OA (Alleged forgery; section 108 procedure) Nigeria  UKIAT 00096
Date of hearing: 11th September, 2007
Date Determination notified: 04 December 2007
|ENTRY CLEARANCE OFFICER, LAGOS||RESPONDENT|
(i) had the means to pay for his return or onward journey;
(ii) was able and intended to maintain and accommodate himself without recourse to public funds; and
(iii) intended to leave the United Kingdom at the end of his working holiday.
'Paragraph 7 of the determination confirms that the Immigration Judge acceded to the request made by the Presenting Officer pursuant to section 108 of the Nationality, Immigration and Asylum Act 2002, for the Immigration Judge to investigate the forgery allegation in private.
It is arguable that this gives rise to a procedural irregularity amounting to an error of law. In reaching this decision, I rely on the following separately and cumulatively:
(a) that the record of proceedings does not appear to indicate that the Immigration Judge recorded the proceedings in private, nor is there any indication that he recorded his reasoning for reaching his finding that the bank statement was not genuine. The effect of the procedure the Immigration Judge has adopted (if upheld as permissible and not wrong in law) is that his finding is not subject to any judicial scrutiny;
(b) that the Immigration Judge may have erred in law by failing to consider whether it was necessary to exclude the sponsor who had attended on the appellant's behalf, as well as the public. Rule 54(2)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, gave the Immigration Judge a discretion to exclude a party or a representative. It is arguable that the discretion must be exercised judicially. The failure to consider whether the discretion should be exercised and to give reasons (to the extent one is able to do so), arguably amounts to an error of law;
(c) that it appears that the appellant was not given notice that this procedure would be invoked. It is arguable that this is important in entry clearance cases, because a sponsor may not have been "briefed" on what to say in the event of such an application. Accordingly, it may be arguable that the appellant has not had a fair opportunity to make arguments to the Immigration Judge. Although it would have been necessary for the appellant to advance his arguments in ignorance of the evidence, and arguments to be advanced on the respondent's behalf during the private investigation, this is arguably not a reason to deny him the opportunity of making his arguments nevertheless.'
'You have little idea about the likely costs of travelling around the UK for the time you propose. You have been unable to describe what type of incidental employment you would seek or how you would obtain it. I am not satisfied you are genuinely seeking entry clearance to the UK in the spirit of the working holidaymaker scheme which leads me to further doubt you will ultimately leave the UK at the end of any period of leave granted to you.
You have failed to provide satisfactory evidence of your ability to maintain and accommodate in the United Kingdom the United Kingdom without recourse to public funds. Neither have you satisfied me that you have the means to pay for your return or onward journey.
You have submitted a WEMA bank statement in your mother's name and a UBA bank statement in your name to support your application. Anomalies and inconsistencies in this document has led me to conclude on the balance of probabilities that the document cannot be relied upon as satisfactory evidence of your or your sponsor's circumstances here in Nigeria. This therefore leads me to doubt you are genuinely seeking entry to the UK as a working holidaymaker and that you will ultimately leave the UK at the end of your proposed holiday.
You have not submitted satisfactory evidence to support your claims concerning your family circumstances in Nigeria and that of your sponsor. In the absence of this information, I am unable to establish whether or not you are a genuine working holidaymaker who intends to leave the UK at the end of your visit.'
"108. Forged documents : Proceedings in Private:
(1) This section applies where it is alleged -
(a) that a document relied on by a party to an appeal under section 82, 83 or 83A is a forgery, and
(b) that a disclosure to that party of a matter relating to the detection of the forgery would be contrary to the public interest.
(2) The Tribunal
(a) must investigate the allegation in private, and
(b) may proceed in private so far as necessary to prevent disclosure of the matter referred to in subsection (1) (b)."
"(6) In an appeal to which section 85(5) of the 2002 Act applies, the Tribunal must only consider evidence relating to matters which it is not prevented by that section from considering.
(7) Subject to section 108 of the 2002 Act, the Tribunal must not take account of any evidence that has not been made available to all the parties."
So that the Tribunal may consider only the circumstances appertaining at the time of the Respondent's decision to refuse, namely 22nd November, 2006.
And 54(4) of the Rules provides that:
"The Tribunal may also, in exceptional circumstances, exclude any or all members of the public from any hearing or part of a hearing to ensure that publicity does not prejudice the interests of justice, but only if and to the extent that it is strictly necessary to do so."
- informants are protected in order to protect their safety;
- the respondent's methods of detection are protected; as well as
- ensuring that the sources of information do not dry up;
are sufficient to satisfy the public interest element in section 108 (1) (b) of the Act. The section 108 procedure is not, of course, solely limited to the protection of identity of informants; it can relate to any "matter relating to the detection of the forgery" and it is important that this be borne in mind.
"Requirements for leave to enter as a working holidaymaker
95. The requirements to be met by a person seeking leave to enter the United Kingdom as a working holidaymaker are that he:
(i) is a national or citizen of a country listed in Appendix 3 of these Rules, or a British Overseas Citizen; a British Overseas Territories Citizen; or a British National (Overseas); and
(ii) is aged between 17 and 30 inclusive or was so aged at the date of his application for leave to enter; and
(iii) (a) is unmarried and is not a civil partner, or
(b) is married to, or the civil partner of, a person who meets the requirements of this paragraph and the parties to the marriage or civil partnership intend to take a working holiday together; and
(iv) has the means to pay for his return or onward journey, and
(v) is able and intends to maintain and accommodate himself without recourse to public funds; and
(vi) is intending only to take employment incidental to a holiday, and not to engage in business, or to provide services as a professional sportsperson, and in any event not to work for more than 12 months during his stay; and
(vii) does not have dependent children any of whom are 5 years of age or over or who will reach 5 years of age before the applicant completes his working holiday; and
(viii) intends to leave the UK at the end of his working holiday: and
(ix) has not spent time in the United Kingdom on a previous working holidaymaker entry clearance; and
(x) holds a valid United Kingdom entry clearance, granted for a limited period not exceeding 2 years, for entry in this capacity."
This appeal is allowed
Senior Immigration Judge Chalkley