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R v. Immigration Appeal Tribunal, Ex parte Kotecha

REGINA v. IMMIGRATION APPEAL TRIBUNAL, Ex parte KOTECHA

COURT OF APPEAL (CIVIL DIVISION)

[1983] 2 All ER 289, [1983] 1 WLR 487, [1982] Imm AR 88

Hearing Date: 23 November 1982

23 November 1982

Index Terms:

Immigration -- Appeal -- Evidence -- Refusal of entry by entry clearance officer -- Evidence of subsequent events -- Whether admissible before adjudicator and appeal tribunal -- immigration Act 1971 (c. 77), s. 19 -- Immigration Appeals (Procedure) Rules 1972 (S.I. 1972 No. 1684), rr. 18, 29

Held:

The applicant, an orphan aged 16 who lived in India, was refused entry clearance which would have enabled him to come to live with his elder brother in the United Kingdom. The applicant's evidence which formed the basis of the entry clearance officer's decision showed that the applicant's grandmother, two sisters and other brother lived in India. The applicant unsuccessfully appealed, first, to an adjudicator and, by the time of that hearing, the grandmother had died and the elder brother had been appointed in India as legal guardian with responsibility for the applicant's welfare. Secondly, he appealed to the Immigration Appeal Tribunal, by which time one of the sisters had come to the United Kingdom and the other brother had settled in Tanzania. Both the adjudicator and the appeal tribunal disregarded the events which had occurred since the entry clearance officer's decision. Refusing the applicant's application for judicial review of the appeal tribunal's decision Glidewell J. held that section 19 (2) of the Immigration Act 1971 n1 required the adjudicator and the appeal tribunal to deal with the appeal on the basis of the factual situation existing when the decision of the entry clearance officer was made.

n1 Immigration Act 1971, s. 19 (1) (2): see post, p 490C-E.

On in applicant's appeal: --

Held, dismissing the appeal, that, under the provisions of section 19 of the Immigration Act 1971, an appeal from the entry clearance officer's administrative decision was not an extension of the officer's original decision-making function but a process for enabling the decision to be reviewed; and that, accordingly, neither the adjudicator nor the appeal tribunal was empowered to admit evidence of events which had taken place since the date of the officer's decision (post, pp. 489A, 492H -- 493D).

Reg. v. Immigration Appeal Tribunal, Ex parte Weerasuriya [1983] 1 All E.R. 195 approved.

Decision of Glidewell J. affirmed.

Cases referred to in the Judgment:

Chattopadhyay v. Headmaster of Holloway School [1982] I.C.R. 132, E.A.T. Reg. v. Immigration Appeal Tribunal, Ex parte Abdul Rashid [1978] Imm.A.R. 71,

D.C.

Reg. v. Immigration Appeal Tribunal, Ex parte Amirbeaggi (unreported), May 21, 1982.

Reg. v. Immigration Appeal Tribunal, Ex parte Tong, The Times, December 8, 1981. Reg. v. Immigration Appeal Tribunal, Ex parte Weerasuriya [1983] 1 All E.R. 195. Secretary of State for the Home Department v. Thaker [1976] Imm.A.R. 114.

Cases cited in the Judgment:

Reg. v. Immigration Appeal Tribunal, Ex parte Shezada Khan [1975] Imm.A.R. 26, D.C.

Reg. v. Peterkin (Adjudicator), Ex parte Soni [1972] Imm.A.R. 253, D.C.

Introduction:

APPEAL from Glidewell J.

The applicant, Deepak Valji Khetsi Kotecha, appealed from the refusal by Glidewell J. of his application for judicial review of the decision of the Immigration Appeal Tribunal dismissing his appeal from the decision of an adjudicator, who had dismissed his appeal from the decision of an entry clearance officer not to grant him entry clearance. The grounds of appeal were, inter alia, that the judge erred in interpreting section 19 of the Immigration Act 1971 in holding that the adjudicator and the appeal tribunal could only deal with the appeal upon the evidence relating to facts that were available at the time of the decision appealed against; and that under rule 29 (1) of the Immigration Appeals (Procedure) Rules 1972 the judge ought to have accepted the submission that that rule authorised the reception by the adjudicator and the appeal tribunal of evidence of subsequent facts which were not available at the time the entry clearance officer reached his decision.

The facts are stated in the judgment of Lord Lane C.J.

Counsel:

K. S. Nathan for the applicant.

Alan Moses for the appeal tribunal.

PANEL: Lord Lane C.J., Watkins L.J. and Sir Roger Ormrod

Judgment One:

LORD LANE C.J. This is an appeal from a refusal by Glidewell J. on February 4, 1982, of an application for an order of certiorari to quash a decision of the Immigration Appeal Tribunal given on October 21, 1981, and also for an order of mandamus, ordering the tribunal to determine the appeal according to law.

