R v. Immigration Appeal Tribunal, Ex parte Rashida Bi

R v IMMIGRATION APPEAL TRIBUNAL ex parte RASHIDA BI

Queen's Bench Division

[1990] Imm AR 348

Hearing Date: 5 March 1990

5 March 1990

Index Terms:

Tribunal -- application for leave to appeal -- the proper approach to be adopted by the Tribunal in the light of the Procedure Rules -- the extent of the Tribunal's discretion. Immigration Appeals (Procedure) Rules 1984 r 14(2)(a).

Held:

The applicant was the sponsor, the wife of Mazhar Iqbal, a citizen of Pakistan who had been refused entry clearance because the entry clearance officer had not been satisfied on the issue of primary purpose. An appeal had been dismissed by an adjudicator. The Tribunal had refused leave to appeal. On application for judicial review the challenge was limited to the terms in which the Tribunal had refused leave. Counsel, on an analysis of the determination of the application, argued that the Tribunal had failed to exercise its residual discretion embodied in the Procedure Rules. The court reviewed the relevant rule and considered the stages by which a decision on an application for leave to appeal should be reached. Held 1. Although leave to appeal was required in all cases, there was always a discretion in the Tribunal to grant leave to appeal against the determination of an adjudicator. 2. If one of the grounds submitted in support of the application for leave to appeal were that the adjudicator had misdirected himself in point of law, the Tribunal had to reach a preliminary view on that ground. 3. If the Tribunal concluded that such a ground were arguable, it then had to ask itself whether without that error of law the adjudicator could properly have made the determination he had made. If he would have come to a different conclusion, then leave had to be granted. 4. If the Tribunal however concluded that even if he had not misdirected himself, the adjudicator could properly have come to the determination he had, then there would be no mandatory requirement that leave be granted. 5. The Tribunal would then have to look at the case and exercise its residual discretion. If it concluded that properly directing itself as to the law and looking at all the facts, it was reasonably likely that it would come to the same conclusion, leave would be refused: otherwise leave would be granted. 6. Although the phrasing of the determination under attack was not entirely clear and in one particular inapt, the court on reviewing all the circumstances, concluded that the Tribunal had approached the issues correctly.

Cases referred to in the Judgment:

No cases are referred to in the judgment

Counsel:

E Rees for the applicant; J Laws for the respondent PANEL: Simon Brown J

Judgment One:

SIMON BROWN J: Mazhar Iqbal and Rashinda Bi were married in Pakistan on 28 April 1986. She was then 19 and he 17. She was a citizen of the United Kingdom, having been registered as such in September, 1985 he a citizen of Pakistan. After the marriage, Mazhar Iqbal applied in Pakistan for entry clearance to join his wife in this country. That application was refused. The entry clearance officer was not satisfied that "the marriage was not entered into primarily to obtain admission to the United Kingdom", a reference of course to the terms of paragraph 46 of HC 169. He appealed against that refusal of leave to the adjudicator. Upon the dismissal of that appeal on 24 November, 1988, he sought leave to appeal from the Immigration Appeal Tribunal. That leave was refused on 21 March, 1989 and it is that refusal of leave which is the subject of the judicial review proceedings now before me, brought with the leave of the court. Although strictly it is Rashida Bi who is the applicant before this court, for convenience sake I shall refer to Mazhar Iqbal as the applicant. He was, of course, the applicant for leave to appeal before the Tribunal. It is convenient at this stage to recite in full the relatively short determination refusing the application for leave. Mr Neve, sitting alone as the President of the Immigration Appeal Tribunal, refused it in these terms: "(1) The Applicant, a citizen of Pakistan, has applied to the Tribunal for leave to appeal against the determination of an adjudicator (Mr FJ Myers) dismissing his appeal against the refusal of entry clearance to enable him to join his wife for settlement in this country. "(2) The Tribunal has considered the grounds submitted in support of the application, the documentary evidence, the record of proceedings and the adjudicator's determination. "(3) One ground of appeal (referring to paragraph 46 of HC 169) is that the adjudicator 'failed to consider (as he was obliged to do) the relevance of paragraph (b) to a proper assessment of paragraph (a)'. The Tribunal agrees that the adjudicator erred in this way, but having regard to the evidence as a whole considers that, even if he had done so, he could properly have made the determination he did. "(4) In the opinion of the Tribunal, and in the light of rule 14(2)(a) Immigration Appeals (Procedure) Rules 1984 this is not a proper case in which to grant leave to appeal, and such leave is refused." (I have numbered the paragraphs for ease of reference hereafter). The application before me requires first a proper appreciation of the scope of rule 14(2)(a) of the 1984 Procedure Rules. It provides as follows: "14(2) . . . an appellate authority to whom application for leave to appeal . . . is duly made shall grant it: (a) if the authority is satisfied that the determination of the appeal involves an arguable point of law, except that where leave to appeal is sought from the Tribunal on the ground that an adjudicator misdirected himself on a point of law, then the Tribunal may, notwithstanding that it is of the opinion that the point of law raised in the application might be decided in favour of the applicant, refuse leave to appeal if it considers that even if the adjudicator had not misdirected himself on the point in question, he could properly have made the determination he did."

