R v. Immigration Appeal Tribunal, Ex parte Ashraf

R v IMMIGRATION APPEAL TRIBUNAL ex parte ASHRAF

Queen's Bench Division

[1988] Imm AR 576

Hearing Date: 29 June 1988

29 June 1988

Index Terms:

Appeal -- right of appeal -- political asylum -- claim for asylum made immediately after refusal of leave to enter -- asylum application refused -- applicant held current entry clearance -- whether applicant had right of appeal while in United Kingdom against refusal of asylum as well as against refusal of leave to enter -- the meaning of "applicable to the case" in s 19(1)(a)(1) of the 1971 Act -- the meaning of "current entry clearance" in s 13(3) of the 1971 Act. Immigration Act 1971 ss 13(1), 13(3), 19(1), (2): HC 169 paras 13, 16, 73.

Held:

The applicant arrived as a transit passenger and sought leave to enter as a visitor. He held a current visa but the immigration officer concluded that false representations had been made to obtain it: accordingly the applicant was refused leave to enter. Immediately after he had been refused leave to enter, he applied for political asylum: after enquiry that application was refused. He had a right of appeal, while in the United Kingdom, against the refusal of leave to enter. He exercised that right and both before the adjudicator and the Tribunal sought also to raise the issue of political asylum. Both the adjudicator and the Tribunal refused to entertain that appeal, holding that he had no right of appeal in that regard, in the events which had happened, while in the United Kingdom. On application for judicial review it was argued by counsel that paragraphs 16 and 73 of HC 169 (relating to asylum) were rules "applicable to the case" and the appellate authorities, under s 19(1)(a)(1) of the 1971 Act were obliged to apply them: moreover, the visa granted to the applicant was endorsed "valid for journeys to the United Kingdom . . . use by 22 January 1986." The refusal of political asylum on 25 November 1985 was made during the currency of the visa and accordingly, relying on Chanda, that application likewise attracted a right of appeal while the applicant was in the United Kingdom. Held: 1. The words "rules . . . applicable to the case" in s 19(1)(a)(1) of the 1971 Act relate to "the case on appeal". In the events which happened, it was the refusal of leave to enter that was under appeal, and the asylum application had no part in that decision. 2. The visa held by the applicant was no longer current after the refusal of leave to enter and the applicant could not therefore rely on s 13(3) of the 1971 Act to claim a right of appeal while in the United Kingdom in relation to his application for asylum.

Cases referred to in the Judgment:

Chanda v Immigration Officer Heathrow [1981] Imm AR 88.

Counsel:

J Macdonald QC for the applicant; J Laws for the respondent PANEL: Webster J

Judgment One:

