Bahar v. Immigration Officer, Heathrow

BAHAR v IMMIGRATION OFFICER, HEATHROW

Immigration Appeal Tribunal

[1988] Imm Ar 534

Hearing Date: 2 June 1988

2 June 1988

Index Terms:

Leave to enter -- visa national -- false representations made to obtain visa -- whether refusal mandatory. HC 169 paras 10, 17, 24.

Adjudicator -- whether adjudicator is precluded himself from asking material questions not asked by parties' representatives. Immigration Appeals (Procedure) Rules 1984 r 29:

Evidence -- whether an adjudicator is obliged to accept the evidence of an appellant on matters on which she was not cross-examined. Immigration Appeals (Procedure) Rules 1984 r 29.

Held:

The appellant was a citizen of Iraq who arrived at Heathrow with a visit visa. After enquiry she was refused leave to enter: the Immigration officer concluded that false representations had been made to the visa officer. On appeal against that refusal the adjudicator in his determination expressed regret that certain material questions had not been put in cross-examination. He did not himself clarify the issues by questioning the appellant who gave evidence before him. Before the Tribunal it was argued by counsel that the evidence of the appellant, not challenged in cross-examination, should have been accepted by the adjudicator because it was not so challenged. Held: 1. Albeit adjudicators might find it undesirable as a general pratice to put questions to witnesses before them, nevertheless, if representatives failed to ask witnesses questions which the adjudicator considered were important to enable him to arrive at the truth of the matter, he could and should put such questions himself. 2. Adjudicators were not bound by the normal rules of evidence, as the Procedure Rules made clear. It did not follow that because evidence was not challenged in cross-examination, it had to be accepted by the adjudicator. 3. On the facts, there clearly had been false representations made in the application for a visa: in consequence, as a visa national the appellant was properly refused leave to enter.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1982] Imm AR 139: [1984] 1 AC 74. Eusebio (unreported) (4739).

Counsel:

R Scannel for the appellant; JK Munro for the respondent PANEL: DL Neve Esq (President); Miss MF Applebey CBE JP, RS Charnley Esq

