Secretary of State for the Home Department v. Patel (A.D.)
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 19 November 1974 |
| Citation / Document Symbol | [1975] Imm AR 95 |
| Type of Decision | TH/4839/73(370) |
| Cite as | Secretary of State for the Home Department v. Patel (A.D.), [1975] Imm AR 95, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 19 November 1974, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6a4c.html [accessed 3 June 2023] |
| 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. |
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v PATEL (A.D.), TH/4839/73(370)
Immigration Appeal Tribunal
[1975] Imm AR 95
Hearing Date: 19 November 1974
19 November 1974
Index Terms:
Business man -- Intention to purchase a business -- Requirements of Immigration rule to be satisfied at time when application being considered by immigration authority -- Burden of proof on applicant -- Documentary evidence of certain assets previously available tendered to adjudicator 12 months after refusal of application -- Business purchased after refusal of application -- Whether factors which should form basis of fresh application -- HC 80, para 21.
Burden of proof -- Application by visitor for extension of stay with view to setting up in business -- Assets of applicant -- Documentary evidence -- Onus on applicant to satisfy immigration authority as to his assets when application being considered -- HC 80, para 21.
Held:
P entered the United Kingdom in October 1971 as a visitor for 6 months. On 10 August 1972 he applied for an extension of stay in order to set up in business. On 10 October 1972 the Home Office wrote to P requesting (inter alia) details of his proposed business and documentary evidence of his assets. After a reminder P replied by letter on 17 January 1973 enclosing a document relating to a general store which he wished to purchase; he said he had no assets in the United Kingdom but had received @ 1,490 from the U.S.A., where he stated he had most of his money; he supplied no documentary evidence of assets. Purchase of the general store in question was very shortly afterwards abandoned, and on 8 February 1973 P wrote that he was looking for another business. P's application was refused on 9 March 1973, under para 21 of HC 80, n1 on the ground that the Secretary of State was not satisfied that P had sufficient funds available to establish himself in business. n1 Paragraph 21 of HC 80 provides, so far as here material, as follows: --"People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependents. The applicant's part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required.... Where the application is granted the applicant's stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment...."
On P's appeal to an adjudicator heard 12 months later (22.3.74) P produced documentary evidence showing payment into his bank account of @ 1,490 on 28.12.72 and @ 4,690 on 18.4.73. The adjudicator found that P had recently purchased and was successfully running a small grocery business, and with regard to P's assets the adjudicator in his determination used the following words: --"In the absence of anything to the contrary -- and it would be virtually impossible for the respondent to prove otherwise -- I accept that he had this (money) at his disposal when his application was considered, although I remain mystified why he did not produce proof of it in reply to the letter of 10 October 1972, or why the transfer had to be made by two remittances at an interval of four months."
The adjudicator allowed P's appeal, and the Secretary of State appealed to the Tribunal. Held, (allowing the Secretary of State's appeal): (i) on the evidence it could not properly be found that when his application was being considered P was in a position to satisfy the authorities on the factors expressly set out in para 21 of HC 80; (ii) the onus was not on the Secretary of State to show -- whether 'virtually impossible or otherwise' -- tht P did not have the money referred to; the onus was on P to show in support of his application that he had he had the necessary assets, and he did not do so; (iii) this was a case in which evidence of facts subsequent to the Secretary of State's decision should form the basis of a fresh application. Principle enunciated in Abdullah's Case ([1973] Imm A R 57 at p 61; TH/1070/71(109), followed. Virji's Case (unreported, TH/1358/72(153), not followed.Counsel:
B. Lockett for the appellant Secretary of State. Mrs J. Chatwani of the United Kingdom Immigrants Advisory Service, for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Mrs L. Bonham-Carter, T. Neil Esq.Judgment One:
THE TRIBUNAL: The appellant in this appeal is the Secretary of State and the respondent is Arvindkumar Dahyabhai Patel, a citizen of India who first arrived in the United Kingdom on 16 October 1971 and was admitted for a visit of up to six months, with no condition prohibiting employment. In April 1972 Mr Patel applied for registration as a citizen of the United Kingdom and Colonies but this was refused in July 1972, and on 10 August 1972 the respondent submitted an application for extension of stay in order to set up in business in the United Kingdom. The Home Office wrote to Mr Patel on 10 October requesting details of his proposed business and documentary evidence of his assets, but no reply was received, and on 5 January 1973 the Home Office again wrote to the respondent enquiring whether he wished to pursue his application for an extension of stay. On 17 January the respondent wrote to the Home Office enclosing a document relating to the business he wished to purchase but no other documentary evidence was submitted. Subsequently Mr Patel's solicitors, in answer to a further letter from the Home Office, wrote to say that the respondent's proposed purchase of a general store was not proceeding and the Home Office received a letter from Mr Patel written on 8 February 1973 stating that he was now looking for another business. Paragraph 10 of the Home Office statement reads as follows: --"10. The Secretary of State considered the appellant's application to remain here under the provisions of para 21 of HC 80. n2 The Secretary of state has given careful consideration to the appellant's reply to the Home Office letter of 10 October 1972 requesting the appellant to provide full details of his proposed business activities. The appellant had stated (in his letter of 17 January 1973) that he assets of @ 1490 but had produced no documentary evidence in support of this statement, nor had he provided any documentary evidence to show he had any other assets, either in the United Kingdom or abroad. On the evidence available to him, the Secretary of State was not satisfied tht the appellant was in a position to purchase a business to which he would be devoting assets of his own nor that he would be able to bear the liabilities he might incur in that business."