WEBSTER J: In this matter Jamaldeen Muhammed Ashraf applies to quash a determination of the Immigration Appeal Tribunal dated 20 March 1987 by which it dismissed his appeal from the determination of an adjudicator dated 20 February 1986, who had dismissed his appeal against an immigration officer's refusal to grant him leave to enter the United Kingdom. The applicant is a citizen of Sri Lanka and subject to immigration control under the Immigration Act 1971. On 22 October 1985, in Colombo, the applicant obtained entry clearance in reliance upon which he arrived at Heathrow on 10 November 1985, applying for leave to enter as a visitor in transit. The immigration officer concluded that the entry clearance had been obtained in reliance on false representations made to the entry clearance officer by the applicant and refused him entry for that reason. On 13 November 1985 the immigration officer served on the applicant a notice of refusal of leave to enter in which he stated: "You hold a current visa endorsed 'Direct Transit' but I am satisfied that false representations were employed for the purposes of obtaining the visa. The visa is not, therefore, effective." After he had been issued with that notice, the applicant immediately made an application for political asylum to the immigration officer. Until that moment he had made no mention of political asylum. The immigration officer referred his application to the Home Office which rejected it on 25 November 1985. The applicant was orally notified of that decision by an immigration officer based at Harmondsworth. At that time it was not the practice to communicate such a decision in writing, where the application for asylum had been made following a refusal of leave to enter, although that practice has since been revised. Later, removal directions to Iraq, where the applicant had previously been employed, were given. On 6 December 1985 the applicant appealed to the adjudicator against the refusal of leave to enter and, on that appeal, he sought to raise the refusal of his application for asylum as well as the immigration officer's decision to refuse him entry as a visitor in transit. On 20 February 1986 the adjudicator ruled that the applicant could not raise the asylum issue on that appeal, and in a subsequent determination dismissed the applicant's appeal against the immigration officer's refusal of leave to enter as a visitor in transit. The applicant appealed to the Immigration Appeal Tribunal against both the ruling and the determination of the adjudicator. By a decision dated 20 March 1987 the Tribunal upheld the adjudicator's refusal to consider the asylum issue, and it is that decision which is the subject matter of this application. But to complete the history of the matter so far as I am able to: the Tribunal ordered a different adjudicator to determine de novo whether the entry clearance had been obtained by false representations; on 13 April 1985 an adjudicator determined that it had been so obtained and consequently dismissed the applicant's appeal against the refusal to give him leave to enter on that ground; not know and have not been told. I should finally add that by a determination dated 28 July 1986 another adjudicator dismissed the applicant's appeal, under section 17 of the Act, against the order directing his removal to Iraq. The Tribunal upheld the adjudicator's refusal to consider the asylum issue on the appeal to him for two reasons: first, in short, that as the application for asylum was made after the immigration officer had refused the applicant leave to enter as a visitor, the decision of the immigration officer against which the applicant appealed did not include the refusal of the asylum application and could not, therefore, be the subject matter of the applicant's appeal from the immigration officer's decision: and secondly that the applicant had no right of appeal against the refusal of asylum because, when he made that application, he had no current entry clearance. Mr Macdonald on behalf of the applicant contends that both of those reasons, which I shall refer to as the first and second points, were wrong in law. The approach of the Tribunal to the first point can be conveniently summarised by reference to the bottom of page 15 and the top of page 16 of their reasons where they say: "The duty of an adjudicator is to consider whether a decision on appeal is in accordance with the law. That decision must be essentially linked to the application made. The duty of an appellate authority is therefore to consider all matters relevant to the decision on that application. This encompasses all grounds of refusal relevant to the application and all grounds of claim relevant to the application. It does not encompass grounds of claim or refusal not so relevant. In our view, therefore, the critical question in each case is the ambit of the application." And later, at page 17, they conclude that the application for asylum was wholly outside the application to enter as a visitor. It followed therefore that the decision to refuse asylum was not within the ambit of the decision against which the applicant was appealing. he statutory provisions relevant to the first point are sections 13(1) and 19(1) and (2) of the Act, which provide so far as is material: "13(1) Subject to the provisions of this Part of this Act, a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator . . . against the refusal.

. . .

