R v. Secretary of State for the Home Department, Ex parte Madoris Miah



2 October 1997

Queen's Bench Division: Owen J

Dependent relatives - entry clearance officer not satisfied sponsor could accommodate and maintain dependants without recourse to public funds – appeal - evidence of post-decision circumstances submitted to support submission that requirements of the rules satisfied - whether such evidence should be entertained in appeal. HC 251 paras. 50, 52.

The applicant for judicial review was a citizen of Bangladesh settled in the United Kingdom. Applications were made in Dhaka for entry clearance to permit his wife and children to join him in the United Kingdom. The applications were refused, the entry clearance officer not being satisfied that they could be accommodated and maintained without recourse to public funds. In the course of appeals, evidence was put forward of post-decision circumstances, which it was asserted showed that the requirements of the rules were, by then, satisfied.

The adjudicator concluded that he was not entitled to take into account evidence which related to post-decision changes in circumstances. He dismissed the appeal and leave to appeal to the Tribunal was refused.

Counsel argued that following Ravichandran the adjudicator should have taken into account circumstances obtaining at the date of hearing before him.


1. Ravichandran was an asylum appeal: the principles to be observed in determining asylum appeals were different, as the judgments made clear, from the principles that applied in non-asylum appeals.

2. The adjudicator had adopted the correct approach to the issues before him.

A Riza QC for the applicant

R Jay for the respondent

Cases referred to in the judgment:

R v Immigration Appeal Tribunal ex parte El Hassanin [1986] 1 WLR 1448: [1986] Imm AR 502.

Senathirajah Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97.

OWEN J: This is an application for judicial review of a determination of a Tribunal on 19 September 1996. The decision refused leave to appeal against the determination of an adjudicator. That determination was dated 15 May 1996.

The essential background facts are these. Mr. Miah, who is the sponsor, came to this country in 1963. He is a citizen of Bangladesh. He has been in this country ever since and of course he is settled here. I suspect it would be unpossible for him to go back to Bangladesh to settle down and lead a form of happy life there. In December 1993 he made an application in respect of his wife and two children that they should be allowed to come and settle here. On 22 August 1994 the entry clearance officer rejected the applications. He did so under paragraphs 50 and 52 of the rules. Paragraph 50:

"The passenger seeking admission to the UK as the spouse of a person who is present and settled in the UK must hold a current entry clearance granted for that purpose. Entry clearance would be refused unless the ECO is satisfied:

(d)that there will be accommodation for the parties and their dependants without recourse to public funds in accommodation of their own or which they occupy themselves; and

(e)that the parties will be able to maintain themselves and their dependants adequately without recourse to public funds."

I am asked to bear specifically in mind the future tense used in both (d) and (e). It is also correct for me to point out that the tense that is used at the start of that rule, referring to the entry clearance officer, is the present tense, that he should refuse unless he is satisfied. But of course it does refer to something in the future. Of course it had to refer to something in the future because he cannot say "this is the position at this time" because he is asked to decide very often on arrival and that is the nature of the situation. Admission was refused on those grounds on 22 August 1994.

There were three documents which indicated a change after that time. One of the documents is at page 46 of the bundle and is a letter which was written by Mr. Chatwin, on behalf of the Camden Community Law Centre, on 25 April 1996, after the hearing. That was concerned with income support allowance.

The next document is that which appears at pages 48 onwards and relates to a property which had by that time become available to the present applicant and his family. The other document predated the hearing. It was dated 10 March. That is a letter which offered employment to the son.

The adjudicator dismissed the appeal. The written document is dated 15 May. The passages to which exception is taken in particular are those which appear at page 25 of the bundle:

"In order to reach a decision whether or not to allow an appeal under section 19(l) of the 1971 Act, I must confine myself to reviewing the determination of the facts upon which the Secretary of State made his decision. In reviewing that question of fact, I am not confined to the evidence that was before the decision-maker (section 19 (2)). 1 am entitled to correct factual errors and hear of matters that were unknown to the decision-maker, although then existing. See R v Immigration Appeal Tribunal, ex parte El Hassanin [1986] 1 WLR 1448. In doing so, I must distinguish between such existing facts and post-decision facts. Post-decision facts are material insofar as they shed light on facts in existence at the time of the decision."

It is with that statement of law that the applicant quarrels. First, the applicant points out the use of the future tense in the rules by indicating what will be the situation. Secondly, it is said that one must look at the general picture here and that that which was decided in Ravichandran [1996] Imm AR 97 should apply here. In particular I have been asked to look at pages 111 and onwards of the decision. Page 111 sets out the background to the relevant statutory provisions. Simon Brown LJ said:

"8(1).A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on grounds that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention."

That refers to the Refugee Convention. It refers to the future, as is inevitable and of course it is necessary to look to the future to the extent certainly that it is necessary under the rules which are applicable here. Indeed, Simon Brown LJ said:

"Section 8 appears to look to a removal in the future and to raise on appeal the question whether that would contravene the Convention."

He then sets out section 19(l) and (2) and continues:

"With regard to immigration appeals generally (which, of course, are by no means restricted to primary purposes cases) there is no doubt whatever that appeals have to be dealt with on the basis of the factual situation existing at the time of the original decision against which the appeal is brought. That was established in 1982 in R v Immigration Appeal Tribunal ex parte Weerasuriya [1983] 1 All ER 195 and R v Immigration Appeal Tribunal ex parte Kotecha [19831 2 All ER 289, and the rule has been applied in innumerable cases since. Does the reasoning in those cases apply equally, as Mr. Macdonald submits, to asylum appeals?"

Simon Brown LJ continues:

"I have reached the conclusion that in asylum cases the appellate structure as applied by the 1993 Act is to be regarded rather as an extension of the decision-making process. I am, I think, entitled to reach that conclusion as a matter of construction on the basis that the prospective nature of the question posed by section 8 of the 1993 Act overrides the retrospective approach ordinarily required (implicitly) on a section 19 appeal."

Section 8 of course refers to the Convention. This is not a Convention case. of course, one has some sympathy with the application but, quite clearly, this case contemplates that the asylum cases are in a different category and indeed that was the result of El Hassanin [1986] 1 WLR 1448 where a similar result was achieved.

In these circumstances, the adjudicator went on to deal with the matter and decided that the rules would be breached in the manner in which I have indicated. He did in fact consider the two documents which were already before him. He dealt with them by saying that which is foreshadowed in his recital of the law. In other words, it was post-decision evidence and could not assist him in assessing the entry clearance officer's decision. In my judgment, that was the correct approach. Indeed, the only proper approach. In those circumstances, I must come to the conclusion that when in due course the Tribunal refused leave to appeal, which they did on 19 September 1996, the appeal having been made on 20 June 1996, the Tribunal was acting properly. Leave was granted on 29 November. The matter has been fully argued. I am quite satisfied that the proper answer is that the application must be dismissed.

Application dismissed

Solicitors: Camden Community Law Centre, London, NW5; Treasury Solicitor

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