R v Immigration Appeal Tribunal, ex parte Amin (Mohd)
| Jurisdiction | England & Wales |
| Judgment Date | 06 April 1992 |
| Date | 06 April 1992 |
| Court | Queen's Bench Division |
Queen's Bench Division
Schiemann J
M Hussain for the applicant
M Shaw for the respondent
Case referred to in the judgment:
Sumeina Masood v Immigration Appeal Tribunal [1992] Imm AR 69.
Appeal — dismissal by adjudicator — application for leave to appeal to Tribunal — arguable point of law on one issue — case dismissed by adjudicator on two issues — no effective challenge to adjudicator's conclusions on second issue — the obligation of the Tribunal to exercise its discretion in accordance with the Procedure Rules in considering the application for leave to appeal. Immigration Appeals (Procedures) Rules 1984 r. 14(2)(a).
Adjudicator — obligation to make findings on the credibility of witnesses — proper approach to recording conclusions on the evidence — whether entitled to say that she saw no reason to differ from any findings of fact made by the entry clearance officer.
Judicial review — the obligation on the representatives of applicants to prepare papers for the court — the desirability of submitting a skeleton argument in primary purpose cases. RSC Ord. 53 para. 14/45.
The applicant for judicial review was a citizen of Pakistan who had been refused entry clearance as a husband. An appeal had been dismissed by an adjudicator. She had found against the applicant both on the issue of primary purpose and on the adequacy of available maintenance. An application for leave to appeal to the Tribunal was refused.
Before the court counsel submitted that there had been an error of law in the adjudicator's approach on both issues. He was unable to sustain his criticism of the adjudicator's findings on maintenance. It followed that even if she had erred in her approach to the question of primary purpose, her determination dismissing the appeal would stand, because it could not succeed unless all the conditions of the rules were satisfied. In those circumstances, he submitted, the Tribunal had still erred in law in failing to exercise its discretion to grant leave to appeal.
Held
1. The adjudicator's determination could not be attacked on the findings on maintenance. The Tribunal however had failed to exercise its discretion under Procedure Rule 14(2)(a). The refusal of leave to appeal would be quashed, but the court declined to direct the Tribunal to grant leave to appeal. The Tribunal would merely be required to exercise its discretion in reviewing the application.
2. The adjudicator had erred in law in failing to make clear findings on the credibility of the two witnesses she had heard.
3. There were deficiencies in the reasoning process as set out in the determination in relation to the question of primary purpose. An adjudicator, in the determination should set out ‘with some clarity’ what evidence was accepted, what evidence was rejected, on what evidence no conclusion could be reached, and what evidence was irrelevant. It would assist adjudicators if entry clearance officers adopted the same approach in their explanatory statements.
4. Where as in immigration cases half the evidence was received abroad and half given in the United Kingdom, an adjudicator was entitled, if so minded, to say ‘that he sees no reason to differ from any findings of fact made by the entry clearance officer.’
5. The applicant's representatives had failed to prepare the papers properly for the courts: it was also desirable in applications for judicial review for counsel to prepare a skeleton argument: had that been done it would have been evident to counsel that the attack on the adjudicator's findings on maintenance could not be sustained and the court's time would have been saved.
Schiemann J: This is an application to quash the decision of the President of the Immigration Appeals Tribunal made under rule 14 of the Immigration Appeals (Procedure) Rules 1984 refusing the applicant leave to appeal from a decision of an adjudicator. The appeal to the adjudicator had been made under section 13 of the Immigration Act 1971 because the applicant had been refused an entry clearance.
The background to the matter is as follows. The applicant, a citizen of Pakistan, had on 14 June 1987 married in Pakistan a lady who at that time was settled in the United Kingdom. In November 1987 he applied for entry clearance. In February 1988 his by now pregnant wife returned to the United Kingdom. There, in June 1988, she gave birth to their child. In October 1988 the applicant and his mother were interviewed by the entry clearance officer; and a little later they were refused entry clearance. The entry clearance officer and the adjudicator were dealing with the case under paragraph 46 of HC 169 as amended by HC 503.
This provides, so far as presently relevant:
‘A passenger seeking admission to the United Kingdom as the spouse of a person who is present and settled in the United Kingdom…must hold a current entry clearance granted for that purpose. An entry clearance will be refused unless the Entry Clearance Officer is satisfied:—
(a) that the marriage was not entered into primarily to obtain admission to the United Kingdom; and
(b) that each of the parties has the intention of living permanently with the other as his or her spouse; and
(c) that the parties to the...
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