Entry Clearance Officer, Islamabad v. Mohammad Ishfaq
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 14 February 1992 |
| Citation / Document Symbol | [1992] Imm AR 289 |
| Cite as | Entry Clearance Officer, Islamabad v. Mohammad Ishfaq, [1992] Imm AR 289, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 14 February 1992, available at: http://www.refworld.org/cases,GBR_AIT,3ae6b6678.html [accessed 25 June 2017] |
| 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 Clearance Officer, Islamabad v Mohammad Ishfaq
Immigration Appeal Tribunal
[1992] Imm AR 289
Hearing Date: 14 February 1992
14 February 1992
Index Terms:
Appeal -- adjudicator -- no explanatory statement before him -- no opportunity for respondent to reply to written submissions of appellant -- whether adjudicator correct to allow the appeal because of failure by respondent to produce an explanatory statement -- the proper approach to the provisions of the Procedure Rules. Immigration Appeals (Procedure) Rules 1984 rr 12(1)(b), 37(e).
Held:
The respondent had been refused entry clearance as a spouse. He appealed out of time. The appeal was allowed to proceed. The appellant before the Tribunal had not, so far as the adjudicator was aware, produced an explanatory statement, although repeatedly requested to do so. He accordingly proceeded to determine and allow the appeal. The entry clearance officer appealed to the Tribunal. It was contended that the respondent before the adjudicator had had no opportunity to reply to the written submissions made on behalf of the appellant. Moreover, he was in error in proceeding to determine the appeal without sight of the explanatory statement. Held: 1. Although, following Lokko the adjudicator had jurisdiction to hear the appeal without an explanatory statement before him, it did not follow that it was proper for him to allow the appeal "without either party being given the opportunity to put a case" to him. 2. The adjudicator had wrongly applied rule 37(e). Only cases falling within the categories set out in rule 12 could, in the discretion of an adjudicator be determined without a hearing under rule 37.Cases referred to in the Judgment:
Adolphus Lokko v Secretary of State for the Home Department [1990] Imm AR 111.Counsel:
A Gammons for the appellant; M Tramboo for the respondent PANEL: GW Farmer Esq (President), Professor DC Jackson (Vice-Prresident), JM Simons EsqJudgment One:
THE TRIBUNAL: The entry clearance officer, Islamabad, appeals against the decision of an adjudicator (Mr IMS Donnell) allowing the appeal of Mohammad Ishfaq against the refusal of entry clearance to join Sardar Begum in this country as her husband. The application was refused on 2 April 1990 and notice of appeal received on 17 July 1990. The entry clearance officer sought dismissal of the appeal on the basis that the notice was lodged out of time. Following an explanation by the appellant, the parties were notified by letters of 12 November 1990 that "the adjudicator" had directed the above appeal should proceed to a hearing. On 25 July 1991 Mr Donnell allowed the appeal, his determination reading: "The appellant is a citizen of Pakistan. He applied on 5 October 1989 for entry clearance with a view to settlement in the United Kingdom as the husband of Sardar Begum who is a British citizen. The application was refused as the respondent was not satisfied that the marriage was not entered into primarily for the appellant to obtain admission to the United Kingdom, or that adequate maintenance and accommodation was available for the appellant in the United Kingdom. The appellant's grounds of appeal are in the form of a denial that the marriage was entered into for the primary purpose of gaining entry, and an assertion that maintenance and accommodation will be available. It was directed by the Chief Adjudicator that the appeal should proceed, notwithstanding that the notice of appeal was out of time, there being special circumstances present. The respondent was requested, on 12 November 1990, to submit an explanatory statement within two months. Reminders were sent on 4 February and 9 April 1991, but to no avail. It is not to be contemplated that the respondent should be able to defeat the appeal process by refusing or delaying to submit to the appellate authority the explanatory statement out the facts on which his decision is based and the reasons therefor, in terms of rule 8(1) of the Immigration Appeal (Procedure) Rules 1984. In respect of the respondent's default in failing to submit an explanatory statement or to give any explanation for not doing so, the appeal is allowed. The appeal has been determined under the provisions of rules 12(1)(b) and 37(e) of the procedure rules." Leave to appeal to the Tribunal was granted on the following grounds: "the respondent was