Only one point arises upon the appeal and that is whether an adjudicator or the 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, the applicant, is a youth called Depak, who was born on December 3, 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 two, and his father died in 1969.

His father had been a merchant in Tanzania. But in 1964 or 1965 the whole family took themselves off to India, where the applicant was born shortly afterwards. He has two brothers. One of the brothers is named Kishor, although it is not his full name. He is the sponsor of this young man and he lives in the United Kingdom. The other brother is now in Tanzania. There are five sisters: three in the United Kingdom, one in Tanzania and one in India. Their 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 two sisters supported the applicant and they continued to do so after the parents had died.

In August 1978 the applicant 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 September 6, 1978, Kishor was told that the applicant 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 was no appeal against that. He went back to India and there he applied for an entry certificate.

On January 17, 1979, the matter came before the entry clearance officer and on February 7, 1979, he refused to grant a certificate. There is no question, as Mr. Nathan has pointed out, of any deception on the part of the applicant. 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 that two 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 March 24, 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 the applicant, and had become therefore responsible for his welfare.

Then on October 21, 1981, there was a further appeal to the Immigration Appeal Tribunal. By this time there had been further changes in the circumstances surrounding the applicant. 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. The other 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 dismissed the appeal.

Now we are asked by Mr. Nathan, on behalf of the applicant, 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:

"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:

"(1) 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 (1) (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 of the Immigration Appeals (Procedure) Rules 1972, headed "Evidence," and it reads:

"(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 (3) (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 (1) 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 may, in its discretion, receive or decline to receive further evidence of which notice has been given in accordance with paragraph (2) above;..."

Rule 29 of the Rules of 1972, again under the heading "Evidence," reads:

"(1) An appellate authority may receive oral, documentary or other evidence of any fact which appears to the authority to be relevant to the appeal, notwithstanding that such evidence would be inadmissible in a court of law."

Mr. Nathan invites us to say that those provisions permit the applicant to adduce evidence of events which have taken place since the hearing before the entry clearance officer, and he has referred us to a number of cases. Some of them, we are bound to say, with respect to Mr. Nathan, do not seem to advance the argument or to be relevant to the question at all; some are certainly relevant.

The first to which our attention was drawn, which was so relevant, was Secretary of State for the Home Department v. Thaker [1976] Imm.A.R. 114. It seems to us, having looked at this decision, that it is a decision the effect of which is contrary to the arguments of Mr. Nathan. It enables us to turn to Reg. v. Immigration Appeal Tribunal, Ex parte Abdul Rashid [1978] Imm.A.R. 71. That was decision of Lord Widgery C.J. in the Divisional Court, and the headnote reads:

"Where an application for entry as a returning resident... was refused by an immigration officer, because the applicant had not substantiated his contention that he was a 'returning resident,' additional evidence tendered to support the applicant's claimed status would be relevant and admissible on an appeal against the refusal; the adjudicator's power on such an appeal would not be restricted to a consideration of the facts which had been established before the immigration officer."

What is made clear by the judgment in that case is that Lord Widgery C.J. is confining himself to evidence of events which had happened before the original hearing, evidence which had not been adduced at the original hearing. This case is no support for the proposition which Mr. Nathan has advanced.

One then turns to a decision by Glidewell J. in Reg. v. Immigration Appeal Tribunal, Ex parte Tong, The Times, December 8, 1981. That was a case which involved a tribunal of fact endeavouring to determine what the expectation of success or failure of a particular business might be. It will be clear from that short synopsis that it is very far removed from the circumstances of the present case. Let me read part of the judgment of Glidewell J.:

"I should say that one of Mr. Collins's subsidiary points was that the adjudicator was obliged to look at the position as it was in May 1978, at the time of the notice of refusal, and in so far as he was entitled to look at anything that had happened since he was only entitled to do so as a guide to what could have been expected to happen viewed from the standpoint of May 1978. In other words, what has actually happened is to be taken into account in deciding what, had one been looking forward from two years back, would have been likely to happen. That, I think, is right. I think that if, for instance, as I suggested in argument, this young man had won a large sum on the football pools some time between 1978 and 1980 and had then invested that in the business, that is not a matter that could reasonably have been expected and so ought not to have entered into the adjudicator's conclusion because he was not deciding the matter on the facts in 1980, he was deciding whether the immigration officer had reasonable grounds for his decision."

