R v. Immigration Appeal Tribunal, Ex parte Mohammed Shayequr Rahman

R v IMMIGRATION APPEAL TRIBUNAL Ex Parte MOHAMMED SHAYEQUR RAHMAN

Queen's Bench Division

[1985] Imm AR 222

Hearing Date: 7 November 1985

7 November 1985

Index Terms:

Businessman -- application for admission -- intention to carry on existing businesses -- whether capital required by rules to be invested by applicant can be capital of which he is the beneficial owner already invested in the business at date of application -- HC 394 paragraphs 35, 36.

Intepretation -- approach to be adopted in interpreting immigration rules.

Practice and Procedure -- where judicial review is granted in respect of a determination which has dismissed an appeal on only one requirement of a number included in the relevant rule whether the Court should remit the case to the Tribunal for determination on other requirements.

Held:

The applicant sought entry to the United Kingdom to take over actively the businesses established by his late father. He had been bequeathed the major interest in these businesses under his father's will. Before the Tribunal the case was argued on the basis that it was an application, inter alia as a businessman, which fell to be considered under paragraphs 35 and 36 of HC 394. The applicant did not propose to invest any new capital into the businesses but if permitted to enter the United Kingdom intended to retain the businesses and manage them. If he were not granted admission he would sell the businesses, thereby realising the capital he owned and which was already invested in those businesses. The Tribunal held that capital already invested in the businesses was not money "he will be bringing . . . of his own to put into the business". On application for judicial review the application was granted and the case remitted to the Tribunal for determination whether the other requirements of the relevant rules were satisfied. Held: 1) Looking at the rules in the round and thus adopting the proper interpretative approach, capital already invested in the businesses by the applicant in the circumstances of the case, satisfied that particular requirement of the rules. 2) Because the application succeeded on that issue it did not follow that all the requirements of the rule were satisfied. The case would be remitted to the Tribunal for determination on the other relevant requirements.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Joseph [1977] Imm AR 70. R v Immigration Appeal Tribunal ex parte Peikazadi [1979-80] Imm AR 191. R v Immigration Appeal Tribunal ex parte Mahendra Singh [1984] Imm AR 1.

Counsel:

A Scrivener QC and KS Nathan for the applicant; R Ter Haar for the respondent PANEL: Woolf J

Judgment One:

