Masumali Sherif Mawji Nasim Masumali Mawji Shamira Mawji v. Secretary of State for the Home Department
 Imm AR 290
Hearing Date: 2 May 1986
2 May 1986
Practice and Procedure -- whether an invalid notice of a decision issued under the 1971 Act and the 1972 Notices Regulations invalidated the decision to which it referred -- whether there could be waiver by conduct of an irregularity in a notice of decision: Immigration Act 1971 ss 4, 18(2): Immigration Appeals (Procedure) Rules 1972, r 38: Immigration Appeals (Notices) Regulations 1972 rr 3, 4(1).
Businessman -- application for variation of leave to set up business in the United Kingdom -- where imprecise plans are not fatal to such an application -- the approch to be adopted 'in theround'. HC 80 Paras 21, 28.
Held:The facts are set out in the determination. Held: 1. A notice of a decision taken under the immigration rules which is itself invalid as not complying with the Immigration Appeals (Notices) Regulations will invalidate the decision to which it relates. Such invalidity cannot be cured by the application of rule 38 of the Immigration Appeals (Procedure) Rules. 2. Nevertheless it is possible for the invalidity of a notice to be cured by waiver, including waiver by conduct. 3. On the facts, the notice issued in this instant case in relation to the refusal of leave under appeal was a valid notice. 4. Although, as the Court of Appeal ruled, an imprecise plan to establish a business is not fatal to an application for leave as a businessman, nevertheless, in considering such an application 'in the round' the nature and definition of the applicant's plans must be relevant circumstances.
Cases referred to in the Judgment:Suthendran v Immigration Appeal Tribunal  Imm AR 44. R v Immigration Appeal Tribunal ex parte Peikazadi and anr [1979-80] Imm AR 191. R v Immigration Appeal Tribunal ex parte Kwok on Tong  Imm AR 214. R v Immigration Appeal Tribunal ex parte Mehra  Imm AR 156. Mohammed Noorhu v The Secretary of State for the Home Department  Imm AR 190. R v Immigration Appeal Tribunal ex parte Kotedia (unreported, QBD 25 October 1984). R v Immigration Appeal Tribunal ex parte L Ron Hubbard  Imm AR 110. Farah (unreported) (3559) Manaf (unreported) (3965)
Counsel:KS Nathan for the appellants A Gammons and R Parsons for the respondent PANEL: Professor DC Jackson (Vice President) Lady Bonham-Carter JP, Major RAK MacAllan MC
Judgment One:THE TRIBUNAL: This case comes to us by order of the Court of Appeal dated 29 October 1984 in which the Court ordered "that the Immigration Appeal Tribunal do and they are hereby commanded to re-hear and determine the applicants' application according to law". The case has its origin in 1977. Because of the course that the case has taken before us it is necessary to set out the circumstances of the appellants' applicaton made in 1977 and the response to it. The appellants are husband, wife and daughter. On 4 October 1977 they were admitted to this country for one month as visitors, the visit being for the purpose of seeing Mr Mawji's father who was then seriously ill. By letter of 28 October 1977 the appellants' solicitors made an application on their behalf. After setting out the background to the initial visit the letter continued: "When they entered this country, our clients notifed the Immigration Officer that they wished to remain here only for a visit and this was certainly our Clients' intention at the time of entry. Our Clients have now learnt that it will be necessary for the father to remain in hospital for at least one year as he is suffering from tuberculosis of the spine. Mr Mawji is the elder son of the family and feels a responsibility to look after his father. Since discovering the condition of his father's health, he considers it his filial duty to be present with his father in this country and has accordingly asked us to apply on his behalf to remain in this country on a permanent basis. It will be appreciated that had our Client left Uganda and headed straight for this country at the time of the Asian exodus he would, in all probability, have received permission to remain in this country under the special arrangements in effect at that time. We trust that you will consider that there are extenuating circumstances so as to permit our Client to remain in this country as requested. As further evidence in support of our Clients' application we are enclosing a letter from United Bank Ltd showing the sum of almost @40,000 to be invested in this country in the joint names of our Client Mr Masumali Mawji and his brother Mr Mohamed Mawji. Our Client has informed us that the sum invested is owned equally between himself and his brother. In the circumstances it will be apparent that our client has more than sufficient funds so that his remaining in this country would not be a burden on the State. Our Client has stated that he would like in due course to set up a business in this country although it would be appreciated that he does not at present have a definite business in mind in view of the fact that it is only in the last few days that he has formed an intention to remain in this country on a permanent basis should he be granted permission to this effect". In support of the applications the solicitors submitted a letter from the United Bank Limited dated 26 October 1977 stating:
"This is to certify that the balance in the joint account of Mr Masumali S Mawji and Mr Mohamed Jaffer Mawjee as at the clsoe of business on 25-10-77 was @39,948-76 (Pounds Thirty nine thousand nine hundred forty eight pence seventy six only)."In response to this letter a notice of refusal was issued on 17 April 1978 reading:
