Augustine Twum v. Immigration Officer, Heathrow

Augustine Twum v Immigration Officer -- Heathrow

Queen's Bench Division

[1986] Imm AR 316

Hearing Date: 20 May 1986

20 May 1986

Index Terms:

Seasonal Worker -- appellant intending to work at agricultural camp under aegis of Concordia -- whether Concordia Acceptance Card or agricultural camp's acceptance card was an entry certificate or 'other document' that constituted entry clearance: Immigration Act 1971 s 33(1); HC 169 paras 12, 13, 27, 28, 33, 117.

Practice and Procedure -- two or more appeals heard together -- when it is preferable to issue separate determinations.

Held:

The facts are set out in the determination. Held: 1. An acceptance card issued by an agricultural camp or a sponsoring body is not 'entry clearance' within the meaning of s 33(1) of the 1971 Act. It is only evidence that a work permit is not required, and brings the person within the ambit of the discretion to admit a seasonal worker for the purpose of attending an agricultural camp under an approved scheme. 2. On the facts, the refusal of leave to enter was justified. 3. The adjudicator heard the appeal together with the appeals of three other persons refused admission to attend the same camp. However, not all the issues in the appeals were the same. He determined the appeals in one determination. Even if, by consent, two or more appeals were heard together it was preferable unless the appeals were interdependent, to issue separate determinations.

Counsel:

EA Yaansah for the appellant. A Gammons for the respondent. PANEL: Professor DC Jackson (Vice-President), GW Farmer Esq (Vice-President), Miss MF Applebey CBE JP

Judgment One:

