R v. Immigration Appeal Tribunal, Ex parte Badrul Bari
- Author: High Court (Queen's Bench Division)
- Document source:
-
Date:
9 May 1986
R v Immigration Appeal Tribunal ex parte Badrul Bari
Queen's Bench Division
[1986] Imm AR 264
Hearing Date: 9 May 1986
9 May 1986
Index Terms:
Working holidaymaker -- whether an applicant has to show that he will work in the United Kingdom and there is a reasonable prospect of his obtaining the work he intends to seek. HC 169 para 30.
Practice and Procedure -- whether the Tribunal is entitled to re-open issues of fact when there is no cross-appeal before it and there have been findings of fact by an adjudicator, favourable to an appellant. Immigration Act 1971 ss 19, 20: The Immigration Appeals (Procedure) Rules 1972, 1984.
Held:
The applicant had applied in Bangladesh for entry clearance as a working holidaymaker. The entry clearance officer refused the application because he did not consider the applicant was genuinely seeking entry in that capacity or that he would leave at the end of his intended visit of five months. On appeal the adjudicator found in favour of the appellant as to intention and capability. He dismissed the appeal however because on the facts he concluded that the applicant had already "settled down" in Bangladesh and was thus out with the relevant rule. On appeal to the Tribunal the Secretary of State's representative did not support the adjudicator's interpretation of that phrase. The Tribunal however of its own motion re-opened the whole case, acting under its powers under ss 19 and 20 of the Immigration Act 1971. It adjourned the case for the parties to prepare argument. The Tribunal ultimately dismissed the appeal because it was not satisfied that the appellant would work during his stay nor that, if he sought the work he had indicated he might seek, he would have any reasonable chance of obtaining it. On application for judicial review, objection was taken to the Tribunal re-opening the case on facts without any cross-appeal by the Secretary of State being before it. It was also submitted that the Tribunal had misdirected itself in law as to the true interpretation of paragraph 30 of HC 169. Counsel suggested that it did not require an applicant to show an intention to work after his arrival in the United Kingdom. Held: 1. The Tribunal was entitled to re-open the case fully. An adjournment had been given to allow the parties to prepare argument and no detriment was suffered by the applicant. 2. The Tribunal was not debarred from considering the facts afresh without a cross appeal, even when the adjudicator had made findings favourable to the applicant. The Immigration Appeals (Procedure) Rules contained no provision requiring a cross-appeal to be lodged. 3. The Tribunal was correct in its interpretation of paragraph 30 of HC 169.Counsel:
A Riza for the applicant; J Laws for the respondent PANEL: Russell JJudgment One:
RUSSELL LJ: This case has had a long and chequered history. The applicant, now 26 years of age and a citizen of Bangladesh, sought entry clearance into the United Kingdom as a working visitor as long ago as January 1984. His application has been considered and reviewed at various levels until ultimately, in October 1985, there came the final decision of the Immigration Appeal Tribunal, the effect of which was to refuse leave to enter the United Kingdom. It is against the decision of that Immigration Appeal Tribunal that these proceedings are brought by way of judicial review, an order of certiorari being sought to quash that decision. It will be convenient if I shortly set out the background to the application by way of historical review. As I indicated at the outset, the original application to the entry clearance officer at Dacca was made on 31 January 1984. It will be convenient if I go at once to paragraph 30 of the Statement of Changes in Immigration Rules, HC 169, the material paragraph in this application. It is to be observed that it is headed "Working holidays". The text reads:"Young Commonwealth citizens aged 17 to 27 inclusive who satisfy the immigration officer that they are coming to the United Kingdom for an extended holiday before settling down in their own countries, and that they intend to take only employment which will be incidental to their holiday, may be admitted, on the understanding that they will not have recourse to public funds, for up to 2 years provided that they have the means to pay for their return journey. Where the immigration officer has reason to believe that recourse to public funds is likely, he will refuse leave to enter. If a passenger has previously spent time in the United Kingdom on a working holiday he may be admitted for a further period for the same purpose but the total aggregate period should not exceed 2 years."
