R v. Secretary of State for the Home Department, Ex parte Mohammed Yousuf

R v Secretary of State for the Home Department ex parte Mohammed Yousuf

Queen's Bench Division

[1989] Imm AR 554

Hearing Date: 6 July 1989

6 July 1989

Index Terms:

Appeal -- against refusal of visitor entry clearance -- appeal allowed by adjudicator -- no directions given -- after further enquiries entry clearance officer concluded adjudicator misled by witnesses -- entry clearance again refused -- whether entry clearance officer entitled to proceed in the way he did -- the need to make further enquiries. Immigration Act 1971 s 13(2): HC 169 para 17.

Entry clearance officer -- duties when adjudicator allows an appeal against refusal of entry clearance -- the proper procedure to follow when entry clearance officer believes adjudicator to have been misled. Immigration Appeals (Procedure) Rules 1984 r 15(3): Immigration Appeals (Notices) Regulations 1984 r 3(1).

Held:

The applicant for judicial review was a citizen of Pakistan who was refused entry clearance as a visitor. An adjudicator allowed his appeal but gave no directions. The entry clearance officer when the case went back to him made further enquiries; he concluded that the adjudicator had been misled: he again refused the applicant entry clearance. Counsel for the applicant submitted that what the entry clearance officer had done was to render the result of the appeal nugatory, although he accepted that the entry clearance officer was entitled to make further enquiries to establish if there had been a a change of circumstances since the date of the earlier decision. In the events which had happened he should either have appealed the adjudicator's determination, or granted entry clearance, advising the immigration service of a change of circumstances which would have given the applicant a right to appeal while in the United Kingdom if refused leave to enter on arrival. For the respondent it was argued that the entry clearance officer had properly conducted his further enquiries and there was established a quite different factual basis so that (distinguishing Momin Ali) it could not be said that the adjudicator's determination was res judicata. He was not obliged to appeal the determination. Held: 1. Where an entry clearance officer felt that an adjudicator had reached a wrong conclusion, the proper course was to appeal to the Tribunal. It would be wholly improper for an attempt to be made to circumvent the adjudicator's decision by pursuing further enquiries with a view to denying entry on a different basis. That impropriety would be compounded if, as happened in this case, the entry clearance officer gave a second oral decision refusing entry clearance which he failed to communicate in writing to the applicant within the time prescribed by the rules. 2. In the present case the evidence did not prove that the entry clearance officer had sought to side-step the adjudicator's decision. In the absence of directions he had an obligation to make further enquiries under the rules. He was not limited to a right of appeal. 3. If those enquiries revealed deception, the discovery of that deception was capable of being a change of circumstances such as would justify the entry clearance officer taking a different view from that of the adjudicator, ignorant of the deception. 4. The entry clearance officer had now issued a written refusal which attracted a right of appeal: in those circumstances the discretionary remedy of judicial review would be refused.

Cases referred to in the Judgment:

Ladd v Marshall [1954] 1 WLR 1489: [1954] 3 All ER 745. Momin Ali v Secretary of State for the Home Department [1984] Imm AR 23.

Counsel:

R Scannell for the applicant; Miss A Foster for the respondent PANEL: Rose J

Judgment One:

