R v Immigration Appeal Tribunal, ex parte Kotecha

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date23 November 1982
Judgment citation (vLex)[1982] EWCA Civ J1123-2
Docket Number82/0459
Date23 November 1982

[1982] EWCA Civ J1123-2





Royal Courts of Justice,


The Lord Chief Justice of England

(Lord Lane)

Lord Justice Watkins


Sir Roger Ormrod


The Queen
The Immigration Appeal Tribunal


Ex Parte Deepak Valji Khetsi Kotecha

MR. K.S. NATHAN (instructed by Messrs. Nazerali & Co., London, W.1) appeared on behalf of the Appellant (Applicant).

MR. A. MOSES (instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Respondent).


This is an appeal from a refusal by Mr. Justice Glidewell on 4th February this year. It was a refusal of an application for an order of certiorari to quash a decision of the Immigration Appeal Tribunal, which in its turn was given on 21st October last year, and also for an order of mandamus, ordering the Tribunal to determine the appeal according to law.


Only one point arises upon the appeal in the upshot, and that is whether an Adjudicator or an Immigration Appeal Tribunal should admit evidence relating to events which have occurred since the date of the decision by the Entry Clearance Officer or the Immigration Officer, as the case may be.


The facts of the case may be stated comparatively briefly. The proposed immigrant and the appellant is a youth called Deepak, who was born on 3rd December 1965 in India, of which country he is a citizen. He is now 16 years of age, rising 17. He is an orphan. His mother died in 1968, when he was 2, and his father died in 1969, the year following.


His father had been a merchant in Tanzania. But in 1964 or 1965, it matters not which, the whole family took themselves off to India, where Deepak himself was born shortly afterwards. He has two brothers. One of the brothers is named (although it is not his full name) Kishor. He is the sponsor of this young man and he lives in the United Kingdom. The other brother is in Tanzania. There are five sisters: three in the United Kingdom, one in Tanzania and one in India. The grandmother, we are told, who was alive when the matter was before the Entry Clearance Officer, has died. His uncle and aunt are still alive. For a number of years Kishor and the two sisters supported Deepak and they continued to do so after the parents had died.


In August 1978 the appellant came to the United Kingdom with Kishor. He was in the United Kingdom for 42 days, while representations that he should be allowed to stay longer were being considered by the relevant Government department. On 6th September 1978 the sponsor was told that Deepak would have to go back to India because he had no entry certificate, and it was only fair to other applicants in the queue for such certificates that he should go back to India. There is no appeal against that. He went back to India and there he applied for an entry certificate.


On 17th January 1979 the matter came before the Entry Clearance Officer and on 7th February 1979 he refused to grant a certificate. There is no question, as Mr. Nathan has pointed out, of any deception on the part of Deepak. The applicant told the Entry Clearance Officer that the grandmother was still alive, that the uncle and aunt were living not very far away from him in India and the three sisters and the remaining brother were there in India. That was the basis of fact upon which the Entry Clearance Officer came to his conclusion.


On 24th March 1981 there was an appeal to the Adjudicator. That appeal was dismissed. But by this time the years had rolled by and there had been changes in the material facts. The grandmother had died of advanced age. The sponsor Kishor had been appointed in India the legal guardian of this young man, and had become therefore responsible for the boy's welfare.


Then on 21st October 1981 there was a further appeal to the Immigration Appeal Tribunal. By this time there had been further changes in the circumstances surrounding this young man. As has already been pointed out, there had been two sisters in India. The elder one was by this time said to have gone to Tanzania, although there was no concrete evidence that that was the fact. One sister had come to the United Kingdom and the other brother had also gone to Tanzania, but the uncle and aunt had remained in India, still living close at hand. The Immigration Appeal Tribunal in its turn refused the appeal.


Now we are asked by Mr. Nathan, on behalf of the appellant, to say that the Adjudicator and the Immigration Appeal Tribunal were both wrong in declining, as they no doubt did, to pay any attention to the evidence of facts which had taken place since the determination by the Entry Clearance Officer. It is necessary to go through the relevant provisions, both of the statute and the rules to see what assistance can be given in this matter.


One starts off with section 13 of the Immigration Act 1971, subsection (2) of which reads as follows: "Subject to the provisions of this Part of this Act, a person who, on an application duly made, is refused a certificate of patriality or an entry clearance may appeal to an adjudicator against the refusal." There is only one limitation to that, section 13(4), which has no application to the present case.


Then one turns to section 19 of the Act, which reads as follows:


"(l) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act—(a) shall allow the appeal if he considers—(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal."


"(2) For the purposes of subsection (l) (a) above the adjudicator may review any determination of a question of fact on which the decision or action was based…..".


The relevant rule is rule 18, headed "Evidence", and reads as follows:


"(1) In any proceedings on an appeal the Tribunal shall receive as evidence the summary or record taken or kept in accordance with Rule 40 of any evidence received—(a) by the adjudicator in the course of the proceedings to which the appeal relates, or (b) by an adjudicator to whom the appeal has been remitted in pursuance of paragraph (a) (c) (i) below."


"(2) If any party to the appeal wishes to adduce evidence before the Tribunal further to that to be received in accordance with paragraph (l) above, he shall give notice in writing to that effect to the Tribunal indicating the nature of the evidence; any such notice shall—(a) in the case of the appellant, be given with the notice of appeal or as soon as practicable after notice of appeal is given or is deemed to have been given…..".


"(3) In any proceedings on an appeal—(a) the Tribunal...

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