WOOLF J: This is an application for judicial review by Mohammed Shayequr Rahman asking the court to quash a decision of an Immigration Appeal Tribunal given on 24 january 1984, not, as stated in the decision letter, 24 January 1983. The application has a very long history. The applicant, who has always complied with the immigration laws of this country, was originally here as a student. He did make an application to prolong his stay while here as a student, but that was refused. Although he initially appealed, he went back to Bangladesh, his country of origin, before the appeal was heard and withdrew the appeal. He had then a father living in this country who had started a series of restaurant businesses. Altogether, there were three restaurants and two take-away hot food businesses. In addition, the applicant's father owned a property. The restaurants and the property which was occupied by the applicant's father as his home were all in Sunderland in Northumberland. In 1980 the applicant initiated a further application to come to this country. His father returned to Bangladesh to assist him with that, but, sadly, before there was an appointment with the entry clearance officer his father died on 13 September 1980. Subject to a 25 per cent interest in one of the restaurants, the Motiraj Tandoori Restaurant, which was left to the manager of that restaurant, all the restaurants, the take-away food businesses and the property which was the home of the applicant's father were inherited by the applicant. He therefore pursued the application which he had initiated before his father died. He was interviewed on 2 October 1980 by the entry clearance officer, but it was not until 11 February 1982 that he was notified that his application was refused, that application being, first of all, to come and settle in this country so as to operate the businesses, and, secondly, if that application was unsuccessful to come to this country for a short time in order to deal with his father's affairs. In relation to his coming to the country for a visit, the actual decision was not given on 11 February 1982 but 3 September 1982. An appeal was entered in relation to both refusals. The matter came before the adjudicator on 17 June 1983, and he gave a decision on 9 August 1983 dismissing the appeals. There was then a further appeal to the Immigration Appeal Tribunal. The tribunal gave leave to appeal. The matter came before the tribunal on the dates I have already indicated. They allowed the appeal in relation to the refusal to allow the applicant to come here as a visitor, but dismissed his main appeal which was that he should be allowed to come into this country so as to carry on the businesses which had been left to him by his father. The visit which the tribunal decided the applicant should be allowed was for the period which he was seeking, namely, six weeks. There were two grounds of appeal which the adjudicator had to consider. first was the ground which related to the application by Mr Rahman to come here as a person of independent means, and, secondly, the application which was made by the applicant to come here as a businessman wishing to establish himself in business in this country. Although the applicant was represented before the adjudicator, he was not represented by either of the counsel who appear on his behalf today. The applicant abandoned the ground based on his coming to this country to establish himself in business, but sought to bring himself within the provisions dealing with persons of independent means. Although the ground relating to business was abandoned, wisely the ajudicator dealt with it, because, as has been apparent in the argument before me today, the only possible ground which the applicant had for succeeding in his appeal in relation to coming to this country to establish himself was the ground relating to businessmen and not the ground relating to persons of independent means. When the matter came before the tribunal, the applicant was represented by Mr Nathan. At that time the ground relating to businessmen was relied upon and the tribunal recognised that the applicant was entitled to rely upon that ground although it had not been relied upon by the applicant before the adjudicator. The point which this court has to consider is one of some importance with regard to the construction of the immigration rules, because if the interpretation of the rules adopted by the Home Office and the tribunal is correct, it has the effect that a person who has already invested in a business is not entitled to take advantage of the provisions of the rules designed to allow persons to come into this country to establish themselves in business. The rules which were the relevant rules at the time were HC 394, printed by Order of the House of Commons on 20 February 1980. Those rules have since changed, but the changes are only, so far as this application is concerned, as to the amount of capital which an immigrant needs to have in order to fall within the rules, and this does not affect the general point to which I made reference. The relevant rules read as follows: "35. A passenger seeking admission for the purpose of establishing himself in the United Kingdom in business or in self-employment, whether on his own account or in partnership, must hold a current entry clearance certificate issued for that purpose. A passenger who has obtained such an entry clearance should be admitted, subject to paragraph 13, for a period not exceeding 12 months with a condition rstricting his freedom to take employment. For an applicant to obtain an entry clearance for this purpose he will need to satisfy the requirements of either paragraph 36 or paragraph 37.In addition he will need to show that he will be bringing money of his own to put into the business; that his level of financial investment will be proportional to his interest in the business; that he will be able to bear his share of the liabilities; that he will be occupied full-time in the running of the business; and that there is a genuine need for his services and investment. In no case should the amount of money to be invested by the applicant be less than @100,000 and evidence that this amount or more is under his control and disposable in the United Kingdom must be produced.

"36. Where the applicant intends to take over, or join as a partner, an existing business, he will need, in addition to meeting the requirements of the preceding paragraph, to show that his share of the profits will be sufficient to maintain and accommodate him and his dependants. Audited accounts of the business for previous years must be produced to the entry clearance officer in order to establish the precise financial position, together with a written statement of the terms on which he is to enter or take over the business. There must be evidence to show that his services and investment will create new, paid, full-time employment in the business for persons already settled here. An entry clearance is to be refused if an applicant cannot satisfy all the relevant requirements of this or the preceding paragraph or where it appears that the proposed partnership or directorship amounts to disguised employment or where it seems likely that, to obtain a livelihood, the applicant will have to supplement his business activities by employment of any kind or by recourse to public funds."