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Iraq who appeals against the determination of an adjudicator (Professor K Counter) dismissing her appeal against the refusal to grant her admission to this country. The immigration officer's case is as set out in the explanatory statement. This records that the appellant arrived at Heathrow on 2 October last year. She was in possession of a visa, issued in Baghdad on 30 September, endorsed "Short Visit". She said that she wanted entry for two or three months in order to enable her to apply for a United States visa. She had been refused a United States visa in Baghdad but hoped to obtain one in this country. She said she would return to Iraq if she failed to do so. She was granted temporary admission while enquiries were made from the visa officer in Baghdad. On 19 October -- before a reply had been received from Baghdad -- the appellant was interviewed by an immigration officer. She then said that she had enrolled on a course of study at a school of English in Tottenham Court Road which she had been attending since 16 October. She planned to take a course of study which would last some six or seven years. The explanatory statement continues: "The passenger stated that she had been considering studying here (if she could not get a US visa), before applying to the British Embassy, Baghdad. She was aware that study in the United Kingdom was a strong possibility, but did not mention this to the Visa Officer. She felt it would be easier to come to the United Kingdom and make study arrangements rather than do so from Iraq. She stated that she had been issued with an Iraqi exit visa in her passport, which required her to leave, if at all, within 3 months and that this would not have been sufficient time for her to organise a course of study in the United Kingdom from Iraq. The passenger stated that her earlier claim to intend returning to Iraq, if she failed to obtain a US visa, was false. She said she felt sure she would be sent back to Iraq if she had said anything else." Three days later a reply was received from the visa officer in Baghdad. This read as follows: "A/N stated categorically during interview that she would not stay in London if her US visa was refused. She added that she would leave UK after refusal and come back to Iraq and would not in any case study in UK. However, she added that she did wish to study in an English speaking country but would make any fresh application from Iraq. We were not entirely happy with this application as a whole, but felt that we had no firm ground for refusal. She was therefore asked to sign a declaration of intent and a form which states that she would not study in UK. If we had discovered that it was her real intention to study in the UK we would have refused the visa. Form IM2A, declaration of intent and study form follow by bag." These documents later arrived, the declaration signed by the appellant reading: "I intend to stay in the United Kingdom for one month as a visitor and to leave at the end of this period." She was interviewed again on 26 October when a Mr Zabihi acted as interpreter. The immigration officer's explanatory statement records: "6. I referred the passenger to the specific statements she made to the Visa Officer about her intentions which are listed in paragraph 4 of this statement and to the written undertaking (Appendix 3). She stated that these were false and had been made because the afore-mentioned Iraqi exit visa pressurised her into obtaining a visa. I asked Mr Zabihi to examine this exit visa on page 9 of the passport and tell me the date by which the passenger had to depart. He told me that there was no such date on the endorsement and no specified period during which departure had to take place." Having regard to the foregoing the immigration officer came to the conclusion that false representations had been employed by the appellant for the purpose of obtaining her entry clearance and that her visa was consequently no longer valid. Citizens of Iraq are "visa nationals" and paragraph 10 of HC 169 provides that visa nationals must produce a visa issued for the purpose for which they seek entry and should be refused leave to enter if they have no such current visa. The appellant was consequently served with a notice of refusal and advised of her right of appeal. At the appeal before the adjudicator the appellant gave evidence. She then said that she had intended to come here to obtain a visa for the United States and, if not successful, to return to Iraq. When she signed the declaration it was at that time her intention to stay for only one month. The adjudicator's record continues: "Tried to get US Visa, embassy said because refused in Iraq refused here as well. Sought advice from own Embassy: no need to go back to Iraq. You can study here and we will do everything for you. Going back to Iraq not immediately possible. Difficult to transfer files from United States Iraqi Embassy to UK . . . Changed mind about return to Iraq when American Embassy refused visa and Iraqi embassy advised to stay here . . . Did not have any intention of studying here before US visa refused. IO "was pushing me" to say that I contradicted myself on going back to Iraq . . . do you think that you lied to the people in Baghdad? No . . . 12/10/87: Visa refused here by US Embassy. Enrolled at St Anthony's same day. Asked Iraqi Embassy's advice 2 weeks after arriving. Places it as 13 October. Had enrolled . . . before Iraqi Embassy advice . . . " In his determination the adjudicator reviews the evidence before him and the submissions made, but it is not easy to ascertain precisely what his exact findings of fact were. It was submitted before him that her intentions when she signed the declaration were as set out in it, but that there was a secondary possibility in her mind about what she would do if she had failed to obtain a US visa and her intentions changed after her arrival here. The nearest that the adjudicator gets to a clear-cut finding of fact on the submission is as folows: "On the matter of deception, I have reviewed the evidence, and do not think that I can be satisfied that she did mean what she wrote in the statement of intention she was asked to sign. A strong thought of the possibility of studying in the UK seems to me to have been probably in her mind at that time, and of course it is a material fact not disclosed to the Visa Officer . . . " Referring to the submission that there was a secondary intention in the appellant's mind, the adjudicator records: "If I am correct in saying that the secondary becomes the primary, as it were, where the primary is so very improbable of achievement, the appeal must nevertheless fail on the following grounds: (i) it was not the harbouring of the intention that was conditional on the US visa, only its implementation. I believe that she harboured a real intention of studying in the UK in given circumstances. It was the circumstances that were the conditional part, and in addition the circumstances were perhaps predictable . . . " He then goes on to consider her eligibility as a student but seems to conclude that this is not a matter which he can properly consider. He concludes: "For the reasons I have given, this appeal must fail. However, I