Entry clearance officer, Antananarivo v Hansa Nathvani Popat
| Jurisdiction | England & Wales |
| Judgment Date | 13 September 1990 |
| Date | 13 September 1990 |
| Court | Immigration Appeals Tribunal |
Immigration Appeals Tribunal
R E Maddison Esq (Chairman) Mrs A J F Cross de Chavannes JP, A G Jeevanjee Esq
D Wilmott for the appellant
A Riza for the respondent
Cases referred to in the determination:
R v Immigration Appeal Tribunal ex parte Armstrong [1977] Imm AR 80.
Ashrafi v Immigration Appeal Tribunal [1981] Imm AR 34.
R v Immigration Appeal Tribunal, ex parte Kotecha [1982] Imm AR 88.
R v Immigration Appeal Tribunal ex parte Kwok On Tong [1981] Imm AR 214.
R v Immigration Appeal Tribunal ex parte Bastiampillai [1983] Imm AR 1.
Hoosha Hanif v Secretary of State for the Home Department [1985] Imm AR 57.
Appeals dependent relatives date of decision of refusal of entry clearance change of circumstances between date of decision and date when revised notice issued after receipt of notice of appeal whether revised notice constituted a second decision so as to permit adjudicator to take account of facts coming into existence between the dates of the first and second notices. HC 169 para. 52.
Immigration Appeal Tribunal jurisdiction whether the Tribunal had jurisdiction to allow a late appeal to proceed before an adjudicator, that preliminary issue never having been before an adjudicator whether the Tribunal could remit a case to an adjudicator to exercise, ex post facto a discretion to allow a late appeal to proceed to a hearing on the merits. Immigration Appeals (Procedure) Rules 1984 rr. 4, 8, 11, 38.
The respondent was a British Protected Person who with her children had sought entry clearance as dependent relatives of her parents, settled in the United Kingdom. The entry clearance officer refused the application: at the date of that refusal the respondent was not financially dependent on the sponsor. Notice of appeal was lodged. The entry clearance officer reviewed but confirmed the decision. However because the original decision had been taken by the Secretary of State (after the sponsor had been interviewed in the United Kingdom), a revised notice was issued: it contained no alteration save the insertion of the Secretary of State as the person refusing the application.
The adjudicator accepted submissions by counsel for the appellant before him that the date of decision was the date of the second notice, issued after the lodging of the appeal then before him. He also concluded that he was not in any event bound by a date of decision in a dependent relative case. In consequence he accepted evidence which in his view showed that at the later date the conditions in the relevant rule were satisfied.
The Secretary of State appealed to the Tribunal. On his behalf it was contended that the adjudicator had misdirected himself in accepting the later date as the date of decision. He had therefore taken account of subsequent events which he was not entitled to do.
Counsel for the respondent argued that on a commonsense view the circumstances allegedly obtaining at the later date could have been foreseen at the date of the earlier notice. If that were not the case, the Tribunal exercising its powers under the Procedure Rules should amend the papers to constitute an appeal against the later decision, or remit the case to the adjudicator for him to exercise his discretion over a late appeal ex post facto.
Held:
1. The revised second notice was not a second decision on which an appeal could be based: Hanif followed.
2. If that were wrong, then no notice of appeal having been served in respect of that second notice, there would therefore have been no appeal before the adjudicator or the Tribunal.
3. If a late appeal could be based on that second decision, it had to be lodged for consideration before an adjudicator. The Tribunal had no power to act at first instance in dealing with the preliminary issue involved.
4. The Tribunal had no power to remit a case to an adjudicator for him to exercise a discretion (in respect of allowing a late appeal to proceed), ex post facto.
5. It followed that before the adjudicator and before the Tribunal the decision under appeal was contained in the earlier notice: the date of its issue was the date of decision: the adjudicator was restricted to such facts as the settled cases allowed him to take into account.
6.At that earlier date there...
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