari and mandamus made.

Counsel:

A Collins for the applicants; S Brown for the respondent. PANEL: McNeill LJ Judgment By-1: McNEIL LJ

Judgment One:

McNEIL LJ: Mr Collins moves with leave, on behalf of five applicants, two of whom are infants applying by their next friend, to grant orders of judicial review by way of certiorari to remove into this court and quash a determination of the Immigration Appeal Tribunal dated 9 September 1983. In that decision, the tribunal refused the applicants leave to appeal from a decision of the adjudicator dated 22 July 1983, and the determination of the adjudicator in so far as he dismissed the appeals of the applicants against the decision of an entry clearance officer dated 8 August 1973, refusing to grant the applicants entry certificates. He further moves for an order of mandamus requiring the adjudicator to hear and determine the applicants' appeals according to law, or alternatively, requiring the Immigration Appeal Tribunal to grant leave to appeal and to hear and determine the applicants' appeals according to law. The five applicants assert that they are the children of Mohammed Mohiuddin, the next friend of the two infants, and of his wife, Rahelun Nessa, to whom I shall refer in a moment. Mohammed Mohiuddin has been settled in the United Kingdom since about 1968. He has, throughout, claimed that he was married to Rahelun Nessa in 1952. In the unhappy, and hopefully unique, circumstances of this matter, the end result has been that Rahelun Nessa has been given leave to enter to join Mohammed Mohiuddin, but the alleged children have been refused leave. The short history is this. The wife and the five present applicants applied in Dacca for entry clearance to join Mohammed Mohiuddin as his dependant wife and children respectively. The entry clearance officer recorded that he was not satisfied that the claimed relationships were genuine, and the applications were refused. All six applicants then exercised their right of appeal, under the Immigration Act 1971, to an adjudicator in England. No one of the applicants was in England, and the evidence of no one of them has been heard by the appellate authorities. This is in accordance with the usual practice. The adjudicator heard the appeals on 18 August 1981. The Home Office and the applicants were represented by lawyers. The adjudicator, Mr Maddison, concluded that on the balance of probabilities, the sponsor, Mohammed Mohiuddin was married to Rahelun Nessa, and that the five children were the children of the marriage. To that extent, he allowed the appeals and directed that the appellants be granted entry certificates to join the sponsor in the United Kingdom as his dependants. Against that adjudication, the entry clearance officer appealed. He wished to bring forward new evidence which had been uncovered and went to the credibility of the sponsor. On 22 April 1982 his appeal was heard. By a decision dated 5 May 1982 the Tribunal -- and I read the words of the determination -- "remitted [the appeals] to the adjudicator Mr Maddison to enable him to consider the further evidence and, after entertaining any representations thereon by the parties, to indicate in a further determination if the further evidence alters his original decision". It therefore came back before Mr Maddison on 30 June 1981. His determination was delivered on 8 July 1982. The conclusions which he reached were these. On first appearance he had regarded Mohammed Mohiuddin as a truthful witness. On that he said he was wrong. This is the way in which his decision concludes: "In all the circumstances and reviewing the additional evidence in the light of that which I received in August 1981, I conclude that the appellants have not established that they are, on the balance of probabilities related as claimed. I accept that it is more likely than not that the sponsor is married (unless he be a widower): it is more than likely that he has children. He repeated before me, in the same terms as in August 1981, the unusual explanation for the omission of Nafrul Islam from the statement in 1972." Nazrul Islam is the fifth applicant and the younger of two minor applicants. "That might suggest at least that the sponsor was married to the first appellant and the father of the sixth appellant: on the other hand it might merely mean that it was a false explanation particularly well memorised.

"The false evidence, the partial revelations, the subsequent untenable explanations, have combined so to muddle facts and obscure truth as to render it impossible, in my opinion, to extract any evidence on which I could rely, to assist the case of any of the appellants. Only, it seems to me, by a fresh application, in which all relevant issues are fully explored and explained, could they hope to succeed in an application, if indeed in truth they have any claim to succeed."

For my part, I echo the sentiments in that last sentence. Unfortunately, that is not what happened. The applicants then all unsuccessfully applied to the Immigration Appeal Tribunal for leave to appeal against Mr Maddison's determination. The single member, indeed, the President, made his determination, having recorded that the grounds of the application were accompanied by a body of yet further evidence which was not before the adjudicator at the second hearing before him. He went on:

"With considerable reluctance, therefore, the appeal is remitted yet again to Mr Maddison to enable him to consider the further evidence and, after entertaining any representation thereon by the parties, to indicate in a further determination if the further evidence alters his second decision."

The President also voiced this view:

"The Tribunal deplores the practice of raking up fresh evidence to support such applications. On the other hand, it is impossible to say that the further evidence now adduced could not have affected Mr Maddison's determination."