"Messrs Farmar, Miller & Turnsek have applied on your behalf for variation of your leave to enter so as to permit you to remain in the United Kingdom permanently but the Secretary of State does not consider that you qualify to do so under any of the Immigration Rules."The appellants appealed. The notice of appeal specified the particulars of the decision appealed against as "Permission to remain in this country permanently". The grounds of appeal included "The principal Appellant seeks the consent from the Respondent to enable him to commence a business with his @20,000 which he already has in this Country". The explanatory statement (dated 4 October 1978) set out the terms of the application and summarised interviews between an immigration officer and the appellants on 2 March 1978. The opening words of paragrph 7 of the statement are: "7. The principal appellant confirmed that he wished to remain in the United Kingdom permanently in order to set up in business. He said that when granted permission to stay here he would invest his money in a business probably a shop which he would run with his wife; he had no specific business in mind and did not intend to join an existing business as a partner". The paragraph continues in reviewing the evidence relating to the appellants' financial assets. In paragraph 10 of the statement a number of grounds on which the appellants may have had a claim to remain in this country were reviewed, the paragraph commencing with the words: "10. The principal appellant wished to set up in business here but had not taken any steps or made any enquiries regarding this possibility. He had no evidence that his claimed assets were at his sole disposal. Furthermore, he would have to remain here for 4 years as an approved businessman before he would qualify for settlement, in accordance with HC 80 paragraph 28". The paragraph then records that the Secretary of State considered whether the appellants had any claim as persons of independent means, close relatives of persons settled here and political asylum. The conclusion was expressed: "The Secretary of State was thus not satisfied that the appellant met the requirements of the immigration rules concerning businessman, persons of independent means or political asylum, nor that they qualified to remain here permanently under any of the rules. Morever, the Secretary of State was not satisfied that ther were any exceptional compassionate circumstances which would justify him considering the application outside those rules. The application was refused on 17 April 1978 in accordance with paragraphs 21, 28, 29 and 30 of HC 80". Of these paragraphs, paragraphs 21 and 28 are applicable to a "businessman" application -- it is such an application that lies at the centre of this case. So far as relevant the paragraphs read: "21. People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants . . . Where the application is granted the applicant's stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment. A person admitted as a businessman in the first instance may be granted an appropriate extension of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially". "28. When a person who is admitted in the first instance for a limited period has remained here for 4 years in approved employment or as a businessman or a self-employed person or a person of independent means, the time limit on his stay may be removed. Applications for removal of the time limit are to be considered in the light of all the relevant circumstances, including those set out in paragraph 4". (Paragraph 4 provides general grounds for refusal, for example, conduct and association, and is not relevant in this case). The appeal first came on for hearing before an adjudicator (Mr Dawson) on the basis of a political asylum claim and a businessman claim under paragraph 21 of HC 80. The adjudicator declared he had no jurisdiction in regard to the political asylum claim and seems not to have reached a conclusion on the businessman claim. On appeal to the Tribunal the case was remitted. On remittal the case was again argued on the two grounds of an application to set up in business and of a claim to political asylum. Of the businessman application the adjudicator said that he did not consider the fact that the appellant had not made any firm proposals fatal to the application but he dismissed the appeal on the ground of lack of available capital. At the hearing of the appeal from this decision to the Tribunal, Mr Nathan is recorded as basing his argument on two issues "business and political asylum". One of Mr Nathan's points in regard to the businessman appeal was that the Home Office had not considered the business application at all. The Tribunal dealt with the business application in the context of HC 80 paragraph 21 holding that it was a prerequisite for success under that paragraph that a particular business be specified. In considering an application for judicial review Woolf J, referring to the appellant and his business application said, "The application which he made to be allowed to remain permanently was regarded as being an application to remain for the purpose of setting up business". On appeal from the refusal of judicial review to the Court of Appeal Stephenson LJ set out the appellants' solicitors' letter of 28 October 1977 and the relevant paragraphs of the explanatory