England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2A 2LL
		19 June 1995

Justice COLLINS:

Mr Zahir Chugtai applies for judicial review of the refusal by the Immigration Appeal Tribunal dated 27 June 1994 to grant him leave to appeal against a determination by the adjudicator Mr Yelloly dated 12 May 1994. Leave was granted by May J on 28 July 1994 following substantial argument before him, the Home Office being represented by counsel and opposing the grant of leave.

The background I can set out fairly briefly. It is a long history. The applicant is a citizen of Pakistan, born on 9 June 1950. He originally came to this country as a student at the age of 21 in September 1971. He seems to have overstayed for some time in the early 1970s and eventually worked as a business partner with his brother-in-law in a supermarket at Crystal Palace. Eventually he obtained indefinite leave to enter in November 1978. This was granted to him about a month after his father had died. He was the eldest son of his particular family. That indefinite leave to enter was in the usual form that was then granted. There is a letter of 8 November 1978 in which he was told that there were no longer any restrictions on the period for which he might remain in the United Kingdom, that the appropriate endorsement had been placed in his passport, that he was free to remain permanently in the United Kingdom and that he would normally be re-admitted at any time within two years of his departure. Unfortunately, following the death of his father his mother was very badly affected and it was necessary for the applicant to return to Pakistan to look after her. She in fact suffered a heart attack, which rendered her, it is said, paraplegic and subsequently in 1986 she suffered a second heart attack which rendered her even more unable to look after herself. In any event, the applicant returned to the United Kingdom on a number of occasions and only for very brief times effectively between 1979 and 1992. He did remain in this country during 1980 and 1981 when he worked as a shop assistant in a supermarket, but he says he was unable to remain here because he had to return to Pakistan to look after his mother. Thereafter, effectively, he remained in Pakistan, although he came to this country from time to time, always within the relevant two-year period ao as to maintain his indefinite leave to remain, because the then relevant rule enabled him to be given leave to enter as a returning resident. It does not appear that he was ever asked about his intention on his return. He does not say he was, and I do not know whether it was ever the practice in the days before the new r 58, which I will come to in due course, to question returning residents about the purpose for which they were returning. It was, it seems, assumed that if they did not say anything to the contrary they were qualified and thus they received the necessary indefinite leave to enter.

I have already indicated his mother's unfortunate position. She died in January 1988. Shortly before that the applicant had married in Pakistan; he says that was partly but only partly because of pressure from his mother and because he wanted to have a wife who would help him and who did indeed help him to look after his ailing mother. In January 1988 his mother died and one would have thought that perhaps he might come back to this country and put his life together again, but unfortunately that did not work out because he had to go back to Pakistan in order to sort out the family affairs - he is the eldest son - and to look after and dispose of the property which had been left by his mother. There was apparently no will and his presence was needed. He says that he put the relevant property on the market in 1990 but unfortunately it was still unsold by the time he came back to this country in 1992. That is the occasion which has given rise to these proceedings.

He came to this country on 12 July 1992. In the affidavit he swore for the purpose of these proceedings, he says:

"On 12th July 1992 I came to Heathrow airport. I was asked by the Immigration Officer how long I wanted to stay in the United Kingdom. I said I live here. The Immigration Officer said that two years was a long time to be out of the United Kingdom. I informed her that I came within the 2 year time limit imposed by law. I handed her all my passports in my possession. I stated to her that I live here and I am well settled here. I showed her my P60, P45 and my full driving licence and bank account books.

"The Immigration Officer refused to accept my explanation and gave me a visitors stamp for six months with employment prohibited."

The applicant immediately protested about being given only a limited leave and applied to the Home Office for reconsideration. The Home Office refused that reconsideration and upheld the decision of the immigration officer.

The applicant appealed to the adjudicator and his appeal was heard on 14 March 1994. The adjudicator gave his reasons on 12 May 1994. I shall come back to the adjudicator's decision in more detail shortly, but just to complete the chronology, the adjudicator dismissed his appeal.

The applicant sought to appeal to the tribunal. The grounds that he submitted were (1) that the decision of the adjudicator was against the weight of the evidence and (2) the decision was against natural justice. The tribunal refused him leave to appeal in what I can perhaps call the usual form. I should say that the applicant had the misfortune to find himself, as advisor, a person or firm - I am not sure what the right description is - who were neither solicitors nor legally qualified, and who did not, it would seem, have the greatest of competence in dealing with matters before the immigration authorities on behalf of appellants. Certainly the notice of appeal which was put into the tribunal was less than satisfactory. But that particular firm did write a lengthy letter dated 7 May 1993 to the Home Office in which they detailed the applicant's background. I should say that the applicant has been wholly consistent in his account of why he has had to leave the country and be away for so long. In the course of that letter it was said:

"It has taken a great deal of time energy and effort on his part to meet all the legal moral and customary requirements he was placed under. He had finally reached the stage of having completed his duties when he came back to the U.K. in 1992 to settle here and hopefully to get on with rebuilding his life. He was not aware of any changes in the rules, and thought that by returning within two years of his previous departure, he had the right to return. He had no indication that it had been or even could have been lost. We feel therefore that it is most unjust for him to be denied the chance to live here and rebuild his life, as a result of the rule changes of which he was unaware. He sees it as another blow in the sequence of events which have seen him come through many years of cruel hardship and emotionally trying times. He is nevertheless determined to stay and fight for a right (for as long as it takes) which he has fought so hard to maintain, i.e. to live here."

They point out that he had family who were themselves settled here. That is a letter written of course in the context that it was the change of rules which had led the Home Office to refuse what hitherto had been seen by the applicant as a right

for him to come in provided he came within two years. That is how it had been dealt with, so it would seem, prior to July 1992. I have referred to that passage in the letter because it played some part in the decision of the adjudicator against him. That is the background to this application.

The relevant rule is r 58 of HC251. It reads:

"A passenger returning to the United Kingdom from overseas ..... is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he last left, that he has not been away for longer than 2 years, and that he now seeks admission for the purpose of settlement."

HC251 came into effect in May 1990, having been published in March 1990. Prior to that the equivalent rule had not included the last requirement, that is to say, the requirement that he now seeks admission for the purpose of settlement. Otherwise it had been in broadly identical terms to what is now r 58. There are thus three requirements to be satisfied. First, the passenger must establish that he had indefinite leave to enter or remain when he last left; clearly the applicant had. Secondly, he must establish that he had not been away for longer than two years. Again, the applicant did so establish. Thirdly - of course this is crucial to this application - that he now seeks admission for the purpose of settlement.

It is said by Mr Blake that that requirement did not bite so far as this applicant was concerned because he was at the material time settled in the sense that he was ordinarily resident in the United Kingdom and he was seeking admission for the purpose of that ordinary residence. Mr Blake makes the point that the expression "settlement" is defined in the Immigration Act 1971 as being equivalent to ordinary residence and it is so defined in HC251 r 1 which states so far as material:

"A person is settled in the United Kingdom' when he is ordinarily resident here without having entered or remained in breach of the immigration laws, and is free from any restriction on the period for which he may remain."

That reflects s 33 of the Immigration Act 1971. It goes on:

"A person is also settled here if, despite having entered or remained in breach of the immigration laws, he has subsequently entered lawfully or has been granted leave to remain, is ordinarily resident here, and is free from any restriction on the period for which he may remain."

Thus, settlement is to be equated with ordinary residence. Someone who seeks to be ordinarily resident here is seeking settlement here. Mr Blake says that, on the material before the adjudicator, he ought to have found or at the very least ought to have considered and did not consider whether this applicant was indeed ordinarily resident here, and even if he was merely seeking to preserve that position he would have qualified within the meaning of r 58. Mr Blake also submits that on the material before him the adjudicator was not entitled to find and certainly has given no good reason for finding that the applicant was not intending to settle here, to become ordinarily resident here, and, in those circumstances, the tribunal ought, having looked at the way the adjudicator put it, to have granted leave to appeal on either ground.

