Entry Certificate Officer, New Delhi v. Bhambra

Publisher	United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author	Immigration Appeal Tribunal
Publication Date	17 July 1972
Citation / Document Symbol	[1973] Imm AR 14
Type of Decision	TH/219/72(22)
Cite as	Entry Certificate Officer, New Delhi v. Bhambra, [1973] Imm AR 14, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 17 July 1972, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6588.html [accessed 4 November 2019]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

ENTRY CERTIFICATE OFFICER, NEW DELHI v BHAMBRA, TH/219/72(22)

Immigration Appeal Tribunal

[1973] Imm AR 14

Hearing Date: 17 July 1972

17 July 1972

Index Terms:

Practice and procedure -- Evidence -- Further evidence before Tribunal -- Application refused where evidence to be led regarding student application related to happenings after refusal of entry certificate -- Immigration Appeals (Procedure) Rules 1970, r 16(2).

Precedent -- Previous decisions of Tribunal -- Matters of principle previously laid down duly noted by Tribunal but testimony and particular facts considered in each case.

Student -- 'Genuine intention' of taking specified course -- Suspicion that primary purpose employment and settlement -- Facts in case exciting suspicion -- Whether doubts as to genuineness of intentions based on evidence justifying refusal of entry certificate -- Cmnd 4298, para 19.

Held:

B, a citizen of India born in 1946, applied in New Delhi in February 1971 for an entry certificate to enable him to attend a 2-year Ordinary National Diploma course in electrical engineering for which he had been accepted by a technical college. He had in May 1969 successfully completed 2 years of a 3-year diploma course in electrical engineering at a polytechnic college in India, but since that time he had done nothing. He told the entry certificate officer that he had not completed his third year because he had been trying to gain admission to a college in the United Kingdom. His father had been supporting him. Except for a married sister all B's family were settled in the United Kingdom. B's intentions were "realistic" having regard to his previous attainments, and his family could meet the cost of the course and of his maintenance, but the entry certificate officer refused to grant B's application because he formed the opinion that B's true purpose in seeking entry to the United Kingdom was to obtain unauthorised employment and settle there. B's appeal against this decision was allowed by an adjudicator. On the entry certificate officer's appeal to the Tribunal, B's counsel asked for leave to lead evidence regarding B's activities since the refusal of his application; this was opposed on behalf of the entry certificate officer n1. On the merits of the case a number of previous decisions in the High Court and by the Tribunal were cited as precedents by the parties.

n1 Under r 16 of the Immigration Appeals (Procedure) Rules 1970 (r 18 in the 1972 Procedure Rules) any party wishing to adduce evidence before the Tribunal further to that which was adduced before the adjudicator shall give notice in writing to that effect, and the Tribunal may, in its discretion, receive or decline to receive such further evidence.

Held: (i) (on counsel's application), evidence relating to happenings after the date of refusal of this application would not be permitted, because such happenings should form the basis of a new application;

(ii) (on the citing of precedents), although it took due note of matters of principle laid down by it in previous decisions, the Tribunal in deciding an appeal considered the testimony and the particular facts in each case.

(iii) (on the substantive issue), the facts (a) that B had done nothing during the 18 months following completion of 2 years of his 3-year diploma course, and (b) that B's family were already settled in the United Kingdom, might well excite suspicion as to the genuiness of B's application, but it was doubtful if mere suspicion as to the genuineness of B's application could be construed as 'grounds' within the meaning of para 19 of Cmnd 4298 n2. Grounds for doubting the genuineness of an applicant's intentions must be based on some evidence (as opposed to suspicion), and in this case the available evidence did not provide grounds for refusing the application under para 19.

n2 Paragraph 19 of Cmnd 4298 is set out on p 17, post.

Counsel:

C. F. Woodiss for the appellant Entry Certificate Officer.

G. Yazdani (counsel) for the respondent Mr D. S. Bhambra.

PANEL:

Sir Derek Hilton (President), Sir John Rankine, L. W. Chapman Esq.

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr T. D. Healy) allowing the respondent's appeal against the refusal to grant him an entry certificate to enable him to undergo a course of study in the United Kingdom.