It is rule 37 which deals with the situation where a person wishes to establish a new business in the United Kingdom. That rule is not relevant because there was no suggestion made in this case that the applicant was seeking to establish a new business. I would, however, draw attention to the fact that in contrast to the wordings of the rules to which I have already made reference, rule 37 says that where a new business is to be established, the entry clearance officer has to be satisfied that the applicant will be bringing into the country sufficient funds of his own to establish an enterprise. I emphasise the words "bringing into the country". I do so because rule 35 only refers to the fact that the applicant has a need to show that he will be bringing money of his own to put into the business. It does not refer to bringing into the country money to put into the business. Looking at the rules with which the court is directly concerned on this application, one sees that giving effect to the language of the rules it is necessary for the immigrant to show that, first of all, he is going to bring @100,000 to put into the business. Secondly, that his financial investment will be proportional to his interest in the business. Thirdly, that he will be able to bear his share of the liabilities. Fourthly, that he will be occupied full-time in the running of the business. Fiftly, that there is genuins nees for his services and investment. Sixthly, and finally, there must be evidence to show that his services and investment will create new, paid, full-time employment in the business for persons already settled here. It is the first and last of those requirements with which this court is primarily concerned. The way the matter was put on the part of the applicant with regard to the first of those requirements was shortly as follows. If he was allowed to come to this country to run the businesses, that is what he would do. If he was not allowed to do so, he would sell the businesses and take the proceeds from the sales out of the country. The way the matter was dealt with by the tribunal in their decision is as follows:

"With regard to the second prong of Mr Nathan's argument, we note that counsel who appeared for the appellant before the adjudicator did not pursue a claim for the appellant to be allowed admission as a businessman. Mr Nathan (who did not appear before the adjudicator) claims, quite properly, that this does not debar him from raising the point. However the adjudicator did consider this aspect of the case, and his determination contains the following passage: '[Counsel] on behalf of the appellant did not press a claim on behalf of the appellant that he was entitled to be admitted to the United Kingdom in order to contine the business of a restaurateur formerly carried on by his father because the requirements of rules 35 and 36 of House of Commons Paper 394 were not satisfied. I consider that the circumstances of the appellant do not satisfy those requirements. The appellant is not introducing any new capital into the business nor has it been shown that the appellant's experience is such as to ensure that his services and investment will create new, paid, full-time employment for persons alrady settled in the United Kingdom.' We consider that these findings of fact by the adjudicator were adequately supported by the evidence before him."