n2 The relevant provisions in para 21 of HC 80 are set out at footnote 1, ante. The appellant's application was refused, the notice of refusal dated 9 March 1973 stating: --"You have applied for your leave to enter to be varied so as to permit you to remain with a view to remaining in the United Kingdom to establish yourself in business but the Secretary of State is not satisfied that sufficient funds are available to you for this purpose."
The appellant appealed to an adjudicator and on 22.3.74 produced documents showing the receipt of @ 1490 and @ 4690 and the payment of these amounts into his bank account on 28 December 1972 and 18 April 1973 respectively. In his determination the adjudicator, Mr J. K. Brownlees, said: -- "I am satisfied from the evidence of the appellant that he is devoting assets which are fully proportionate to his interest in the business, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him: n3 the question of dependants is hypothetical at the moment. n3 Earlier in his determination the adjudicator had referred to the purchase by Mr Patel of a small grocery business -- a purchase in cash, free of mortgage, completed on 7.1.74 -- and to the rising turnover of that business (figures supplied). I am equally satisfied that at the time of his application, and indeed up to that of refusal, the appellant did not produce evidence that (a) he would be devoting assets of his own to the business, (b) that he would be able to bear his share of any liabilities and (c) that his share of the profits would be sufficient to support him and his dependents. This despite the very explicit letter of the Home Office of 10 October 1972 to which he did not reply until 17 January 1973, without any evidence of the nature requested. Nor indeed with his notice of appeal. I consider that the Secretary of State was patient and understanding in giving the appellant every opportunity of showing that he fulfilled the requirements of para 21 of HC 80 n4 -- this to one who has had commercial and business training in the English language, which he speaks fluently -- and was justified on the evidence before him in refusing the application. n4 See footnote 1, ante. There is now evidence, as distinct from an unsupported claim, before me that when the Secretary of State was still considering the application the appellant had received in this country @ 1,490, and that a month after the notice of appeal was lodged he received a further @ 4,690. In the absence of anything to the contrary -- and it would be virtually impossible for the respondent to prove otherwise -- I accept that he had this at his disposal when his application was considered, although I remain mystified why he did not produce proof of it in reply to the letter of 10 October 1972, or why the transfer had to be made by two remittances at an interval of four months." The adjudicator found that Mr Patel was in a position to satisfy the authorities, whilst his application was being considered, on the factors expressly set out in para 21 of HC 80 but did not do so. The adjudicator concluded his determination by saying: --"Should however I be overruled in this conclusion, on the grounds that what I have before me is not fresh evidence of facts existing at the time the decision to refuse the application was made, but fresh facts which should be the subject of a fresh application, I should, in the light of the Tribunal's determination in allowing the appeals of Habib and Azmina Virji, n5 still allow this appeal. In that case, as here, the principal appellant arrived as a visitor; at the time of application to vary conditions he had not commenced the grocery business but had done so by the time his appeal was before an adjudicator; whilst evidence of the nature before me, as to providing a proportionate share of the assets and the profits of the business, was not produced by him until the appeal was before the Tribunal."