The respondent, Mr Darshan Singh Bhambra, who is stated to have been born on 23 May 1946, is a citizen of India. He applied for an entry certificate at New Delhi on 1 February 1971 to enable him to attend a two-year course of study at South East London Technical College leading to the Ordinary National Diploma in electrical engineering. He told the entry certificate officer that his parents, brother and two sisters were in the United Kingdom and that he was living with the parents-in-law of his married sister in India. His father would meet all the expenses involved. The respondent had been accepted on the proposed course. After passing his pre-university examination in English, Physics and Chemistry in April 1968 he went to Ramgarhia Polytechnic College, Phagwara, for a three-year diploma course in electrical engineering. He passed the first year examination in September 1968 and the second year examination in May 1969. He further told the entry certificate officer that he did not complete the third year of the course as he was then trying to gain admission to a college in the United Kingdom but he was unsuccessful. Since May 1969 he had done nothing and was supported by his father. The rest of the details given by the respondent are set out in the entry certificate officer's explanatory statement. For the reasons given the latter refused the application as he was of the opinion that the true purpose for which the respondent was going to the United Kingdom was to seek unauthorised employment and settle there. The respondent appealed against this decision.

At the hearing of the appeal before the adjudicator evidence was given by Gurdit Singh Bhambra, the respondent's father. The adjudicator allowed the appeal. In his opinion for the reasons he gave in his determination the Tribunal decision in the case of Satish Lal Sharma n3 appeared to have particular relevance and as he could not really distinguish the two cases and did not think the appellant's case was advanced by the points taken, where they differed, he felt bound to allow the respondent's appeal.

n3 [1972] Imm A R 219; TH/1571/71.

An application for leave to appeal was later granted by the Tribunal, the grounds of appeal being

"That the Secretary of State considers the adjudicator relied too much on a previous Tribunal decision and did not give due weight to the particular circumstances of this case."

At the hearing of the appeal before us, Mr Woodiss referred to what had been said before the adjudicator concerning Tribunal decisions and said that these were always carefully noted by the appellant and the immigration staff.

On behalf of the appellant Mr Woodiss made the following submissions: -- (1) applications under para 19 of Cmnd 4298 were essentially for a temporary stay in this country and enrolment for a course of study could not be used as a means of admission without a voucher n4; (2) he referred us to the case of R v Immigration Appeal Tribunal ex p Perween Khan heard by the Divisional Court on 23 June 1972 when the Lord Chief Justice said that what was in the immigrant's mind about conduct after the course had to be a factor in determining the purpose or purposes of entry n5; (3) he analysed fully the reasons set out in the adjudicator's determination for his comparison of this case with the decision in the case of Satish Lal Sharma n6 and argued that that decision was no authority for holding that two different persons must have the same intentions if their applications were based on similar facts. There must be a fresh determination in each case. In this case the adjudicator had fettered himself and had not made any real attempt to discover the true intentions of the respondent; (4) he accepted that the proposed course met the necessary requirements and that it was realistic having regard to the respondent's previous attainments. He also agreed that there was evidence of the respondent's ability to meet the cost of the course and of his maintenance. The issue was the genuiness of the application. The adjudicator had accepted that there was grounds for doubting this and it must be borne in mind that the whole of the respondent's family except one married sister were already in the United Kingdom. In his view there was much background evidence to suggest an intention to stay in this country and the inference must be drawn that enrolment as a student was a stepping-stone to a more permanent stay.

n4 Paragraph 19 of Cmnd 4298 is set out on p 17, post.

n5 [1972] Imm A R 268 at p 272.

n6 [1972] Imm A R 219; TH/1571.

In addressing us Mr Yazdani applied for permission for the respondent's father to give further evidence as to the activities of the respondent since his application was refused. The application was opposed by Mr Woodiss on the grounds that the appeal should be determined on the available evidence up to the date of refusal and that any further happenings after that date should form the basis of a new application. We upheld this objection.