As part of his argument on behalf of the applicant, Mr Scrivener suggested that the sentence "We consider these findings of fact by the adjudicator were adequately supported by the evidence before him" indicates a wrong approach by the tribunal. The correct approach of a tribunal was indicated by me in a case to which I have been referred: R v Immigration Appeal Tribunal ex parte Mahendra Singh. (Reported [1984] Imm AR 1). At page ten of the transcript, (Op cit page 5) which has been put before me, I am recorded as saying: "In cases where the tribunal does not hear evidence and the adjudicator has done so it is now clearly established that the tribunal's approach to findings of fact based on oral evidence given before the adjudicator should be very similar to the approach which the Court of Appeal adopts in relation to findings of fact of an inferior court." This appeal was one where there was oral evidence before the adjudicator, but the matter in issue really turned on the documentary evidence which was put before the tribunal. In relation to that evidence, the tribunal is in every bit as good as position as the adjudicator to draw inferences. Whether one looks upon the tribunal as being in the position of the Court of Appeal or determining the matter de novo, the tribunal can readily take a different view from that of the adjudicator on the same material. I apprehend, having regard to the previous decisions on this question, that the tribunal, presided over by the president, was well aware of the correct approach, and I am bound to say that the sentence which Mr Scrivener subjects to attack does give an unfortunate impression that the tribunal were approaching the matter in the same way as this court would approach the matter on an application for juducial review. If that is what the tribunal were doing, then they were approaching the matter in the wrong way. However, having regard to the fact that the critical issue which has to be determined by this court is one as to the proper interpretation of the rules, it is not necessary for me to express any concluded view as to whether or not the tribunal in fact adopted the wrong approach. Having regard to the way the matter was dealt with by the tribunal, the critical issue is whether or not the rules to which I have made reference are capable of applying to the sort of application which Mr Rahman was putting forward. Mr Ter Haar, for whose submissions I am grateful, contends fairly and squarely that they do not cover a situation when money has been already invested into the business. It does not cover a situation in particular where someone inherits businesses which are already established in this country. Mr Scrivener, on behalf of Mr Rahman, argues to the contrary. He submits that in deciding whether the requirements of the rules are complied with, one can look at the investments already made in the business because the applicant is in a position either to leave the money in the businesses or to sell the businesses and therefore take the money out of the businesses. If the rules are read literally, there is no doubt that Mr Ter Haar's interpretation is correct. The rules talk about "bringing money to put into the business". They clearly are anticipating a situation where the applicant is either taking over a business or joining as a partner in an existing business which he hitherto has not owned. However, if the literal interpretation is to be applied to these rules, it leads to an astonishingly unattractive result. It would mean that in this case Mr Rahman would not be able to come into this country as a businessman if he allows the businesses to continue. But assuming that he meets the other qualifications, he could meet the requirements of the rules by selling those businesses, having the capital sum which that would produce, and then using that money as the investment which he would offer to put into either new businesses or into existing businesses which he wished to take over. If he wished to put the money into a new business under rule 37 he would, of course, not only have to sell the existing businesses, but take the money out of the country and then be prepared to bring it back into the country. I have been told of no policy reasons why it should have been the desire of the Home Secretary to create a position where a person who is fortunate enough, as Mr Rahman was, to inherit businesses should be required to sell those businesses and to go through the sort of procedure to which I have just referred. The rules are clearly designed to enable persons who can make a commercial contribution to the welfare of this country to enter this country for that purpose. I find it difficult to conceive how it can be in the interests of the welfare of the commerce of this country that the businesses which have already been established should be sold and disrupted if a person desires to enter this country. I therefore, having regard to this, have to consider what was the intention which is manifested by the rules read, as they should be read, in the round. The court has laid down that that is the proper approach to the interpretation of these rules. It must be remembered that they are, first of all, not statutes, nor are they statutory instruments. They are drawn in a different way for the purpose of indicating to immigration officers and others how they should exercise their function, and for the purposes of indicating to persons seeking to come to this country the requirements which have been laid down if they wish to do so. Drawn as they are, they do not lend themselves to the sort of strict constructional analysis that would be appropriate in the case of a statute. It was in the case of R v Immigration Appeal Tribunal ex parte Peikazadi & Anr [1979-80] Imm AR 191 that Donaldson LJ, referring to the earlier decision of this court in the case of Joseph, indicated that the appropriate approach to the interpretation of the rules was "to give the words a broad common sense construction or, as they put it, the considerations therein set out had to be looked at in the round". In that case the Divisional Court was looking at a different rule from that which I am considering. But in my view it is necessary to adopt exactly the same approach to these rules, and doing so, it is my view that they should be applied in a manner which involves