THE TRIBUNAL: The appellant whose date of birth is 24 April 1952 and who is a citizen of Ghana appeals against the decision of an adjudicator (Sir John Pestell KCVO) dismissing his appeal against the refusal of leave to enter as a seasonal worker at an agricultural camp under an approved scheme. The applicable legal framework Seasonal workers at agricultural camps are admissible in accordance with HC 169 paragraph 33(f). Insofar as is relevant the paragraph reads: "33. Passengers in the following categories, although coming for employment, do not need work permits and may, subject to paragraph 13, be admitted for an appropriate period not exceeding 12 months if they hold a current entry clearance granted for the purpose or other satisfactory documentary evidence that they do not require permits: (f) seasonal workers at agricultural camps under approved schemes". Relevant to construction of the paragraph is the definition of entry clearance in the Immigration Act 1971 Section 33(1). This reads: "entry clearance" means a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence of a person's eligibility, though not patrial, for entry into the United Kingdom (but does not include a work permit)". The operation of the approved scheme The appellant was intending to participate in a scheme run by Concordia (Youth Service Volunteers) Limited. According to a letter from the Executive Director of Concordia which was before us and from information given to us by Mr Gammons, the scheme (as in all cases of such schemes) is approved by the Home Office annually. The camps in which the volunteers serve operate during the summer months only. The number of non-EEC applicants which can be accepted is limited by the Home Office. The schemes are attractive to farmers because they give farmers a guaranteed work force on site during harvest to pick fruit and the schemes are attrative to those participating because they are able to visit this country in exchange for enough remuneration to pay for their food with a little over. The particular scheme with which the appellant was concerned is a private scheme run at Fridaybridge camp which is out of the ordinary in that it is a privately owned venture. Concordia only recruit volunteers for it and have no control over the running of the camp. We were supplied with a specimen card which is given to the volunteers and also a copy of the brochure for 1984. In that brochure the aims and objects are set out viz: "Concordia aims to bring together the youth of all nations throughout the world, to promote a better understanding between them of their ideas, beliefs and ways of living and thereby promote a better understanding between the nations throughout the world. In doing this Concordia places Volunteers with various fruit and hop growers in this country where they are able to earn sufficient money to pay their expenses at their camp and at the same time make a small amount of pocket money. It is NOT an employment agency and does not set out to supply Volunteers with highly paid jobs, particularly in view of the large numbers of unemployed in this country at the present time". The age limit is said to be 18--30 "except where otherwise stated". There are a number of conditions specified which are prerequisites for acceptance of volunteers: "4. That Volunteers are in possession of a valid Red Concordia Acceptance Card clearly indicating the date for which they have been booked. These cards are issued with the approval of the Home Office and Immigration authorities, under the following conditions: (a) That they are presented to the Immigration Authorities on arrival in the country so that their passports may be endorsed to allow them to work in a Concordia Camp. These cards do not permit Volunteers to seek paid or unpaid employment other than in a Concordia Camp or similar Camp approved by the Home Office. (b) That Volunteers appreciate that these cards are not transferable and any card presented by them in a name other than that which appears on their passport or has been altered may mean that they will be refused entry into the country. 5. That Volunteers are in possession of a valid return ticket to their country of origin. 6. That Volunteers are in possession of not less than @80.00. Volunteers may be turned away if they are not in possession of this amount of money either by Immigration or the camp authorities. 7. That Volunteers are in possession of a valid passport and if applicable visa permitting them to enter the country. Also that their visas have been endorsed by the Immigration Officer permitting them to work at a Concordia Camp or similar camp. Failure to get this endorsement will incur a Volunteer having to visit the Home Office to obtain the necessary endorsement. 8. Concordia accepts no responsibility is, for any reason, you are refused entry by the Immigration authorities". The background facts The appellant arrived at Heathrow on 13 August 1984 together with six other Ghanaian teachers, all intending to go to the Fridaybridge Agricultural Camp. It appears that all were refused entry and were removed to Nigeria. The notice of refusal in respect of the appellant reads: "You have asked for leave to enter the United Kingdom until 3.11.84 as a seasonal worker at the Fridaybridge Agricultural Camp but I am not satisfied that you are genuinely seeking entry only for this limited period or for this purpose". It appears from the explanatory statement that Fridaybridge Camp confirmed that the appellant had been issued with an entrance card. He told the immigration officer that he intended to stay until 3 November 1984 and that he would then return to Nigeria where he was resident. He said that he had gone to Nigeria from Ghana "for economic reasons". The explanatory statement continues: " . . . Having left University in Ghana in 1980, he had been obliged to work as a teacher for the Ghana Government, but he had been unable to support his family on his wage of @100 per month and in 1981 had gone to Nigeria to teach, where he earned @315 per month. His passport described him as a trader. He explained that he had intended being a trader when he obtained his passport but that he had decided to teach instead. The passenger's wife and two years old child lived in Ghana with his family which consisted of his 90 year old father, mother, two brothers and their wives. Although not a major supporter of his family, he sent money to his wife on a regular basis". The appellant added in answer to a question from the immigration officer, that he was interested in doing voluntary work, that he had not done any