Entry Clearance Officer, Dhaka v. Hamida Begum and Others

Entry Clearance Officer, Dhaka v Hamida Begum and Others

Queen's Bench Division

[1986] Imm AR 252

Hearing Date: 24 April 1986

24 April 1986

Index Terms:

Practice and Procedure -- whether in submitting an application for leave to appeal, it was sufficient, under the 1972 Procedure Rules, to state 'grounds to follow' and to specify the grounds at a later date outside the time limit for the submission of an application for leave to appeal. Immigration Appeals (Procedure) Rules 1972: rr 15, 16, 38, 45: Immigration Appeals (Procedure) Rules 1984, r 16

Held:

The respondents had applied in Bangladesh for entry clearance to join a Mr Sharif Miah in the United Kingdom as his wife and children. Their applications were refused. On appeal, the adjudicator allowed the appeals of all the respondents. He acknowledged the reasonableness of the entry clearance officer's refusal on the evidence which had been before him, but found in favour of the respondents on the basis of a collection of documents first produced before the adjudicator. The entry clearance officer sought leave to appeal to the Tribunal. The application for leave to appeal, filed within the mandatory time limit, merely stated "grounds to follow". The grounds were then subsequently submitted outside that time limit. When the case came before the Tribunal the representative of the respondents submitted that there was no valid appeal before the Tribunal because there had been a failure to comply with the Procedure rules. Held: On a true reading of the relevant rules in the Immigration Appeals (Procedure) Rules 1972, and in the events which had happened, there was a valid appeal before the Tribunal. Obiter: the phrasing of the relevant rule in the Immigration Appeals (Procedure) Rules 1984 is different and it is likely that in cases to which they apply, an appeal notice which stated no more than 'grounds to follow' would not satisfy the rules.

Counsel:

A Gammons for the appellant; S Choudhury for the respondents PANEL: DL Neve Esq (President); Mrs JD Caine JP, JLS Harrison Esq

Judgment One:

THE TRIBUNAL: The respondents are citizens of Bangladesh. They applied to the appellant for entry clearance to enable them to join a Mr Sharif Miah for settlement in this country as his wife and children. Their applications were refused. They appealed to an adjudicator against the refusals. Their appeal was heard by Mr RW Gann and was allowed on 28 January last. Against Mr Gann's determination the entry clearance officer now appeals to the Tribunal. At the outset of the appeal before us Mr Choudhury took a preliminary point, submitting that there was no appeal before us because the application for leave to appeal had not been submitted within the time provided by the Immigration Appeals (Procedure) Rules, 1972. Having heard submissions from Mr Choudhury and Mr Gammons on this point, we held that there was an appeal properly before us for reasons which we would specify more fully in our determination, and which are as follows. Mr Choudhury's case is this. It was not in dispute that the rules of procedure applicable to this case were the Immigration Appeals (Procedure) Rules 1972. This was the case because proceedings before the appellate authorities had been commenced on 4 December 1983 (the date of receipt of the Notice of Appeal APP 201). Rule 16 deals with applications for leave to appeal, the relevant sub-paragraphs in this case being sub-paragraphs 1 and 3. These read as follows: "16(1) Subject to the following provisions of this rule, notice of appeal or an application for leave to appeal shall be given or made by completing so much of Form 2 as relates to the notice and serving it on an adjudicator or the Tribunal, as appropriate. (3) The grounds of an appeal or application set out in Form 2 may be varied or amplified during the course of the appeal or application." Rule 15 provides that applications for leave to appeal to the Tribunal may be made not later than 14 days after the determination in question. In this case the determination in question was dated 28 January 1986 and the application for leave to appeal (Form APP 12) was made on 7 February. Under the section in the form reading "the grounds of appeal are as follows" there had only been entered "grounds to follow". Detailed grounds were provided on 17 February -- almost a week after the expiry of the 14 days mentioned in Rule 15. In Mr Choudhury's submission the rules had not been complied with and we should decline to entertain the appeal. The requirements of Rule 16 were mandatory, and in his submission sub-paragraph 3 clearly contemplated that the grounds should be given at the time the application was made. This was so because sub-paragraph 3 refers to the grounds of application set out in Form 2 and provides that they may later be varied or amplified. In Mr Choudhury's submission it is not possible to vary or amplify "grounds to follow". In his submission it was clearly the intention of the draftsman of the rules that the grounds of the application should be given at the time that notice of application was given. He suggested that this appeared from the wording of Rule 16 of the later procedure rules (The Immigration Appeals (Procedure) Rules 1984) which specifically required the notice to contain the grounds on which the applicant intended to rely. In reply Mr Gammons submitted that leave to appeal had already been granted by the Tribunal, and it would be inequitable at this stage for the Tribunal to decide that they could not entertain it. He referred us to Rule 38 which reads:

