R v Immigration Appeal Tribunal ex parte Joseph
| Jurisdiction | England & Wales |
| Judgment Date | 09 February 1977 |
| Date | 09 February 1977 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Division
Lord Widgery CJ, Michael Davies and Robert Goff JJ
J. J. Smyth for the applicant.
Harry Woolf for the respondent.
Business man Application by visitor to set up in business Consideration on merits Whether each of factors specified in immigration rule a prerequisite to grant of permission Whether decision of adjudicator made in the round was proper after taking all relevant factors into account HC 80, para 21.
Business man Partnership in restaurant business Assets of his own Disproportion between capital contributed by applicant and capital provided by partner very great Whether this fatal to the application Meaning of word assets Personality of applicant a relevant factor to the success of the business Whether adjudicator adopted proper approach when making his decision in the round after taking all relevant factors into account HC 80, para 21.
J, a citizen of Jamaica, came to the United Kingdom on 2.4.71 as a visitor for a period of 6 months. In September 1971 he applied for permanent residence in order to set up a business enterprise, a restaurant in partnership with another man. After being granted some extensions of stay while his application was being considered J's application was eventually refused on 26.4.74. He appealed against that refusal, and his appeal was allowed by an adjudicator on 8.4.75 but that decision was reversed by the Tribunal on 28.1.76.
On J's application to the Queen's Bench Divisional Court for an Order of Certiorari to quash the Tribunals' decision, it was noted that the adjudicator in considering J's case under the immigration rule relating to applications by visitors to set up in business, para 21 of HC 80, had held that the factors which fell to be considered under para 211 must be considered in the round and were not all prerequisites to the grant of permission, and in particular that the fact that J's capital contribution to the enterprise was disproportionate to that of his partner (545 as against 9,000), although they shared the profits equally, was not a mandatory reason for refusal of permission if other factors suggested that the case in the round had sufficient merit and, taking into account J's personality as a valuable asset in the restaurant, the adjudicator had allowed his appeal. The Tribunal, reversing that decision, had held that though the merits of the business were not in issue J was not (in the words of para 21 of HC 801) devoting assets of his own to the business proportional to his interest in it, and that having failed to meet one of the requirements of para 21 he did not qualify as a business man under the immigration rules.
Held: (i) The rules (HC 80) were intended to provide guidance as to the practice to be followed and were not to be construed too rigidly; and when para 21, after stating that applications were to be considered on merits, went on to provide that permission would depend on a number of factors including certain specified factors, the paragraph was not specifying prerequisites for the grant of permission but rather specifying factors which must be taken into account, failure to comply with any one of which would not necessarily be fatal to the application; accordingly the adjudicator was right in his approach when he decided he should look at the case in the round after considering all revelant factors; (pp 7374)
(ii) the Tribunal had put too narrow a meaning on the word assets: the word must refer to assets having some economic value in the sense of a financial...
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