statement. In fitting HC 80 paragraph 21 to the appellant's case, the learned judge referred to the appellants' counsel Mr Scrivener, and his arguments saying: "Mr Scrivener points out that under the part of paragraph 21, which I have read, he can be on probation, as it were, for twelve months, conditionally upon his not taking employment or his employment being restricted, and the position can be reviewed at the end of four years under paragraph 28". Fox LJ agreeing said: "It is accepted that the Appeal Tribunal misdirected itself in law in concluding that under paragraph 21 the appellant was bound to demonstrate as a prerequisite a specific business in which he proposed, or wished, to engage himself. The result was that the appellant did not get a hearing, to which he was entitled under the statute, in which the Tribunal properly directed itself on the law and then applied it to the known facts. Prima facie therefore, I think there should be a rehearing". Purchas LJ delivered a concurring judgment. At the hearing of the case remitted to us Mr Nathan raised a preliminary point. He took for the first time the point that the original notice of refusal was invalid. Both Mr Gammons and Mr Nathan agreed that in the light of these submissions we should hear argument and rule on the question of validity of the notice of refusal and only if we were of the opinion that the notice was valid would we set the case down for hearing on the merits. the validity of the notice of refusal The legislative structure relevant to the need for and contents of a notice and the ability to amend or consider grounds or reasons other than those specified in such a notice is contained in the Immigration Act 1971 sections 4, 18(2) and (so far as this case is concerned) the Immigration Appeal (Notices) Regulations 1972 Regulations 3, 4(1). These provisions read: "3(1) Subject to the following provisions of this Regulation, where any decision or action which is appealable (or would be appealable but for the ground on which it is taken) is taken, written notice thereof shall as soon as practicable be given in accordance with the provisions of these Regulations to the person in respect of whom the decision or action is taken". "4(1) Subject to the provisions of paragraph (2), any notice given under Regulation 3 shall -- (a) include a statement of the reasons for the decision or action to which it relates; (b) if it relates to the giving of directions for the removal of any person from the United Kingdom to a country or territory specified in the directions, include a statement of that country or territory; and (c) be accompanied by a statement informing the person in respect of whom the decision or action has been taken of -- (i) his right of appeal if any and the relevant provisons of the Act; (ii) the manner in which the appeal should be brought and the address to which a notice of appeal should be sent; (iii) the time within which an appeal should be brought; and (iv) the facilities available for advice and assistance in connection therewith.". Mr Nathan argued that the notice of refusal (set out above) was defective in that it did not give any (or any sufficient) reason for the decision and secondly, that if it did give such a reason, that reason did not go to the businessman application made by the appellant. The notice dealt only with permanent settlement. Any application to remain for permanent settlement as a businessman, said Mr Nathan, would have to be considered under HC 80 paragraph 28, and any application based on that ground must fail in this case as in 1977 the appellant had not been in this country for 4 years. It could not be argued that the notice referred to leave to remain as a businessman as it focused solely on permanent settlement. The notice was therefore invalid, not complying with the applicable notice regulations. Mr Nathan said that the Act and regulations must be construed strictly in that there was no provision to cure any defect. The present case was to be distinguished from the decisions of Mann J in R v IAT ex parte Mehra  Imm AR 156 and Woolf J in R v IAT ex parte Hubbard. In the latter two cases the notice was clear and the issue in each case was whether reasons or grounds other than that set out int the notice could be relied on. The present case was concerned with compliance with the Notices Regulations and the requirement that any notice should include a statement of the reasons for the decision. Further, waiver had no part to play as the point at issue concerned jurisdiction and in any event the case was concerned solely with the question of statutory construction. On remittal to the Tribunal the case was at large and it was open to us to declare that the Secretary of State had failed to consider the businessman's application. Mr Gammons argued that even within the principles of Mehra the notice was not invalid. There was no businessman application and any defect in the notice went to "reasons" and not "grounds". Any defect was cured by the explanatory statement through the reference in the statement to HC 80 paragraph 21. The appellant was not prejudiced, he knew of all the relevant factors and he was not taken by surprise. Further, the defect could be waived and alternatively we should apply the principle of de minimis, such an approach being justified on the basis of Rule 38 of the Immigration Appeal (Procedure) Rules 1972. By virtue of that provision any procedural defect not relied on promptly could be bypassed. In the alternative Mr Gammons