"38. Any irregularity resulting from failure to comply with these Rules before an appellate authority has reached its decision shall not by itself render the proceedings void, but the appellate authority may, and shall if it considers that any person may have been prejudiced, take such steps as it thinks fit before reaching its decision to cure the irregularity, whether by amendment of any document, the giving of any notice or otherwise."

and submitted that the entry clearance officer (the appellant) would have been prejudiced, to adopt the wording of this rule, if we declined to entertain his appeal. The rules specifically provided that the Tribunal could take such steps as it thought fit to cure any irregularity by amendment of any document or the giving of any notice. In considering these submissions we have in mind that for many years the Tribunal has accepted as valid notices of application notices containing the words "grounds to follow" under the section relating to Grounds of Appeal. The great majority of such applications come from persons whose applications to the Secretary of State or entry clearance officer have been unsuccessful, and a much smaller proportion of applications come from the Home Office (which expression we use to include entry clearance officers, immigration officers and the Secretary of State). The Tribunal notes that Rule 45 of the 1972 procedure rules provides that:

"45. The forms set out in the Schedule to these Rules or forms substantially to the like effect may be used with such variations as the circumstances may require."

and this would appear to indicate that the exact wording of such forms is not sacrosanct and should be sensibly construed. For these reasons we consider that this is a proper case in which to invoke Rule 38, and we held that this appeal should proceed. It is perhaps appropriate however that we should sound a warning with regard to cases to which the 1984 procedure rules apply. As we have already mentioned, the requirements of Rule 16 of the 1984 rules are far more precise and -- without wishing to prejudge any cases before they arise -- it may be that the words "to follow" will not be sufficient to satisfy the new paragraph 16. It may be necessary for applicants at least to provide a form of words which are capable of variation or amplification at a later date. We now proceed to consider the substantive appeal. The respondents made their application in September 1982 and were interviewed in December 1982. Hamida Begum claimed to be 10 years younger than the date given for her birth on her original application form. There had been a confession of false tax claims by the sponsor, Sharif Miah. Azad Miah appeared to be considerably older than his claimed 9 years. On 29 January 1974 Sharif Miah had sworn an affidavit for tax purposes which he now admitted was false in many respects. The woman who he then claimed was his wife was in fact his sister-in-law (his brother's wife). One of his claimed children was their daughter (his niece): two claimed children were completely fictitious and only one of the claimed children, Azad Miah, was one of the present applicants. In view of all these matters a team of entry certificate officers and official interpreters visited the respondents' village. Several people were interviewed, who gave varied and conflicting accounts of the applicants' family. The reasons for the entry clearance officer's refusal of the applications are summarised in paragraph 12 of the Home Office statement as follows:

"12. The case was further examined by Mr G Liddell, Entry Certificate Officer, who considered the facts that had emerged as a result of the village visit in addition to the evidence submitted by the principal applicant. Mr Liddell first considered the lack of satisfactory documentation supporting the marriage and the births of the applicant children as outlined in paragraph 2 above, and the sudden ten year change in the date of birth of the principal applicant. He noted that the sponsor had been claiming tax relief from the Inland Revenue for a number of bogus dependants; although he had now confessed to the fraud his credibility must nevertheless be impaired. Mr Liddell then considered the information elicited during the village visit. Although there were several variations as to the number of children that the sponsor had, it was apparent that virtually all the villagers questioned were unanimous in the claim that the sponsor had three brothers. It was clear therefore that the principal applicant had omitted two of the sponsor's brothers from the family tree together with details of their respective families. Mr Liddell wondered why she should do so. He considered the possibility that one or more of the sponsor's brother's children were now posing as the sponsor's children with a view to securing admission to the United Kingdom, and had therefore deliberately been excluded by the principal applicant. Mr Liddell considered Mr Hubbard's encounters with the sponsor's relatives. Naturally they would be aware of the sponsor's intentions with regard to the applicants and would therefore support the claim that the three children in the photograph were all his children. However one of the sponsor's nephews advised Mr Hubbard that Azad was bogus and was in fact Yacoub Miah's son. He also told Mr Hubbard that he had been instructed to say that Azad was the sponsor's son. (Jaor Miah had similarly described Azad as the sponsor's brother's son). Mr Liddell similarly considered Mr Mercer's encounters with other villagers. They too would in all probability be aware of the application and would therefore support the claim that all three children belonged to the sponsor. Yet the sponsor's neighbour, the most senior villager questioned, said that the sponsor had only 2 sons and 1 daughter in all. Mr Liddell also noted that Mr Hubbard had located school books relating to the two younger applicants in the sponsor's house yet no such books relating to Azad Miah; also none of the applicants were on the sponsor's compound at the time of the visit. Mr Liddell also considered whether the taller boy in the photograph could realistically be described as only nine years of age. He considered it more likely that Azad was rather older than 9, as initially observed by Mr Jacques."

