England and Wales High Court (Administrative Court) Decisions

Queen on the Application of: Sukhvinder Singh; Sukraj Singh and Sandip Kaur v. The Secretary of State for the Home Office [2001] EWHC Admin 475 (21st June, 2001)

Neutral Citation Number: [2001] EWHC Admin 475

IN THE HIGH COURT OF JUSTICE CO/3850/2000

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

sitting at

St.Albans Crown Court

Thursday, 21st June, 2001

Introduction.

1. Sukhvinder Singh, the first Claimant, together with his two young sons, the second and third Claimants, live in India. They applied in 1998 for entry clearance to come to the United Kingdom for settlement, to live with the first Claimant's family, including his parents who are settled in the United Kingdom and are British citizens. Although in 1999 an appeal against the refusal of entry clearance was allowed by the Adjudicator, the Entry Clearance Officer required the first Claimant to undergo a medical examination. Following this, entry clearance into the United Kingdom was refused to the Claimants in June 2000 because of the mental illness of the first Claimant. An appeal has been lodged against that refusal of entry clearance and remains outstanding. The Claimants challenge by way of judicial review the refusal of entry clearance in June 2000, in short, on the grounds that the refusal of entry clearance was not warranted by the opinion of the Medical Inspector and in any event his opinion had been provided in breach of the rules of natural justice. It was also submitted that the grounds of appeal available before an Adjudicator were too limited to permit the Claimants to raise all the points concerning the mental health of the first Claimant which they wished to raise so that judicial review was the only remedy available; in the alternative it was submitted that I should declare in this judgment that the powers of the Adjudicator on appeal were broader than had hitherto been appreciated. It was submitted that this broader approach to the powers of the Adjudicator should be adopted, so as to avoid a breach of the European Convention on Human Rights through the discriminatory treatment which the first Claimant would otherwise experience.

The facts.

2. The first Claimant is now 33 years old; he is a deaf mute and suffers from mental illness. His sons are now aged 9 and 6. The first Claimant is divorced from his wife. In 1999, entry clearance was refused for the first Claimant on the ground contained in paragraph 317(i)(f) of the Statement of Changes in Immigration Rules, H.C.395, that in seeking entry as the dependant son over 18, of relatives settled in the United Kingdom, he was not a person living alone outside the United Kingdom "in the most exceptional compassionate circumstances". He was also refused entry on the ground contained in paragraph 317(iv) of the Immigration Rules, that he would not be adequately maintained without recourse to public funds in property exclusively owned or occupied by his sponsor father. His children's application was also refused in consequence.

3. The Claimants' appeal to the Adjudicator was allowed in February 2000. The Adjudicator concluded that the first Claimant was living in the most exceptional compassionate circumstances. She found "that he suffers extreme distress in terms of his depression with manic episodes to the extent that he has on occasions attempted suicide. The first Appellant is also deaf and mute and has been since birth. I am satisfied that he is a vulnerable individual who requires outside support, from his family or others in order to be able to function and certainly in order to be able to care for his children. I accept that it is several years since he or his children have seen his wife... I find that he is on the whole unable to care for himself and I accept what the family say, that it is not easy to arrange outside care for him, because his behaviour can be unpredictable and frightening." She also concluded on a careful balance that although the children lived in apparently good physical conditions, they must be "subject to considerable stress, having been effectively abandoned by their mother and living with a father who not only cannot speak or hear, but who is subject to depressive and manic episodes." She also considered that all the Claimants required constant assistance "given the unpredictability of the first Appellant's behaviour and this constant assistance is difficult to achieve unless some family members can live permanently with the Appellant. I am satisfied on a balance of probabilities that there have been times when these children have been in danger from their father and that his ability to care for them is limited and inconsistent." She was satisfied after a careful balancing of the evidence that there were serious and compelling family considerations which made the exclusion of these children from the United Kingdom undesirable. The Entry Clearance Officer had not had before him any medical report and the Adjudicator only had before her the report dated 24th June 1999 from Dr. Maingi, an orthopaedic surgeon on behalf of the first Claimant.