The entry clearance officer, having it seems questioned the applicant at length as to his intentions if granted an entry certificate, made the following finding: "You have applied for an entry certificate for a working holiday but I am not satisfied that you are genuinely seeking entry as a working holidaymaker or that you will leave the United Kingdom at the end of your stated period." It was for the period of five months that the applicant intended to come here. The applicant exercised his right of appeal. On 1 February 1985 an adjudicator dismissed the appeal. He reviewed the applicant's background and his expressed intentions in a comparatively lengthy decision. It is not necessary for me to rehearse the reasons for the adjudicator's decision at any great length. Indeed, I am bound to say that upon reading through them I had a little difficulty in satisfying myself as to the precise ratio of them. Certainly during the course of his review, the adjudicator found contrary to the finding of the entry clearance officer that this was a genuine application in the sense that the applicant genuinely intended to come to the United Kingdom and genuinely intended to take up some work here. But he seems to have alighted upon the words "before settling down" in paragraph 30 and attached a great deal of significance to them. As I understand the position, the adjudicator was saying that because he took the view that the applicant had already "settled down" -- to use the words of the paragraph -- in Bangladesh at the time of his application, he was thereby disqualified from seeking entry to the United Kingdom under paragraph 30. It is not strictly necessary for me to express any view upon that interpretation of paragraph 30 in the light of subsequent events. But for my part, and I think this is probably common ground between counsel, that construction of paragraph 30 is an untenable one. Indeed, when the case went further, it is to be observed that the representatives of the Secretary of State did not seek (so far as one can tell from the papers) to support it. Accordingly, as at 1 February 1985, the applicant had a decision which was adverse to his interests on the narrow ground that the adjudicator thought he was disqualified from applying for entry in order to take the working holiday in the United Kingdom. The applicant, predictably, exercised his further right of appeal. The matter came before the Immigration Appeal Tribunal on 3 May 1985, the applicant having obtained leave to appeal to that Tribunal. On that occasion, the appeal tribunal remitted the appeal to the adjudicator raising with him the issue which was unclear from his earlier determination relating to the words "before settling down" in paragraph 30. The adjudicator in due course reconsidered the matter it having been remitted to him by the Immigration Appeal Tribunal. On 17 June 1985 he basically decided what he had decided earlier, declined to change his mind about the interpretation of paragraph 30, and once more dismissed the appeal. Finally, the applicant exercised his right yet again to go to the Immigration Appeal Tribunal. It is right to say that at that stage the applicant could point to findings of fact in his favour that had been made by the adjudicator and the finding on a purely legal basis that was adverse to him. I repeat that that adverse finding as to the law was not supported by the representative of the Secretary of State. What happened when the matter, on this second occasion, came before the Immigration Appeal Tribunal? They decided to re-open the whole case and look at it afresh to determine whether it was a case where the applicant was entitled to have clearance to come into the United Kingdom pursuant to paragraph 30. The Chairman of the Tribunal indicated to the advocate appearing for the applicant and the Secretary of State's representative, that this was the intention of the Tribunal. He offered an adjournment to enable the applicant's representative to consider her position and to deal with the appeal upon that broad basis. Complaint is made today that the decision to re-open the matter had not earlier been communicated to the applicant or his advocate. That is perfectly true, but, contends Mr Laws, any unfairness that could conceivably have arisen as a result of that failure was remedied by the offer of, and the acceptance of, an adjournment. The adjournment occupied a period of about a month before the Tribunal reconvened on 16 September 1985. At the end of the adjourned hearing, the appeal was again dismissed. It is against that appeal that these proceedings are launched. Mr Riza, to whom I am grateful for his full and careful submissions, makes two fundamental submissions in support of his application to quash the decision of the Immigration Appeal Tribunal. First, he complains of a procedural irregularity. He has referred me to the principal act, the Immigration Act 1971 and he has referred me to The Immigration Appeals (Procedure) Rules 1972 which govern proceedings at all levels and in particular, so far as Part II is concerned, to appeals to tribunals from the adjudicator. Mr Riza concedes, as in my judgment he is really bound to concede, that the Tribunal is entitled to look at the case afresh -- as this Tribunal did -- and that they are entitled not only to review questions of law but to review issues of fact. The complaint, however, which is developed by Mr Riza is to the effect that the issues of fact on which there is to be a reassessment must be properly before the Tribunal. That, submits Mr Riza, can only happen when the party who is seeking to reverse those findings of fact puts the other side on notice as well as the Tribunal. Here it is submitted that the respondents to the appeal did not seek leave to appeal the decision of the adjudicator on the point with which the Secretary of State did not agree, the point which was in favour of the applicant. Nor was there at any stage any form of notice of appeal or cross-appeal entered by the respondent. It is not for the Tribunal, submits Mr Riza, of its own motion to review findings of fact upon which no point has been taken by way of notice of cross-appeal or any other notice. For the Tribunal, Mr Laws has referred me in particular to sections 19 and 20 of