When the appeal went before the adjudicator evidence was given by the sponsor, Sharif Miah. He freely admitted that he had made bogus tax claims. Asked about different accounts of his family given by the persons interviewed at his village, he said that several of them were hostile to him and would not have told the truth. He said the 10 years' difference in the claimed age of Hamida Begum had been due to his mistake. The adjudicator does not record his opinion of the sponsor as a witness, but from the tone of his determination he does not appear to have been overly impressed by his testimony. It is clear from his determination that he reached the conclusion that he did by virtue of documents which were produced to him. These were: (1) Three birth certificates relating to the minor respondents. As to these the adjudicator remarks that "they were contemporaneous and I have no reason to doubt their being geniune". (2) Two school certificates. The adjudicator remarks that since they post date the applications he finds them only of limited assistance. (3) Four medical certificates signed by a Dr Mitra claiming to have known all the applicants since 1972 as his patients. As to this the adjudicator says "I cannot believe that a medical practitioner could easily be persuaded to issue false certificates". (4) Three voters' lists: one male voters' list for 1983 and two female voters' lists for 1976 and 1983. The adjudicator remarks "Those lists help me considerably, being official documents". (5) Two land deeds purporting to have been presented for registration in 1977 in favour of Hamida Begum and Sharif Miah's claimed second wife. (6) A letter from the Revenue stating that Sharif Miah has now satisfied the Tax authorities. (7) Five letters from the sponsor's claimed second wife. The adjudicator concludes his determination: "Having considered the respondent's Explanatory Statement in depth I am bound to say that I entirely agree with the conclusions which he reached. However, I have commented on the various documents submitted by Mr Mookerjee with his letter of 1 December 1985 some of which support the appellants' appeal. I find it difficult not to be influenced by official documents and statements of persons of repute upon each of which I have made comment. I find that on the balance of probabilities each of the appellants is related to the sponsor as claimed. Therefore I allow the appeals and I direct that the appellants be issued with the appropriate entry clearance." At the appeal before us Mr Gammons submitted that the adjudicator had attachd undue weight to the documents which had been produced. The ease with which documents could be bespoken in Bangladesh to suit any occasion was by now well-known to adjudicators and this Tribunal. The birth certificates which had been produced purporting to have been countersigned by the Chief Medical Officer of Health in Sylhet were unimpressive documents, as also were the school certificates. Even assuming that the medical certificates produced were what they purported to be, regrettably the mere fact that a man was a doctor in Bangladesh did not place him entirely above suspicion. Voters' lists in Bangladesh were often compiled from hearsay evidence, and the land deed produced was a curious document which did not affect the question of identification. Having regard to the history of persistent fraud in this case and (so far as the respondents were concerned) to the disastrous results of the visit to the village by the entry clearance officers, the adjudicator had come to the wrong decision on the facts. In reply Mr Choudhury submitted that the adjudicator's findings of fact were not unreasonable. He had seen and heard the sponsor giving evidence, which advantage the Tribunal has not enjoyed, and in these circumstances the Tribunal has always said that it will be slow to interfere with an adjudicator's findings of fact. Whilst he had to concede that documents were easily obtainable in Bangladesh, he referred us to the cases of Angura Khatun and Others (3097) and Aleya Bibi and Others (4394) in which the Tribunal had attached weight to such documents -- particularly the land deeds. In his submission the adjudicator's findings of fact were not unreasonable, and the appeal should be dismissed. We have anxiously considered the submissions in the light of the evidence contained upon the file. It is not disputed that there has been a history of persistent and most blatant deceit in this case, and in our view whatever impression the sponsor made before the adjudicator (and Mr Gann makes no comment as to this) he had forefeited any claim he might have had to credibility. He might have had a stronger claim had his story been supported by his fellow villagers. So far from this being the case they had only added to the doubt and confusion. Whilst we consider that the documents produced -- notably the voters' list and land deed -- were entitled to some weight when placed in the scales on the opposite side to the lies and discrepancies on the other side, judging the matter on the balance of probabilities we do not consider that they outweighed considerations of the deceit which had been employed by the sponsor and the unsatisfactory matters raised by the village visit. We have to say that we consider the adjudicator's findings unreasonable, and the entry clearance officer's appeal in respect of each of the four respondents is consequently allowed.

DISPOSITION:

Appeal allowed.

SOLICITORS:

United Kingdom Immigrants Advisory Service