took a more fundamental point -- arguing (contrary to the Tribunal decision in Noorhu  Imm AR 190) that an invalid notice does not invalidate the decision to which it relates. He said that the notice at issue in this case went to the right of appeal and was made under the Notices Regulations in turn made under Section 18 of the Immigration Act 1971. The decision in this case was made under Section 4 of that Act and the only defective notice which could arguably affect that decision was a notice going to the decision and required by Section 4. In this case the decision was to refuse leave and there was no requirement under Section 4 of a notice in writing of such a decision. The notice requirement of Section 4 was mandatory and related directly to the decision. The notice of requirement of Section 18 was procedural in purpose and any defect could be cured -- as in this case by the explanatory statement. The notice under Section 18 was a product of the decision under Section 4 and it is illogical to read the invalidity of a notice which is the product of a decision as invalidating the decision which produced it. The serving of a defective notice in respect of the right to appeal from a decision had no effect on the decision which did not, by the Act, require a notice in writing. Conclusions as to the validity of the notice i. Does a defective notice invalidate the decision? Neither the Immigration At 1971 nor the Notices Regulations made under Section 18 of that Act make any reference to the effect of non-compliance with the obligations imposed by the Regulations. That effect must therefore be construed according to the immigration structure and the place of the obligation in that structure. We accept Mr Gammons' distinction between the notice of decision required by Section 4 of the Act and the notice required by the Notices Regulations to this extent -- that the written notice of Section 4 represents the decision itself while the notice under the Notices Regulations is notice of a decision. It is apparent that the purpose of the latter is to provide the information necessry for an individual to exercise his right of appeal and may therefore be labelled as "procedural". While it is arguable that the effect of a defective notice is simply that no notice of the decision has been given, we do not accept that there is any inherent illogicality in a sanction for the failure to comply with the obligation to notify a decision, that the decision itself is invalid. It all depends on the importance of the notice to the decision itself and the relationship between decision and notice. If the defective notice has no effect on the decision it means that the decision continues in being and that all appellate proceedings are geared to a point in time which will have become removed (and therefore unrealistic) because of the failure of the Secretary of State to comply with an obligation imposed by a statutory instrument. This is particularly so in relation to deportation proceedings, evidence in regard to which is restricted to matters known to the Secretary of State at the date of decision. An individual would thus be penalised because of the failure of the Secretary of State to comply with a duty imposed on him. Secondly, to declare that an invalid notice has no effect on a decision makes a mockery of the obligation to give a written notice "as soon as practicable". What is the point of that obligation if the failure to give a notice as soon as practicable can simply be cured by a notice not given as soon as practicable? Thirdly, the argument that the decision stands assumes that the decision was based on a reason whereas it may be that the very reason why the notice is invalid is that it accurately reflects the decision. It can hardly be argued that in such a case that the decision should stand and there is no way which an appellant could discover whether the notice reflects a decision taken without reasons or omits to give the reasons on which the decision was based. Fourthly, if the decision stands it would terminate any leave conferred by the Immigration (Variation of Leave) Order 1976, thus affecting other rights of appeal as well as making an appellant such as the present into an overstayer. (See the Tribunal decision in Farah (3559)). Finally, we find support for our view in the view expressed by Forbes J in Kotedia (25 October 1984). ii. Was the notice defective? We agree with Mr Nathan that the decisions in Mehra and Hubbard are concerned with the adding or substituting of grounds or reasons in respect of a notice containing a ground or reason and thereby complying with the Notices Regulations. Further, if the notice is defective in our view such defect is not curable through paragraph 38 of the Immigration Procedure Rules, if for no other reason than that paragraph is restricted in its operation to irregularities under the rules. We are concerned with the issue of compliance with the Notices Regulations and there is no provision in those regulations allowing for the curing of any defect in a notice. The notice in this case could be said not to be as forthcoming nor perhaps as helpful as it could have been. However, it reflects precisely the appellants' application -- which was for permanent settlement. Unlike for example the notice at issue in Noorhu the notice provided a "reason" within the meaning of the Notices Regulations -- that the appellant did not qualify for permanent settlement. However, the question is whether the appellant impliedly applied