Mr Ashford-Thom accepts that if he was intending to be ordinarily resident here then he would qualify, but he says that the adjudicator was perfectly entitled on the evidence to reach his conclusion and that his reasoning was sufficient because it was perfectly clear, even if one had to draw certain inferences from the way he put it, why he was finding against the applicant. Mr Ashford-Thom does not accept, as a matter of law, that anything short of an intention to settle, in the sense of to become ordinarily resident at the moment that the passenger is coming to the country, is sufficient. He says that the word "now" in the rule indicates that he will not be admitted if he is merely seeking to preserve an indefinite leave for the future. He must be seeking to become ordinarily resident at the moment he is making his application.

I must now see what the adjudicator in fact decided. It is a fairly lengthy decision, much of it taken up with a rehearsal of the background history and of the evidence given by those witnesses who were called on behalf of the applicant. After referring to the various relevant rules and after reciting the definition of "settled", the adjudicator came (at page 10 of his decision) to deal with the conclusions that he reached. He says: "I can accept much of what the appellant says."

In particular, he accepted that the applicant had a share in a supermarket with his brother-in-law and that he had obtained his indefinite leave. He accepted that he had a bank account. He accepted that he had a driving licence and he accepted that his mother had been ill, having had heart attacks, and had eventually died. He went on:

"I form no firm views as to whether the appellant has a beneficial interest in 74 Denham Road;"

that being the address at which he used to live when in this country.

"there is no documentary evidence to support it ..... "

It is a pity that the material was not put before the adjudicator. There is now such material and it appears on the face of it that the appellant does have a beneficial interest in 74 Denham Road. The adjudicator went on:

"I also accept that, on 28th April 1993, the appellant put up for sale his late parents' house at 307, C Block Shadbagh, Lahore and a second property in his late mother's name ..... "

he gives the address.

"However, I am unable to accept that both these properties have been on sale since 1990."

That is a somewhat curious finding because the whole of what is there set out - namely the properties were on 24 April 1993 up for sale and had been for sale since 1990 - was contained in a letter which was put before him which had been obtained from a firm equivalent to a firm of estate agents in Pakistan. It is a little difficult to see why the adjudicator saw fit to accept one part of the letter but not the other. He certainly gives no reason why that should be so. He also refers to arrangements for schooling of the applicant's children. They were not made prior to the applicant's arrival in the United Kingdom on 12 July 1992 but were, on the evidence now available, made very shortly thereafter. The adjudicator went on:

"There is no direct documentary evidence to support the appellant's claim that he has returned to this country at intervals of not more than two years since 1978."

He goes through what is, with respect to him, a somewhat unnecessary paragraph in dealing with that because it was never contended by the Home Office that he had not come back to the country from time to time in order to preserve his position as having indefinite leave to remain. It is a little surprising that the adjudicator felt it necessary to include a particular consideration of whether that was or was not the true position. He goes on:

"The critical piece of evidence in this case is contained on the 3rd page of the letter dated 7th May 1993 from [the applicant's advisers]."

He recites part of the passage I have already referred to earlier in this judgment. He says that that is critical. It seems to me on a fair reading of it that that letter, in the context of a letter written to the Home Office who have refused the applicant on the basis of the change in the rules, is wholly consistent with the applicant's account. It says in terms that he had completed his duties in Pakistan. He came back to settle here and hopefully to get on with rebuilding his life. It goes on to say that he was not aware of any change in the rules, but, in the context, that must be read in the light of the previous sentence. Insofar as the adjudicator used that critical piece of evidence as being adverse to the applicant, it is difficult to see any proper basis for so doing.

It is of course clear that the adjudicator must, in giving reasons, sufficiently indicate to the applicant why he has lost or why the decision has gone against him. If there is a question of disbelieving anything an applicant has said that ought to be spelt out. It is obviously desirable to indicate specifically why any witness is being disbelieved. It may not be necessary to do so in terms because it may be plain from the consideration of the evidence as a whole why an applicant is not being believed in a particular respect. Here the crucial issue before the adjudicator was whether, when he said he intended to settle here, he was or was not saying something which ought to be accepted. Since that was really the only issue as the adjudicator understood the case, it is difficult to see how the adjudicator could properly deal with it without making some finding as to whether he believed the applicant on that issue. He nowhere does. He said earlier that he did accept much of what the appellant says, but gave no reason at all for rejecting this key part. I cannot see how that passage from the letter which he cites can properly be said to be adverse to the applicant.

He goes on:

"The evidence given by Jamal Ackbar,"

one of the witnesses called,

"indicates that he was unaware of any change in the rules, and also that he was unaware of any intention his uncle may have had to return permanently on this occasion."

Mr Blake criticises that as an indication that the adjudicator was applying the wrong test as to what "settled" meant, but I do not think that is right because it seems to me that what the adjudicator was there doing was using the word "permanently" in the context of the evidence in the case before him, namely that it was indeed the applicant's intention at that stage to come here permanently. It is true to say that there may be an issue as to whether the adjudicator, in everything he said, was adopting too high a test in deciding whether there was intention to settle because, of course, settlement in this context is equated with ordinary residence. He goes on:

"There is no acceptable evidence in any sense taken by the appellant prior to his return which would indicate an intention to settle at the time of his arrival at Heathrow on 12th July 1992 and his appeal is, accordingly, dismissed."

If that is the basis upon which he decided to dismiss the appeal, then it seems to me to be a singularly flimsy basis, because, if the appellant believed, as he clearly did, that he was entitled to return here why should he make any arrangements or take any steps in advance? It would be logical for him to take steps to sort out his position once he got here. He could not bring his wife and children to this country unless and until he could establish that he was able to support them; or otherwise they would not be admitted as dependants within the relevant rules. He could not make those arrangements until he reached this country. He could not sensibly arrange for his children's schooling sensibly until he reached this country and, equally, until he knew that he was going to be able to bring his wife and children here. It is a little difficult to see what other steps he could reasonably have been expected to have taken prior to coming here if he believed there would be no obstacle at all to his coming here. If he had believed that it was necessary for him to establish that he intended to come here permanently on that occasion it might be that he would have taken various steps in order to have that evidence available to put before a sceptical immigration officer or adjudicator. In the absence of any belief that it was necessary, what steps could he have been expected to take? It seems to me that it is placing far too high a burden on a person in the applicant's position. As that is the basis on which the adjudicator decided, and it will not stand analysis, that in itself should have been enough to put the tribunal on inquiry that further investigation was needed to establish whether the adjudicator was or was not right to reach the decision he did reach.

From what I have said in going through the adjudicator's reasoning, it must be clear in my judgment that it is less than satisfactory. Even on the sparse grounds of appeal which were presented to them, the tribunal ought to have appreciated that this was a decision which ought to be reconsidered and, on that basis, this was a case where leave ought to have been granted. For the reasons I have given I am entirely unpersuaded that this was a decision of the adjudicator which was either properly reasoned or stands up to analysis. But it does not stop there. There is the point as to the construction of r 58. Mr Ashford-Thom says that is not a point which can be taken at this stage because it was not in the grounds of appeal and it really is expecting too much of a tribunal to ferret around to look for points of law which even those now advising the applicant were unable to identify until a late stage of these proceedings. Mr Ashford-Thom says that in those circumstances it is an obscure point. I do not think I agree about that. I do not think it is particularly obscure. It seems to be a point of interest and importance.

I do want to make it clear that I do sympathise with the submission that there is a limit to the burden one should place upon the tribunal. On the other hand, some who appeal to the adjudicator will be dependent upon advisors who are less than wholly satisfactory. There is no legal aid available for these appeals and some points that arise are points which may be obvious to a lawyer but not so obvious necessarily to the layman, even to one who habitually advises immigrants in the presentation of appeals to the adjudicators and tribunals.

I think that a tribunal should always be (and I am sure is) careful to see whether there is a point of law in the decision even if that point is not specifically identified in the grounds of appeal. I would be surprised, I confess, if the tribunal really supported a submission that it was an abuse of the process to seek to take the point on judicial review if the point of law had not been specifically identified in the notice of appeal. I say that because I am aware that Mr Ashford-Thom is instructed not by the tribunal but by the Home Office. I am sure that the tribunal will always look carefully at any adjudicator's decision and will identify a point of law if one is there. Of course, it cannot be expected to spend a long time on each decision to see whether the advisers have missed a point which might arguably appear. Obviously, if judicial review was sought on a point which was not taken and which was not in any way made apparent to the tribunal, it would only be in rare cases that such an application would get anywhere, because it would only be where the point was one which clearly had some merit that a court would be minded to interfere. At the end of the day, if an applicant has a meritorious arguable point of law which he has missed because his grounds of appeal did not specifically refer to it but which was there on the face of the decision, by which I mean was there if the decision had been considered against the relevant rule on its facts, then it seems to me that it would be prima facie wrong for an applicant to find himself excluded from taking it and perhaps from this country because his advisers missed it.

This court has ample power in the exercise of its discretion to avoid giving relief in cases which do not appear to have any merit.

What about the construction point? Mr Blake says that I do not need to decide it; all l have to say is that it is arguable. Mr Ashford-Thom says I ought to decide it to give some guidance to the tribunal. It is common ground that if the applicant was intending to seek to make the United Kingdom his place of ordinary residence, ie., to settle here in July 1992, then whatever may have been his position in the past is immaterial. The position in the past is material only as a matter of evidence from which inferences can be drawn about his present intention. That is as far as it goes.

Mr Ashford-Thom submits and Mr Blake, I think, accepts that the applicant must genuinely seek admission for the purpose of settlement or to put it another way (although I think it comes to the same thing) must seek admission for the purpose of genuine settlement. That means that the immigration officer is clearly entitled to examine a returning resident to see if he is genuinely seeking admission for that purpose and is entitled to look at all the circumstances, including the individual's past behaviour, and to decide on the basis of all that whether he is seeking admission for that purpose. So far so good.

The problem is whether the purpose has to be the purpose of settlement then and there. If the applicant is already ordinarily resident in this country, notwithstanding that he may be temporarily absent from it, and what he is doing is seeking to preserve the position for the future, is that sufficient to comply with the rule? Mr Blake says it is. Mr Ashford-Thom says it is not. It seems to me that Parliament has quite clearly used the expression "ordinarily resident" deliberately. That expression is ordinary English and said to be so by the House of Lords in the case of Shah v London Borough of Barnet [1983] 2 AC 309, [1983] 1 All ER 226. Shah seems to me to be of very great importance in the context of construing this particular rule. A person need not have their home, if by that is meant their only home, in this country. It is perfectly possible for a person to be ordinarily resident in a country and not physically to be living there at any particular point in time. It is perfectly possible for someone to be ordinarily resident in two countries at one and the same time. The test is set out in the speech of Lord Scarman in Shah v London Borough of Barnet [1983] 2 AC 309 at 342 C:

"Lord Denning has reaffirmed in 1981, thus showing, if it were needed, that there has been no significant change in the common meaning of the words between 1928 and now. If further evidence of this fact is needed (for the meaning of ordinary words as a matter of common usage is a question of fact), the dictionaries provide it: see, for instance, Oxford English Dictionary s.v. ordinarily' and resident.' I, therefore, accept the two tax cases as authoritative guidance, displaceable only by evidence (which does not exist) of a subsequent change in English usage. I agree with Lord Denning M.R. that in their natural and ordinary meaning the words mean that the person must be habitually and normally resident here, apart form temporary or occasional absences of long or short duration.' The significance of the adverb habitually' is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes."