4. As is normal practice, once the entry clearance requirements are otherwise satisfied in respect of a person seeking to remain in the United Kingdom for over six months, the E.C.O. required the first Claimant to undergo a medical examination. The first Claimant underwent psychiatric examination in April 2000 with his father present, who assisted in providing a history and background information. Dr. Chugh, a consultant neuro-psychiatrist, concluded in his report dated 24th April 2000, that the first Claimant "has been withdrawn since [the divorce in 1996] and had also attempted suicide. There have been instances of violent and aggressive behaviour. He has beaten up his mother and children and even tried to strangulate one child." He referred to the past diagnosis probably by Dr. Maingi of "M.D.P" - severe depression with manic episodes - and stated that it was not possible "to conclude whether or not the patient could be violent in future. However, in view of his past history, such possibility cannot be entirely ruled out." Dr. Dada, the medical examiner submitted this report, recognising its limitations, to Dr. Khosla, the Medical Referee or Inspector. Dr. Khosla reported on 20th May 2000 to the E.C.O., who had originally refused entry and who had also required the first Claimant to undergo a medical examination following the first appeal. Dr. Khosla, having discussed the case with Dr. Chugh and with a doctor from the British High Commission in New Delhi, said "I would recommend medical refusal of this applicant on these grounds:

(a). He is deaf and dumb since birth, and apparently has had no significant education and it has been stated that he is unable to work. He has also apparently been diagnosed as having Manic Depressive Psychosis in the past and has had episodes of violent behaviour. It would appear that Clause (b) above would be applicable to this situation [Clause (b) above related to a person's inability for medical reasons to support himself or his dependants in the U.K.].

(b). The risk of his being violent and dangerous to other people is impossible to assess with certainty but the psychiatrist has received a history that he has episodes of violent behaviour and has beaten up his mother and children. Apparently he has tried to murder one of his children. The psychiatrist states that the possibility of his being violent in future cannot be ruled out. In this situation the potential risk to other people certainly needs to be assessed very carefully."

5. The E.C.O. concluded, having taken legal advice, that in so far as the Medical Inspector's opinion was based on the first Claimant's inability to support himself and his dependants in the U.K. for medical reasons, it could not be acted on because to do so would be contradicting a ground already ruled upon in the first Claimant's favour by the Adjudicator. However, he concluded that entry clearance should be refused under paragraphs 320(7) and paragraph 320(19) of the Immigration Rules. The former requires an entrant to have "strong compassionate reasons" where the Medical Inspector confirms "that for medical reasons it is undesirable to admit a person seeking leave to enter the U.K.". The E.C.O. did not consider that there were "strong compassionate reasons" sufficient to override the undesirability of permitting the first Claimant to enter on medical grounds. The latter paragraph relates to a person whose exclusion from the U.K. "is conducive to the public good" for example in the light of his "character, conduct or associations". Essentially the same factors were relied on in relation to both paragraphs: the impact of the first Claimant's mental illness on his potentially violent conduct principally but not necessarily exclusively towards his children.

6. There thus followed the second refusal of entry clearance in June 2000 for all the Claimants, which refusal is now the subject of these judicial review proceedings. I add three points. First, there was a review of this refusal by another E.C.O. who upheld it but also placed reliance on the ground previously rejected, that the first Claimant could not support himself or his dependants because of his ill-health. Second, the Claimants appealed against this second refusal, as they were entitled to, but this appeal has yet to be heard. Third, the Defendant has accepted now that the children of the first Claimant, the second and third Claimants, should receive entry clearance. Accordingly, the case now revolves solely around the first Claimant's position.

The scope of the appeal.

7. The real or practical concern which underlay this application for judicial review, as Mr. Rambert de Mello for the Claimants explained it, was that he feared that he would be unable to deploy before the Adjudicator on appeal, all the arguments which he wished. This was because the Adjudicator, like the E.C.O., was bound by the Medical Inspector's opinion as to the undesirability of entry clearance being granted to the first Claimant on medical grounds. He submitted, and it was agreed by Miss Richards for the Defendant, that the Adjudicator could both assess the existence and strength of "strong compassionate grounds" for the purposes of an appeal under paragraph 320(7) of the Immigration Rules. It was also agreed that the Adjudicator could weigh those compassionate grounds, as he might find them to be, against the Medical Inspector's opinion as to the undesirability of the first Claimant being allowed into the U.K., and could reach a different overall conclusion from the E.C.O.