for entry as a businessman even though he could not at the date of application qualify for permanent settlement as a businessman, and if so whether the notice satisfied the regulations in respect of such an application. In our view the appellant applied for permanent settlement and (unlike for example an application based on political asylum) it was not necessarily implied that he was alternatively seeking entry for a lesser time as a businessman. Further, in order to consider the application for permanent settlement the Secretary of State could take one of two courses -- either he could go straight to HC 80 paragraph 28 and rely entirely on the lack of a four year stay or he could go through paragraph 21 to paragraph 28, considering whether the appellant met any of the prerequisites to take the case to paragraph 28. The notice of refusal did not make clear which course the Secretary of State had taken, but this of itself did not mean that the notice ws invalid. The notice would be invalid (or irrelevant to) any application to which it was not addressed. However, the fact that it did not set out all the reasons for the refusal neither invalidates it nor (following Hubbard) prevents any ground or reason not set out in the notice from being raised and considered on appeal. This is not a case in which the application for permanent settlement is independent of any implied application for limited leave. On the contrary the application for permanent settlement depends on satisfying the requirements for limited leave. The appellant applied for permanent settlement, the notice stated that he did not qualify and the appellant knew in general terms the basis of the decision against which to appeal. For these reasons it seems to us that the notice did meet the application sufficiently for it to comply with the Notices Regulations. iii. The consideration of the factors of HC 80 paragraph 21 Provided the notice complied with the Notices Regulations it was open to the Secretary of State to elaborate or even add grounds for consideration at appellate level. Even within the principles of Mehra it is arguable that elaboration of a ground is permissible. Certainly according to Hubbard (following Kwok On Tong  Imm AR 214) there is no restriction to the ground specified. Had there been no elaboration of the notice in the explanatory statement or had the statement not made it clear that the Secretary of State had considered paragraph 21 it would have been open to the appellant to contend that he had made an implied application which had not been considered. Indeed Mr Nathan so argued when the Tribunal was dealing with this case on its merits for the first time. However, in fact it is clear that in considering the express application for permanent settlement the Secretary of State also considered any implied businessman application under paragraph 21. In our view, therefore, it cannot be said that the businessman application remains on the table as being made and not answered. iv. Waiver of any defect in the notice Even if we are wrong in holding that the notice complied with the Notices Regulations, in our opinion any defect could be and was waived. The issue of waiver raises again the effect of non-compliance with the obligations of the Notices Regulations. We have already held (agreeing with and following Noorhu) that although the obligation may be termed procedural, failure to comply invalidates the decision. The Tribunal has also held that that failure may be waived (see Manaf (3965)). In this case there is no express waiver. However, as will be seen from the record set out above, paragraph 21 was not only considered by the Tribunal, Woolf J and the Court of Appeal but it was the Tribunal's approach to paragraph 21 which caused the case to be remitted to us by the Court of Appeal. Once the explanatory statement was served it was clear that the Secretary of State had considered paragraph 21. It was clear that before the Court of Appeal the issue between the appellant and the Secretary of State was not the applicability but the application of paragraph 21. For the case to be remitted to us on the ground that the tribunal's consideration of paragraph 21 was wrong and then for Mr Nathan to argue that paragraph 21 had never been initially considered at all requires a certain elasticity of approach which is perhaps more to be admired for its flexibility than adopted for its content. To fight the case on the basis that the Tribunal, Woolf J and the Court of Appeal were all concerned with paragraph 21 and to attack the Tribunal decision (indeed successfully) for its approach to that paragraph necessarily indicates an acceptance that paragraph 21 was at issue and had played its part in the original decision. Bearing in mind the purpose of the Notices Regulations it does seem to us that in the light of the history of this case it is not now open to Mr Nathan to rely on the procedural defect that the notice did not address itself precisely to the application which was made and was considered. Mr Nathan sought to classify the requirements of the Notices Regulations as "jurisdictional" and to draw an analogy with the prerequisites of a right of appeal as specified in Suthendran  Imm AR 44. However, in our view the procedural duty is imposed to enable a person to know when, how and if to appeal. It is not to lay down prerequisites of a right of appeal and the effect of non-compliance must be construed with its purpose in mind. As we have said in the light of the purpose and the