It goes on to refer to "settled purposes" as being "settled purposes as part of a regular order of his life for the time being whether of short or of long duration."

Over the page at 344 he says:

" ..... there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the propositus' intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."

It is obviously a question of fact in each case. But the mere fact that an individual is not, even for a fairly substantial period of time, in a country does not necessarily prevent him from being ordinarily resident there. An example which has been given in argument is the person who has a contract for a definite period of time, which may amount to a number of years, to work out of the United Kingdom. The fact that he has to leave the United Kingdom for that period does not necessarily prevent him from being ordinarily resident in the United Kingdom throughout that period and he may also at the same time be ordinarily resident wherever it is that he is working on his contract. It seems to me that in those circumstances if that person comes back to this country within the two-year period, because that is the only way he can preserve his right to remain in the United Kingdom, then that person is seeking admission on that occasion for the purposes of settlement, the purpose of settlement being the purpose of his being able to remain as ordinarily resident in the United Kingdom.

Mr Ashford-Thom says that the word "now" connotes that there should be more than that, that there should be the actual living in this country at that particular time. But since "ordinarily resident" does not necessarily mean living here, I do not see that that construction can work. Furthermore, one would perhaps see more in that argument if the adverb "now" were at the end of the sentence and it read "and he seeks admission for the purpose of settlement now". In any event, I think Mr Ashford-Thom's argument fails on the meaning of "settlement".

I do not say one way or the other whether on the facts of this case the adjudicator ought to have found that, even if the applicant was merely preserving his rights on that occasion for the future, he necessarily failed. What I do say is that it is clear that the adjudicator never thought along those lines. It seems to me that the adjudicator and the tribunal ought to have asked themselves whether he was, notwithstanding his lengthy absences, still ordinarily resident here. That was his immediate reaction. He said to them, "I live here." That was, on the face of it, an assertion - "I am ordinarily resident here though I am not, through circumstances outside my control, able to live here at this precise moment."

It may well be that it can be said in the circumstances of this case that the applicant had been away for too long and for too many years to remain qualified as someone who was still ordinarily resident, but it seems to me that, as a matter of evidence, it ought to have been considered not only by the adjudicator but by the Home Office who do not appear to have thought about it in that way at all. If I am right on this construction then, even if the applicant was only preserving his rights, he may have qualified. But certainly if he was not still ordinarily resident but was saying he was intending now to become ordinarily resident that should have sufficed. Again, that is the other point with which I have dealt and it seems to me that the adjudicator did not deal with that matter as properly as he ought.

In all those circumstances it seems to me that this is a case where the decision of the adjudicator ought to be quashed and this matter ought to go back to the tribunal for them to reconsider the matter in the light of this judgment. The inevitable result will be, I anticipate, that they will grant leave to appeal. I cannot see any basis which would make it proper for them not to grant leave to appeal, but I do not think it is appropriate in these cases to make an order of mandamus. It seems to me that the proper course is to quash the decision and for them to reconsider in the light of this judgment.

I am bound to say before I conclude, and this is no fault of the applicant, that he has been in this country some years. He has been perforce apart from his wife and children. He has been unable to work and thus been unable to obtain the means to bring them here as his dependants. That is an intolerable situation. The sooner that is solved the better and therefore it is of vital importance that this matter be dealt with as speedily as possible and if the Home Office is going to reconsider they do so speedily. Either he must be allowed to remain and start working and start being able to save so that his wife and children can join him here or he should know as soon as possible, on a proper basis, if it be the case that he is not able to stay here. In either event, to leave him in limbo any longer is wrong and should be brought to an end as soon as possible.

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