Jivanlal Ananbhai Devshi Patel v Entry clearance officer, Nairobi
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1986 |
| Date | 26 November 1986 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
R E Maddison Esq (Chairman) The Rt Hon the Countess of Mar, R S Charnley Esq
K S Nathan for the appellant
R Parsons for the respondent
Cases referred to in the determination:
R v Immigration Appeal Tribunal ex parte Joseph [1977] Imm AR 70.
R v Immigration Appeal Tribunal ex parte Peikazadi [197980] Imm AR 191.
R v Immigration Appeal Tribunal ex parte Alexander [1982] Imm AR 50.
R v Immigration Appeal Tribunal ex parte Khan [1982] Imm AR 134.
R v Immigration Appeal Tribunal ex parte Mawji (unreported, QBD, 25 November 1983).
Mawji v Immigration Appeal Tribunal (unreported, CA, 29 October 1984).
R v Immigration Appeal Tribunal ex parte Rahman [1985] Imm AR 222.
Hisham Ahmad Rahman v Secretary of State for the Home Department [1986] Imm AR 405.
Businessman refusal of entry clearance under HC 169 the application of the principles in ex parte Mawji the relevance of that judgment to the mandatory specific requirements of later rules. HC 80 para. 21: HC 169 paras. 3537.
The appellant was refused entry clearance as a businessman. The application had been based on the proposed purchase of a specific business which the appellant stated he would expand by introducing new facets of trading. By the time the case went before an adjudicator, the particular business which had formed the basis of the application had gone off the market. The adjudicator dismissed the appeal, holding that the requirements of the relevant rules in HC 169 were not met. Before the Tribunal it was argued that following the Court of Appeal judgments in Mawji, it was not necessary for the appellant to demonstrate he had a particular business in mind. The appeal should have been allowed because the documents supporting the application had shown that the type of business envisaged by the appellant was such as to qualify under the rules.
Held:
1. Mawji was decided under HC 80: those rules had an over-riding provision that any such application is to be considered on merits. The Court of Appeal held in those circumstances that the Tribunal had been wrong in law in stating that no application could succeed unless a specific business were put forward.
2. The relevant rules in HC 169 contained no such general provision. They did however include a number of exact mandatory requirements that had to be satisfied.
3. It followed that the Court of Appeal decision in Mawji was of limited assistance in deciding cases that fell to be determined under the later rules. The Court of Appeal had in any event not rejected the proposition that the vaguer the proposal that the applicant has put forward, the more difficult it will be for him to satisfy in the round the test to be applied.
4. The requirements of the rules in HC 169 were clear and unambiguous. On the facts, the applications did not satisfy them.
Determination
The appellant is a citizen of Kenya, born in 1940. On 7 April 1983 he applied for entry clearance to come to the United Kingdom as a businessman. The application was refused on 15 February 1984. It was subsequently reviewed, and the refusal was confirmed on 25 November 1985. The applicant appealed. His appeal was heard by an adjudicator, Mr V Callender; he dismissed it in a determination dated 7 July 1986. On 24 September 1986, the appellant was granted leave to appeal to the Tribunal.
The application has a somewhat complex origin. The appellant visited the United Kingdom where he has relatives in 1981 and 1982. In September 1982, while here, he applied to remain permanently as a person of independent means. That application was refused, and he did not appeal. That refusal was on 22 February 1983. It was some six weeks later that he made application in Nairobi for what was described as permanent settlement as a businessman.
The adjudicator described the subsequent events thus:
The appellant was interviewed by the ECO in Nairobi when he gave details of his wife and children also of his father-in-law and brothers-in-law resident in the UK. He had been a printer by trade; he did not submit any documents about a proposed business or any projection, but stated that he merely wanted to be admitted as a businessman to look around. If he did not qualify as a businessman he thought he could be considered as a person of independent means.
The matter was referred to the Home Office, and in order that further consideration could be given to the application Mr Shingadia was interviewed in October 1983. He said that he was acting as an agent for the appellant, who was coming to open up a new business in this country, although he had not yet purchased any property nor did he know what type of business he would set up. He produced various documents showing that the appellant had bank accounts in the UK and Guernsey with funds totalling 122,056.77, plus shares which Mr Shingadia estimated to be worth 20,000. There was no evidence that the money was the appellant's own, and Mr Shingadia was unable to say how the appellant had got the money out of Kenya.
In the light of all the information before him, and for the reasons given above, The Secretary of State had instructed that the application be refused.
After that application was refused, the appellant clearly saw the need for some more professional advice. The adjudicator recorded:
An appeal was lodged against that refusal and that appeal was set down to be heard by me on 14 January 1985. On 27 November 1984 Messrs Suchak and Company, Solicitors, wrote to the Home Office asking that the matter be re-considered and giving further information, including details of a Newsagents/Confectioners business near to Watford which the appellant now proposed to buy; an accountant's Project Report on this proposed business venture; an updated statement of the appellant's assets showing a total of 165,211.53, the latter being supported by bank statements. At the request of the respondent, and with the consent of the appellant's representatives, the hearing of the appeal was adjourned so that the further information which had been submitted might be considered by the Home Office. The refusal was in due course maintained and a Supplementary Home Office Statement was issued giving the reasons for this.
The appellant's affairs were then conducted by his advisers in the light of the view the Court of Queen's Bench took in R v Immigration Appeal Tribunal ex parte Mawji. It was frankly admitted before the adjudicator that following the judgment of Woolf J (as he then was) in that case, of 25 November 1983, his advisers realised that no application as a businessman would succeed unless the appellant could show there was a specific business he intended to acquire or establish. They accordingly instituted a search and found a newsagent/ tobacconist shop near Watford which, if granted admission, the appellant would purchase. Details of that business and skeleton profit projections were submitted to the Home Office. It was those details that occasioned the review of the appellant's case, albeit after that review, the original refusal was maintained.
The adjudicator, in that regard, wrote that the submission of those details of a particular business to the Home Office effectively constituted a further application. Mr Nathan assertedand Mr Parsons did not disputethat it was not a further application, merely an expansion of the earlier application. We think, on the facts that either view might prevail, but nothing, in the events which have happened we think, would turn on which view were adopted. Moreover as the parties are content that the whole matter be treated as one application, in this case so are we.
The reason why it is immaterial in our view what approach is taken is that before the hearing of the case by the adjudicator the Court of Appeal (29 October 1984), reversed the judgment of Woolf J in Mawji. Whereas Woolf J (as he then was) had held that to succeed in an application for admission as a businessman it was necessary for the applicant to show he had a specific business in mind, the Court of Appeal held that that was not a necessary prerequisite of success for such an application in that case. Likewise we think that even before the adjudicator heard the case, the particular newsagent/tobacconist shop in Watford which had appealed to the appellant had gone off the market.
Rather like the Cheshire eat, the substance of the particular business in question, had disappeared. However, maintained Mr Nathan, that, in the light of the Court of Appeal judgment in Mawji did not matter. That business in Watford was now merely the type of business that the appellant envisaged: that, he said, was enough to satisfy the requirements of the rules, in the light of their Lordships' judgments.
Mr Parsons rightly pointed out that Mawji was a case to which the old rules, HC 7982 applied; the present case fell to be decided under HC 169. The relevant rules, when compared, show that the requirements in respect of business applications have become significantly more stringent. It is well to set out both sets of rules.
In HC 80, the relevant rule was rule 21. That reads:
21. 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...
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