them covering not only a situation where a person has not yet put his money into a business, but also a situation where money has been put into the business by the applicant. Having regard to my conclusion as to the proper interpretation of the rules, it follows that the tribunal in relation to the first requirement were not adopting the correct approach. There is some question as to whether approaching the matter in the correct manner the applicant would be able to establish that the sum that he had invested into the businesses at the material date was @100,000. However, there is certainly material before the tribunal on which the tribunal could come to the conclusion that there was that amount invested, and that being so, this is a question for the tribunal. The material date is the date of the refusal of entry clearance by the entry clearance officer in 1982 and not the date that the matter was before the adjudicator of the tribunal. Mr Ter Haar also argued before me that there was insuffcient evidence put before the tribunal to show that, quite apart from the money requirement contained in the first condition to which I have made reference, there was here insufficient evidence to show that the applicant could satisfy the last requirement to which I made reference. So far as that is concerned, I accept that the matter was not dealt with as well as it should have been before the tribunal. It would not be proper, on the way the matter was dealt with before the tribunal, to criticise the tirubnal on that ground. There was evidence before me -- and here I am referring to an affidavit sworn by the applicant -- indicating that when the applicant came to this country on a visit which had been permitted, he found the businesses had been looked after adequately. They wee ticking over, but not being operated efficiently or to their full potential. There was room for improvement to make the businesses more efficient. The applicant goes on to say how he would do that. That evidence could be of considerable importance if it is accepted, because although I consider that the rules can be interpreted in the manner which I have already indicated with regard to the first requirement, I do not feel able to accede to the argument of Mr Scrivener with regard to the final requirement, that it is sufficient to comply with that requirement for the applicant to go on and say that he will continue the employees already in full-time employment in the business. Rule 36 specifically refers to the creation "of new, paid, full-time employment". Even approaching the rules and adopting the liberal interpretation which I have adopted earlier, I cannot go so far as Mr Scrivener would urge me to do and accede to the argument Mr Scrivener advances. It is clear from the way the rule is worded that what it refers to is what will result from the investment -- and I emphasise this -- and the services of the applicant. It is clearly referring to the future. What has alrady happened cannot therefore, in my view, be regarded as the full-time employment to which rule 36 refers. However, having considered the decision of the tribunal as a whole, although as I have indicated they cannot be criticised for not dealing with the question of employment otherwise than as they did, it is my view that this is a decision of the tribunal which it would be wrong to allow to stand. The whole of the approach of the tribunal, the adjudicator and the Secretary of State had been to focus on their contention with regard to what I have called the first requirement. It appears to me that there was just sufficient material in regard to the other requirements before the tribunal to regard this as a case where justice requires the matter to go back to the tribunal so that they can reconsider the whole situation directing themselves in the appropriate manner as to the proper interpretation of the rules which I have sought to set out in this judgment. Accordingly, for this purpose, I quash the decision. I should however add that before I leave the case, the grounds upon which I have quashed the decision are not ones which appear in the grounds relied on in support of the application. Mr Ter Haar has not taken any technical point on this, appearing on behalf of the tribunal. He is anxious, no doubt, that the tribunal shall dispose of the matter in accordance with the general desire to do justice between the parties. That is something which is highly relevant in relation to costs. MR SCRIVENER: With some trepidation, I ask for costs. I take your Lordship's point, but it always was an issue throughout the case and it always was the other side's argument which we have met. I do not think, with respect, my learned friend was taken by surprise. If I may say, it was a fair fight on the right ground and we both argued the same point. I would ask for my costs. It is not a legal aid case. MR TER HAAR: Your Lordship anticipated the comments I was going to make in respect of costs. It is right that I did not raise the point. Here I was, the point was being argued, and I hope I was able to deal with the legal point which arose. But it is fair to say that when I walked into court this morning, I did not anticipate the argument that was in fact advanced, and indeed the argument has gone over ground which quite clearly was never agrued before the adjudicator and was not fully argued before the tribunal. I cannot ask for my costs, but I certainly resist any application by my learned friend for costs. I submit that justice in this case is done by making no order for costs, particularly as it may well be that when this matter goes back before the tribunal, the tribunal may decide he is below the @100,000 threshold in any event. I resist any such application. MR SCRIVENER: I simply say that, as I indicated during my argument, I pinpointed where Mr Alcock had taken this point before the adjudicator and where the argument was presented. It is one which I dealt with and your Lordship has accepted. It has always been on the cards. It has been a fundamental plank in my learned friend's argument. All I have done is anticipated it. WOOLF J: It seems to me that the appropriate order is that the applicant should have one third of his costs.

DISPOSITION:

Application granted. Case remitted to Tribunal

SOLICITORS:

Richard Reed & Co, Sunderland; Treasury SolicitorA69497403: