England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE HARRISON)

		Royal Courts of Justice The Strand London Thursday 14 February 2002

Thursday 14 February 2002

1. LORD JUSTICE DYSON: This is an application for permission to appeal the decision of Harrison J whereby he dismissed an application for judicial review of a decision of the Immigration Appeal Tribunal of 30 January 2001. By that decision the IAT had refused permission to appeal against a decision of the adjudicator, Mr Mather, of 22 December 2000. In his turn, Mr Mather had dismissed an appeal by Mrs Jasim from the decision of the entry clearance officer ("ECO") of 6 December 1999 to refuse an application by her for indefinite leave to enter the United Kingdom as a dependent of a British citizen. The reasons for the ECO's decision are set out in some detail in a written memorandum dated 25 February 2000.
2. Mrs Jasim is an Iraqi Jew. All but one of her children now live in the United Kingdom.
3. Her appeal against the decision of the ECO first came before an adjudicator on 23 October 2000. For reasons which do not matter that hearing was aborted on that occasion. On 1 November 2000, notice was given to those representing Mrs Jasim of a renewed hearing that was to take place on 4 December 2000. On 25 November 2000, Mrs Jasim started proceedings. She applied for judicial review of the decision of the ECO on the basis that she had some substantive legitimate expectation that she would be granted leave to enter the United Kingdom.
4. On 27 November her solicitor wrote to the immigration appellate authority requesting an adjournment of her appeal to the adjudicator until the judicial review proceedings had been completed. It seems that there was no reply to that letter by the authority.
5. The renewed hearing took place as forecast on 4 December before Mr Mather. Nobody attended on behalf of Mrs Jasim. As explained by the adjudicator in his decision of 22 December, Mrs Jasim's solicitor, Mrs Lev-Klein, apparently took the view that an adjournment had been granted pending judicial review. It seems that that understanding was fostered by the fact that the request for an adjournment of 27 November had been granted. The view taken by the adjudicator was that the fact that Mrs Jasim had commenced judicial review proceedings was not of itself a good reason not to proceed with the appeal before him. There being no satisfactory explanation for the lack of representation of Mrs Jasim, he decided that there was no reason for him not to proceed with the appeal.
6. Rule 317 of HC395 identifies requirements for indefinite leave to enter the United Kingdom as a dependent relative of a person present and settled in the United Kingdom. These requirements include (iii) that the applicant is:

"financially wholly or mainly dependent on the relative present and settled in the United Kingdom"

and (v) that the applicant:

"has no other close relatives in his own country to whom he could turn for financial support."

7. Mr Mather considered that Mrs Jasim did not satisfy either of these requirements and, given that there was no information before him upon which he could make a recommendation that she should be granted leave to enter outside the immigration rules, he made no such recommendation.
8. Mrs Jasim sought leave to appeal to the IAT. In refusing leave, the IAT said that the adjudicator had been entitled to proceed in the absence of the appellant or her representatives and that he had no obligation to make an extra statutory recommendation. In short, his failure to do so could not be made the subject of an appeal.
9. At some stage in the proceedings before the judge, Mrs Lev-Klein stated that after making the application for judicial review of the IAT's decision, she had had a conversation with a Mrs C Alexis of the immigration appellate authority on 28 November 2000, and had been told by this person that an adjournment had been granted. Harrison J granted the appellant a seven-day adjournment of the hearing to allow the parties to make inquiries as to the existence of Mrs C Alexis and the alleged conversation. The investigations that were carried out revealed that there was no Mrs C Alexis at the IAA, that written notice would be given of any adjournment and, further, that Mrs Jasim's solicitors had been sent a letter on 28 November 2000, informing them that the matter would be listed before Mr Mather on 4 December.
10. When the matter came back before Harrison J, the suggestion that there had been some such conversation with Mrs C Alexis was abandoned.
11. At this point I should refer to the decision of the ECO which is recorded in the memorandum of 25 February 2000. Mrs Jasim has six children, of whom five live in the United Kingdom. One of them is Mr Minashi, who has appeared before me this morning and has put the case for the appellant in restrained, clear and cogent terms. However, there is also a son who lives in Iraq. There has been a history of applications in this case. It is sufficient to start with an application made in September 1998 for Mrs Jasim to enter the United Kingdom as a visitor. As recorded in the memorandum of 25 February 2000, that application was refused. It is stated that at that time Mrs Jasim emphasised the fact that she had assets and property income in Iraq and a son remaining there who apparently was unable to leave both his work and a building that was being constructed for them. No doubt those matters were being put forward in support of the case that Mrs Jasim would return to Iraq after her entry visa for leave to enter as a visitor expired. But as recorded by the ECO in the memorandum, in the course of her application in late 1999 the appellant's circumstances were now, and always have been, completely different. The properties apparently owned by her in 1997 had supposedly been transferred into her son's name for some reason and the tenants were now refusing to pay their rents. But she had no legal proof of this transfer of ownership. Moreover, the building that had allegedly been built the previous year, and which required her son's presence to oversee it, had never received any planning permission. The memorandum records that the appellant was re-interviewed on 6 December 1999 in an attempt to clarify some of the discrepancies to which reference had been made. The officer stated that this only helped to increase the uncertainties. The appellant now stated that all of the properties supposedly generating rental income for her and her son had been appropriated by the Iraqi Government as far back as 1997 and that she was not entitled to these properties.
12. So far as her son remaining in Iraq was concerned, she had previously produced a letter indicating that he had stopped working in a hospital there in 1997. She also admitted that he had then started working in a private hospital, but she had not brought any correspondence from this hospital to confirm that he was no longer employed there.
13. The officer referred to yet further examples of discrepancies relating to her religion. He then said this:

"In conclusion the appellant was now attempting to portray her circumstances as having been somewhat dire for some time. However she could not satisfactorily explain all the discrepancies which had now resulted. On balance therefore it was difficult to place too much reliance on her statements made both now and previously. When viewed overall I could not be satisfied on balance that the appellant was living alone outside the UK with no close relatives in Iraq to whom she could turn for support."

14. In other words, the Entry Clearance Officer dismissed this application on the grounds that the appellant did not satisfy the requirement in paragraph 317(v) of HC395.
15. Before Harrison J Mrs Jasim was represented by counsel who advanced four submissions. The first was that the adjudicator had failed to take into account evidence that Mrs Jasim's answers in interview were hindered by the fact that they had to be interpreted by a Palestinian interpreter. As to that, the judge said that the answer to criticisms relating to the interview was that the Entry Clearance Officer had not believed her account and that he had information before him that would entitle him to come to this decision.
16. Insofar as it is suggested that the judge was not entitled to reach that conclusion on that point, it seems to me that there is no substance in such criticism. Whatever the difficulties may have been about answers given in interview, the discrepancies between the basic accounts given in September 1998 and in December 1999, to which I have referred, were stark and clear. It is not suggested that any difficulties over understanding or interpretation impact on those discrepancies.
17. The second point made before the judge was that the adjudicator should have granted an adjournment pending the outcome of the judicial review proceedings. The judge rejected that on the grounds that the challenge which was based on the alleged legitimate expectation that entry would be granted was something which was outside the immigration rules and was therefore not a matter relevant to the issues that were being considered by Mr Mather. It seems to me that that must be right. The adjudicator was fully justified in not adjourning the appeal in order to see what happened on the judicial review. If the judicial review proceedings had been successful, then the outcome of the appeal to the adjudicator would have been immaterial because Mrs Jasim would have been successful in achieving her object.
18. The third point complained of was that Mr Mather was wrong to introduce rule 317(iii) into his consideration when the ECO dealt with Mrs Jasim only under rule 317(v). It is said that Mrs Jasim should have been allowed to make representations as to the case under rule 317(iii). The answer to that is that the decision of the ECO under rule 317(v) was upheld by the adjudicator. That was a sufficient basis for dismissing the appeal. It follows that Mrs Jasim has suffered no prejudice as a result of the fact that additionally the adjudicator relied on rule 317(iii).
19. The fourth complaint is that the adjudicator should not have refused to make a recommendation outside the rules when he did not hear any representations made on that topic before reaching that decision. As to this the judge said that the adjudicator was deprived of material upon which he might have made a recommendation through Mrs Jasim's representative's own failure to attend. Accordingly, she could not complain that no recommendation was made.
20. It seems to me that it is this last point on which Mr Minashi has primarily focused this morning. He has concentrated his address on the fact that compassion should have dictated the making of a recommendation that Mrs Jasim should be permitted to enter the United Kingdom. He has described, movingly, the plight of his family. Mrs Jasim is now an elderly lady. She is separated from most of her family. She has not seen her grandchildren and is living in somewhat difficult circumstances as a Jew in Iraq. All of these matter are no doubt relevant to the question of whether, exceptionally and outside the rules, this would be an appropriate case to make a recommendation to the Secretary of State for her to be permitted to enter the United Kingdom.
21. The difficulty, however, is that the solicitors wrongly assumed that the adjournment had been granted pursuant to their written request by the letter of 27 November 2000. Once the alleged conversation with Mrs C Alexis is put to one side, as it must be, the solicitors had no basis for assuming that an adjournment had been granted and that there was no need for them to attend on 4 December. It is unfortunate that the reason why nobody attended on 4 December to make representations on the compassionate circumstances point was a misunderstanding by the legal representatives, but it seems to me that, that being the case, no criticism can properly be directed at the decision taken by the adjudicator not to make a recommendation. He simply had no material upon which he could make such a recommendation. In my judgment, the judge was entirely right to say that the IAT had reached the correct conclusion for the reasons that it gave that there could be no arguable ground of challenging the decision of the adjudicator on that basis.
22. This is a sad and unfortunate case, but I regret to say that there are no real prospects of a successful appeal disclosed by the facts here. For the reasons I have given, this application must be dismissed.
______________________________