before and that he had not volunteered in order to earn money. He did not know who would benefit from his services. The immigration officer's grounds for the conclusion which he reached are set out in the explanatory statement: "The passenger had gone to Nigeria for economic reasons as he had not been able to earn sufficient to support his family in Ghana, yet he had spent @835 on a ticket to the United Kingdom (the equivalent of three months wages) in order to perform voluntary work about which he knew very little; and he had not done voluntary work before. I did not consider it reasonable that a man in his position would go to such expense for this purpose when there were opportunities for him to offer his services to voluntary organisations in his own country. Furthermore, his return visa to Nigeria would have expired before his anticipated return to that country. I was not therefore satisfied that he intended to stay only for the duration and purpose stated by him, nor was I satisfied that he qualified for entry within the terms of paragraph 33(f) or any other paragraph of the Rules". After the refusal and at the suggestion of the UKIAS the appellant sent information concerning the purpose of his visit and his circumstances in Nigeria. He provided a copy of his residence permit for Nigeria issued on 31 May 1985 and valid until 30 December 1985, a copy of a bank statement of an account at the Standard Chartered Bank in London showing a balance in June 1984 of some @800 rising to @1,300 in August 1984 and being maintained at that or a higher level since that date. He also obtained a letter from the Vice-Principal of the school dated 2 May 1985 in which it was stated that he had been appointed to teach at that school on 29 September 1981 and was still teaching there. It stated that he was on leave from August to November 1984. The appellant, in a letter, stated that there would have been no problem as regards his return to Nigeria even though his visa would have expired by the date of his planned return from this country. He stated that he was an "ECOWAS" citizen and could enter Nigeria without prior visa since he was already employed. The appellant questioned the immigration officer's conclusion that the fare was three times his salary. He stated that he also showed the immigration officer his bank account. He wished to do voluntary service in this country because it would enable him to "know London". The appellant's appeal was heard by the adjudicator together with the appeals of three others of the group who had arrived on 13 August. The joint hearing was at the request of the United Kingdom Immigrants Advisory Service who were representing all four. On the day before the hearing it appears that the Chief Immigration Officer who was acting as the Presenting Officer made enquiries of Concordia as to the dates of birth stated by the various individuals of the group. It emerged in relation to the appellant that his date of birth was more or less accurately recorded as being 27 April 1952. However, this meant that he was over 30 years of age at the time of entry on the scheme. The proceedings before the adjudicator The adjudicator considered a number of legal submissions by the representative of the appellant and the fellow members of his group and then dealt with each case in the one determination. Of the appellant, he said: "His date of birth is 24th April 1952, and so in August 1984 he was 32 years of age and outside the scope of the approved scheme which was for youth with a maximum age of 30 years. The appellant had given his correct age and had been accepted in error, but clearly he did not fall within the provisions of the approved scheme and I find that the refusal was in accordance with the Law and Immigration Rules applicable to his case, and his appeal is consequently dismissed". In the Tribunal's view it can rarely be satisfactory that different cases are dealt with in the same determination. Even if there is a joint hearing, it does seem to us with respect that unless the appellants' cases are inter-dependent it will usually be preferable to issue a separate determination for each appellant. This is underlined by the fact that in the present case the cases of the appellants raised different critical aspects. The proceedings before the Tribunal When the case first came before the Tribunal, we were somewhat puzzled as to the operation of such a scheme and in particular the immigration function of the entrance card (in relation to entry clearance visa requirements) and the immigration consequences of an over age applicant for a scheme. At a resumed hearing of the case Mr Gammons indicated that he was not going to contend that the age of an applicant was of itself a justifiable ground for refusal of leave to enter. Lacking fraud, Mr Gammons saw the age as a matter for the operators of the particular scheme. In the light of his concession, the matters before us are first to establish the immigration function of the documentary evidence reflected by the Concordia entrance card or acceptance in the scheme and secondly, in the light of that function the justifiability of the refusal of leave to enter. The function of the "documentary evidence" within paragraph 33 HC 169 paragraph 33 suffers from its attempt to cover a number of diverse categories of entrant and from a failure to make clear the relationship of entry clearance, work permit and "other documentary evidence". We must however attempt to construe the various aspects of paragraph 33 in the light of the structure reflected in the Immigration Act 1971 and the Immigration Rules made under that Act as a whole. HC 169 paragraph 13 provides categorically that a passenger who holds an entry clearance "which was duly issued to him and is still current is not to be refused leave to enter" unless the immigration officer is satisfied on one of a number of specified grounds. Paragraph 33 provides that a person within the paragraph holding a current entry clearance "may subject to paragraph 13 be admitted . . .". It seems to us that taking the immigration structure as a whole, a person within paragraph 33 holding an entry clearance must be treated on the same basis as any other person claiming entry. It must follow, therefore, that despite the use of the word "may" in paragraph 33, given a current entry clearance, leave to enter may be refused only on the establishing of a ground specified in paragraph 13. Mr Yaansah argued that the Concordia entrance card in this case was a "entry clearance" within the meaning of the Immigration Act 1971 Section 33(1) (as set out