R (Boafo) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice Robert Walker |
| Judgment Date | 04 February 2002 |
| Neutral Citation | [2002] EWCA Civ 44 |
| Docket Number | Case No. 2001/0437 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 2002 |
[2002] EWCA Civ 44
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Lord Justice Auld
Lord Justice Ward and
Lord Justice Robert Walker
Case No. 2001/0437
Mr Noah Weinegar (instructed by Corbin & Hassan for the Appellant)
Mr Rhodri Thompson (instructed by The Treasury Solicitor for the Respondent)
This is an appeal by Linda Boafo against an order of Mr. Justice Stanley Burnton of 24 th January 2001 upholding a decision of the Secretary of State for the Home Department of 13 th June 2000 refusing to grant her indefinite permission to remain in the United Kingdom.
The Secretary of State so decided after and despite a determination by an immigration adjudicator of 25 th January 1999 in her favour on her appeal against an earlier refusal by him (the Secretary of State) of 30 th April 1997. The adjudicator's determination, under the jurisdiction given to him by section 19 of the Immigration Act 1971, was not accompanied by any directions for giving effect to it for which section 19(3) makes provision.
The issues
The central issue in the appeal is whether the Secretary of State was entitled to reconsider and make a fresh decision in the matter after such a determination without directions for giving effect to it. The Secretary of State maintained that the absence of directions entitled him to depart from the ordinary rule that his decision stood or fell on the facts before him at the time he made it, 30 th April 1997, and that he could consider the matter afresh in June 2000 on the circumstances as they were then. Ms Boafo's case was that, in the absence of an appeal by the Secretary of State from the adjudicator's determination, he was bound by it, whether or not it was accompanied by directions and regardless of any change of circumstances. She maintained that it was wrong in law and unjust that the Secretary of State, by not appealing the adjudicator's decision, could reach a further decision on later facts and one which itself was unappealable save by way of judicial review. (see section 14(1) of the 1971 Act). Put another way, Ms Boafo's case was that that she had been deprived of the benefit of the decision of the adjudicator in her favour and that the Secretary of State's decision not to appeal and reconsider the matter had unfairly blocked trial of the real issue.
In the course of argument, Mr.Rhodri Thompson, on behalf of the Secretary of State, drew to the Court's attention a further issue going to the accuracy of information on which the Secretary of State had relied when reaching and adhering to his initial decision, a matter that does not seem to have been fully explored before the adjudicator or the Judge. For this reason I set out the facts and circumstances giving rise to the appeal more fully than would otherwise be necessary.
The facts
In March 1995 Ms Boafo, an overstayer of some five years, married a British citizen, Mr. Paul Burdett, and was granted permission to remain in the United Kingdom for 12 months as a foreign spouse. In September 1996 she applied for permission to remain indefinitely on the basis of that marriage on the grounds specified in Immigration Rule 287, namely that:
"(i) the applicant was admitted to the United Kingdom or given an extension of stay for a period of 12 months and has completed a period of 12 months as the spouse of a person present and settled here;
(ii) the.applicant is still the spouse of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and
(iii) each of the parties intends to live permanently with the other as his or her spouse."
As I have said, on 30 th April 1997 the Secretary of State refused the application. It is plain that, in doing so, he had confused or misunderstood some information he had received from the Department of Social Security. This was how he expressed his reason for refusal:
"… following information received from the Department of Social Security that you and your husband are living together at different addresses, the Secretary of State is not satisfied that you and your husband intend to live together permanently." [my emphasis]
Ms Boafo lodged a notice of appeal to an adjudicator maintaining that she and Mr. Burdett were indeed living together, but not at different addresses. This prompted the Secretary of State to reconsider his reason for refusal. By a decision letter of 15 th December 1997 he stated that his previous reason was "not wholly applicable" to Ms Boafo's circumstances and asserted that they were not living together. This is how he put it this time:
"… following information received from the Department of Social Security that you and your husband are living at different addresses, the Secretary of State is not satisfied that you and your husband intend to live together permanently as husband and wife."