n5 Habib Virji and Azmina Virji v Secretary of State for the Home Department, TH/1358/72(153), (unreported). The adjudicator allowed Mr Patel's appeal. The Secretary of State applied to the Tribunal for leave to appeal on the following grounds: -- "1. The appellant, subsequent to his refusal, set up in business without the consent of the Secretary of State as required by para 21 of HC 80. n6 n6 See footnote 1, ante. 2. That the appellant failed, as required by para 21 of HC 80, n6 to discharge his burden of proof on the question of assets of his own and that the adjudicator erred in suggesting that the burden of proof in such cases did not lie with the appellant." n6 See footnote 1, ante. Leave to appeal was granted. Mr Lockett for the appellant referred to the facts and submitted that there were three questions to be determined: -- (a) Whether Mr Patel on 9 March 1973, which was the date of the refusal of his application, satisfied the conditions set out in para 21 of HC 80; (b) whether, when the case came before the adjudicator, there was evidence of facts which could have been placed before the Secretary of State in March 1973; and (c) have there been developments since the decision to refuse Mr Patel's application and a change of circumstances which might enable Mr Patel to qualify under paragraph 21? n6 n6 See footnote 1, ante. Mr Lockett addressed the Tribunal on these questions and referred to certain determinations of the Tribunal n7 and in conclusion submitted: (i) The adjudicator had no evidence entitling him to accept that on 9 March 1973 Mr Patel had a further @ 4,690; (ii) the adjudicator was wrong in holding that the burden was on the Secretary of State to show that Mr Patel did not have money at his disposal; it was for Mr Patel to show that he had the assets; (iii) the adjudicator erred in taking into account developments after the date of the decision, such developments being properly the basis of a fresh application. n7 Virji's Case, TH/1358/72(153): Purushothaman's Case, [1972] Imm AR 176 at p 178, clarified in Abdullah's Case, [1973] Imm A R 57 at p 61. Mrs Chatwani referred to the grounds of appeal, and on the first ground submitted that it was impossible for a person to obtain the consent of the Secretary of State before he started off in a business; a person has to jump into a business; in any event Mr Patel had kept the Home Office informed. On the second ground of appeal Mrs Chatwani argued that the adjudicator did not say in clear words that the burden of proof was on the Home Office. What the adjudicator accepted was that at the time of the refusal Mr Patel had some funds at his disposal. Mrs Chatwani commented that it would not be sensible for a person to call all his money into this country until it was needed, but this does not appear to accord with the proposition that one has to jump into a business when it becomes available. Mrs Chatwani also referred to determinations of the Tribunal n8. n8 Virji's Case, TH/1358/72(153) Pereira's Case, TH/1156/73(302). It is clear from para 21 of HC 80 that an applicant has to produce evidence that he is devoting assets of his own to the business he is acquiring n9. In the letter of 10 October 1972 to Mr Patel the Home Office asked for documentary evidence of his assets in the United Kingdom and, in the case of funds abroad, documentary evidence that he had received the necessary permission to transfer such funds to the United Kingdom legally. After receiving a reminder Mr Patel replied that he had no assets in the United Kingdom and that he had received @ 1,490 from the U.S.A. where he had most of his money. No documentary evidence was supplied in support of this statement. Documentary evidence was subsequently given that on 18 April 1973, over a month after the decision to refuse the application, Mr Patel paid into his account the sum of @ 4,690. The adjudicator said in the extract of his determination quoted earlier that "in the absence of anything to the contrary -- and it would be virtually impossible for the respondent to prove otherwise --" he accepted that Mr Patel had this money at his disposal when his application was considered. The respondent to whom the adjudicator referred was the Secretary of State and it certainly was not for him to show, whether "virtually impossible or otherwise", that Mr Patel did not have this money when his application was considered. The onus was on Mr Patel to show, in support of his application, that he had the money but he did not do so, which in fact left the adjudicator mystified. We do not think that on the evidence the adjudicator could properly find that Mr Patel was in a position, when his application was being considered, to satisfy the authorities on the factors expressly set out in para 21. n9 See footnote 1, ante. We therefore have to consider whether the adjudicator should still have allowed the appeal. In the case of Abdullah n10 the Tribunal held that evidence of facts subsequent to the decision of the immigration authority should "normally form the basis of a further application". It is the fact that in the case of Habib & Azmina Virji n11 the Tribunal allowed an appeal on fresh facts. It may be that in that case the attention of the Tribunal was not drawn to the case of Abdullah but, be that as it may, we consider that it is desirable in this case to follow the principle set out in the case of Abdullah n10. n10 Entry Certificate Officer, Lahore v Abdullah, [1973] Imm A R 57 at p 61; TH/1070/71(109). n11 Virji v Secretary of State for the Home Department, TH/1358/72(153) (unreported).