19(1) Subject . . . to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case: (b) in any other case, shall dismiss the appeal. (2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based . . ." For the purpose of this first point there is certain common ground between Mr Macdonald and Mr Laws on behalf of the Tribunal; specifically: first that the applicant had a right of appeal in this country against the immigration officer's refusal of his application to enter as a visitor in transit under section 13(3) of the Act; secondly, that if he had applied for leave to enter as a refugee seeking asylum and had been refused leave to enter on that ground he would also have had a right of appeal in this country against that refusal; thirdly that the reference in section 19(1)(a)(i) to "any immigration rules applicable to the case" is, as the words indicate, a reference to any immigration rules applicable to the case, whether or not any particular relevant rule was referred to by the immigration officer; and fourthly that on his appeal to the adjudicator the applicant was entitled to produce evidence of facts not known to the immigration officer when he refused leave to enter as a visitor provided that they existed at the time of his decision. Mr Macdonald relies, in support of his argument on the first point, particularly upon those last two matters: rules 16 and 73 of the Statement of Changes in Immigration Rules (HC 169) were applicable to the case, and the facts supporting the applicant's claim to asylum were facts which existed at the time of his application for leave to enter and its refusal. Therefore, submits Mr Macdonald, the adjudicator should have taken those rules and those facts into account. But in my view that is not the correct conclusion to be drawn from those two matters of common ground. The correct conclusion depends, as to the first of the two matters, upon the meaning to be given to the words "the case" in the expression "applicable to the case"; and in my view the correct expression of the second matter of common ground requires the insertion of the word "relevant" before the word "facts". Upon this basis, the correct conclusion to be drawn from the application of those two matters of common ground to the circumstances of the present application depends upon the identity of "the case" and of the objects to which the facts, upon which the applicant before the adjudicator sought to rely, must be relevant. As to "the case" it must surely mean the appellant's case on appeal against the decision or action under appeal; and if that is right the question upon which this first issue then turns is: was the decision or action against which the applicant had appealed (and to which the facts upon which he sought to rely had to be relevant) the refusal of entry to him as a visitor, or was it the decision to refuse him asylum? I approached the matter in this way because in my view, except where entry is refused to a person seeking entry as a refugee for the purpose of asylum, a refusal of entry on the one hand and a decision to refuse asylum on the other are two different decisions or actions for the purposes of the Act. The applicant's notice of appeal particularises the decision or action appealed against as "refusal of leave to enter"; and in my view the fact that the grounds of appeal relate exclusively to the claim for asylum is not sufficient to have the effect that the notice of appeal is to be treated as a notice of appeal against the decision to refuse the applicant asylum. If that conclusion is correct, which I think it is, rules 16 and 73 were not rules applicable to the case on the applicant's appeal to the adjudicator, and the facts upon which he sought to rely in support of his claim for asylum were not relevant facts before the adjudicator, so that Mr Macdonald's argument on this first point fails. If the conclusion is wrong it would have the effect, as Mr Macdonald admits, that where, as has frequently happened in the past, representations have been made to Ministers, constituting applications for asylum, on behalf of aspiring immigrants who had been refused entry, the ministerial decisions would be amenable to the appellate jurisdiction established by the Act and the rules, at least if they were notified to the aspiring immigrant, as appears that they often are, by an immigration officer. I accept that the conclusion that I have reached can lead to anomalies; but so, it would seem, would a contrary conclusion. The argument on the second point begins with the last few words of section 13(3) of the Act which provide: " . . . a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at the port of entry and at a time when he held a current entry clearance . . ." The visa issued to the applicant on 22 October 1985 was a visa "for journeys to the United Kingdom in direct transit to and from Iraq. Use by 22nd January 1986." Mr Macdonald's submission on this point is that the applicant had the right of appeal under section 13(3) while in the United Kingdom against the decision to refuse his application for asylum if, contrary to his main submission, that application was to be regarded as separate from and subsequent to the immigration officer's original refusal of leave. He submitted that at the latest relevant date, namely 25 November 1985, when the decision was made to refuse his application for asylum, the applicant's visa was still current since that date was earlier than 22 January 1986, the date specified in the visa itself; and he relied upon the decision of the Tribunal in Chand v Immigration Officer, London (Heathrow) Airport [1981] Imm AR 88. The Tribunal in the present case dealt with this point at pages 19 to 20 of their reasons. They said: " . . . If applications made subsequent to refusal were considered to come within the ambit of section 13(3), it would mean that applications dependent on the refusal of the recognition of the entry clearance would be held to be within the area of advantage stemming from the entry clearance which led to the consideration of the claim in this country in the first place. To us this seems an unjustifiable extension of the appeal advantage conferred by the acquisition of the entry clearance. The wording of the statute bears this out -- the entitlement to appeal while in the United Kingdom exists if the applicant 'is refused leave and at a time when he held a current entry clearance'. When the very issue is whether the entry clearance is operative, it makes complete sense to consider the entry clearance 'current' for the purpose of founding an appeal. Similarly, given the ability to make alternative applications, it makes sense to include within the phrase any application made while the entry clearance remains 'current'. It makes no sense, however, to read the provisions as extending to an application made 'at a time' when the function of the entry clearance has ended. We cannot see how an entry clearance related to a particular application can be said in any way to be 'current' once the application is decided. It is either overtaken by leave or ceases to have any effect. It follows that in this case, in our view, the appellant has no right of appeal while in this country from a refusal of asylum." In my view there is nothing wrong with that reasoning. Moreover it could, I think, properly be said that the visa was no longer current once the immigration officer had notified his refusal of leave to enter, since once that event had occurred the visa had been "used". In my view, therefore, Mr Macdonald's submissions also fail on the second point so that the application must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley Burgess; Treasury Solicitor