immigration framework, failure to comply with the duty cannot be seen as having an effect divorced from the decision. Otherwise the appellant would be penalised because of the failure of the Secretary of State to comply with the duty imposed by the regulations. Similarly, in our view it cannot be that a party is driven to accept that invalidity if on the facts of the case he is content to waive a procedural irregularity. The procedural duty is to protect an individual and ensure access to the appellate process. In assessing the effect of non-compliance when that effect is not statutorily specified we take the view that the individual is entitled to a decision which complies with the duty unless he is satisfied with the decision which does not comply with it. In this way the contents of the duty fits into the immigration appellate process. It ensures that that process and an individual's awareness of it is directly linked in terms and effect to the decision without penalising an individual by virtue of non-compliance by the Secretary of State with a statutory duty. In our view therefore any implied application by the appellant for admission to this country as a businessman was considered by the Secretary of State, the notice of refusal complied with the requirements of the Notices Regulations and it was open to the appellate authorities to consider reasons and grounds not set out in the notice. Further, even if the notice did not comply with the Notices Regulations the appellant by his conduct waived any irregularity and is not now entitled to rely on such irregularity. The merits of the case i. Political asylum On a strict reading of the order of the Court of Appeal it is arguable that the issue of asylum falls within its ambit despite the fact that the ground of remittal by the Court of Appeal to the Tribunal was specifically a consideration of the businessman application. On 19 March at a short hearing before the Tribunal, Mr Nathan indicated that subject to the reservation of his right to raise asylum in any deportation proceedings which might ensue should the decision in this case be against him, he had no wish to raise the issue of asylum. At the rescheduled hearing on 2 May, Mr Nathan reiterated that he did not wish to say anything about asylum and that the issue before us concerned only the business application. It follows that in these proceedings the only extant application by the appellant is the application to remain as a businessman. ii. The businessman application The applicable rules are therefore those set out in HC 80 paragraphs 21 and 28 as set out above. Mr Nathan said that he did not wish to call the appellant to give evidence. Additional evidence was before us, however, in the form of: a. notes of the interview between an immigration officer and the appellants on the 2 March 1978 and; b. a bundle of documents containing a more elaborate statement of the account at the United Bank Limited in the names of the first appellant and his brother Mr Mohamed Mawji and secondly, Estate Agent particulars of premises, most of which were business premises; c. a telex from Mr Mohamed Mawji authorising investment of the funds held in the account -- but as this related to the present, if admissible at all, it is of peripheral relevance to the issue of whether in 1978 the decision to refuse leave to remain was justified. Mr Nathan stressed that no landing card had been produced and it was accepted that none was available. Mr Nathan took us through the background of the family as set out in the explanatory statement. He pointed to the history of the family in fleeing from Uganda to Pakistan and said that currency restrictions in respect of transfer of funds from Pakistan would be severe. Mr Nathan contended that a discrepancy in passports was probably explained by the fact that the family had been trapped in Pakistan. When the family arrived here, said Mr Nathan, there must have been doubts about the advisability of investing in this country as (recorded in the explanatory statement) the visit stamp in Mr Mawji's passport contained a prohibition to engage in any business. Mr Nathan's main argument focused on the latter point. He argued that Mr Mawji had no specific business in mind when he made his application to remain as a businessman but said that it was not justifiable to refuse leave to remain when under the conditions on which he was here, Mr Mawji could not engage in business. Mr Nathan argued that it would seem that Mr Mawji had been told something on landing which in Mr Nathan's words "frightened him off". As to the finances Mr Nathan referred to evidence that the first appellant had claimed on the UNCHR for compensation for property left behind in Uganda and had been paid at least one instalment of that claim. There is evidence on the file that the claim was for some 450,000 shillings and that the instalemnt paid amounted to 7,327 shillings. Secondly there was an account with the Halifax Building Society showing a balance in 1979/80 varying between @6 and @746. Most importantly there is evidence on the file -- evidence which was referred to in the previous proceedings -- of the account held jointly by Mr Mawji the appellant, with his brother Mr Mohamed Mawji. Produced in previous proceedings was one page of the statement of the account in the United Bank showing entries between November 1976 and January 1978. The account was shown to be originally in the names of Mohamed Jaffer, Sharif Mawji and Shabir Sharif Mawji. In October 1977 the