8. What Mr. de Mello feared was that he would be unable to take issue at any such appeal, with the merits of the Medical Inspector's conclusions and with the soundness of the opinion of Dr. Chugh which underlay them. It was not, he feared, open to the Adjudicator to receive or adjudicate upon contrary medical testimony. It was also not open to the Adjudicator to receive evidence as to the degree of risk, and to whom, which the first Claimant's entry into the U.K. might pose. This was an area of particular importance to the first Claimant because he wished to contend that his very residence in the U.K., with the help, support and company of his family already here, would alleviate his depression, which resulted from his current isolation and loneliness, and would thus reduce or eliminate his tendency to violence. The Adjudicator, he feared, would simply have to accept at face value the Medical Inspector's conclusion that the first Claimant's entry was undesirable, assuming of course that the Medical Inspector had actually reached that conclusion.

9. Mr. de Mello explained the statutory framework and case law upon which he relied to justify those concerns; but he also submitted (as his preferred alternative) that I should decide that the statutory framework, properly construed in particular so as to avoid discrimination in breach of E.C.H.R., did in fact permit him to raise all the points before the Adjudicator which he wished to raise, thus rendering these judicial review proceedings unnecessary.

10. Miss Richards, on behalf of the Defendant, submitted that in substance there was no dispute about the first Claimant's medical condition when one compared the report of Dr. Maingi for the Claimant in June 1999 and the report of Dr. Chugh for the Defendant in April 2000; and that there was no dispute about his violent tendencies. Accordingly, there was no need for medical evidence before the Adjudicator to deal with the diagnosis or degree of mental illness. She submitted that the Adjudicator would be able to hear evidence and reach conclusions about the extent to which the first Claimant's entry in the U.K. to live with his family members already settled here, would alleviate his illness and also about the balance to be struck between the undesirability for medical reasons of his entry into the U.K. and such strong compassionate circumstances as the first Claimant deployed.

11. Accordingly, Miss Richards submitted that, applying the principle in R.-v- Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 477 Court of Appeal, the appeal as yet to be heard against the June 2000 refusal of entry clearance, was the appropriate forum for the resolution of the outstanding issues and that these judicial review proceedings should be dismissed because of the availability of that alternative remedy.

12. By the end of Mr. de Mello's reply it was not entirely clear to me whether he was submitting that Miss Richards was wrong in her assertions as to the scope of the Adjudicator's powers or whether he was submitting that the evidence which he wished to deploy before the Adjudicator raised wider issues than the extent to which the first Claimant's condition and risk to others would be alleviated by the support he would receive from his family were he to enter the U.K., and wider than the striking of the balance between his risk to others and the compassionate circumstances. There was a degree of suspicion perhaps that the flexibility of approach expressed by Miss Richards to the Court would not be fully reflected in the Adjudicator's approach to the Claimant's evidence concerning his risk to others, in the light of the Medical Inspector's opinion. I have not seen the evidence, and it may not yet exist, upon which the Claimant seeks to rely.

12. In order to resolve this issue it is necessary now to set out the framework within which the Adjudicator would make his or her decision on the second appeal.

13. Section 19(1)(a)(i) of the Immigration Act 1971 applied to the first appeal in respect of the refusal of entry clearance under paragraph 317(i)(f) of the Immigration Rules. Section 19(1)(a)(i) and (ii) would have applied to the appeal in respect of the June 2000 refusal of entry clearance under paragraphs 320(7) and (19) of the Immigration Rules. Section 19(1)(a)(i) requires an Adjudicator to allow an appeal if he considers "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". Section 19(1)(a)(ii) enables an appeal to be allowed "where the decision or action involved the exercise of a discretion by the Secretary of State or an officer", on the ground "that the discretion should have been exercised differently". With effect from 2nd October 2000, those provisions have been replaced by paragraph 21 of Schedule 4 to the Immigration and Asylum Act 1999 but without material change in wording.

14. Paragraph 36 of the Immigration Rules contains the power for an E.C.O. to refer a person intending to remain in the U.K. for more than six months to a Medical Inspector for examination as well as anyone who appears to the E.C.O. not to be in good mental health. I have already referred to paragraph 320(7) which states that entry clearance is to be refused where a Medical Inspector confirms that for medical reasons, it is undesirable to admit a person seeking leave to enter the U.K., and to paragraph 320(19) which deals with circumstances where entry would be contrary to the public good.

