Nasir Ali Parsaiyan v. Visa Officer, Karachi

Nasir Ali Parsaiyan v Visa Officer, Karachi

Queen's Bench Division

[1986] Imm AR 155

Hearing Date: 12 March 1986

12 March 1986

Index Terms:

Practice and Procedure -- whether at the hearing of an appeal the Secretary of State can rely on a reason for refusal not included in the original notice of refusal -- whether the appellate authority hearing the case can determine the appeal by applying an element in the immigration rules not relied on or considered by the parties: Immigration Act 1971, ss 3(5)(a), 3(5)(c), 19, 20; HC 169, paras 21, 22; Immigration Appeals (Procedure) Rules 1972, r 6(3); Immigration Appeals (Notices) Regulations 1972, s 4(1)(a)

Held:

The appellant was refused entry clearance as a student. The notice of refusal gave as the only reason that the visa officer was not satisfied 'that you intend to leave the United Kingdom when your studies are completed'. The appellant appealed to the Tribunal after his appeal had been dismissed by an adjudicator. Before the Tribunal the representative of the respondent sought to rely on the additional basis that the appellant was 'not a genuine student'. Before dealing with the case on its merits the Tribunal reviewed the authorities, not all consistent, on whether the immigration and appellate authorities were in subsequent proceedings bound by the terms of the original notice of refusal. Held: 1. Following ex parte Hubbard, the appellate authorities were not restricted on appeal on the grounds or reasons specified in the notice of refusal, albeit that freedom was restricted as set out in that judgment. 2. A distinction had to be drawn in relation to deportation cases where the decision to initiate deportation proceedings had to be based on a specific statutory provision, which would prevent a late switch to another statutory provision within s 3(5) of the 1971 Act. Obiter: while the immigration authorities have no duty to consider any other elements in an immigration rule if they consider a refusal is justified on one particular ground, the more grounds applicable to a case that are considered initially, the more smoothly the appellate system will operate. In some cases where only one ground has been considered there will remain, on the determination of the appeal, other matters still open for decision by the immigration authorities with in consequence delays in the final disposal of causes.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Mehmet [1978] Imm AR 46 R v Immigration Appeal Tribunal ex parte Kwok on Tong [1981] Imm AR 214 R v Immigration Appeal Tribunal ex parte Mehra [1983] Imm AR 156 R v Immigration Appeal Tribunal ex parte Hubbard [1985] Imm AR 110 Swati v The Secretary of State for the Home Department [1986] Imm AR 88 R v Immigration Appeal Tribunal ex parte Malik (unreported, QBD 16 November 1981) R v Immigration Appeal Tribunal ex parte Akhtar (unreported, QBD 7 April 1982) Mohammad Ashiq (unreported) (4316)

Counsel:

EA Yaansah for the appellant; P Curwen for the respondent. PANEL: Professor DC Jackson (Vice-President) Mrs A Weitzman JP, BL Shibko Esq

Judgment One:

