R v. Immigration Appeal Tribunal, Ex parte Hardev Singh Dhillon

R v IMMIGRATION APPEAL TRIBUNAL ex parte HARDEV SINGH DHILLON

QUEEN'S BENCH DIVISION

[1987] Imm AR 385

Hearing Date: 18 March 1987

18 March 1987

Index Terms:

Evidence -- where as well as an explanatory statement other reports are prepared by an entry clearance officer, whether those reports should be put in as evidence. Immigration appeals (Procedure) Rules 1972, rr 8, 16 (5), 27.

Natural Justice -- where such reports are not in evidence, whether there is a breach of natural justice.

Held:

The applicant was the Indian born fiancé of a woman settled in the United Kingdom. The entry clearance officer refused an entry certificate, not being satisfied that the primary purpose of the intended marriage was not for the applicant to secure admission to the United Kingdom. An adjudicator dismissed the applicant's appeal and leave to appeal to the Tribunal was refused. Before leave to enter was refused, the applicant's fiancée was interviewed in the Unired Kingdom. A report must have been sent from the entry clearance officer to the Home Office which would have formed the basis of that interview. For the appeal an explanatory statement was prepared and a copy sent to the applicant. No copy of the report to the Home Office was sent, nor was it in evidence at the appeal before the adjudicator. It was contended before the Court inter alia that the report in question was material, and it was a denial of natural justice for it not to have been made available to the applicant. Held: 1. There was no denial of natural justice. The report had not been seen by the adjudicator and thus the applicant had suffered no disadvantage. There was no obligation on the part of the respondent in the appeal to provide copies of such reports, under the provisions of r 8 of the Procedure Rules. 2. There had been no application for it to be produced before the adjudicator. Had he himself felt it necessary he could have sought it under r 27 of the Procedure Rules. 3. From the phrasing of the Tribunal's refusal of leave to appeal, it was clear that they had considered all the evidence, including fresh evidence adduced for this application.

Cases referred to in the Judgment:

No cases are referred to in the judgment.

Counsel:

KS Nathan for the applicant; P Havers for the respondent PANEL: Stuart-Smith J

Judgment One:

STUART-SMITH J. This is an application for judicial review seeking an order for certiorari to quash the determination of the President of the Immigration appeal Tribunal dated 7 Feburary 1986 and for an order for mandamus directed to the President of that Tribunal to grant the applicant leave to appeal against the decision of an adjudicator which was given on 22 October 1985. The facts upon which the application is founded are these. A Miss Kaur was born in this country on 19 April 1965. A marriage was arranged between her and the applicant in about January 1982. Following that she visited India with her father and met the applicant and an engagment between them took place in April of 1982. It was celebrated by means of an exchange of gifts and it was agreed that the marriage would take place according to Sikh religious ceremonies. The marriage in fact did not take place because Miss Kaur was too young for valid marriage under Indian law. But the parties lived together as man and wife between about 9 May 1982 and 6 September of that year. When she returned to this country she was then pregnant and since then, of course, she has had a child. The apparent reason for her leaving India was that she found it too hot and the climate unsatisfactory. Following her return to this country the applicant applied for permission to come to live in the United Kingdom as her fiancé with a view to marriage. In his application to that end he indicated that any interview should take place in Punjabi, that being his language. He was interviewed by the entry clearance officer on 15 July 1983 and a Punjabi interpreter was present at that interview. He had to satisfy the entry clearance officer that it was not the primary purpose of the parties to the intended marriage to obtain admission to the United Kingdom within the provisions of paragraph 51 (a) of House of Commons paper 169. Having conducted the interview with the applicant, the entry clearance officer referred the matter to the Home Office in London and, as Mr Havers points out, it was inevitable that that should be done because at that stage Miss Kaur was in England and any inquiries would have to be made of her before any decision could be reached. It is evident that the entry clearance officer must have sent a report of his interview with the applicant to the Home Office. In due course the Home Office either came to a decision or gave guidance to the entry clearance officer as to the decision which he should reach and the decision was that the application should be refused. It was refused on 20 March 1984 on the grounds that the applicant had failed to satisfy the entry clearance officer that it was not the primary purpose of the parties of the intended marriage to obtain admission to the United Kingdom. The applicant appealed from that decision to an adjudicator and in due course, in accordance with the provisions of rule 8 of the 1972 Immigration Appeals (Procedure) Rules (SI 1972: 1684) which were the relevant rules at that time an explanatory statement was provided by the Home Office. That rule provides as follows:

"(1) Subject to the provisions of paragraphs (2) and (3) below, the respondent" -- that is the Home Office -- "in an appeal shall, as soon a practicable after notice of the appeal is given, prepare a written statement of the facts relating to the decision or action in question and the reasons therefore and take such steps as are necessary to ensure that the statement is referred to an adjudicator or the Tribunal, as appropriate, and that a copy thereof is given to the appellant."

