Caroline Oladiwuru Olufosoye v Immigration officer, Heathrow
| Jurisdiction | England & Wales |
| Judgment Date | 07 October 1991 |
| Date | 07 October 1991 |
| Court | Immigration Appeals Tribunal |
Immigration Appeals Tribunal
Professor D C Jackson (Vice-President) R E Hunte Esq JP, A K Khandwala Esq JP
W Gryk for the appellant
R Lonergan for the respondent
Cases referred to in the determination:
William Scheele v Immigration Officer, Harwich [1976] Imm AR 1.
Farzin Khazrai v Immigration Officer, London (Heathrow) Airport [1981] Imm AR 9.
R v Immigration Appeal Tribunal ex parte Anilkumar Patel [1987] Imm AR 164.
Immigration Appeal Tribunal v Anilkumar Patel [1988] Imm AR 35 (CA): [1988] Imm AR 434(HL).
Oliver Nkiti v Secretary of State for the Home Department [1989] Imm AR 585.
Miyoba (unreported) (2984).
Refusal of leave to enter appellant in possession of valid multiple visit visa had worked in breach of condition on previous visit on that visa whether breach of condition on earlier visit justified exclusion as conducive to the public good whether breach of condition on previous visit itself rendered visa ineffective through a change of circumstances. Immigration Act 1971 (as amended) ss. 3(5)(b), 13(5), 14(3), 15(4): HC 251 paras. 17, 78, 86.
The appellant was a citizen of Nigeria who secured a multiple visit visa for the United Kingdom. On her first visit she worked, in breach of the condition attached to her leave. That came to light when she sought leave to enter on her second visit. Leave to enter was refused, on the basis of that breach of condition and because her exclusion was considered, in consequence, as being conducive to the public good. The immigration officer subsequently also refused leave to enter on the ground that (because she had worked on the previous visit) the visa had been rendered ineffective through a change of circumstances. An appeal was dismissed by an adjudicator. On appeal, the Tribunal reviewed the ambit of paragraph 86 of HC 251 in the light of paragraph 78 and with reference to paragraph 17 of those rules.
Held
1. The adudicator had erred in placing the burden of proof on the appellant. Whenever it was contended that exclusion was conducive to the public good, following a decision to deport or a refusal of leave to enter, it was for the respondent so to satisfy the appellate authorities: the standard of proof was high.
2. In the light of the provisions of paragraph 78 of the rules, to justify exclusion as conducive to the public good under paragraph 86, it was necessary to prove grounds other than those set out in paragraph 78. Paragraph 86 could not be prayed in aid and applied to decisions taken under paragraph 17, if the conducive grounds were grounds excluded by the provisions of paragraph 78.
3. The fact that particular conduct would not provide the basis for a decision to deport under s. 3(5)(b) of the 1971 Act was relevant in considering whether that same conduct should lead to a refusal of leave to enter on conducive grounds.
4. A breach of a condition attached to limited leave on a previous visit to the United Kingdom could not alone justify a refusal of leave to enter on a subsequent occasion on conducive grounds.
5. On the facts, it had not been established that the appellant intended, on her second visit, to take employment if not authorised to do so. It followed that the visa had not been rendered ineffective through a change of circumstances.
Determination
The appellant, a citizen of Nigeria, appeals against a decision of an adjudicator (Mr L J Smith) dismissing her appeal against the refusal of leave to enter following a decision that her then current multiple visit entry clearance was ineffective.
The appellant arrived from Cairo on 7 September 1990. She was eventually refused leave to enter on 18 September 1990. The notice reads:
You hold a current entry clearance endorsed multiple visit but I am satisfied that refusal is justified because exclusion would be conducive to the public good in that on a previous visit in 1989 you did not comply with your conditions of leave to enter. The visa is not therefore effective.
By letter of 29 September 1990 that notice was amended by the adding of a further ground:
At any appeal before the appellate authority, the immigration officer will rely on the following reasons: You hold a current entry clearance but I am satisfied that a change of circumstances since it was issued has removed the basis of your claim to admission. The visa is not therefore effective.
The explanatory statement deals only with the ground that the appellant's exclusion would be conducive to the public good, the immigration officer having not been concerned in his interview with the alternative ground upon which reliance is now placed.
The background facts
The material facts do not seem to be in dispute. On 6 March 1989 the appellant applied for entry clearance for a one month visit to the United Kingdom. This visit was said to be a private visit and her host would be her husband. However, on her IM2 she stated that her husband was presently in Lagos. On 16 March 1989 the appellant was issued with a multiple visit entry clearance. She entered the United Kingdom on 30 March 1989 and was granted leave for six months.
The appellant qualified as a state registered nurse during a previous stay in this country in 1964 or 1965, and she owns a house in Forest Gate, London. In July 1989 she took employment in order to help pay the mortgage or the rates. In June or July the Noel Nursing Agency applied for a work permit for her, and by letter of 13 July 1989 the Overseas Labour Section of the Department of Employment replied that they had forwarded the application to the Home Office. The application was refused on 13 October 1989 on the grounds that the purpose for which the application was made required a work permit, and she was not admitted with such a work permit. The appellant left the United Kingdom on 19 November 1989.
On arrival at Heathrow on 7 September 1990 the appellant told the immigration officer that she wished to visit the country for three months in order to try and sell her house, and to remove a sitting tenant. When re-interviewed she said that she wanted to return to Nigeria for Christmas, and she admitted that during her previous visit she had been employed as a nurse and stated that she had taken that employment to help pay the mortgage on the house. It is recorded in the explanatory statement that when asked if she would work during the present visit, she stated that she would if she was allowed to but that her attention would be centred on the property and she did not think that she would have the time. It is further recorded that the appellant was met by her son at the airport and when he was questioned regarding his mother's 1989 visit, he said that she had wanted to treat that visit as a...
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