above). It was, he urged, a document which in accordance with the Immigration Rules is evidence of a person's eligibility. Mr Yaansah based this contention on the provision in paragraph 27 of HC 169 that a person falling (inter alia) within paragraph 33 is eligible for entry and paragraph 33 provides that the possession of documentary evidence showing that a work permit is not required is eligible under that paragraph. The reference in paragraph 27 to visa requirements, said Mr Yaansah, is to the necessity for visa nationals to have visas. Mr Gammons contended that the Concordia entrance card was not issued in accordance with the Immigration Rules and that the Concordia brochure illustrated that immigration requirements were divorced from documents relating to acceptance into the scheme. In any event, said Mr Gammons, although an applicant relying on paragraph 33 does not need an entry clearance, the entrance card was not an entry clearance. It was not evidence of eligibility but only that a work permit was not required. In our view, in order to decide whether the entrance card is an entry clearance we must have regard not to the Concordia brochure but to the provisions of the Immigration Act 1971 and the Rules. Further, a document is issued in accordance with the Immigration Rules if the Rules so provide for it -- and if the Rules provide that a document not issued by the Home Office or the Foreign and Commonwealth Office is sufficient, then that document will be issued in accordance with the Rules. However, for a document to be an entry clearance it has to be a document which, in accordance with the Rules is to be taken as evidence of eligibility. We agree with Mr Gammons that under the Rules the entrance card is documentary evidence that a work permit is not required and whether this is an entry clearance must therefore depend on its function in accordance with the Rules. As the function of the documentary evidence is not made expressly clear by the Rules, a conclusion as to its function must depend on an analysis of the role of such evidence as compared with the entry clearance and the work permit alongside which it appears in paragraph 33. The Rules specifically provide that "visas, entry certificates and Home Office letters of consent" are to be taken as evidence of the holder's eligibility (paragraph 12). This eligibility can only be removed on the establishing of a ground specified in paragraph 13. A person holding a work permit is excluded from the statutory definition of entry clearance and the Rules provide a marked distinction in the power to refuse entry as between a work permit and entry clearance. A person holding a work permit may be refused leave to enter "for good reason" (see paragraph 28). As the Tribunal put to Mr Yaansah at the hearing, it would be curious if a person having documentary evidence showing that a work permit was not required had a more powerful claim to enter than a person who is required to have and does have a work permit. The documentary evidence showing that a work permit is not required may, as in this case, simply be a judgment by the provider of the evidence that the applicant falls within one of the categories of permit free entry specified in paragraph 33. Bearing that in mind and putting paragraph 33 into the immigration structure as a whole, in our view, the function of the documentary evidence consisting of the Concordia entrance card is simply to bring the applicant seasonal worker into the area of operation of general discretion to admit for the purpose of attending an agricultural camp under an approved scheme. That discretion is imported into paragraph 33 in respect of persons holding this documentary evidence by the word "may". If this approach be right it means that the introductory part of paragraph 33 regrettably treats two quite separate circumstances together. It refers first, to those within the paragraph who hold entry clearances and may only be refused leave to enter in accordance with paragraph 13 and secondly, those who do not hold such entry clearances but do hold documentary evidence that brings them within paragraph 33. In the latter case the applicant must then establish the case for entry bearing in mind the purposes of the proposed stay in the light of the wording of paragraph 33. As a consequence the words "subject to paragraph 13" operate as a restriction of the discretion imported into the paragraph in regard to leave to enter when an applicant has a current entry clearance. It follows that the documentary evidence of the entrance card is not equated by the Immigration Rules to an entry clearance. Its function is not to indicate eligibility for entry but eligibility for consideration of entry. The factors which may be considered as relevant to the exercise of discretion are those which may be taken to be relevant to the purpose of the proposed visit. We agree with Mr Gammons that among those factors are those of the purpose of the stay and the duration, a conclusion underlined by the provisions of paragraph 117 which limits any extension of leave which may be granted to a seasonal worker. It follows that in our view the immigration officer was entitled to consider the grounds on which he relied and that the remaining issue is whether he was justified in refusing entry on these grounds. Justifiability of the refusal of leave to enter Approaching the matter in the context of the scheme, ie that this is a scheme for youth workers and bearing in mind the circumstances of the appellant we think that on the evidence before him the immigration officer was justified in refusing leave to enter. The appellant was certainly an unusual participant in a scheme of this nature both because of his age and because of his family circumstances. Taking these together with the doubt about the appellant's ability to return to Nigeria we think that there were justifiable grounds for the refusal of leave to enter. Further, we think that the communications from the appellant subsequent to the decision do not remove the doubts which in our view were justifiably held by the immigration officer. While certain details were contested the critical factors remain of the unlikelihood of a person of the appellant's age and in the appellant's circumstances participating in the volunteer fruit picking scheme. In our view, the decision to refuse leave to enter was justified in that the appellant on the balance of probability had not made his case for the reasons stated in the notice of refusal.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

United Kingdom Immigrants Advisory Service.