THE TRIBUNAL: The appellant appeals against a decision by an adjudicator (Mr WJ Coley) dismissing his appeal against the refusal of a student entry clearance to allow him to take a one year course in computer science. The notice of refusal dated the 25 September 1984 reads: "You have applied for a visa with a view to admission to the United Kingdom as a student but I am not satisfied that you intend to leave the United Kingdom when your studies are completed". The immigration rules applicable to the appellant's case are those set out in HC 169 paragraphs 21 and 22. "21. A passenger seeking entry to study in the United Kingdom should be admitted (subject to paragraph 13) if he presents a current entry clearance granted for that purpose. An entry clearance will be granted if the applicant produces evidence which satisfies the entry clearance officer that he has been accepted for a course of study at a university, a polytechnic or further education establishment, an independent school or any bona fide private education institution; that the course will occupy the whole or a substantial part of his time; and that he can, without working and without recourse to public funds, meet the cost of the course and of his own maintenance and accommodation and that of any dependants during the course". "22. An applicant is to be refused an entry clearance as a student if the entry clearance officer is not satisfied that the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it. In assessing the case the officer should consider such points as whether the applicant's qualifications are adequate for the course he proposes to follow, and whether there is any evidence of sponsorship by his home government or any other official body. As general rule an entry clearance is not to be granted unless the applicant proposes to spend not less than 15 hours a week in organised daytime study of a single subject or of related subjects, and is not to be granted for the taking of a correspondence course". At the outset Mr Curwen said that he wished to rely on a basis for refusal not included in the notice of refusal -- that the appellant was not a "genuine student". While such a conention may overlap with the ground of the notice of refusal it raises issues not necessarily raised by the question of the appellant's intention to leave the United Kingdom at the end of his studies. We therefore heard argument on our jurisdiction to consider matters not forming part of the notice of refusal. The relevance of the notice of refusal to matters raised on appeal This question has been canvassed in several cases in the High Court resulting -- unfortunately -- in somewhat differing decisions. In Mohammad Ashiq (4316) the Tribunal had to consider the same question as is now posed and in particular had to choose between the directly conflicting views of Mann J in R v IAT ex parte Mehra [1983] Imm AR 156 and Woolf J in R v IAT ex parte Hubbard [1985] Imm AR 110. In Hubbard, Woolf J held that the appellate authorities were not restricted on appeal to the grounds or reasons specified in the notice of refusal. The learned judge said that a preferable interpretation of the Act is one "which leads to the result that the adjudicator, having found the facts, is entitled to apply the immigration rules as applicable to the case having regard to the facts that he has found". As the Tribunal said in Ashiq, Woolf qualified this. The learned judge ". . . added that there were important provisoes attached to this principle, one of which being that the appellant had a proper opportunity of fairly stating his case and the other (which the learned Judge simply noted) that the adjudicator should not seek to go behind a finding of fact of the Secretary of State favourable to the appellant. Woolf J pointed out that any different interpretation of the Act would lead to a situation in which an adjudicator would have to allow an appeal even though on the facts found by him an applicant for entry was not entitled to leave to enter". Woolf J specifically disagreed with the approach of Mann J in Mehra -- ie, that it was not open to the Secretary of State to rely on any "ground" other than that contained in the notice of refusal but that it was, however, open to the Secretary of State to substitute or add reasons for his decision which had not been so stated in the notice. In Hubbard Woolf J specifically disagreed with the distinction between grounds and reasons saying that the "argument against limiting the powers of the appellate body appears to me to be equally strong whether one applies it to grounds or reasons". In the course of his judgment in Hubbard, Woolf J referred to other previous decisions -- R v IAT ex parte Kwok on Tong [1981] Imm AR 214 (Glidewell J), R v IAT ex parte Mehmet [1978] Imm AR 46 (a full Divisional Court), R v IAT ex parte Akhtar (7 April 1982) (McNeill J), and R v IAT ex parte Malik (16 November 1981). As Woolf J said, the point for which Malik was cited goes to the ability of the appellate authority to exercise a discretion not exercised by the Secretary of State. While this issue no doubt is more likely to arise if the authority may consider grounds not contained in the notice it does not go directly to the ability to consider such grounds. In Ashiq the Tribunal applied Malik. We in turn accept the principle that if the Tribunal finds that the rule applicable to a case involves discretion, it will normally not be right for the initial exercise of that discretion to be by the appellate authority. This is underlined by the now well-established distinction between the administrative function of the Secretary of State and the judicial review function of the appellate authorities. Mr Yaansah right said that in Ashiq the Tribunal had not heard argument on the relationship of Hubbard with Tong, Akhtar and Mehmet. He contended that Hubbard could not stand either with Akhtar or Mehmet. The issue in Mehmet was whether in the course of proceedings before the appellate authority, the Secretary of State was entitled to change the basis of deportation from Section 3(5)(c) of the Immigration Act 1971 (member of a family) to Section 3(5)(a) (overstay). In Mehmet Lord Widgery CJ referred to the need to specify the ground on which deportation was based under the legislation and regulations. He said: ". . . No notice was given in respect of the wife and daughter which specified that the basis of the claim was s 3(5)(a). It does not seem to me to be