R v Immigration Appeal Tribunal, ex parte Banu
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1998 |
| Date | 30 July 1998 |
| Court | Queen's Bench Division |
Queen's Bench Division
Forbes J
A Riza QC for the applicant
I Burnett QC for the respondent
Cases referred to in the judgment:
R v Immigration Appeal Tribunal ex parte Jayanatha Weerasuriya [1982] Imm AR 23.
R v Immigration Appeal Tribunal ex parte Kotecha [1982] Imm AR 88.
R v Immigration Appeal Tribunal ex parte Bastiampillai [1983] Imm AR 1.
Hanif v Secretary of State for the Home Department [1985] Imm AR 57.
Senathirajah Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97.
Francis Robinson v Secretary of State for the Home Department [1997] Imm AR 568.
R v Secretary of State for the Home Department ex parte Rahman (unreported, CA, 30 April 1997).
Evidence post-decision evidence considered by entry clearance officers on reviews of original refusal of entry clearance whether those reviews were part of a continuing process of decision-making, requiring adjudicator on appeal against original refusal to take account of post-decision evidence. HC 251 para. 50: Immigration Appeals (Procedure) Rules 1984 r.6(7).
Adjudicator recommendation on dismissing appeal Secretary of State declined to follow recommendation outwith publicly announced policy whether application of policy in relation to recommendation irrational.
The applicant for leave to move for judicial review was a citizen of Bangladesh whose husband, also a citizen of Bangladesh, had been refused entry clearance to join her in the United Kingdom. The entry clearance officer had not been satisfied that the requirements of the rules in relation to accommodation and maintenance had been fulfilled. After that refusal further evidence was submitted to the entry clearance officer who twice reviewed the decision which was upheld on both occasions.
The refusal went on appeal and counsel then appearing conceded that the appeal could not succeed, the requirements of the rules not being satisfied at the date of decision: she sought and secured from the adjudicator a recommendation that in the light of the new post-decision evidence, entry clearance be granted. The Secretary of State however, in reliance on his publicly announced policy in relation to recommendations from adjudicators, declined to follow that recommendation.
The Tribunal had refused leave to appeal on grounds that asserted that following Ravichandran the adjudicator should have taken account of the fresh post-decision evidence and have allowed the appeal on the facts as they were at the date of hearing.
In seeking judicial review of that refusal counsel, following Rahman, was obliged to abandon the reliance on Ravichandran which related only to asylum appeals. He submitted however that the two reviews by entry clearance officers were a continuation of the decision-making process: not until the second review had been completed had the decision, for purposes of appeal, been completed: it followed that the adjudicator had been entitled to take that evidence into account.
Counsel also argued that the refusal of the Secretary of State to follow the adjudicator's recommendation was, on the facts, Wednesbury unreasonable.
Held:
1. Following Kotecha and Rahman, the adjudicator and the Tribunal in non-asylum appeals were restricted to considering facts in existence at the date of decision.
2. The reviews by the entry clearance officers were not part of the original decision-making process and the date of decision remained the date of the original refusal.
3. It followed that neither the adjudicator, nor the Tribunal in refusing leave, had erred in taking no account of the post-decision evidence.
4. In the light of the terms of the publicly announced policy, the Secretary of State's refusal to follow the adjudicator's recommendation was not Wednesbury unreasonable.
Forbes J: In these proceedings, the applicant Maya Banu (Miss Banu) seeks relief by way of judicial review in respect of:
(i) the decision of the Immigration Appeal Tribunal dated 12 December 1996, refusing her husband Hussain Ahmed (Mr Ahmed) leave to appeal against the determination of an adjudicator dated 25 September 1996, whereby Mr Ahmed's appeal, against the earlier refusal of his application for entry clearance to come to the United Kingdom as the husband of a woman settled here, was dismissed; and (ii) the decision of the Secretary of State, contained in a letter from the British High Commission dated 23 October 1996, refusing to follow the adjudicator's recommendation that Mr Ahmed be granted entry clearance to the United Kingdom.