The explanatory statement is to be found at page 10 of the bundle and contains, in paragraph 4, this material:

"The entry clearance officer" -- this is in reference to the interview which the entry clearance officer had had with the applicant -- "asked the appellant what his prospects were in India and he said that a graduate could hardly find a job there. He said that his brother had passed his BA in 1982 and thereafter had to do farming as he himself was doing now. Neither he nor his brother had any prospects there so his brother had emigrated to Canada. He said that they had found him a girl in that country and he had got married. He was asked whether he was doing the same thing now by going to the United Kingdom and he said that he was. He said that both marriages had been arranged for emigration purposes. The entry clearance officer asked him therefore whether the primary purpose of his marriage was to gain admission to the United Kingdom and he said it was."

In the light of that, if that was accurate, it is hardly surprising that the Home Office came to the conclusion which they did. The explanatory statement was sent to the applicant in accordance with rule 8 for his comments and he commented, at page 29 of the bundle, as follows, and he included these passages:

"My primary purpose to get into England is not as stated."

Then he said he loved his fiancée and all he wanted was her happiness. Over the page he said:

"After reading the explanatory statement my primary purpose in entering the country is not for work purpose or any other purpose, it is for Menjit's" -- that is his fiancée -- "happiness and we do wish to marry."

The matter came before the adjudicator and he heard evidence from Miss Kaur and her mother and he gave his decision on 22 October 1985 in which again the applicant's application was refused. At page 33 of the bundle he said this:

"The explanatory statement was sent to the appellant by his representative for his comments. He said his primary purpose in entering the country was not for work purposes or any other purpose. It was for Miss Kaur's happiness. He did not deny having made any of the statements which are recorded."

That appears to me to be an accurate statement of what was set out in the applicant's letter to which I have just referred. He also commented that both Miss Kaur and her mother felt that the applicant's statements must have been wrongly recorded due to difficulties of interpretation. The applicant, being dissatisfied with the decision of the adjudicator, applied for leave to appeal to the Immigration appeal Tribunal. The actual application is not before me but the grounds of the application are set out in a letter date 22 January 1986 from his solicitors. The first ground is that the decision was wrong and that the main purpose of the marriage was not to gain admission to the United Kingdom and the second ground reads as follows:

"Further evidence has now been adduced in the form of a letter from the appellant in which he states, inter alia, that the contents of the explanatory statement were incorrectly conveyed to him previously, and in which he provides further relevant information concerned his applicant and interview."

Annexed to that grounds of appeal was a letter which appears at page 36 of the bundle which states, amongst other things, as follows:

"After reading the dismissal notice of appeal I have discovered that the original Home Office statement was falsely translated to me. The solicitor who translated the statement did so by saying. There are no main reasons to say why your application has been refused. The statement only underlines details about relatives and your background. At that time I did not have any reason to doubt what the solicitor told me until now."

A little later on he says:

"In the statements I am accused of saying that this marriage was only arranged for entering the UK and that this was the case for my brother's marriage in Canada. I would like to say this is not true. This question was put to me three times and I answered that this was not my intention and I cannot say whether it was my brother's intention."

The first paragraph, at any rate, seems a little surprising in the light of what the applicant has previously said in his letter to which I have referred and which was before the adjudicator. The Immigration Appeal Tribunal, on 7 February 1986, refused leave to appeal. Paragraph 2 of that determination reads as follows:

"The Tribunal has considered the grounds submitted in support of the application, the documentary evidence, the record of proceedings and the Adjudicator's determination."

They then found that there was no misdirection and that the adjudicator had applied the law as laid down in the case of Bhatia and that there was no arguable point of law. The first ground which Mr Nathan seeks to rely upon to the effect that the Immigration Appeal Tribunal ought to have granted leave to appeal is that the Tribunal do not appear to have considered the fresh evidence which was submitted to them in the form of the applicant's letter dated 12 December 1985 which I have just referred to. In my judgment the short answer to that is that they plainly did. In the paragraph which I have just read out from their determination they say, in terms, that they considered the grounds submitted in support of the application, which was the document at page 35 which referred to the further evidence now adduced in the form of a letter and the documentary evidence. It seems to me plain beyond doubt that the documentary evidence that they are referring to there must have included the letter at page 36 which was submitted with the grounds of application. They then go on to say that they have also considered the record of the proceedings and the adjudicator's determination. The second ground, although it may be part and parcel of the first ground, is that the Immigration appeal Tribunal should have allowed an oral hearing of the application for leave to appeal. Rule 16(5) which deals with this question provides as follows:

"An application for leave to appeal shall be disposed of without a hearing unless the adjudicator or, as the case may be, the Tribunal to whom the application is made considers that special circumstances render a hearing desirable."