logical or right that, having reached that situation, the authorities should be entitled to change horses halfway and proceed under s 3(5)(a) when no case against the applicants under para (a) of the subsection was developed at all". In Hubbard Woolf J said of Mehmet: ". . . I do not regard that decision as being helpful because in that case, the applicants sought to change horses midway through the deportation process and the Divisional Court said that that was not permissible. That was a wholly different situation to that under consideration here". The appellate authorities can only act in exercise of the jurisdiction conferred upon them by sections 19 and 20 of the Immigration Act 1971. The argument that they are not restricted to a consideration of the grounds set out in a notice of refusal hinges upon the provisions of section 19(1) of the Act, which requires them to allow an appeal only if the decision appealed against is not in accordance with the law or any immigration rules applicable or involves a wrong exercise of discretion. In deportation cases, a decision to make a deportation order will not be in accordance with the law if the facts leading to the decision are not such as to justify it under the statutory provision quoted in the notice of refusal -- notwithstanding that they might justify a refusal under a different statutory provision. Similar considerations apply to an applicant for entry clearance. A second application made after an initial application and during appellate proceedings would involve different considerations (ie "change horses midway through the process"). The process would therefore have to start again. A refusal of an application for entry clearance will not be in accordance with the law if based on grounds not relevant to the application made or if it cannot be justified on a ground relevant to the application made. However a refusal is justified on any ground relevant to that application -- there is no "change of horses" in the sense that the appellate authorities are not faced with an issue not raised by or connected with the initial step in the process. It does not therefore seem to us that the decision in Mehmet can be seen as restricting appellate authorities in the context of applications for entry to the ground specified in the notice of a refusal. Even if it could, it is clear that Woolf J had the decision fully in mind in deciding as he did in Hubbard. The issue in Akhtar as whether it was open to an appellate authority to consider if an appellant before it was an illegal entrant if the Secretary of State had not declared the appellant so to be. McNeill J held that it was not open to the authorities to take this decision. First, said the learned judge, by statute the decision was for the Secretary of State and secondly, "the appellate authorities under the Procedure Rules are only entitled to determine that which is remitted to them for determination". The learned judge referred in some detail to the Immigration Appeal (Procedure) Rules 1972 and concluded that "the appellate authorities' powers -- jurisdiction, if that be the appropriate word -- are wholly restricted to deciding that which is referred to them for decision by the notice in grounds of appeal, varied or amended as they may be by rule 6(3) and the respondent's written statements". The learned judge added that in addition "justice and the purpose and intent of the statute and the regulations can only be satisfied if the appellate authorities remain within the confines of the notice of appeal and the grounds there stated and on the other side the statement of reasons for the decisions". In his reference to Akhtar in Hubbard, Woolf J agreed with the conclusion that it was not open to the appellate authorities to treat a person as an illegal entrant when that person had not been so treated by the Secretary of State. Woolf J then said of McNeill J's view that the appellate authorities were restricted to the terms of the notice: "So far as that deals with the situation at the outset of the tribunal's investigations, again I do not dissent. However, if in the course of properly carrying out the jurisdiction referred to by the learned judge, facts are found which make it appropriate to consider a different part of a rule, or a different rule, or a different circumstance, then in my view, the passage in the judgment should not be taken as suggesting such a consideration is not possible. It is to be noted that the reference which the learned judge makes to the respondent's written statement includes a possible expansion or amendment of that statement". In Akhtar, McNeill J referred at length to Mehmet as an illustration of the limitation on authority to "change horses" part way through a decision making process under the immigration laws. McNeill J also referred to the decision in Tong stating that Glidewell J had not been referred to Mehmet. The view taken by Woolf J in Hubbard is consistent with that taken by Glidewell J in Tong and we are therefore faced with, on the one hand these two decisions and on the other the view of McNeill J in Akhtar and the decision of the Divisional Court in Mehmet. It should be said that as the Mehmet the issue in Akhtar did not concern an application for entry but nevertheless McNeill J was expressing a general view as to the restriction on matters which can be raised on appeal. We agree with Mr Yaansah that it is difficult to see consistency between the approach of McNeill J and that adopted in Hubbard. It is, however, clear from Woolf J's approach in Hubbard that he would disagree with the approach in Akhtar in so far as it would limit consideration by the appellate authorities, at least in cases concerned with applications for leave to enter, to the notice of refusal. We do not think that it can be said that the learned judge did not fully consider Akhtar and if for no other reason we would feel bound to follow Hubbard. However, it will have become apparent from our earlier comments that with respect we agree with the approach in Hubbard. In our view, for an appeal against the refusal of entry clearance to succeed, the decision to refuse -- irgnoring the question of any exercise of discretion -- must be "not in accordance with the law or any immigration rules applicable". The reasons for such decision need not be limited to those given on the notice of refusal. If that were to be the case, either the appellate authority would have to allow an appeal, which