The facts and procedural history
Miss Banu is a citizen of Bangladesh who is settled in the United Kingdom, having come here to join her parents on 11 February 1992. On 9 November 1992, Miss Banu married Mr Ahmed, who is also a citizen of Bangladesh. On 11 December 1993, their daughter Farhen Ahmed was born in the United Kingdom. In the meantime, on 24 November 1992, Mr Ahmed had applied to the High Commission in Dhaka for entry clearance to come to the United Kingdom as the husband of a woman who was settled here. The entry clearance officer who considered and determined that application was a Mr D R Connelly. Mr Connelly considered and decided Mr Ahmed's application in accordance with the requirements of paragraph 50 of the Statement of Changes in the Immigration Rules, made pursuant to section 3(2) of the Immigration Act 1971 (the 1971 Act), which were laid before Parliament on 23 March 1990 (HC 251). Since Mr Ahmed's application was made before 1 October 1994, it is common ground that paragraph 50 of HC 251 was the relevant and applicable immigration rule: see paragraph 4 of HC 395. Paragraph 50 of HC 251 provides as follows:
50 A passenger seeking admission to the United Kingdom as the spouse of a person who is present and settled in the United Kingdom, or who is on the same occasion being admitted for settlement, 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 marriage have met; and
(d) that there will be adequate accommodation for the parties and their dependants without recourse to public funds in accommodation of their own or which they occupy themselves; and
(e) that the parties will be able to maintain themselves and their dependants adequately without recourse to public funds.
Having interviewed Mr Ahmed and considered the other evidence which was presented to him, Mr Connelly was satisfied that the primary purpose of the marriage was not to obtain immigration to the United Kingdom: see subparagraph (a) of paragraph 50 of HC 251. He was also satisfied that the provisions of sub-paragraphs (b) and (c) of paragraph 50 had been met. However, Mr Connelly was not satisfied that sub-paragraphs (d) and (e) had been fulfilled and, accordingly, on 24 August 1994 he refused Mr Ahmed entry clearance for the following reasons:
You have applied for an entry clearance with a view to joining Maya Banu in the United Kingdom as her husband, but I am not satisfied you will be adequately accommodated in accommodation that you own or occupy yourselves or adequately supported, without recourse to public funds.
In due course, on 18 September 1994, Mr Ahmed appealed against the refusal of his application, pursuant to section 13(1) of the 1971 Act. Thereafter, Mr Connelly produced his written explanatory statement as required by rule 8(1) of the Immigration Appeals (Procedure) Rules 1984 (the 1984 Appeals Rules), setting out the detailed reasons for his refusal. Mr Connelly's explanatory statement contained (inter alia) the following material passage:
Evidence of an ability to support the applicant in the United Kingdom came from the sponsor herself and from a Gulam Abia, whilst offers of employment for the appellant came from restaurants in Stockport and Abbotts Langley, Hertfordshire. No evidence was produced to show that the sponsor was in any form of employment. Mr Abia appears to have offered the entire contents of his account to the appellant on arrival, an offer as incredible as it is unrealistic, one to which I give little weight, and one which does not, in my view, meet the requirements of the rules. The sponsor herself opened a bank account on 21.3.94 and deposited 450 the same day. The source of this money is unknown, and given the one off nature of this deposit, I cannot be satisfied that the funds were not remitted by a third party. A Gulam Abia also signed the letter at annex F which offers employment to the appellant. The signature appears different from that on annex J, and even if I were to accept the genuineness of the document, I do not accept that such an open-ended offer of employment (the terms of which are unknown) can be realistically made to someone whose entry to the United Kingdom is not guaranteed. A further letter of employment (this time for a job in Blackburn) merits the same submission and I attach little weight to its contents.
Accommodation was identified firstly in Stevenage and secondly in Stockport. The former did not appear to be available for the appellant's possession, whilst the latter appeared to be occupied by a Mr Hushin. No evidence that the current occupant is content with the intended arrangement was produced. Neither have I seen evidence of the financial agreement for the intended occupancy, or anything to suggest...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2006-03-16, [2006] UKAIT 29 (AH (Notices required))
...to reverse the decision made in May 2000. The second is that there is a line of authorities, including R v IAT and SSHD ex parte Banu [1999] Imm AR 161 and Hanif v SSHD [1985] Imm AR 57, to the effect that a review of a previous decision by the Secretary of State or an Entry Clearance Offic......
-
AH (Notices required)
...to reverse the decision made in May 2000. The second is that there is a line of authorities, including R v IAT and SSHD ex parte Banu [1999] Imm AR 161 and Hanif v SSHD [1985] Imm AR 57, to the effect that a review of a previous decision by the Secretary of State or an Entry Clearance Offic......