R v. Immigration Appeal Tribunal, Ex parte Abdul Rashid

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	14 December 1977
Citation / Document Symbol	[1978] Imm AR 71
Type of Decision	TH/1193/73(666)
Cite as	R v. Immigration Appeal Tribunal, Ex parte Abdul Rashid, [1978] Imm AR 71, United Kingdom: High Court (England and Wales), 14 December 1977, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b63e34.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.

R v IMMIGRATION APPEAL TRIBUNAL Ex parte ABDUL RASHID, TH/1193/73(666)

Queen's Bench Division

[1978] Imm AR 71

Hearing Date: 14 December 1977

14 December 1977

Index Terms:

Evidence -- Admissibility -- Fresh evidence available at time of hearing before adjudicator -- Immigration officer's decision possibly based on incomplete evidence -- Returning resident -- Whether the only relevant facts on appeal those which had been established before the immigration officer -- Immigration Appeals (Procedure) Rules 1972, r 29(1) -- HC 79, para 51.

Returning resident -- Evidence -- Deficiency of evidence before immigration officer -- Onus of proof that a returning resident not discharged by applicant for re-entry -- Fresh evidence to discharge this onus relevant and admissible at appeal hearing -- Immigration Appeals (Procedure) Rules 1972, r 29(1) -- HC 79, para 51.

Held:

Where an application for entry as a returning resident (under para 51 of HC 79) was refused by an immigration officer, because the applicant had not substantiated his contention that he was a 'returning resident', additional evidence tendered to support the applicant's claimed status would be relevant and admissible on an appeal against the refusal; the adjudicator's power on such an appeal would not be restricted to a consideration of the facts which had been established before the immigration officer.

The Divisional Court so held on an application for Certiorari brought to quash the decision of the Immigration Appeal Tribunal upholding the adjudicator's decision not to take account of the fresh evidence tendered to him.

Per curiam: Rule 29(1) of the Immigration Appeals (Procedure) Rules 1972 should be regarded as authorising the reception by an adjudicator of any relevant and admissible evidence which is put before him for his consideration at the time he determines the matter. n1

n1 Rule 29(1) is set out on p 72, post.

Counsel:

C. Flint for the applicant.

Harry Woolf for the respondent.

PANEL: Lord Widgery CJ, Cumming-Bruce LJ, Park J.

Judgment One:

LORD WIDGERY CJ: This was an application for Certiorari brought to quash the decision of the Immigration Appeal Tribunal in respect of a decision of that Tribunal made in respect of the present applicant on 14 April 1976.

The short point which has arisen in this case was that the applicant presented himself for entry into this country contending that he was a returning resident n2. It is not necessary for me to define the term "returning resident". Suffice it to say that it is a well-known phrase with a positive meaning. The obligation was upon him when he presented himself to the immigration officer to substantiate his contention that he was a returning resident. Initially, the material which he put before the immigration officer was not sufficient to satisfy the officer, and he was or was about to be -- it matters not -- refused entry into this country.

n2 Under para 51 of HC 79.

The applicant put the appellate machinery in motion. There arose at an early stage before the adjudicator the question whether the deficiency of evidence which had led to the applicant being initially refused permission to enter could be overcome by the calling of fresh evidence available at the time of the hearing. The adjudicator had taken the view (which we are told has been taken by other adjudicators as well) that there was no scope for the calling of fresh or additional evidence once the immigration officer has made up his mind. In other words, it was thought that the further consideration of the problem would have to be put on the basis that the only relevant facts were those which have been established before the immigration officer. In fact it has been established for some little time on authority that the power of the adjudicator to hear evidence is not restricted in that way.

We have been referred today in particular to r 29 of the Immigration Appeals (Procedure) Rules 1972, which provides in sub-rule (1):

"An appellate authority may receive oral, documentary or other evidence of any fact which appears to the authority to be relevant to the appeal, notwithstanding that such evidence would be inadmissible in a court of law."

That rule should be regarded as authorising the reception by an adjudicator of any relevant and admissible evidence which is available for him for his consideration and is put before him at the time he determines the matter.

Therefore, it is not surprising to find, as we have found this afternoon, that Mr Woolf on behalf of the Secretary of State does not wish to pursue his objection to this application. With the consent of all parties concerned, it has been decided that this Court will not pursue the restriction on the applicant's remaining in this country and the Order of Certiorari will go in the terms prayed in the notice of motion.

MR WOOLF: The Order of Certiorari will go. In my respectful submission, there is no requirement for an Order of Mandamus in these circumstances.

LORD WIDGERY CJ: We very rarely make an Order of Mandamus because the Secretary of State does not require us to do so.

MR WOOLF: This is going to the Tribunal, and the position is that their decision is quashed and then they are under an oblication to perform their statutory functions. Once the decision is quashed, they will no doubt perform those functions.

LORD WIDGERY CJ: You agree with that, I am sure?

MR FLINT: Yes.

LORD WIDGERY CJ: The Order of Mandamus is not necessary at all events at this stage. The Order of Certiorari will go and the decision of the Tribunal will be quashed, and thereafter we are quite confident the matter will be dealt with in accordance with the law as it has been set out. n3

n3 The applicant's appeal to the Tribunal was reconsidered on 25 April 1978 (TH/1193/73 (1207)) and allowed after the Tribunal had considered documentary evidence, which had not been before the immigration officer, inter alia from the Department of Health & Social Security, from various employers of the appellant between 1964 and 1972, and evidence relating to an earlier passport.

The guidance given by the Divisional Court in the present case was further considered, explained and followed by the Tribunal in Visa Officer, Karachi v Hassan Mohammad reported at p 168, post.

DISPOSITION:

Order of Certiorari

SOLICITORS:

Swann, Dodson & Co, Sheffield: Treasury Solicitor.