15. Mr. de Mello drew my attention to two decisions of the Immigration Appeal Tribunal which have considered the position of the E.C.O. following an opinion of the Medical Inspector. The first was Al Tuwaidji -v- Chief Immigration Officer London (Heathrow) Airport [1974] Im.A.R.34 in which a Medical Inspector advised that it was undesirable to admit a Saudi Arabian because he was suffering from Schizophrenia. The I.A.T. held that, in the absence of strong compassionate reasons, the Immigration Officer was bound to refuse entry under the predecessor rules to paragraphs 36 and 320(7), whether or not the entrant sought to provide evidence that the diagnosis was incorrect. The second decision was that of the I.A.T. in Ali Mohazeb -v- Immigration Officer, Harwich [1990] Im.A.R.555 in which the earlier decision was followed, and it was held that where the undesirability of admitting an entrant on medical grounds had been certified by the Medical Inspector, the task of the Immigration Officer was limited to a consideration of the existence and significance of any strong compassionate reasons.

Conclusions on the scope of the appeal.

16. The first issue in this case turns on the scope of s.19(1)(a)(i) and (ii) of the Immigration Act 1971 or now paragraph 21(1) of Schedule 4 to the 1999 Act, in relation to paragraph 320(7) of the Immigration Rules.

17. Paragraph 320(7) reads:

"... the following grounds for the refusal of entry clearance or leave to enter apply:

(7) save in relation to a person settled in the United Kingdom or where the Immigration Officer is satisfied that there are strong compassionate reasons justifying admission, confirmation from the Medical Inspector that, for medical reasons, it is undesirable to admit a person seeking leave to enter the United Kingdom."

In my judgment this wording makes it clear that the E.C.O. has two functions. First, he must satisfy himself that the Medical Inspector has covered the issue which the legislative framework requires him to deal with, namely the undesirability of permitting entry into the U.K. on medical grounds. He has no power to reject that view or to receive and adjudicate upon conflicting medical evidence, including evidence on behalf of the would-be entrant. Evidence cannot challenge either the diagnosis or the conclusion that entry into the U.K. would be undesirable on medical grounds. In my view, the two I.A.T. decisions were correctly decided. Second, once that condition has been satisfied by the Medical Inspector's confirmation of the undesirability of permitting entry into the U.K. on medical grounds, the E.C.O. then has to consider whether any strong compassionate reasons exist and if so whether they are of sufficient significance to cause the E.C.O. to override the medical undesirability of permitting a would-be entrant to enter the U.K.

18. The effect of the appellate provisions is equally clear. The Adjudicator, on appeal, is in effect also bound to the like extent as the E.C.O. by the Medical Inspector's confirmation of the undesirability on medical grounds of permitting the would-be entrant to enter the U.K. This is because the E.C.O.'s reliance upon that confirmation is required on the true interpretation of paragraph 320(7) and that reliance could not be contended on appeal to have been in breach of the law or of the Immigration Rules, under s.19(1)(a)(i) of the Immigration Act 1971. That would be the only potentially available ground of appeal in respect of the reliance by the E.C.O. on the Medical Inspector's confirmation because it involves no exercise of any discretionary powers.

19. However, the second function of the E.C.O. under paragraph 320(7) does involve the exercise of a discretion, which would be the subject matter of an appeal under s.19(1)(a)(ii), in relation to which the Adjudicator can reach a different conclusion from the E.C.O., and in relation to which each is bound to consider the Medical Inspector's confirmation that entry is undesirable on medical grounds in the light of any strong compassionate circumstances.

20. What is permitted by the appeal in respect of the exercise by an E.C.O. of any discretion are the contentions that the existence or degree of compassionate reasons is stronger than the E.C.O. has assessed them to be and that the balance struck by the E.C.O. between those circumstances and the medical undesirability of permitting the applicant to enter the United Kingdom should be struck differently so as to favour his entry. In such an appeal, nonetheless, evidence cannot be adduced which takes issue with the Medical Inspector's diagnosis of mental illness or his conclusion as to the undesirability of permitting an applicant to enter the U.K. for medical reasons, because that would breach the limitations on appeals in section 19(1)(a)(i).

21. However, the particular facts of this case may give rise to a problem in the application to them of the above analysis. This is because there may not be a clear cut compartmentalisation between factors which are relevant to the undesirability of permitting the first Claimant's entry to the U.K. on medical grounds, which question is one exclusively for the Medical Inspector, and factors which are relevant to potentially overriding strong compassionate reasons, which question is for the E.C.O's discretion and for the Adjudicator on appeal. The factors here interact: the first Claimant's entry to the U.K., taking up residence with his supportive and settled family, may reduce the severity of his illness and the risk of violence to others; his strong compassionate case, and the weight to be given to it, may affect the existence or strength of the medical reasons making his entry undesirable. Evidence about that interaction may also be at odds to some unknown degree with the underlying opinions of Dr. Chugh or Dr. Khosla even though their reports do not expressly consider the potential for the first Claimant's presence in the U.K. to reduce his risk to others. A problem may therefore arise as to the extent to which, if at all, evidence on medical issues which may be relevant to the strong, compassionate circumstances should be excluded by the Adjudicator because it might take issue, implicitly or explicitly, with the Medical Inspector's confirmation.

22. There is, in my judgment, a real danger in attempting to provide any definitive answer at this stage to this potential problem. The issue, at this stage, is whether the present application for judicial review should be dismissed because the appeal procedure provides an adequate alternative remedy. I am also being asked to consider the question of the scope of the appeal in relation to evidence which I have not seen and which may not yet exist in the form which it is desired to place before the Adjudicator. There is a danger in a theoretical analysis.

23. However, the following matters will be relevant. First, it would be highly desirable for the Adjudicator's approach to avoid undue legalism and compartmentalisation of issues. The Adjudicator should be able to approach strong and compassionate reasons in a fair and flexible manner, whilst being conscious that he or she is bound by the Medical Inspector's conclusion. The impact of that in practice is a matter for the Adjudicator who will have the issues and the actual evidence in front of him or her.

24. Second, the mere fact that an aspect of strong compassionate circumstances may involve medical evidence, does not mean that the Adjudicator cannot consider it.

25. Third, even if the Medical Inspector would have been entitled to consider an issue as part of his decision, where he has not done so expressly or by necessary implication, the reception by the Adjudicator of medical evidence on that issue would not necessarily undermine or involve taking issue with the Medical Inspector's confirmation. Here it does not appear that the Medical Inspector, expressly or by necessary implication, considered any potential beneficial effect which the first Claimant's residence in the U.K. with his settled family might have for the future of his illness or his propensity to violence.

26. Fourth, where, however, the medical evidence in substance takes issue with the Medical Inspector's confirmation, it must be excluded. The Adjudicator must approach the issues on the appeal in this case on the basis that the first Claimant is mentally ill to the extent that he might endanger the health of other persons in the U.K. and for that reason his entry is undesirable on medical grounds. He has to accept the confirmation to that effect of Dr. Khosla of 20th May 2000 and the underlying report of Dr. Chugh. He cannot receive material as to the diagnosis or as to the degree of severity of the illness. Indeed, if medical evidence on the effect of residence were to start from the basis that the first Claimant did not suffer from severe mental illness, and carried no risk whatever his family circumstances in the U.K., it should be excluded. In this case, and subject to what I have said, the Adjudicator can hear evidence as to the way in which the illness and its consequent risks can be coped with or alleviated through the presence and support of the first Claimant's family in the U.K.

27. I do not know more than the general nature of the evidence which the first Claimant wishes to call before the Adjudicator and in particular I do not know to what extent in reality the first Claimant wishes to challenge the diagnosis and risk assessment provided by the Medical Inspector. Whilst in this case it is probable, in the light of the foregoing that the first Claimant will be able to raise most of his points before the Adjudicator I am not sure that he will be able to raise them all. Accordingly, I do not propose to dismiss this application by reference to the principle in Swati and the availability of an alternative remedy but to go on now to consider the challenge raised to the decision of the E.C.O. based as it is on the Medical Inspector's confirmation.

28. Before I do so I should deal with a further argument on the construction of s.19 of the Immigration Act 1971 and of paragraph 21 of Schedule 4 to the Immigration and Asylum Act 1999, together with paragraph 320(7) of the Immigration Rules, raised by Mr.de Mello. He submitted that the limited construction given to those provisions in the two I.A.T. decisions to which I have already referred, would involve a breach of the first Claimant's human rights under Article 14 of the E.C.H.R. because it would involve discrimination as between someone in the first Claimant's position, and the dependants of E.E.A. nationals who were themselves nationals of non E.E.A. states. He submitted that this point assisted a broader approach to section 19 of the 1971 Act or to paragraph 21 of Schedule 4 to the 1999 Act. A yet wider argument as to the incompatibility of that legislation with E.C.H.R. was not pursued.