ROSE J: This is an application, brought with leave of Otton J after initial refusal of leave by Webster J, for judicial review by way of certiorari and mandamus of a decision of an entry clearance officer in relation to an application by the applicant for permission to enter the United Kingdom temporarily as a visitor. The decision was given orally in Pakistan on 16 May 1988 and confirmed in writing by letter of 26 June 1988. The essential factual background to the matter is that on 12 August 1987 the applicant sought a visa to visit his father, who has lived in the United Kingdom for a good many years. The applicant through an interpreter was interviewed by an entry clearance officer. At the conclusion of the interview, his application was refused on the basis that the ECO "was convinced neither of the appellant's claimed relationship nor of the nature and profitability of the appellant's business in Pakistan". Accordingly, the ECO was not satisfied that the applicant was a genuine visitor. His case was that he wanted to come for a month or so to the United Kingdom for the purpose of seeing the United Kingdom before his father returned, as he expressed the intention of doing, to Pakistan to set up a printing business in Pakistan. Against that decision the applicant appealed and he of course remained throughout in Pakistan. His father attended before the adjudicator on the hearing of the appeal on 2 March 1988 and gave evidence before the adjudicator at Leeds, Mr Smedley. He gave evidence in particular with regard to the applicant's business and income in Pakistan and about the father's business intentions in the future in Pakistan. The adjudicator allowed the appeal. He said: "It appears that the entry clearance officer had doubts about (1) the appellant's income; (2) the planned business venture, and (3) the appellant's birth certificate. I consider these points are now satisfactorily explained." Thereafter what occurred appears very largely from a letter written on 26 June 1988 by the British Consulate-General in Karachi to the Sheffield Law Centre, who were acting on behalf of the applicant and his father. The adjudicator's determination was apparently received by that Consulate in Karachi on 5 April 1988. That is well within the 42 days prescribed by the rules for appeal. The entry clearance officer did not appeal, but it appears from the letter of 26 June that, instead, on 11 May he visited the home of the applicant in Karachi and there had some conversations with members of his household and with neighbours, although the applicant himself was not there on that occasion. He apparently concluded that the applicant was not working and had not done so for the past 18 months. According to the letter, the applicant himself admitted at interview five days later that he had not worked in Pakistan. (I comment in parenthesis that it was the applicant's contention before the adjudicator, advanced by the evidence given by his father, that he had worked and was earning a substantial income.) The letter of 26 June goes on to say that the adjudicator had not issued any directions when allowing the appeal and it is common ground between counsel who have appeared before me that that was in accordance with the practice at that time, namely, that directions in a case such as this would not normally be given. The letter states that where no directions have been given, "the Entry Clearance officer has to consider whether, in the light of the adjudicator's determination and the appellant's current circumstances, the appellant qualifies for admission to the United Kingdom. In this case, there is a good reason to believe that the adjudicator was misled in respect of the appellant's business activities in Pakistan as he was, in fact, without employment. Given this deception the appellant did not qualify for admission to the United Kingdom . . .". On behalf of the applicant, Mr Scannell submits that the effect of that which the entry clearance officer did was to render nugatory the applicant's success on appeal to the adjudicator. It is common ground between counsel -- and Mr Scannell accepts this on behalf of the applicant -- that if there is a change of circumstances in relation to the application for entry that is something which the entry clearance officer is not only entitled to consider but which he must consider in determining whether or not to issue a certificate, the matter having returned to him following a successful appeal. A good deal of the argument before me has centred upon what the phrase "change of circumstances" means. In Mr Scannell's submission what the entry clearance officer should have done was one of two things. He ought either to have appealed against the decision of the adjudicator to the Immigration Appeal Tribunal in accordance with procedures laid down in the rules. He has 42 days in which to do that. He was notified of the adjudicator's decision well within that time and he ought therefore, if he wished to do so, to have appealed in accordance with those procedures. It is true, says Mr Scannell, that an appeal lies solely on a point of law and with leave, but if there were fresh evidence available, certainly in accordance with the principle of Ladd v Marshall, such an appeal could and should have been pursued by the entry clearance officer. Alternatively, submits Mr Scannell, the entry clearance officer should have issued a certificate of clearance to enable the applicant to travel to the United Kingdom and there the immigration service could have been contacted by telex and invited to exercise their powers of refusal under paragraph 13 of HC 169. By such a route the applicant would at least have had the advantage of being present in the United Kingdom and therefore of having the opportunity to give evidence himself upon the hearing of any subsequent appeal. What the entry clearance officer here did, submits Mr Scannell, instead of pursuing either of those two choices was to embark on enquiries designed to undermine and disregard the appellate decision of the adjudicator. He submits that the entry clearance officer was thereby seeking to ignore a decision which was, in the words of the Master of the Rolls, Sir John Donaldson, in Momin Ali v Secretary of State for the Home Department [1984] Imm AR 23, at page 29, res judicata or very close to it. On behalf of the respondent, Miss Foster submits that, having regard to the provisions of rule 17 of HC 169, although the entry clearance officer did have the option of appealing, he was not obliged to follow that course. On the contrary he had a duty, in the terms of rule 17, to examine matters as they stood at the time when the matter came before him for decision as to whether or not an entry clearance should be granted subsequent to this successful appeal. Rule 17 provides as follows: "A passenger seeking entry as a visitor, including one coming to stay with relatives or friends, is to be admitted if he satisfies the immigration officer that he is genuinely seeking entry for the period of the visit as stated by him and that for that period he will maintain and accommodate himself and any dependents, or will, with any dependents, be maintained and accommodated adequately by relatives or friends, without working or recourse to public funds and can meet the cost of the return or onward journey. But in all cases leave to enter is to be refused if the immigration officer is not so satisfied, and in particular, leave to enter is to be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds if admitted." She submits that the information before the entry clearance officer, as a result of the enquiries which he was obliged to make, led him to believe that the material upon which the adjudicator had reached his decision was untrue. Therefore she submits, distinguishing the Momin Ali case, that the whole factual matrix which the entry clearance officer had to consider when the matter ultimately returned to him had been changed from that on which he made his initial decision. In my judgment, if an entry clearance officer or those acting on his behalf feel that an adjudicator overruling the decision of an entry clearance officer has reached a wrong decision, the proper course is to pursue an appeal in accordance with the rules to an Immigration Appeal Tribunal. It would be wholly improper for an attempt to be made to circumvent the adjudicator's decision by pursuing further enquiries with a view to denying entry on a different basis. That impropriety would be compounded if, as happened in the present case, the entry clearance officer gave a second oral decision refusing entry, which he failed to communicate in writing to the applicant within the time prescribed by the rules. If those considerations are not understood and heeded by entry clearance officers, the sooner they are understood and heeded the better. But these strictures are not, as it seems to me, determinative of this present application for three reasons. First, I am not persuaded, on the material before me, that the entry clearance officer in the present case was seeking to side-step the adjudicator's decision. In the absence of directions by the adjudicator, the entry clearance officer had an obligation under rule 17 to ask questions in order properly to consider the circumstances at the time that the matter came before him again. If, in pursuance of those enquiries, some possible fraud or deception on behalf of the applicant came to light, it might well be appropriate and indeed necessary in accordance with rule 17 to refuse entry. Put another way, if there is deception on the part of this applicant, the discovery of that deception is in my judgment capable of being a change in circumstances such as would justify the entry clearance officer taking a different view from that of the adjudicator made in ignorance of that deception. Secondly, although the entry clearance officer has a right of appeal within 42 days, it does not in my judgment follow that he is limited to that right of appeal. He still has to perform his obligations in accordance with rule 17. The performance of those obligations necessarily involves the making of up-to-date enquiries. Thirdly, the resolution of hotly disputed, factual questions -- and in the present case it is plain that these are many and varied -- is best effected by following the appellate procedures. The entry clearance officer, albeit very belatedly, has now by notice dated 11 June 1989 given his decision in writing and an appeal against that decision can be pursued. Accordingly, in my judgment, judicial review being (as it is) a discretionary remedy, I do not believe it to be appropriate in the present case. For these shortly stated reasons this application fails.

DISPOSITION:

Application dismissed

SOLICITORS:

Sheffield Law Centre; Treasury Solicitor