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Secretary of State for the Home Department v. Purushothaman

SECRETARY OF STATE FOR THE HOME DEPARTMENT v PURUSHOTHAMAN TH/2398/71

Immigration Appeal Tribunal

[1972] Imm AR 176

Hearing Date: 15 December 1971

15 December 1971

Index Terms:

Practice and procedure -- Adjudicator's task when hearing appeals against decisions of immigration authority -- Consideration of all the evidence including any further evidence -- Review of questions of fact on which original decision based -- Immigration Appeals Act 1969, s 8(1), (2) & (3).

Held:

The starting point for an adjudicator considering an appeal is the original decision of the immigration authority, an in carrying out the task of determining whether under s 8(1) of the Immigration Appeals Act 1969 that decision was in accordance with the law or the immigration rules applicable the adjudicator must take into consideration all the evidence, including any further evidence, before him, being guided by sub-s(2) of s 8 in reviewing any determination of a question of fact on which the original decision was based. n1

n1 Section 8(1) & (2) of the Immigration Appeals Act 1969 reads: --

"8. -- (1) Subject to sections 2(2) and 5(2) of this Act, an adjudicator who hears an appeal 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 paragraph (a) of the foregoing subsection the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of paragraph (a)(ii) of that subsection no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so."

In the appeal reported below the Tribunal was asked to give a ruling on the interpretation of section 8(1) of the Immigration Appeals Act 1969.

Counsel:

W. J. Bohan for the appellant.

P. Tucker of the United Kingdom Immigrants Advisory Service, for the respondent.

PANEL: Sir Derek Hilton (President), Sir John Rankine, Dr. L. P. De Souza.

Judgment One:

THE TRIBUNAL: The adjudicator in this case (Mr. T. D. Healy) allowed the respondent's appeal against the refusal to grant him an entry certificate to enable him to visit his wife in the United Kingdom. We were informed by Mr. Bohan that the appellant was not seeking to appeal against the allowing of the respondent's appeal by the adjudicator but that both parties were askig for a ruling by the Tribunal on the interpretation of s 8(1) of the Immigration Appeals Act 1969. n2

n2 Section 8(1) is set out in footnote 1, ante.

In the course of his determination Mr. Healy said: --

"On the hearing of the appeal I was faced with a problem regarding the basis on which I should deal with it. I have set out in a number of cases what I believe to be the proper interpretation of s 8 of the Immigration Appeals Act 1969 but a completely different view is taken by a number of my colleagues.

In Persaud's case (TH/2017/71) Mr. Housden said: --

'Mr. Walmsley, for the Secretary of State, has read out para 13 of Cmnd. Paper 4298 which specifies that admission should be refused if the immigration officer is not satisfied that no more than a visit to the United Kingdom is intended. I have always interpreted this rule as meaning that I must look at the evidence as a whole and satisfy myself whether no more than a visit is intended. That is to say, I have always taken the view that this is a hearing at first instance rather than an appeal properly so called. I can make my own mind up as if I were the immigration officer confronted with all the evidence which is now before me. I am not obliged to say that the immigration officer had some reason (although I may not agree with his reason) for coming to this decision and that I am therefore bound to dismiss the appeal. I am aware that some of my colleagues do not agree with me but this has always been my view, which has never been contradicted on appeal.'

Whatever the strength of my own convictions I believe it to be quite wrong that appellants should be treated on a different basis by different adjudicators and until the Tribunal clarifies the matter I propose to accept Mr. Housden's line of approach because I believe it represents the opinion of the majority of adjudicators."

At the conclusion of the hearing the adjudicator granted the appellant (who was the respondent before him) leave to appeal in the following terms, set out at the end of the notes of evidence: --

"Apply for leave to appeal on grounds that it was wrong in law to consider appeal de novo on the basis outlined in the case of TH/2017/71.

Further grounds may be added when written determination available.

There is an arguable point of law involved here on which the Tribunal has not yet given a decision. Leave granted."

In the notice of appeal the grounds of appeal are in the following terms: --

"The adjudicator erred in law in his interpretation of s 8(1) of the Immigration Appeals Act 1969. Leave to appeal to the Tribunal was granted by the adjudicator".

After hearing argument and submissions by Mr. Bohan and Mr. Tucker we made the following ruling on the interpretation of s 8(1) of the Immigration Appeals Act 1969 (the Act): --

The original decision appealed against is the starting point for consideration by the adjudicator. The task of the adjudicator is to decide whether or not that decision is in accordance with the law or any immigration rules applicable to the case under the provisions of s 8(1) of the Act. In carrying out that task the adjudicator must take into consideration all the evidence, including any further evidence, before him and for that purpose he may review any determination of a question of fact on which the original decision was based under the provisions of s 8(2) of the Act. n3

n3 Under sub-s (3) of s 8 of the Act of 1969 the provisions of sub-s (1) and sub-s (2) apply to the Tribunal as to an adjudicator when the Tribunal is hearing an appeal at first instance under s 9 of the Act (cases involving national security or forgery of documents).

Topics: Evidence, Arrival,