29. Mr.de Mello's arguments proceeded by reference to both the Immigration (E.E.A) Order 1994 s.i.1895 and the replacement Regulations 2000 s.i.2326. There is no material difference between them and I shall refer to the latter. Regulation 21 provides in respect of someone otherwise entitled to entry as an E.E.A. national or dependant, that he can be excluded "on grounds of public policy, public security or public health". Regulation 23(d) provides that a refusal of admission on the grounds of disease or disability may be justified only if the disease or disability is of a type specified in Schedule 1 to the Regulations. The diseases or disabilities listed in Schedule 1 are divided into two categories, the first of which relates to public health i.e. certain infectious or contagious diseases which do not cover the first Claimant's illness and the second of which relates to public policy or public security and which does, or at least could, cover the first Claimant's illness, because it refers to "profound mental disturbance". The appeal provision would permit the diagnosis and severity of the illness justifying the refusal of entry on the grounds of public health policy or security, to be challenged before the Adjudicator. Mr.de Mello submitted that if the dependant of an E.E.A. national was a national of a third country he would be treated therefore more favourably in relation to such illnesses than if he sought entry in the position of the first Claimant here. This was said to be discrimination in breach of Article 14 E.C.H.R. and at least said to justify a broader interpretation of the Immigration Rules and the appellate powers of the Adjudicator.

30. I do not accept that submission for many reasons. First, the substantive provisions for exclusion on the grounds of mental illness are not significantly different as between the two regimes, yet it was an asserted difference between the two which was the initial point which Mr.de Mello sought to make. Second, in so far as any difference in the appellate powers of an Adjudicator is concerned, the effect of any difference in the context of this case where the existence of a mental illness and of consequential violent tendencies is not really in issue, is quite small. Any such difference is justified by the existence of the "special legal order" which membership of the E.U. entails; Moustaquim -v- Belgium [1991] 13 E.H.R.R.802, E.Ct.H.R. Third, there is no free-standing right not be discriminated against within the E.C.H.R. Article 14 only applies when conjoined with other Articles. Article 6 is not available in this case for conjoining with Article 14; Maaouia -v- France E.Ct.H.R. 5th October 2000. Whilst Article 8 could arise in conjunction with Article 14, leaving aside the fact that the decision challenged preceded the coming into force of the Human Rights Act on 2nd October 2000, the effect of a decision on a claimant's family life can be raised as part of the strong compassionate reasons on an appeal to the Adjudicator and so there would be no discrimination in that respect. Lastly, I did not find in the Regulations any basis for arriving at a different interpretation of paragraph 320(7) and the appellate powers in the light of the clear wording and purpose of the Rule nor any assistance in the application of those provisions to the particular and unusual circumstances here.

The issues as to the Medical Inspector's confirmation and natural justice.

31. I now turn to Mr.de Mello's submissions on the effect of the Medical Inspector's conclusions and on natural justice, on the basis that he may not be able to pursue all his arguments before the Adjudicator.

32. He contended first that the Medical Inspector's confirmation could not provide the E.C.O. with the confirmation that it was undesirable on medical grounds for the first Claimant to enter the U.K. The report of Dr. Khosla of 20th May 2000 does not specifically say that it was undesirable on medical grounds for the Claimant to enter the U.K., albeit that it identifies certain risks. Even then it was unspecific as to who was at risk. Dr. Khosla had carried out no examination of the Claimant and concluded only that the risk needed to be assessed. His report was, in effect, a gloss on the report of Dr. Chugh who also expressed no view on the undesirability of the Claimant entering the United Kingdom and said only that the possibility of violence could not be ruled out. These expressions of view could not support the conclusion of the E.C.O., Mr. Drew, as set out in his witness statement, that the Claimant was a potential risk to others in the United Kingdom and that the E.C.O. had provided confirmation that he should not be admitted on medical grounds.

33. I reject that contention. It has an air of unreality about it. Read as a whole, Dr. Khosla's recommendation is clearly that it is undesirable for the Claimant to enter the United Kingdom on medical grounds and that he poses a potential risk and that that conclusion is justified by the diagnosis and history set out in Dr. Chugh's report. The substance of the message from Dr. Khosla to the E.C.O. is clear, notwithstanding the omission of the specific words of paragraph 320(7).

34. I now turn to the natural justice and abuse of process grounds. Mr.de Mello submitted that the Adjudicator had had medical information before her when she allowed the first appeal and that it was unfair or an abuse of process for the E.C.O. particularly the same E.C.O. who had lost the appeal before her, to require a further medical examination. He was trying to overturn the appeal without himself exercising any right of appeal or at least there was a real risk that he would appear to be trying to do so.