But this reason, though more comprehensible than the first, is likely to have been factually incorrect, since the Department of Social Security, by a letter of 27 th November 1997, a copy of which was before the Court, had misinformed the Secretary of State. As Ms Boafo's advisers informed him in a letter of 4 th September 1998, the couple had been living together throughout, albeit having moved address. The Secretary of State, by letter of 29 th September 1998, nevertheless adhered to his re-worded decision, noting that Ms Boafo's appeal to the adjudicator was due to be heard in December 1998 and seemingly leaving the issue to be resolved in that proceeding.
In September 1998, pending the hearing of the appeal, Mr. Burdett petitioned for divorce on the ground of Ms Boafo's unreasonable behaviour. In the petition he alleged that they had been resident at the same address, but living separate lives for about two and a half years, that is, since about March 1996 and before Mrs Boafo's original application in September 1996. He also stated his belief that she had only married him in order to obtain United Kingdom citizenship.
On 22 nd December 1998 the adjudicator heard the appeal. According to Ms Boafo, in an affidavit sworn in the application before the Judge, she and an uncle told the adjudicator in evidence that her marriage had broken down long after the Secretary of State's initial decision, that he had left her some two months before the hearing of the appeal and that he had issued proceedings for divorce which she was contesting.
On 7 th January 1999 the adjudicator issued his determination and reasons in Mrs. Boafo's favour. The only issue before him was whether Mrs. Boafo satisfied the requirements of Immigration Rule 287 for indefinite leave to remain as a spouse of a person present and settled in the United Kindom. Unfortunately, the only independent account or record of how the matter was put to the adjudicator is that contained in his reasons. He referred to the Secretary of State's representations: first, about Ms Boafo's poor immigration history giving rise to doubts about her credibility; second, doubts about the genuineness of her relationship with her sponsor; and, third, the Secretary of State's representation that she and her husband were living at different addresses. It is plain from the adjudicator's observation on the last mentioned representation that his attention was drawn to Ms Boafo's advisers' letter of 4 th September 1997 to the effect that the Department had misinformed the Secretary of State on that matter, and that he had left it to be resolved by the adjudicator on the appeal.
However, as the Judge below observed, the adjudicator went on to deal with the matter as if the only issue before him was whether Mrs. Boafo had claimed social security benefits, and found that she had not done so. Seemingly, on that sole ground – one that the Secretary of State had not advanced as a reason for refusal of her application—he allowed the appeal. As I have said, the only issue before him was whether Ms Boafo could satisfy the requirements of Immigration Rule 287. Whilst the adjudicator may have had in his mind that the Secretary of State may have been misled as to her non-qualification under that rule by material from the Department of Social Security falsely suggesting that she had claimed benefit, he did not explain his train of reasoning. He made no express findings as to the relationship of Ms Boafo and her husband, nor did he relate it to the criteria of Rule 287. And, as I have said, he gave no directions.
I agree with the Judge below that the adjudicator's decision was "highly unsatisfactory" and that the Secretary of State could, and should, have appealed to an Appeal Tribunal under section 20 of the 1971 Act. The adjudicator's reasons are particularly unfortunate in their failure expressly to resolve the issue whether the couple had or had not been not living together at the material time—an important factor in the Secretary of State's initial decision.
In March 2000 Mr. Burdett's divorce petition, which Ms Boafo did not in the event defend, resulted in the grant of a decree absolute of divorce.
In June 2000 the Secretary of State reconsidered Ms Boafo's application in the light, not only of the adjudicator's determination, but also of the information about the breakdown and eventual dissolution of the marriage. In his decision letter of 13th June 2000, the subject of this appeal, he stated:
"… The adjudicator based his decision to allow the appeal solely on the issue that Ms Boafo was not claiming Social Security benefits....
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