appellant's name was added. Before us a copy of the statement relating to the account for the period 2 November 1976 until 3 January 1985 was produced. Although it is not entirely clear, this appears to show that on 1 January 1978 the account became a joint account between Mr Mohamed Mawji and the appellant. The balance in the account is shown as @18,500 on 2 November 1976, @39,948 immediately after the appellant became a holder and @38,858 when the account became jointly held by Mr Mohamed Mawji and the appellant. Thereafter, the amounts seems to have varied between approximately @34,000 and its lowest to a little over @43,000 at its highest. Mr Nathan argued that even assuming Mr Mawji was entitled only to a third share of the account, this would suffice for a business application in 1977. Mr Nathan conceded that each holder could draw out the money but because Mr Mawji had access to the account, had had assets of his own. We must consider the question as at April 1978 and Mr Nathan did not seek to argue that we should consider evidence relating to events after the decision. However, said Mr Nathan, we must look at the matter in the round. Consideration of the application had been defective in that no attention had been paid to Mr Mawji's skill as a businessman, evidence of which was apparent from his participation in the family business in Uganda. It was improper, urged Mr Nathan, not to exercise discretion in Mr Mawji's favour to see if he could establish a business. All that Mr Mawji sought was a 12 month extension. Mr Parsons said that any suggestion that Mr Mawji was "frightened off" because of something said on his arrival in this country was entirely speculative. The application for variation of leave contained in the letter of 28 October 1977 was geared primarily to an application for settlement. This, said Mr Parsons, was relevant to any consideration "in the round" for the strength of the application was a relevant factor. There was a need on any applicant to be helpful. In this connection Mr Parsons said that the evidence before us and that which was before the appellate authorities in the earlier proceedings was not particularly helpful in regard to the account at the United Bank. There was very little evidence as to the control over that account and as to how it could be operated. We had no knowledge of the terms of drawing out from the account. Further, there was no information as to the activities of the appellant nor how he supported himself. There was no evidence of a serious intention to find a business. The proposals put in the application were vague. As to the appellant's expertise Mr Parsons pointed out that he had said in evidence before the adjudicator that he was not trained in any business. The determination from which the appeal is brought and relevant evidence As was admitted on all sides, there is a difficulty in the Tribunal sitting in 1986 and pronouncing on the justification or otherwise of a decision to refuse leave to remain taken in 1978. We sit on appeal from a determination delivered on 20 March 1981. However, no evidence has been submitted to us which goes to the issue before us which was not before the adjudicator. We find it impossible to say that the Estate Agent particulars produced before us have any relevance to that which we have to decide and the copy of the accounts submitted to us is but an elaboration of that which was before the adjudicator. Before the adjudicator the appellant had recounted his history. He said that he might set up in business as a tobacconist and that in Uganda he had worked on a farm owned by his father. He added that he was not trained in any business but was in charge of a farm consisting of sugar plantations and somne cattle. In Pakistan he had worked as purchasing officer for a jute-mill. In 1977 he had obtained a passport unlawfully as he could not get a travel document. As to the account, he said that half the money was his and none belong to Shabir. Shabir's name was on the account simply in case someone died. While here he might go for trading or open a small tobacconist or supermarket. The adjudicator said that in his view the fact that the appellant had not made any firm business proposals was not fatal to the application -- a view later upheld by the Court of Appeal. The adjudicator pointed to the vague nature of the proposals and to the fact that the appellant "has apparently little training for any business which he might be expected to operate in this country". The adjudicator decided that the decision was justified on, as he put it, "the narrow basis of the appellant's available capital". The adjudicator continued: ". . . At or about the time of his application the first appellant appeared as the holder of a bank account containing some @40,000 with two other individuals. He now claims that he is and was the owner of this money to the extent of one half. He has however adduced no confirmatory evidence that the position as appearing from theaccount (Annex C) is not the true one and he would have required to have done so in order to establish the position. Assuming (which is not by any means clear) that he was the owner and was entitled at that point to one-third of the amount, which would be some @13,000, I think it is very doubtful that with the appellant's limited experience this sum could be invested in a business complying with the requirements of the rules, so as to provide a livelihood for the appellant, his wife and their two children. It would require to be