could subsequently entail a further refusal on a different ground, or it would be obliged to find that an applicant should not be refused leave to enter although there were clearly grounds on which he could be so refused. That is, however, not the end of the saga. Mr Yaansah relied also on the judgment of Sir John Donaldson in Swati [1986] Imm AR 88. The issue in that case relevant to the case before us was whether the notice of refusal complied with the Immigration Appeal (Notices) Regulations 1984. The notice of refusal read: "You have asked for leave to enter the United Kingdom as a visitor for one week but I am not satisfied that you are genuinely seeking entry only for this limited period". The requirement of the Notices Regulations was that the decision being appealable, the notice should "include a statement of the reasons for the decision or action to which it relates" (Regulation 4(1)(a)). The Court of Appeal held the requirement to be satisfied and that what the appellant was seeking was a statement of the facts relating to the refusal or "reasons for the reasons". In the course of his judgment, however, the Master of the Rolls said: .. In the instant appeal the immigration officer, by specifying that she was not satisfied that Mr Swati was genuinely seeking entry only for the limited period of one week, not only told Mr Swati why she was refusing him leave to enter, but also told him, by implication, that he had satisfied her on all other matters upon which he had to satisfy her in accordance with paragraphs 15 and 17 of HC 169". Parker LJ dealt with the same points somewhat differently: ". . . By the terms of the notice the immigration officer clearly stated upon what ground, amongst several which might have applied, she had refused leave. That is the reason and the only reason for the refusal. It may be that the immigration officer was satisfied as to other matters or merely that, being dissatisfied on the first of the requirements in paragraph 17, she felt it unnecessary to consider the remainder. It does not matter". Stephen Brown LJ did not refer to the effect of the statement of one reason on other relevant grounds or reasons. The learned judge held that "the immigration officer in this case gave an adequate and proper reason for refusing leave to enter". He also said that he was in "complete agreement" with the judgment of the Master of the Rolls. If the statement by the Master of the Rolls reflects the legal effect of the reliance on one ground in a notice, it means in effect that that which was seen as an issue in Tong, Akhtar, Mehmet and Hubbard was in effect a non-issue. There would be no point in an appellate authority going outside a notice of refusal, for the specification of the ground in the notice negates all other grounds and operates as a decision as to those grounds. As a consequence it will mean, we fear, that notices would no doubt be expressed in the most general terms so as not to exclude grounds. If we may say so, with respect, this seems contrary to the purpose of the notice which is to alert the applicant as to the particular grounds applied initially in his case. The purpose of the notice being to provide such information, we can appreciate the perhaps inconsistent circumstance if when an appeal is made an applicant is then met by a ground not initially relied on. The view expressed in Swati by the Master of the Rolls would in effect meet this point. However, such a view must be based on a legal obligation by the entry clearance officer, immigration officer or Secretary of State initially to consider all grounds. With respect we do not see the immigration structure imposing such a duty anymore than the appellate authority is under any duty to go beyond one ground in dimissing an appeal. Having said this, however, we would stress that the more applicable grounds are considered initially the more smoothly the appellate system operates. We have set out above our view of the obligations of the appellate authorities to act according to the terms of sections 19 and 20 of the Immigration Act 1971. It seems to us, therefore, that while an initial decision may quite validly rely only on one applicable ground, the appellate authorities in cases of applications for leave can only declare a refusal not to be in accordance with the law if in its view there is no ground on which such a refusal could be justified. Whether, in any case, in such circumstances a decision remains to be made by the Secretary of State will depend upon the facts and contexts of each case. In view of the potentially very serious consequences which might ensue from a mistaken application of the remarks of the Master of the Rolls, we have given anxious consideration to the effect they must have on our decision: it is to be noted that the decision in Swati turned upon a number of points, none of which was dependent on the remarks of the Master of the Rolls. In our view the ratio of the decision on the "notice" point (in which context the remarks were made) was that the notice complied with Notices Regulations as giving "an adequate and proper reason for refusing leave to enter". The remarks formed no part of this ratio and Parker LJ expressed a differing opinion. Stephen Brown LJ did not specifically consider the matter. In these circumstances we consider, with the greatest respect, that the approach adopted in Hubbard, consistent as it is with the approach of Parker LJ, may be and should be maintained. It follows that in this case Mr Curwen may raise the question of the genuineness of the appellant as a student. We turn now to the merits. The merits of the case On 25 September 1984 the appellant who is a citizen of Iran applied for entry clearance in Karachi in order to study in this country. He supported his application with a letter of acceptance from Computer Training International of Oxford Street, London, certifying that he had been accepted for a full time "combined ABAC Operations Certificate, Programming Certificate and Diploma course" which was to commence in either February or April 1984 and to last for one year. There was also an official receipt for the fees. The entry clearance officer summarised his doubts as follows: ". . . However, I had to consider that the appellant had failed to complete the university degree course due to a lack of funds and that he provided no firm evidence to support the claim that he himself had paid the tuition fees and that he had adequate money