. . .

In considering the effect of that rule, it is necessary to bear in mind that whilst leave to appeal is required in all cases, there is always a discretion in the Tribunal to grant leave to appeal against the determination of an adjudicator, except only when it is mandatory to do so. Rule 14(2)(a) merely provides for one situation in which it is mandatory. The correct approach to rule 14(2)(a) is, in my judgment, clear and indeed I do not understand it now to be in substantial doubt or dispute, despite the terms in which the judicial review proceedings were originally couched. In any case where one of the grounds of the proposed appeal is that the adjudicator misdirected himself in point of law, the Tribunal must reach a preliminary view upon that ground. If the Tribunal concludes that such ground is arguable, if in the language of the rule the Tribunal "is of the opinion that the point of law raised in the application might be decided in favour of the applicant", it is necessary then to ask at least one and possibly two further questions. Question one: absent such error of law, could the adjudicator properly have made the determination that he did? In other words, assuming that the adjudicator had got the law right, would he necessarily have come to a different conclusion? If he would have had to come to a different conclusion, then the Tribunal has no alternative but to grant leave to appeal. At the substantive hearing that point of law would then finally be resolved and if an error of law were established, it would inevitably follow as the night the day that the appeal would then succeed. If, however, that first question is answered by the Tribunal to the effect that even if the adjudicator had directed himself correctly in law, he nevertheless could properly have come to the determination that he did, it is clear that there is then no mandatory requirement on the Tribunal to grant leave. But, of course, they would have a residual discretion to do so and it is that which gives rise to question two, which may be put essentially in these terms: is it our view that the adjudicator, even though he may have misdirected himself in law, nevertheless came to the right conclusion in the case? Are we reasonably sure that we too, correctly directing ourselves as to the law and having regard to the facts and merits of the case, would have arrived at the same determination as the adjudicator? If so, leave would be refused; otherwise granted. Plainly, and there is clear and long-established authority to this effect, the Tribunal do not approach this question on a Wednesbury basis. Any appeal to them is a full appeal and they are wholly free to form their own quite independent judgment on the merits of the proposed appeal. In the present case, not only did the Tribunal reach the opinion that the point of law raised upon the application for leave to appeal might be decided in favour of the applicant, but they appear to have reached a clear, although necessarily interim, conclusion that the adjudicator had indeed erred in the way for which the applicant was contending. It is not, in my judgment, necessary for this court today to express its view upon that matter. Suffice it to say that Mr Laws, although acting for the Tribunal and without explicit instruction in this regard, places a substantial question mark over the correctness of the Tribunal's initial reaction to the point in question. He submits that on a proper view of the present authorities it is by no means clear that the adjudicator erred in any way and certainly does not concede the point. Nevertheless, for the purposes of this application, I shall assume that at the very least there was an arguable error of law, which is all that rule 14(2)(a) requires to raise the questions here in issue. Mr Rees for the applicant nevertheless concedes, in my judgment clearly correctly, that this was not a case where the Tribunal were bound to grant leave. Even assuming that there was here the error of law for which he contends, it is perfectly plain that even without it the adjudicator could probably have decided the appeal against refusal of entry clearance adversely to the applicant, as he did. Mr Ree's submissions concentrate on the Tribunal's approach to the second of the questions which accordingly fell for their consideration. His first submission, as I understand it, is that it is apparent from the terms in which the Tribunal dismissed this application that they did not in fact exercise the undoubted residual discretion which they had. Put slightly differently, albeit to equivalent effect, he submits that any discretion that was here exercised by the Tribunal was exercised solely by reference to the self-same consideration as determined whether or no there was a mandatory requirement to grant leave, namely, the consideration whether, even absent the arguable point of law, the adjudicator could properly decide the appeal against the applicant. The submission in short amounts to this: that the discretion here was exercised by the Tribunal against the applicant solely because of the very consideration which gave rise to that discretion in the first place. In my judgment, it is an impossible contention. It is really not to be thought that the very experienced President of the Immigration Appeals Tribunal believed that once it became apparent that there was no mandatory requirement to grant leave to appeal, it followed that the discretion whether to grant leave to appeal fell likewise to be exercised against the applicant. The second of Mr Ree's submissions is essentially