the 1971 Act as well as to the Immigration Appeals (Procedure) Rules. I have to say at once that I have searched in vain for any rule which requires a respondent to an appeal of this kind, whether the respondent be the applicant or the Secretary of State, to cross-appeal or serve a contrary notice. There is simply no provision for it in the Rules. Accordingly, I come to the conclusion that the Rules being devoid of any provision for the service of the cross-appeal or cross-notice, there is no obligation upon the Secretary of State in this or in any other case to do that which Mr Riza suggests has to be done. In any event, even if there had been some obligation -- express or implied -- on the part of the Secretary of State to notify the Tribunal and the applicant of the intention to rely upon arguments reversing the earlier determination of the adjudicator upon certain aspects of the case, even if some rule could be implied, the fact of the matter here is that the Immigration Appeal Tribunal offered an adjournment; an adjournment was accepted without protest; a considerable period of time elapsed before the matter was reheard and, in those circumstances, for my part, I can see no argument in support of the proposition that the applicant suffered any prejudice. That part of the application, therefore, fails. Alternatively, submits Mr Riza, there has been here and on the face of the findings of the Immigration Appeal Tribunal, an error of law which (he submits) arises out of total misconception by the Tribunal of the real meaning of paragraph 30. Mr Riza submits that the Rule does not envisage that necessarily the applicant will work once he or she arrives in the United Kingdom. He is critical of the finding of the Apppeal Tribunal particularly in the respects that were reflected towards the end of their decision. In the penultimate paragraph the Tribunal said this:"Looking again at the provisions of the rule, we think that one who seeks admission as a working holidaymaker must be able to show, on the balance of probabilities that his planned holiday will, in all probability, require him to supplement his initial funds with occasional work and he must demonstrate his qualifications and or experience for such occasional work as he envisages, give him a reasonable prospect of obtaining that work. Neither of those criteria was satisfied in this case."
The reason that the Immigration Appeal Tribunal felt that neither criteria was satisfied was because, upon a view of the totality of the evidence, the Tribunal came to the conclusion that this young man was really very unlikely to get any sort of work in the United Kingdom of a temporary nature if he were to be permitted to enter. He failed, apparently, when he was interviewed by the entry clearance officer to answer the simplest of questions addressed to him in English. His idea of work in this country was to go into a department store as a shop assistant. All these matters, quite clearly, the Immigration Appeal Tribunal took into account in arriving at the decision that the applicant did not bring himself within the terms of paragraph 30. Mr Riza submits that the Tribunal were not entitled to take those matters into account because he emphasises that upon a proper construction of the Rule, it was not necessary for the applicant to satisfy anybody that he intended to seek or obtain work once he arrived in the United Kingdom of a temporary nature, or any other nature for that matter. The Rule, submits Mr Riza, does not require an intention to do any sort of work and it should not be so construed. Mr Laws, on behalf of the Tribunal, invites me to find that that submission is totally misconceived. He refers me to the wording of the Rule itself. I have already read it, together with its title. There are two limbs to it. In the submission of counsel for the Tribunal, the immigration officer has to be satisfied, provided of course that the applicant is a "young Commonwealth citizen" between the appropriate age group, that he intends to come to the United Kingdom for an extended holiday. Secondly, he must satisfy the immigration officer that he intends to take employment, that employment being only employment which is incidental to his holiday. Mr Laws submits that one cannot read into Rule 30 one of the elements that distinguishes it, for example, from the rules relating to visitors in Rule 17 and Rule 20. At one stage in their deliberations, the Immigration Appeal Tribunal referred to "standing this rule on its head" if a particular interpretation of it were to be found. With the greatest of respect owed to the submissions made by Mr Riza, I think it would stand this rule on its head if I were to find that it was a necessary ingredient of the Rule that people within this age group intending to come to the United Kingdom did not and need not show an intention to work. It is of the essence of the rule, in my judgment, that there has to be an intention to work within the United Kingdom albeit in the limited way that the rule describes. Accordingly, I see in the decision of the Immigration Appeal Tribunal no error in law in the way that they approached the problem which confronted them. They took into account the prospects of employment in this country and the prospects of the applicant being able to obtain such employment in the particular situation in which he would find himself: a young man in the United Kingdom unable to speak English satisfactorily or virtually at all. This is not a Court of Appeal. I have to ask myself whether the Tribunal was entitled, in the light of all the circumstances, to reach the conclusion which it did. I ask myself if they reached that conclusion having been guilty of any procedural irregularity. I answer that question in the negative. I ask myself whether the Tribunal was entitled to make its findings on the information before it or whether it was a perverse decision. I am satisfied on what I have heard and read that the Tribunal was entitled to make the decision that it took. Accordingly there is, in my judgment, no merit in this application and it will be refused.DISPOSITION:
Application dismissed.SOLICITORS:
South Islington Law Centre, Treasury SolicitorDisclaimer: Crown Copyright
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