There was an element, at that stage at least, of sauce for the goose being sauce for the gander. The President was recording then the provision under the Immigration Appeal Procedure Rules 1972, Rule 14(2), to the effect that the potentially determinative effect of the further evidence was a material consideration. The matter then went back to Mr Maddison. On 18 August 1982, having recorded that he had heard the matter in August 1981, and in June 1982, there was a third hearing on 6 July 1983. The position, as he found it to be on the material before him, was this. He came to the conclusion that the first applicant, that is, the wife and mother as she claimed to be, had established her claim. There was, apparently, some authentication through a village report of the marriage certificate which had been before him on previous occasions. In the light of that he was, he said, inclined to accept that the marriage of the sponsor and the first applicant occured in or about 1952. He said:

"I would once again allow the appeal of the first appellant."

He went on:

"None of the new evidence, however, in my view, strengthens the case of the other appellants, and on the basis of that new evidence, I would not allow their appeal."

The new evidence which he considered fell into three categories. First, there was the evidence of blood tests which established that the sponsor and the first appellant could be the parents of the children, though it did not exclude the possibility of other parents. There was the evidence of a sampler which recorded the names of the children, the provenance of which was dated back until, at any rate, 1968. He did not regard the sampler, the date of the composition being impossible to establish, as evidence of the relationship claimed. There was apparently, he said, nothing in the village report which assisted the children. The effect of that, of course, as Mr Collins submitted, is that if there is substance in the applicants' grounds, this family is going to be divided; the wife having leave to enter to join the sponsor, and the children, if they be the children, remaining in Bangladesh. The adjudicator, on that occasion, was clearly uncertain as to his function. That is apparent from the concluding paragraph of his report. What happened before him was this. The remission -- if that be the right word -- to him on 28 February 1983 by the President was founded upon what the President called the body of further evidence, which boiled down to those three matters to which I have referred: the blood test, the sampler and the village report. Counsel for the applicants also sought to raise other matters. First of all, he desired to call evidence to explain what the sponsor at the second hearing had called pressures put upon him to give false evidence. At the first hearing the sponsor had had the assistance, such as it was, of the evidence of his brother, Rofik Uddin. That was the occasion when the adjudicator found in favour of the wife and children. On the second occasion for reasons which did not appear, and in the absence of reasons for non-appearance from which the adjudicator drew adverse inferences, Rofik Uddin did not appear to give evidence. On the third occasion counsel wished to call Rofik Uddin to explain the pressures. The way in which the adjudicator dealt with this is as follows:

"In that regard, it is however fair for me to record that Mr Molla did say that he had various matters to raise in regard to my second determination "rejecting the children's claims". He was anxious for Mr Rofik Uddin to explain "the pressures", to which I refer in paragraph 7 of that determination."

That is the third determination in point of time. That is to say, the one which he made in July 1983. "I did not consider that I could hear that evidence, it being a matter for the Tribunal. If I was wrong on that, it is not Mr Molla's fault, and I hope that if the Tribunal considers it relevant, an opportunity will be given for the matter to be explained. Mr Molla also said he had only that morning discovered significant errors in the translation of one letter, that to which I refer in paragraph 15 of my second determination. I suggested to Mr Molla that this, another matter not before me in the new evidence, could best perhaps be dealt with by producing an affidavit from an acceptable translator. I felt sure the Tribunal would take that into account, it being a pure matter of fact." There is another paragraph which related to other evidence which is quite clearly of no assistance. That was evidence of a sister of the sponsor who gave confused evidence which, if anything, the adjudicator seemed to think might have been put in the scales adversely to the applicants. He disregarded it and did not, of course, relate it to the new evidence which was sent to him by the Tribunal. He concluded:

"Thus, in the light of the new evidence, I would now allow the appeal of the first appellant. I am not satisfied it has, however, shown that the other appellants are related to the sponsor as claimed. I would still dismiss the appeals."

Against that determination the applicants applied for leave to appeal. The President dealt with the matter again in a determination on 9 September 1983. The relevant parts read as follows: "This appeal has already been remitted twice to the adjudicator by the Tribunal, to enable him to consider fresh evidence which had on each occasion been produced, and to indicate whether such evidence altered his previous decision -- and not, as claimed in the grounds of appeal, to hear and determine the appeal de novo. "The Tribunal has considered the grounds submitted in support of the application, the documentary evidence, the record of proceedings and the adjudicator's determination. "The Tribunal notes that the adjudicator states that "the substantive appeal against my revised determination is still before the Tribunal". The Tribunal does not understand this comment. The appeal was remitted to him with the directions already referred to. He has indicated that, in view of this evidence, he would allow the appeal of Rahelon Nessa (who was originally the firt appellant) and dismiss the appeal of the remaining appellants (the applicants). It is perhaps unfortunate that the Tribunal did not direct him to re-determine the appeal in the light of the fresh evidence, which would have been a less ambiguous form of words. However, this is clearly what he has done and the Tribunal considers it a matter of semantics to allege otherwise. "It is clear that the appeal of Rahelon Nessa has been allowed and the appeals of the remaining applicants dismissed. "The appeals depended entirely on the determination of questions of fact. "The Tribunal considers that the adjudicator's findings of fact were not against the weight of the evidence and were properly supported by it.

"In the opinion of the Tribunal, the determination of the appeal does not turn upon any arguable point of law and there are no other circumstances which would merit the granting of leave to appeal."