a repeat of the first but in diluted form, namely, that the Tribunal failed to have regard to the wider considerations which clearly came into play when deciding how to exercise their discretion. Without seeking to explore all the detailed facts that clearly arose here for consideration, Mr Rees points to the various matters that had been canvassed before the adjudicator and which were the subject of the intended grounds of appeal to the Immigration Appeal Tribunal. Again, it seems to me that this contention cannot succeed. In paragraph 2 of his determination, Mr Neve states in terms that the Tribunal has considered all these various matters and there is to be noted a contrast between the reference in paragraph 2 to the grounds and the evidence as a whole and the reference in paragrph 3 to the single ground of appeal which raised the arguable point of law. Mr Ree's third and final ground of challenge is that it is by no means apparent from the determination that the Tribunal had in fact correctly addressed themselves to the proper exercise of their discretion and properly recognised that they would be entitled upon an appeal to come to their own fresh and independent determination of the substantive merits of the applicant's case. He submits that in a rule 14(2)(a) case in particular, a case that is in which one begins by postulating at the very least an arguable error of law by the adjudicator, it is important that the Tribunal do not readily refuse to exercise their discretion to grant leave to appeal so as to leave it open to an applicant to develop at the substantive hearing thereafter all the possible implications of the adjudicator having in the first place erred in point of law. And, submits Mr Rees (and in my judgment this is certainly the highwater mark of his argument upon this motion) there are within the Tribunal's adverse determination here certain features which raise doubts in one's mind as to whether they properly recognised that the general merits of the applicant's case would be open to reconsideration if they chose to give leave. Mr Rees's submissions concentrate essentially upon paragraph (4) of the determination, in which the Tribunal make an apparently inapt reference to rule 14(2)(a) in concluding that "this is not a proper case in which to grant leave to appeal": In the general run of applications to the Tribunal for leave to appeal where no arguable point of law is raised and the Tribunal decide to refuse leave, their short reasoned refusal to grant leave tends to include some such statement as this: "In the Tribunal's opinion the adjudicator's findings of fact were not against the weight of the evidence and were properly supported by it. The determination disclosed no misdirection in law or wrong exercise of discretion. The application is dismissed." That is actually a quotation from a case where the Tribunal dismissed an appeal rather than an application for leave to appeal which happens to be reported in a volume of the Immigration Appeal Reports presently before the court. Mr Rees submits that the absence of any similar reference here to the adjudicator's findings of fact or to consideration of the weight of the evidence as a whole, coupled with the reference in paragraph (4) to rule 14(2)(a) which he argues is by that stage redundant, supports his contention that the Tribunal approached the matter wrongly. I decline to accept that submission. The challenge here, let it be clear, is not a reasons challenge as such. There is certainly no hint of any such challenge in the grounds. Had there been, the Tribunal would have been entitled to file evidence expanding on and explaining the true basis of their determination. I have little doubt that that opportunity would have been taken. The way the applicant now puts it -- indeed the only way open to Mr Rees to argue his case -- is that the actual reasoning contained in the determination suggests that the Tribunal erred in their approach. I am not willing to draw that inference. In the first place, it would have been a remarkable error for the Tribunal to have made; to fail to appreciate the true nature and width of the discretion that they enjoyed on an application for leave to appeal. Secondly, it seems to me that the reference in paragraph (4) of the determination to "the opinion of the Tribunal" in general terms coupled with a reference to whether this was "a proper case in which to grant leave to appeal" are sufficient to indicate that they did not regard the application as determined conclusively by their decision upon the application of rule 14(2)(a), ie, their decision that leave was not mandatory since the adjudicator could probably have come to his determination even absent his arguable error of law. Of course, this Tribunal decision could have been framed more felicitously so as to place beyond argument the points now at issue. No doubt it would have been better if the express reference to rule 14 had been incorporated into paragraph (3) rather than (4), and had paragraph (4) in terms addressed itself to the Tribunal's residual discretion and declined to exercise that in favour of the applicant by reference to the sort of considerations that are generally referred to in adverse determinations in such terms as I have already recited. In my judgment, however, that is not a sufficient basis upon which to infer that the Tribunal here made the crass error that Mr Rees needs to establish in order to make good this challenge. Accordingly, the application must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley-Burgess; Treasury Solicitor