available to cover the cost of his accommodation and living expenses during his stay in London. I also had to take account of the fact that he stated he would travel to Iran to find employment. This I found very difficult to accept in view of the current situation there and the fact that Mr Parsaiyan had spent almost all of his life in Pakistan. I noted that Mr Parsaiyan spoke good English and that with qualifications in computer science he would be able to find a job in the United Kingdom without too much difficulty. Furthermore Mr Parsaiyan is a 31 year old single man with only parents and relatives in Pakistan". On the basis of these considerations, according to the explanatory statement, the entry clearance officer concluded that he was not satisfied "that the appellant was going to the United Kingdom for study purposes only and that he would leave the United Kingdom on completion of his studies there". Further evidence was submitted before the adjudicator -- a certificate from Habib Bank Limited, Karachi, testifying that the balance standing to the credit of the appellant on the 14 October 1984 was US $4500, a degree certificate showing that the appellant in 1980 had been awarded the BSc degree and a letter stating that he did not pursue the course for MSc as he did not find it necessary and a burden on his family. Also in the letter the appellant stated that "computer is a new developing science" and there are ample opportunity both in Iran and Pakistan. The adjudicator concluded: "Although the appellant is a citizen of Iran he appears to have lived all his life, or at least most of it, in Pakistan. I notice that the appellant did not proceed to an MSc degree because of the burden on his parents. The appellant has paid @1,975 fees and anticipates expending a further US $4,500 to enable him to follow a 1-year computer course in London notwithstanding that courses of this nature are available in Karachi. The appellant told the Entry Clearance Officer that on completion of the course, as he spoke Persian, he would probably go to Iran to find a job. Having regard to the current situation in Iran, I find it very difficult to accept that statement at face value particularly as the appellant told the Entry Clearance Officer he had not made any arrangements for employment there and had only once been to Iran in 1978 for three months. The appellant maintained that he has been saving for four years to pay the fees and cover his maintenance costs in the United Kingdom for one year. There is very little evidence, in fact no evidence, as to the source of his funds and it seems to me unrealistic for the appellant to spend four years avings to attend a course in this country when he could attend a suitable course in his own, presumably at very little expense. In my view there are reasonable grounds for believing the appellant is not a genuine student who will leave this country of his volition after follwoing a course here for one year at very considerable expense. In the circumstances I can see no reason to interfere with the decision properly reached by the Entry Clearance Officer". Through the grounds of appeal and oral argument Mr Yaansah argued that the adjudicator erred in that (i) there was no evidence that the computer courses of the type which the appellant wished to attend in London were available in Karachi -- those in Karachi offered qualifications up to certificate level (ii) contrary to the adjudicator's view, there was evidence as to the sources of the appellant's funds and in any event it is the existence of funds which is a material fact (iii) that it was reasonable for the appellant to state that he would seek employment in Iran as he had 3 sisters living in Iran and that there was computer work in Iran (iv) the adjudicator failed to distinguish between graduate academic studies (ie, MSc at Karachi) and vocational studies (ie, computer training). Mr Yaansah also pointed out that the appellant did not fail to complete the university degree but simply opted not to continue to graduate training. Mr Yaansah also found surprising the statement by the entry clearance officer that he found it difficult to accept that the appellant would travel to Iran to find employment. Mr Yaansah argued that the adjudicator had simply repeated the statements of the entry clearance officer and then concluded that there were reasonable grounds for believing that the appellant was not a genuine student. Mr Curwen argued that a genuine student was one who intended to take a course and leave at the end and the consideration of genuineness leads to intention. When pressed with the point that the appellant had paid his fees, Mr Curwen said, it was feasible that this could be done to obtain entry. It was always possible that as a citizen of Iran the appellant would be subject to conscription and this would be a possible reason for not wanting to go to Iran. Why, asked Mr Curwen, should the appellant spend money on a computer course in the United Kingdom? Would it not be more sensible to take some kind of aptitude test before venturing on such a course? Conclusions To us the appellant's plans seem entirely reasonable. Further, it does not seem to be seriously arguable on the evidence presented that the appellant would not be able to pay his way. His fees were paid and the evidence before the adjudicator showed funds which would support him. It does seem to us that the decision not to proceed to an MSc is perfectly defensible as is indeed the decision to obtain training in computers. Furthermore, it is also sensible in our view to seek to obtain that training in a country other than one's own and to do so in this country. While, the situation in Iran must be a factor to take into account in assessing the genuineness of the appellant's plans, it does not seem to us that on the evidence it is of great weight in this case. We are therefore satisfied on the balance of probablities that the appellant was genuinely seeking entry as a student and that there was no evidence on which to justify a conclusion that he did not intend to leave on the completion of his studies. The appeal is therefore allowed in so far as we declare that the refusal of leave to enter was unjustified. No doubt the entry clearance officer will consider any further application in the light of this determination.

DISPOSITION:

Appeal allowed

SOLICITORS:

United Kingdom Immigrants Advisory Service

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