not given the opportunity to appeal against the Chief Adjudicator's ruling that the appeal, proceed to substantive hearing, despite Omishore [1990] Imm AR 582. The adjudicator was wrong to allow the appeal under regulation 12(1)(b) of the Immigration Appeals (Procedure) Rules 1984, without giving the respondent the opportunity to reply to the written representations made on behalf of the appellant which are not even mentioned in the reasons for allowing the appeal; The adjudicator was wrong to allow the appeal under regulation 37(e) of the Immigration Appeals (Procedure) Rules 1984 because he could not be satisfied as to whether or not the decision was in accordance with the law and the immigration rules on the information before him as he did not have a copy of the explanatory statement, nor could he be satisfied that any discretion was exercised correctly for the same reason; The adjudicator was wrong to say that the substantive explanatory statement had not been forwarded to the appellate authorities as this statement was received by them on 8 July 1991 and copied to the respondent's representative on 19 July 1991." In the proceedings before the Tribunal Mr Gammons for the entry clearance officer and Mr Tramboo for the respondent agreed that the matter should be dealt with on the papers with a view to a hearing de novo. In the light of this we take the first ground of appeal no further. The adjudicator allowed the appeal on the basis that the respondent had defeated the appeal process by failing to submit an explanatory statement. It is in our view clear that the adjudicator had jurisdiction to consider the appeal once the notice of appeal had been lodged. The transmission of an explanatory statement does not have a jurisdictional effect being in essence the submission of evidence on behalf of the entry clearance officer. (See Lokko v Secretary of State [1990] Imm AR 111). It does not, however, follow that because an adjudicator has jurisdiction to consider the appeal that either the appeal may be heard without any notification to the parties or that given such notification the appeal must necessarily be allowed. In order to allow the appeal the adjudicator must have some evidence in front of him on which to take that step. In this case the evidence was minimal in that it consisted first of Form IM2A, secondly of the notice of refusal and thirdly of the grounds of appeal. It seems to us impossible to support the allowing of the appeal on that evidence without either party being given the opportunity to put a case to the adjudicator. Further we agree with the assertions in the grounds of appeal that the course adopted by the adjudicator cannot be justified by rules 12(1)(b) or 37(e) of the Immigration Appeals (procedure) Rules 1984. As the Tribunal had said in other cases, rule 12 confers on an adjudicator a discretion to determine an appeal without a hearing. Whether or not the case fell technically within rule 12(1)(b), the exercise of discretion in this case could not be justified considering the lack of evidence from either party. Similarly, rule 37(e) cannot be used to justify the allowing of this appeal without notification to the parties and on the basis that no explanatory statement had been submitted. First, the power to regulate procedure is not relevant to the question as to whether on the evidence before him the adjudicator should have allowed the appeal. Secondly, rule 37(e) cannot justify considering an appeal without a hearing when the case does not fall within one of the categories in regard to which such a course is permitted by the rules (ie those set out in rule 12). We should say, however, that we do not agree with the ground of appeal which refers to this rule insofar as it asserts that it would not be possible for an adjudicator to decide an appeal without an explanatory statement. That is simply not correct. It is for an adjudicator to decide the appeal on the evidence before him. As we have said the explanatory statement forms part of that evidence and if it is not submitted, it simply means that the entry clearance officer has not seen fit to put that before the adjudicator. It cannot be argued that the failure to adduce evidence means that the appeal cannot be decided one way or the other. Finally, we note that the grounds of appeal assert that the explanatory statement has been forwarded to the appellate authorities and we sincerely hope that by the time this case reaches the adjudicator it will have made its appearance on the case file. The appeal is allowed in so far as the matter is remitted for hearing before an adjudicator other than Mr IMS Donnell.DISPOSITION:
Case remitted for hearing de novoSOLICITORS:
Representatives of the respondent: The United Kingdom Immigrants Advisory Service.Copyright notice: Crown Copyright
