Raja Zafar Zia v Secretary of state for the home department
| Jurisdiction | Scotland |
| Judgment Date | 03 March 1993 |
| Date | 03 March 1993 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Lord Prosser
M Bovey for the petitioner
Miss S J O'Brien for the respondent
Cases referred to in the judgment:
McWilliams v Sir William Arrol & CoSCUNK [1962] SC(HL) 70: [1962] 1 All ER 623.
Albyn Properties Ltd v Knox [1977] SLT 41.
R v Immigration Appeal Tribunal ex parte Khan [1982] Imm AR 134.
Wordie Property Co Ltd v Secretary of State for Scotland [1984] SLT 345.
McLeod v Banff & Buchan District Housing Benefit Review Board [1988] SLT 753.
Immigration Appeal Tribunal v Hoque & Singh [1988] Imm AR 216.
Malcolm v Housing Benefit Review Board for Tweeddale District (unreported, CS, 6 August 1991).
Ismail Sidat v Immigration Appeal Tribunal (unreported. CA, 3 April 1992).
Mohammed Saffar v Secretary of State for the Home Department [1991] Imm AR 1.
in re Amir Ahmed (unreported, CS, 31 January 1992).
Sumeina Masood v Immigration Appeal Tribunal [1992] Imm AR 69.
R v Immigration Appeal Tribunal ex parte Mohd Amin [1992] Imm AR 367.
R v Immigration Appeal Tribunal ex parte Anwari (unreported, QBD, 27 February 1992).
Spouse refusal of entry clearance appeal dismissed by adjudicator refusal of leave to appeal to Tribunal whether adjudicator's approach correct whether determination contained adequate reasons the need to demonstrate factors in evidence had been assessed before stating conclusions the extent to which an adjudicator should refer to the settled cases whether appropriate to use the word convinced where the standard of proof is the balance of probabilities the meaning of accommodation of their own. HC 251 para. 50. Immigration Appeals (Procedure) Rules 1984 rr. 22(1)(a), 39(3).
The petitioner was the wife of a citizen of Pakistan who had been refused entry clearance to join her in the United Kingdom. An appeal was dismissed by an adjudicator, and leave to appeal to the Tribunal was refused. The adjudicator dismissed the appeal on the issues of primary purposes, the adequacy of available accommodation and the adequacy of maintenance.
Before the court counsel for the respondent did not argue, it seems, against the submissions of counsel for the petitioner in respect of primary purpose or accommodation. The court in a wide-ranging opinion reviewed in great detail the approach adopted by the adjudicator generally.
Held
1. The adjudicator had failed generally to give adequate reasons, following Khan and Amin, which cases set out the proper test to be applied in that regard to an adjudicator's determination.
2. In relation to the issue of maintenance, the adjudicator had failed to analyse the evidence and to indicate what discrepancies in the evidence she had found significant and why.
3. In dealing with the issue of accommodation, the adjudicator concluded that the accommodation offered did not satisfy the requirement of the rules that it was of their own: she relied on the rule as interpreted but did not refer to the authorities on which she relied.
4. In his lordship's opinion, obiter, if a young couple have a room of their own in a house belonging to parents or parents-in-law who have undertaken to provide the couple with accommodation there, that appears to me to meet the requirements of the rule.
5. In dealing with the issue of primary purpose the adjudicator appeared erroneously to move almost directly from recounting the evidence to a final conclusion, without attempting to reach individual findings on the facts on a balance of probabilities before considering whether the overall onus of proof had been discharged. The adjudicator ought to refer to those authorities in which the approach to material issues had been judicially considered.
6. To use the word convinced could suggest that the wrong standard of proof had been applied.
7. Obiter, the concession by counsel for the appellant in Masood was wrongly or too widely made.
Lord Prosser: The petitioner is a citizen of Pakistan, and lives there. He is the husband of Samina Akhtar, who is a British citizen born in Britain, with the right of abode in the United Kingdom, and who lives in Glasgow. They were married on 24 April 1989, and it is not disputed that for the purposes of the relevant immigration rules (HC 503, as altered by HC 169), and in particular paragraph 46 of those rules, Samina Akhtar, now Mrs Zia is his spouse and is present and settled in the United Kingdom.
As a foreign national seeking admission to the United Kingdom, the petitioner would require entry clearance; and seeking such admission as Mrs Zia's spouse, the petitioner would be refused such entry clearance, in terms of paragraph 46 of the rules unless the entry clearance officer was satisfied as to the five matters listed as (a) to (e) in that paragraph. Mr Zia applied for entry clearance on 23 May 1989. On 3 May 1990, the entry clearance officer refused the application. The heads upon which he was not satisfied were heads (a), (d), and (e). The entry clearance officer's decision shows that he was satisfied on head (c). Head (b) does not appear to be dealt with. The petitioner appealed against the refusal of entry clearance, and after a hearing at which additional evidence was submitted, the immigration appeals adjudicator issued a determination on 22 October 1991, refusing the appeal. Leave to appeal against that decision was refused by the Immigration Appeals Tribunal on 14 February 1992.
In the present petition, the petitioner seeks reduction of the adjudicator's decision, and reduction of the decision of the Immigration Appeals Tribunal, refusing leave to appeal. This latter reduction was originally sought only as an alternative to reduction of the adjudicator's decision. However, in the course of the debate before me, an amendment was made so that it would be open to me to grant one or other or both of these remedies. I shall return to the question of remedy later. I would, however, observe at this stage that the submissions made on behalf of the petitioner related to defects in the adjudicator's determination, which were said to justify its reduction; and that it was not disputed that if her determination contained such defects, that fact would constitute a sufficient ground for reducing the refusal of leave to appeal against it.
As I have already indicated, paragraph 46 of the rules provides that an entry clearance will be refused unless the entry clearance officer is satisfied as to each of the matters listed. In relation to the appeal proceedings before the adjudicator, counsel for both the petitioner and the respondent proceeded upon the basis that entry clearance would be refused unless the adjudicator was so satisfied. It was moreover accepted on behalf of the petitioner that the onus of satisfying the adjudicator lay upon the petitioner; and that failure to satisfy the adjudicator upon even one of the five heads would properly result in refusal. Parties were agreed that satisfied meant satisfied upon a balance of probabilities. In respect of each of heads (a), (d) and (e), the adjudicator's decision was that the appellant had failed to discharge the onus upon him, on the balance of probabilities. On behalf of the petitioner, it was submitted that upon all three matters, the adjudicator's decision was defective in such a way as to justify reduction.
It is perhaps useful to set out the relevant provision of paragraph 46 of the rules in full:
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.
The adjudicator set out her reasons for her determination in thirty-two paragraphs. Most of these, and most of the contentions advanced on behalf of the petitioner, may be said to relate to head (a). The stated reasons contain little on head (d), and the submissions made on behalf of the petitioner in that respect were quite short. While I shall have to say a certain amount about the stated reasons in relation to each of heads (a) and (d), counsel for the respondent, after hearing the submissions for the petitioner, intimated that no submission would be made on behalf of the respondent in reply to what had been said on behalf of the petitioner, in relation to either of these two heads. The argument on behalf of the respondent would relate to head (e) alone. As the adjudicator's decision in respect of head (e) has thus become the only one upon which the parties remain in conflict, I shall deal with it first.
When the matter was before the entry clearance officer, the only material available to him, in relation to head (e), consisted of (i) a letter of 30 November 1989 from the Pollokshields branch of the Bank of Scotland, confirming that the petitioner's wife had had an account at...
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