Adolphus Lokko v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Judgment Date | 27 October 1989 |
| Date | 27 October 1989 |
| Court | Immigration Appeals Tribunal |
Immigration Appeals Tribunal
Professor D C Jackson (Vice-President) A A Lloyd Esq JP, B J S Edmond Esq
G Warr for the appellant
E W Grove for the respondent
Cases referred to in the determination:
R v Immigration Appeal Tribunal ex parte Nazaril Lila and ors [1978] Imm AR 50.
Marspan Tusin v Secretary of State for the Home Department [1984] Imm AR 42.
Hope (unreported) (832).
Certilman (unreported) (4689).
Baydur (unreported) (5442).
El Busefi (unreported) (TH/5580/88)
Jurisdiction appellate authorities no explanatory statement produced by Home Office whether the appellate authorities have jurisdiction to hear an appeal when notice of appeal properly lodged but no explanatory statement produced. Immigration Act 1971 ss. 1317, 22(1), 33(4): Immigration Appeals (Procedure) Rules 1984 rr. 6(1)(6), 8(1)(2).
Sole representative of overseas company appellant majority shareholder and virtually only member of staff in country where company was established offices there vacant when appellant abroad whether appellant could qualify for admission to the United Kingdom as a sole representative of an overseas company within the meaning of the rules the interpretation of the rule in the light of other provisions for business visitors and these setting up businesses in the United Kingdom. HC 169 (as amended) paras. 19, 31(b), 35.
The appellant was a Ghanaian businessman who conducted an airline ticket brokerage business in Accra. The nature of the business was such that virtually no staff other than the appellant were employed: on his travels abroad the offices in Accra were empty. A great deal of his business originated in the United Kingdom and he was anxious to oversee that business by himself being here. He applied for entry clearance as the sole representative of the business. After very long delays the application was refused. The appellant lodged notice of appeal.
An appeal came before the Chief Adjudicator. At that time no explanatory statement had been produced by the Home Office. The Chief Adjudicator ruled that the appellate authorities had no jurisdiction until such an explanatory statement had been received. On the merits of the case the Chief Adjudicator considered that the appellant could not qualify as a sole representative, within the meaning of the rules. Both issues were argued before the Tribunal.
Held:
1. The Tribunal had itself jurisdiction to review the Chief Adjudicator's ruling on jurisdiction, it not being in the nature of interlocutory proceedings: Lila distinguished.
2. On a true interpretation of the relevant Procedure Rules, it was the service of a notice of appeal by an appellant that founded the adjudicator's jurisdiction to hear an appeal.
3. In the absence of an express rule to that effect, it could not be held that it had been the intention of Parliament to deny an appellant the right to appeal by the failure of the respondent to comply with his duty under the rules, to supply an explanatory statement.
4. As to the merits of the case, the term sole representative as employed in the rules had to be interpreted in the light of other provisions for business visitors and those setting up businesses in the United Kingdom.
5. It followed that a person seeking entry clearance as the sole representative of an overseas company would have to show that he was acting for a trading concern whose trading activities remained at all times centred overseas.
6. It was evident on the undisputed facts of this case that for the appellant the trading activities follow him around. His intended activities amounted to setting up a business in the United Kingdom, rather than acting as the sole representative of an overseas company.
Determination
The appellant, a citizen of Ghana, appeals to the Tribunal against the decision of the Chief Adjudicator (Mr M Patey MBE) dismissing his appeal against the refusal of an entry clearance to allow him to be the sole representative of an overseas company in this country.
The case raises two questionsfirst, whether the jurisdiction of the appellate authorities depends upon the forwarding of an explanatory statement by the Home Office and secondly, the question relating to the definition of a sole representative. Both matters were of general application. We deal first with the jurisdiction issue.
The jurisdiction of the appellate authorities and the provision of an explanatory statement
The relevant background facts
These are somewhat complicated and, as seems to have been common ground before the adjudicator, show regrettable delay by the Home Office in dealing with the appellant's application. The appellant applied on 11 June 1984 to enable him to enter the United Kingdom as the representative of an overseas firm. On 21 August 1984 an unsigned and undated copy of the notice of a decision was sent to the appellant's then solicitors, refusing the appellant an entry clearance as a businessman or self-employed person.
On 3 December 1984 notice of appeal against that decision was lodged with the entry clearance officer. There then followed protracted correspondence about the failure of the decision to meet the application. First the Home Office, by letter of 22 February 1985, said that the decision had been taken on the grounds that it had because, in its view, that was the appropriate rule. This, however, was followed on 20 August 1986 by a variation of the original notice so that the refusal now related both to an application for entry as a businessman and as the representative of an overseas company.
On 6 April 1987 the Home Office had a further change of mind and wrote to the solicitors stating that it was now of the view that the notice of 21 August 1984 was a nullity, with the consequence that the amendment on 28 August 1986 was also a nullity. In the Home Office view, the application of 11 June 1984 remained undetermined.
On 16 February 1988 the appellant's then solicitors wrote a letter which, it may be said, says it all. This reads:
As we are now celebrating the fourth anniversary of acting for our client in this matter, is there any prospect of anticipating a reply shortly from you in respect of our client's application under Paragraph 31(b)?
That somewhat plaintive and resigned comment brought no immediate response. However, after two further reminders the Home Office wrote to the solicitors as follows:
I refer to our previous correspondence regarding the above-named.
After careful consideration it has been decided to refuse Mr Lokko's application for entry clearance in order to enter the United Kingdom as the sole representation of Afro-Asian Travel Centre for the reason stated on the enclosed copy of the APP200 form.
Attached was a notice of refusal by an entry clearance officer. It was unsigned and undated. However, it appears to have been accepted by all parties that this was the effective long awaited decision. On 18 July 1988 the solicitors wrote to the Chief Adjudicator seeking directions in view of (a) the delay in production of an explanatory statement and/or (b) the status of the existing appeal already lodged. The Chief Adjudicator scheduled these matters for hearing before him and promulgated a ruling on jurisdiction on 12 October 1988. In that ruling the Chief Adjudicator followed his own ruling in the case of El Busefi (TH/5580/88) in holding that there was no jurisdiction in the appellate authority until the forwarding of documents which, under the Procedure Rules, gave the authority notice of the appeal.
Jurisdiction of the Tribunal in respect of the ruling
In the ruling the Chief Adjudicator stated that he had drawn Mr Warr's attention to the Divisional Court judgment in Lila [1978] Imm AR 50 from which it appeared that there was no right of appeal against such a ruling to the Tribunal. It is to be noted that in El Busefi an application for leave to appeal against the ruling was lodged, but as the appeal itself was withdrawn in that case, the issue was never settled.
This matter was not argued before us but we in turn draw attention to the fact that the decision...
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