Another case with a similar sort of situation was a decision of Woolf J. in Reg. v. Immigration Appeal Tribunal, Ex parte Amirbeaggi (unreported), May 21, 1981. There, in the course of the judgment Woolf J. said:

"The primary submission that Mr. Owen made on this application, and the matter with which I am mainly concerned, is that the tribunal went wrong because they failed to have regard to the events which took place subsequent to the Secretary of State's decision on August 21, 1979. This is a matter on which there is now developing a number of decisions of the courts. At first sight, Mr. Owen's submission appears to be inconsistent with the approach laid down by Glidewell J. in the recent case of Reg. v. Immigration Appeal Tribunal, Ex parte Kotecha" -- the case with which we are concerned today -- "which was given on February 4, 1982, but which has not yet been reported except possibly in 'The Times' newspaper. It also, on first sight, appears to be inconsistent with the case very recently decided by Webster J. which was reported in 'The Times' on May 5, 1982, of Reg. v. Immigration Appeal Tribunal, Ex parte Weerasuriya [1983] 1 All E.R. 195. Those cases lay down that whereas a tribunal, be it an adjudicator or an immigration appeal tribunal which is hearing oral evidence,

is entitled to hear fresh evidence which was not before the Secretary of State at the time he gave his decision, it is not concerned with the subsequent events, at least in so far as those subsequent events refer to new factual matters."

Then he cites the following passage from Glidewell J.'s judgment in the present case:

"What in my view section 19 (2) does not entitle the adjudicator to do is to say: 'I am not concerned with the facts at the date of the entry clearance officer's decision. I will consider the facts as they exist before me today.' Or, perhaps not quite so strongly: 'I will consider not only the facts as they were, but the facts as they are today.' In my judgment, he is not entitled to do that. He must deal with the appeal on the basis of the factual situation that existed when the original decision against which the appeal lies was made. That is true both of the adjudicator and of the appeal tribunal."

What that case and the earlier case of Reg. v. Immigration Appeal Tribunal, Ex parte Tong, The Times, December 8, 1981, seem to decide is this, that the situation may be different where the original decision involves making an inspired guess as to the future prospects of, for example, a business. It may be that within a very limited sphere it is proper in these limited circumstances to have regard to what happened subsequent to the original hearing. That is, as I say, very far from the present case.

We have also been referred to a decision of the Employment Appeal Tribunal, Chattopadhyay v. Headmaster of Holloway School [1982] I.C.R. 132. There the facts were so far away from the present case that I feel it is not helpful to refer to them, save to mention the name of the case out of countresy to Mr. Nathan who cited it to us.

Finally, to bring this up to date, is the decision already mentioned of Webster J. in Reg. v. Immigration Appeal Tribunal, Ex parte Weerasuriya [1983] 1 All E.R. 195. There the issues are conveniently encapsulated in the judgment, delivered on April 27, 1982, where Webster J. is setting out the contentions of the respondent. It reads, at p. 201:

"The submission of counsel for the Secretary of State is to the contrary effect and it is that although, as I have already said, it is common ground that an appellate tribunal may take into account evidence which was not available at an earlier state of the proceedings in question, it may not take into account evidence of any fact which was not in existence at the date when the Secretary of State made his decision. He relies, primarily as matters of construction, on the use of the past tense in section 19 (1) (a) (i) and (ii), and on the words, in (ii), 'should have been exercised differently.' If it were to be purely a question of construction I would be persuaded, I think, by that argument, namely that those words which I have just quoted would, if there were no other assistance to be gained as to the answers to this question, be determinant of it in favour of counsel for the Secretary of State. But it seems to me that there are other considerations which reinforce that conclusion. The decision which is effectively under appeal is the decision of the Secretary of State, that is to say an administrative decision. In judgments on applications for judicial review of administrative decisions it has often been stated that the function of the court is not to substitute its own decision for the decision of the department or tribunal under review. Of course it is not possible to apply that principle directly to the appellate structure which is attached to the

Secretary of State's decision in this case and in similar cases; but it is, as it seems to me, necessary to look at that appellate structure in order to ask oneself the question whether that appellate structure has to be regarded as an extension of the original administrative decision-making function or whether it is to be regarded as simply a process for enabling that decision to be reviewed. As it seems to me it falls into the latter category rather than into the former category."

With that conclusion I would respectfully agree. It puts the matter succinctly and in my judgment puts it accurately. Indeed were the situation to be otherwise, and were Mr. Nathan's submissions to be accepted as correct, it would mean a never-ending system of appeal, each court up the line being obliged to review the facts in the light of events as they stood, not at the time of the original decision but as they stood at each stage of the appellate system, and the system would become even more unmanageable than some people believe it to be at present.

For my part I would dismiss this appeal.

Judgment Two:

WATKINS L.J. I agree.

Judgment Three:

SIR ROGER ORMROD. I agree.

DISPOSITION:

Appeal dismissed. No order as to costs save legal aid taxation.

SOLICITORS:

Nazerali & Co.; Treasury Solicitor.

Topics: Arrival,