Mr Nathan submits that there are three special circumstances here which any reasonable tribunal would have considered and would have caused such tribunal to grant an oral hearing for leave to appeal. First of all, he says that the adjudicator's award refers to the feeling, to which I have already referred, of Miss Kaur and her mother that the applicant's statements must have been wrongly recorded. What is significant about that statement is that it is expressed in the terms of a feeling and it is not suggested that Miss Kaur or her mother have been told in terms that the interpreter must have got it completely wrong and that the entry clearance officer has really got the applicant's answers completely and utterly confused and that an affirmative answer has been given when a negative one was required. Secondly, it is said that it was a special circumstance that the applicant had drawn attention to this matter in his letter of 12 December 1985, but it is clear, it seems to me, for the reasons I have already given that the Immigration Appeal Tribunal considered that letter and the information in it and they may well have taken the view that it was surprising that the matter was raised really for the first time as late as it was and, as I have already indicated, the suggestion that the applicant had been deceived or misled by his solicitor hardly accords with what he had previously said. The third circumstance upon which Mr Nathan relies is that in this particular case the entry clearance officer had not made the decision himself but he had referred it to London and that there was a report from him to the Secretary of State in London which has never been seen by the applicant. I am bound to say I cannot see that those matters have any bearing or can be regarded as special circumstances in any way. In my judgment, therefore, the second ground of this application is not made out either. The third ground of the application is that the decision was made and a fair hearing had not been given to the applicant because matter may have been contained in the report from the entry clearance officer to which I have referred, which was present to the mind of the Secretary of State, but which the applicant has had no chance of dealing with. It is said that on the ordinary principles of natural justice that is a matter which calls for the interference of this court. Mr Nathan, in support of that proposition has cited a number of cases. I do not think it is necessary for me to refer to them. He has also referred to a passage in Wade's Administrative Law, (Fifth Edition) at page 479 which encapsulates the principle. I read from that page:

"A proper hearing must always include a 'fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view'." Lord Denning has said: "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."

Nobody would dispute that principle which is firmly and well established. But it seems to me that the point in this case is really totally misconceived. The decision from which the applicant sought leave to appeal was the decision of the adjudicator. It is perfectly clear that the adjudicator did not have before him any such report from the entry clearance officer. Therefore, whatever it contained, it could not have influenced his mind one way or the other. What he had was what the applicant himself had which was the explanatory statement. To my mind it is entirely beside the point that there may have been and indeed was, almost certainly, a report from the entry clearance officer to the Secretary of State. Moreover, as Mr Havers points out, if indeed there was anythingcontrary to the applicant's interests or prejudical to him in that report, it is almost certain that it would have been included in the explanatory statement from the Home Office because it would set out the grounds upon which the decision had been taken and seek to justify those grounds. No criticism, it seems to me, can be made whatever of the fact that the entry clearance officer sent the matter to this country. Indeed, as I have already said, he was bound to do so because Miss Kaur was in this country and her evidence was material to the consideration of the application. If indeed he had not sent it here then there might well have been an application for judical review because he had failed to take into account material considerations. Mr Nathan appeared to be submitting at one stage that it was necessary, under the terms of rule 8, which I have already read out, for the report in question to have been given to the applicant. I cannot accept that. It is plainly not so stated within the provisions of rule 8 and it would not be helpful, it seems to me, for the applicant or anybody else, that all the documents should necessarily be forwarded to the applicant. It would be wholly unreasonable and it seems to me that the Home Office complied with the requirements of rule 8 in providing the explanatory note that they did. Moreover, Mr Havers points out that in fact no application was ever made to the Home Office or to the adjudicator, so far as can be seen, by or on behalf of the applicant. there is a possibility -- but no more, it seems to me -- that that was asked for by a Member of parliament acting on behalf of the applicant. It is by no means certain that is so. What is clear is that that application was not made in terms by the applicant's solicitors either at the hearing before the adjudicator or at any other time. Had that been done and had the adjudicator thought it necessary to have that report, then he could have sought it under the provisions of rule 27. But I am quite satisfied that in fact it would be most unlikely to have carried the matter any further at all. For those reasons, it seems to me that the third ground of the application must fail also and this application must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Markand Chinwoon, London E7; Treasury Solicitor