express the particularly strong hope that the Home Office will receive favourably from this appellant a student application and grant leave to undertake studies here." At the appeal before us Mr Scannel submitted that there is no basis on which the adjudicator could properly find that the appellant did not mean what she wrote in the undertaking. He submitted that this was the case because the appellant was not cross-examined when she gave evidence on this point, in that it was never put to her that the declaration was untrue. He submits that from the determination it appears that the adjudicator accepted that her decision to study here was a post-entry decision: again her evidence in this respect had not been tested in cross-examination. The adjudicator had erred in construing the appellant's subsidiary wish as being her primary intention. Lastly, Mr Scannel submitted that he should have considered her eligibility under the immigration rule relating to students (paragraph 24 HC 169). In Mr Munro's submission the case was very simple. The appellant had applied for a visa for one month to enable her to obtain a US visa and had been granted entry clerance for this purpose. She had confirmed this purpose on arrival here. She had not even made formal application for a US visa but had simply accepted an indication that such application would fail and, ten days after her arrival, had enrolled on a course of study. She had at first appeared to suggest that this was on the advice of the Iraqi Embassy, but it had transpired that this advice was given the day after she had enrolled. It was regrettable that she had not been cross-examined regarding her alleged admissions to the immigration officer when interviewed, but the adjudicator had before him two contradictory stories and he was entitled to decide which he accepted. We have considered the submissions made to us in the light of the evidence before us. In our opinion this appeal has been unnecessarily obfuscated by a number of irrelevant considerations. First, the matter of whether or not the adjudicator was compelled to accept the evidence of the appellant on matters which had not been challenged by cross-examination. In our opinion there was no obligation upon the adjudicator to do so. The adjudicator records: "A decision on this matter is made more difficult for me by the absence in cross-examination of those kinds of question which challenge and test the veracity of what a witness is saying . . . " The adjudicator appears to consider that he himself may not ask a witness any questions. This is of course not the case. Although it may not as a general practice be desirable, if neither representative asks a witness questions which the adjudicator considers are important to enable him to arrive at the truth of the matter, he can -- and should -- ask such question himself. Unfortunately this was not done, but we consider it disingenuous of Mr Scannel to suggest that for this reason the appellant's evidence must be accepted at its face value. It should be borne in mind that Home Office presenting officers are not normally legally trained, and under Rule 29 of the Immigration Appeals (Procedure) Rules 1984 adjudicators are now bound by the rules of evidence observed in courts of law. There would in our opinion be greater force in Mr Scannel's submission if the appellant was not aware of the case against her. This was not however the case. She was represented by counsel. The immigration officer's evidence was contained in his explanatory statement, which attributed to her admissions that she had made false representations. It does not appear that she specifically rebutted the allegations that she had made such admissions, other than the adjudicator's note of her evidence "IO 'was pushing me' to say that I contradicted myself on going back to Iraq . . . do you think that you lied to the people in Baghdad? No". It would have been very helpful and would have made the adjudicator's task somewhat easier if he had decided, one way or another, whether he accepted that these admissions had been made by the appellant. We note that no application was made by Mr Scannel to call the appellant to give evidence before us. Mr Scannel has submitted that the appellant's wish to study was only a subsidiary matter and he reminded us of the by now well-established distinction between a person's wish and their intentions. In his submission the adjudicator erred in construing such a wish as a primary intention. However, we do not consider that it is at all clear that the adjudicator did reach this conclusion. It appears to us more probable that he concluded that the appellant really intended to study in the United Kingdom if she were refused a US visa, as was almost inevitable, particularly as she had been refused a US visa on three occasions in 1984, 1986 and 1987 prior to the refusal in Baghdad. With regard to Mr Scannel's submission that the appellant's eligibility as a student should have been considered under paragraph 24, he relies on the case of Eusebio (4739) which decided that any decision that the grant of entry clearance was linked to false representations does not mean that eligibility cannot be established on the facts adduced at the port -- only that the declared eligibility no longer stands. However, it also decides that "the establishing of the ground of refusal does not turn on whether an entry clearance would be granted on the representations made at the port for that is a matter for a new "eligibility" enquiry. Except in the exercise of discretion outside the rules, any such enquiry in the case of a visa national cannot take place at the port but can only take place in the country of origin". This being the case, we do not consider that the Eusebio decision can avail the appellant in this case: once her visa had become of no effect, as a visa national, refusal of admission was mandatory. Under Section 20(1) of the Immigration Act this Tribunal may make any determination which would have been made by the adjudicator. Having carefully considered the facts as alleged in the immigration officer's explanatory statement and the appellant's evidence as recorded (unfortunately the adjudicator does not record what opinion he formed of her as a witness), and taking into account the speed with which she enrolled for a course of study before ever making a formal application for a US visa, and that the day before she says she was advised to do so by the Iraqi Embassy, we have come to the conclusion on the higher standard of the balance of probabilities indicated by the House of Lords in the case of Khawaja [1984] AC 74 that the appellant's representations, that she only wished to come to this country to obtain a US visa and would return immediately should she fail to do so, were false representations made for the purpose of obtaining entry to this country. This being so, and the appellant being a visa national, she was properly refused admission and this appeal is dismissed. We would only add that we find the adjudicator's recommendation at the conclusion of his determination, which we have quoted above, to be somewhat astonishing, and it is not a recommendation which we are in any way able to endorse.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Norton & Coker.