The way in which the matter was put shortly by Mr Collins is this. Although he had concluded at an early stage that it was probable that the sponsor was married and had children, and had now decided that the wife is the wife, he failed to exercise his discretion in that he limited himself to saying that he could look only at the fresh evidence and only if that affected his previous decision could he vary it. That is what he did so far as the wife was concerned. But he said that because this was an appeal which was presently before the Tribunal, he hoped that the Tribunal would deal with the evidence which he did not admit, that is to say, in relation to the pressures and the translation. That would be fresh evidence which could probably be determinative of the issues. Mr Collins said he could not take it into account because it was not part of the fresh evidence which had been remitted to him. Mr Collins submitted he truly did not, as the President says, re-determine the appeal in the light of the fresh evidence. He also submitted that it is not a matter of semantics. What happened was that the adjudicator debarred himself from hearing evidence which he should have heard. Mr Brown, for the adjudicator and the Tribunal, submitted that whether or not he got the reasons right, the adjudicator was right in the decision he reached, that is to say, he had no discretion to consider any fresh evidence which was remitted to him and to relate that, so far as he could, to the evidence which he had already heard. Indeed, Mr Brown contended that in those circumstances the adjudicator had no authority to look further than the fresh evidence which was sent to him for consideration. The President accurately records what was remitted to him, and accurately records, whatever the adjudicator's words may be, the process which was properly followed through. Finally, Mr Brown submitted on this point that this is a matter which has now been canvassed on three separate occasions by the adjudicator, considered three times by the Tribunal and its President, and indeed, at an earlier stage was considered by the entry clearance officer. Enough is enough. Problems arose in the course of the case over the proper interpretation and construction of the relevant Rules made pursuant to section 32 of the Immigration Act, and in particular, in relation to the proper working, in the case of an appeal, of Rules 18 and 21. It is clear here that what was intended by the Tribunal or the President was a remission or remittal, as it is there called, under Rule 21. The contention is that on such a remission, the directions which the Tribunal can give in accordance with Rule 21 may limit the ambit of the remission. On the other hand, Mr Collins contended that on a proper construction of that Rule, relating it to Rule 18 and the powers therein, directions may be given but only directions to consider certain matters. I do not propose in this judgment to determine the question of the construction since there are here two more fundamental points which seem to me to be determinative. One again involves a question of construction. My views upon it are necessarily obiter in the light of my final conclusions, but it seems to me that the power under Rule 21 cannot properly be exercised on an application for leave to appeal. The context of Rule 21 and the wording seems to postulate a consideration in which leave to appeal, if required, has been given, and the Tribunal then, instead of hearing the appeal themselves, or aspects of the appeal if Mr Brown is right -- and I make no decision on that matter -- remits the appeal to an adjudicator for determination. It seems to me wholly inappropriate that Rule 21 should be used at the leave to appeal stage. It also seems to me -- and again this is obiter -- that Rule 18, which amongst other things enables questions of fact to be considered and determined by an adjudicator, comes into play unless there is an appeal. At the end of the day, it seems to me that as between the Tribunal here, or the President, and the adjudicator, there has been, at the very least, a breakdown in the understanding of each of their functions in relation to the present applicants' appeals. It is clear also the adjudicator would have wished, if he thought he could, to hear the evidence on the pressure point and the mistranslation but assumed that the Tribunal would hear it. Mr Brown contended that I should spell out of the President's final refusal of leave on 9 September 1983 the conclusion that he had regard to that expression of view. I think that that would be straining the matter. The mistranslation clearly goes, as I understand the documents, to the cogency and reliability of the sponsor's evidence, in relation to one of the children at least. The evidence of the pressure was clearly a matter which had a determinative effect on the adjudicator in the second determination. In so far as the adjudicator thought it was of importance for the Tribunal to consider, it seems to me that the President ought in considering leave, to have considered those and spelt out the way in which he had exercised his discretion in relation to them, if he did. To my mind, that breakdown in communication as to functions has resulted in the real possibility of an injustice to these children and to the possibility that the family, if such it be, will be separated. In those circumstances, it seems to me that justice would be served if this matter is looked at in its entirety afresh, and whatever the reluctance counsel say the Tribunal may have to determine these questions, this seems to be an occasion in which it would be ideal for the Tribunal, fully constituted, to consider the whole of the material relating to the applications by these five children. What I propose to do is to make an order of mandamus requiring the Immigration Appeal Tribunal to grant to the applicants leave to appeal against the adjudication, that is to say, the third adjudication by Mr Maddison, and to consider, in accordance with the Rules, the reception of all such evidence as may be notified to the Tribunal in writing not less than 14 days before the date to be fixed for the hearing of the appeal. That I trust, one way or another, will provide a conclusion to this unhappy situation. MR COLLINS: My Lord, may I ask for one further relief? I think I shall need certiorari initially to quash the determination of Mr Neve's refusing leave to appeal. McNEILL J: I think that follows consequentially, does it not? MR BROWN: Yes.

DISPOSITION:

Application granted

SOLICITORS:

Winstone Co; Treasury Solicitor.

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