In reply to Mr Woodiss' submissions Mr Yazdani pointed out that the respondent had complied with the provisions of s 2 (3) (b) of the Commonwealth Immigrants Act 1962 n7. In his view, for the reasons he gave, the case of Satish Lal Sharma n8 was weaker than this case and in consequence this appeal must be decided in favour of the respondent. He accepted that the respondent's family were in the United Kingdom but in the case of Jaspal Singh Arora the Tribunal had said: "We agree that the family being settled here is a very relevant fact but such fact does not necessarily prove, without other evidence, that the appellant is coming for settlement" n9. He relied on the arguments put forward in the case of Khan v The London Airport Immigration Officer decided by the Court of Appeal on 18 April 1969 n10. In his view there had been pure speculation as to the hopes and intentions of the respondent. There was no evidence of the likelihood of his staying in this country on completion of his course.

n7 Section 2(3)(b) of the Commonwealth Immigrants Act 1962 made provision for the admission of a Commonwealth citizen to attend "a course of study at any University, college or school or other institution in the United Kingdom, being a course which will occupy a substantial part of his time". This section is not repeated in the Immigration Act 1971 but paragraph 18 in H.C. 79 refers to acceptance "for a course of study at a university, a college of education or further education, an independent school or any bona fide private educational institution".

n8 [1972] Imm. A R 219.

n9 TH/1590/71 And "on the particular facts" of that case the Tribunal "formed the opinion" that the appellant was "a genuine student and so allowed his appeal".

n10 Unreported. The case concerned the admission of an 11-year-old boy to join his father on the purported ground that his mother was dead. The boy and his father failed to satisfy the immigration officer at the port of entry that his mother had died, and on the officer's refusal to admit him he applied unsuccessfully on 12.3.69 to the Divisional Court of the Queen's Bench for orders of certiorari and mandamus. Other aspects were also argued before the Court of Appeal (SALMON, WINN & FENTON ATKINSON, LLJ), who held unanimously that the judgment of the Divisional Court was unimpeachable.

This case falls to be decided under the provisions of para 19 of Cmnd 4298 which reads: --

"19. A Commonwealth citizen seeking admission as a student should normally be expected to produce evidence of acceptance for a course of study beginning shortly, that meets the requirements of the Act (a correspondence course does not meet those requirements) and of ability to meet the cost of the course and of his own maintenance. Due weight will be given to any evidence that a student produces of qualifications he has already obtained, or of sponsorship by his home government or an educational authority. If there are grounds for doubting that his intentions are genuine and realistic -- for example where there is an obvious lack of correspondence between the student's previous attainments and the nature of the course he proposes to follow -- admission should be refused. In particular, the Immigration Officer should be on his guard against attempts to use enrolment for a course of study as a means of obtaining admission without a voucher. Attendance at the course must be the student's primary purpose in coming to the United Kingdom and he will be expected to leave when his studies are completed; if his primary intention is to work and settle, he must qualify for admission on other grounds." n11

n11 The wording of this paragraph has been somewhat changed in H.C. 79. Paragraph 19 of H.C. 79 makes no reference specifically to intentions being "realistic and genuine" but states, inter alia, that "an applicant is to be refused an entry clearance as a student if the officer is not satisfied that the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it".

It has been accepted by the appellant that the proposed course of study meets the statutory requirements, that it is realistic having regard to the respondent's previous attainments, and that the respondent can meet the cost of the course and of his maintenance. The only issue before us is whether the respondent's intentions are genuine and attendance at the course his primary purpose in wishing to come to this country.

In deciding an appeal before it the Tribunal, although it takes due note of matters of principle laid down by it in previous decisions, considers the testimony and the particular facts in each case. According to the entry certificate officer's explanatory statement he suspected the genuineness of the resondent's intentions because he had abandoned his studies at Ramgarhia Polytechnic College after completing the first two years of the three-year diploma course; he had done nothing for the following period of eighteen months, and his family were already settled in the United Kingdom. We accept that these facts might well excite such suspicion but we are doubtful if mere suspicion can be construed as 'grounds' within the meaning of para 19. We are of the opinion that grounds for doubting that an applicant's intentions are genuine must be based on some evidence (as opposed to suspicion) and in this case we do not consider that on the available evidence there are grounds within the meaning of para 19 for refusing the application. For these reasons we dismissed the appeal.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Michael Sears & Co.