35. I reject that submission. First, Rule 36 requires the Claimant to be referred to the Medical Inspector on the grounds both of the anticipated duration of his stay and because of his mental health. I accept that the normal practice, as stated by Mr. Drew in his witness statement, is to delay such a reference until after other potential obstacles to entry have been cleared. To do otherwise would be seen as a potential waste of time and money. Second, it follows that whilst I accept that the Adjudicator had medical material before her, she did not have the opinion of the Medical Inspector. She only had the Claimant's medical reports. Third, I do not consider that the procedure adopted entailed any attempt by the back door to overturn the Adjudicator's appeal decision but rather it involved the pursuit in the normal course of proceedings of the consequences of the appeal being successful. Fourth, there is no reason in principle why the same E.C.O. should not deal with matters after a successful appeal against his refusal. The suggestion that the E.C.O. in some way had been acting vindictively was rightly not pursued. Indeed, in this case the E.C.O. was astute to recognise, unlike the reviewing E.C.O., that he ought not to rely upon any allegation that the Claimant would be unable to support himself in the United Kingdom in view of the Adjudicator's conclusions on that issue in the appeal. His role and approach were fully disclosed.

36. Mr.de Mello next submitted that the decision of the E.C.O. was flawed because of a procedural failure on the part either of the E.C.O. or of the Medical Inspector to consult with the Claimant about his medical opinion and to provide an opportunity to the Claimant to obtain his own report. A consultation process was urged, which would involve informing the Claimant of the substance of the view to which the Medical Inspector had come so that the Claimant could respond to it, the provision of time to do so before any recommendation was made to the E.C.O. and the opportunity given to present to the Medical Inspector or E.C.O. expert material which they were then bound conscientiously to consider.

37. I reject that submission. First, there are no specific procedural rules which govern the way in which the Medical Inspector must carry out his examination or the way in which the E.C.O. should deal with the Medical Inspector's recommendation beyond the fact that he must consider the existence and significance of any strong compassionate reasons. The existence and content of any duty of fairness has to depend on the context in which the duty is alleged to arise. In this context, for the reasons which I have already given, the E.C.O. has to take the Medical Inspector's confirmation as he finds it though he can of course ask for clarification or for issues to be covered which have been omitted. The E.C.O. cannot receive or adjudicate upon disputed medical evidence as between the Medical Inspector's confirmation and that of the Claimant's doctors. In that context there is no duty on the E.C.O. to consult the Claimant on the contents of the Medical Inspector's confirmation so as to give the Claimant an opportunity to make representations as to its correctness or to obtain a different opinion upon which he could reach a different view.

38. Second, it would be undesirable to approach fairness here in a way which imposed formalistic legal requirements upon the Medical Inspector. In my judgment there is a duty of fairness on the Medical Inspector but it is not onerous and instead reflects what one would expect as good practice anyway. In the normal course of events one would expect the applicant for entry to be informed that a medical examination was required, that a medical examination was being undertaken and to be told the result. If he had obtained before or after that examination another medical report, I would expect the Medical Inspector to consider that report before reaching his own conclusion, provided that the necessity, sometimes, for very speedy decision making in this area permitted such another report to be obtained and presented to him. I do not consider that a specific opportunity to obtain another medical opinion needs to be given. I do not consider that any more extensive obligation would normally arise and I do not consider that it did so here.

39. Third, on the facts here it was known to the first Claimant and to his father that a medical examination was required and the purpose of that examination was plainly known to them. They knew that such an examination was taking place because both were present by appointment when it was undertaken. Their report from Dr. Maingi was available to the Medical Examiner, Dr. Chugh. They could also have obtained another report and presented it if they had wished to do so. I have no doubt that if they had done so timeously it would have been considered by Dr. Chugh or Dr. Khosla. The first Claimant and his father were both informed of the result of the medical examination. Indeed, it appears that there was more than one examination because the first report of Dr. Chugh was not satisfactory.

Conclusion.

40. For those reasons I do not consider that the grounds for review relied upon by the Claimant in this case have been made out and the application for judicial review is dismissed.

MR MUNRO: My Lord, I do not seek my costs.

MR MAHEY: There is Legal Aid Assessment for costs, my Lord.

MR JUSTICE OUESLEY: I order Legal Aid Assessment, Mr Mahey, any applications?

MR MAHEY: We are not appealing it further.