borne in mind that they would not be entitled to any state benefits and that the children would require to be privately educated. Moreover, it is a requirement of the rules that the funds shall have been provided by the individual concerned. I am told that the money in the account represents funds arising from the family business in Uganda but there is not one shred of concrete evidence as to the origin of these funds. Apart from anything else, it is now known whether the account could be operated by the signature either of Mr Mawji or his brother Mohamed or whether both are required. (He has said that his brother Shabir is not in fact entitled to operate it.) If the first were the case, the entire sum at credit of the account could be drawn at any time by the other holder. If the second, the appellant could not operate the account on his own. When one bears in mind Mr Mawji's evidence that his name was added to the account only subsequent to his arrival, which cannot possibly be true, and that he gave a false Canadian address, I think that it is evident that the matter is completely unsatisfactory. The only other funds which he has is the compensation from Uganda and this does not substantially affect the matter. I therefore consider that the Secretary of State's decision was correct in this respect." The adjudicator then referred to the approach of considering the matter "in the round" approved by the decision of the Divisional Court in R v IAT ex parte Peikazadi [1979-80] Imm AR 191 and later affirmed by the Court of Appeal in the present case. The adjudicator concluded:
"The judgment in Peikazadi goes further in the admonition to consider matters "in the round" opening up a very wide field of discretion. Be that as it may, I would say that in the present case, the proposal to set up in business is purely a means to achieving the settlement of the appellants in this country. The money in the bank account was never demonstrably to any extent the property of the first appellant, and it was never at any time under his sole control. It is not given to anyone to know exactly what business the first appellant intended to engage in, but I do not think the sum of approximately @13,000, which was all, in my view, that he could reasonably lay claim to, could be considered a sufficient sum to start a business, and provide for its potential liabilities, in the circumstances."Conclusions As the Court of Appeal have said, it does not disqualify the appellant from consideration under paragraph 21 of HC 80, that his business proposals were not specific. On the other hand the approach "in the round" must mean that the vagueness of the proposals is relevant to the consideration on the merits. We agree with Mr Parsons that another factor is the undoubted intention of the appellant and his family to settle here and such a factor msut be relevant to the consideration of giving leave for 12 months in order to establish a business. Of further relevance is an assessment of the ability of the appellant to establish a business and of critical importance are the financial circumstances of the appellant. We take into account Mr Nathan's point that the appellant was seeking to be allowed to remain in this country for a limited period and while here to be able to engage in business. However, it is certainly not enough for leave to be granted for that purpose, simply to express an intention to set up in business. The rule specifies a number of factors which have to be considered including the availability of assets of the appellant's own the capability of bearing a share of liabilities and that the profits would be sufficient to support the appellant and his dependants. The more vague the evidence, the less likely it is that an applicant can satisfy these or any other relevant factors as part of the consideration of the evidence "in the round". We feel that this case is marked by a lack of evidence. As the adjudicator said, the evidence of the assets available to be devoted to the business is confusing. We accept Mr Parsons' comment that critical detais about the account in the United Bank which is at the heart of the case in its financial aspect are not known. We also agree with theadjudicator that there is little evidence of the appellant's ability to conduct a business. In the light of the lack of evidence on finance and ability, it is difficult to make any positive assessment of the ability of the appellant to bear any share of liability or whether the appellant's share of profits would be sufficient to support him and his family. There is simply a lack of material on which any decision could be made in favour of the appellant. To conclude, therefore, in our view, the decision to refuse the appellant leave to remain for the purpose of setting up a business was justified. It was for the appellant to bring forward evidence relating to his proposal and this he singularly failed to do. The vagueness of the proposal in regard to the business is matched by the vagueness of the assets available to devote to any business and the ability of the appellant to engage in any venture which he may have eventually proposed to undertake. It is impossible to say that the evidence goes anywhere near to estabalishing that any business which might be set up would be viable and indeed, in our view, the very vagueness of the proposals must cast doubt upon the genuiness of the appellant's intention.
SOLICITORS:Farmar, Miller and Turnsek, Hendon.
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