United Kingdom Asylum and Immigration Tribunal

Secretary of State for the Home Department v Koprinkov & Ors [2001] UKIAT 01TH00091

TH6160-98, TH6779-98, TH1125-99

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 24/01/2000

Date Determination notified: 05 February 2001

Before
The President, The Hon. Mr Justice Collins Mrs. E. Morton Mr. G. J. Brown JP
Between

 

The Secretary of State for the Home Department	APPELLANT
and
Stefan Vassilev KOPRINKOV, Elena Nikolova PETLEVA, Koleva Mariana GANEVA	RESPONDENT

For the Secretary of State: Mr. Plender Q.C. For the Individuals: Mr. Fransman Q.C.
DETERMINATION AND REASONS
1. These three appeals have been heard together because each raises an identical point in relation to the application by the Secretary of State of Rule 212 of the Immigration Rules (HC 395). The respondent in the first and third and the appellant in the second appeals are Bulgarian nationals each of whom claimed asylum on or immediately after arriving in the United Kingdom. Ms. Petleva had a visa endorsed 'visit single entry'; the other two had no visa at all. In Ms. Petleva's case, the claim to asylum meant that she did not seek to rely on the visa to justify leave to enter.
2. In each case, they were allowed temporary admission while their asylum claims were considered Each was refused. The dates in each case, so far as relevant, are as follows:-

Koprinkov Arrival in U.K.: 24 September 1995

Asylum claim: 26 September 1995

Refusal of claim: 3 May 1996

Adjudicator dismisses appeal: 26 August 1997

Leave to appeal refused: 6 October 1997

Petleva Arrival in U.K. and asylum claim: 16 September 1996

Refusal of claim: 13 December 1996

Appeal to adjudicator dismissed: 7 May 1997

Ganeva Arrival in U.K. with husband and

asylum claim: 7 May 1997

Asylum claim refused: 5 June 1997

Appeal to adjudicator dismissed: 29 June 1998

Having exhausted the appeal process, Mr. Koprinkov and Ms. Petleva applied for leave to enter the United Kingdom on the basis that they were seeking to establish themselves in business. Ms. Ganeva had made a similar application in November 1997 following the refusal by the Secretary of State of her asylum claim but before her appeal had been heard. Each relied on the EC Association Agreement with Bulgaria and in particular on Article 45(7) thereof which provides:-

"Each Member State shall grant, from entry into force of the Agreement, for the establishment of Bulgarian companies and nationals and for the operation of Bulgarian companies and nationals established in its territory, a treatment no less favourable than that accorded to its own companies and nationals".

There are restrictions and limitations and in particular by Article 59 Member States are entitled to apply their "laws and regulations regarding entry and stay" provided that in so doing they do not apply them in a manner so as to nullify or impair the benefits accruing to any party under the terms of a specific provision of this Agreement". In a separate Joint Declaration the contracting parties have stated that the sole fact of requiring a visa for natural persons of certain parties and not for those of others shall not be regarded as nullifying or impairing benefits under a specific commitment.

3. Mr. Koprinkov had while pursuing his asylum claim established himself (or so the adjudicator decided) as a self-employed painter and decorator. Ms. Petleva claimed that she was a qualified masseuse and had set up a business in that capacity. Ms. Ganeva asserted that she was a self-employed painter and decorator and had set up as such in business with her husband. Rule 212, which applied in each case, provides as follows:-

"212. The requirements to be met by a person seeking leave to enter the United Kingdom to establish himself in business are that:-

(i) he satisfies the requirements of either paragraph 213 or paragraph 214 [viz., that he was a national of Bulgaria]; and

(ii) the money he is putting into the business is under his control and sufficient to establish himself in business in the United Kingdom; and

(iii) until his business provides him with an income he will have sufficient additional funds to maintain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public funds; and

(iv) his share of the profits of the business will be sufficient to maintain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public funds; and

(v) he does not intend to supplement his business activities by taking or seeking employment in the United Kingdom other than his work for the business; and

(vi) he holds a valid United Kingdom entry clearance for entry to the United Kingdom

4. Rule 212 deals with leave to enter. Each applicant had established his or her business while permitted to remain in the United Kingdom while his or her asylum claim was being determined and while appeals were pending. Thus there is some artificiality in considering the detailed requirements of Rule 212, for example 212(u). Each however was granted temporary admission under Paragraph 21 of Schedule 2 to the Immigration Act 1971 while the asylum claim was being considered and so Section 11(1) of the Act applied. This, so far as material, provides:-

"a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is temporarily admitted ... under the powers contained in Schedule 2 to this Act".

In Re Musisi [1987] 1mm. A. R. 250 the House of Lords decided that a person granted temporary admission was not 'lawfully within' the United Kingdom within the meaning of Articles 32 and 33 of the Geneva Convention. Thus the applications fall to be considered under Rule 212 because they were applications for leave to enter notwithstanding that they were made at a time when each applicant had been in the United Kingdom for a substantial period.

5. Each claim was refused because of an inability to satisfy Rule 212(vi); none had entry clearances for entry to establish themselves in business. Before the adjudicators, it was argued that Article 45 of the Association Agreement had direct effect so that they were exercising a right of establishment. This meant that there was an in-country right of appeal which would not otherwise have existed by virtue of Section 13(3) of the 1971 Act. All the adjudicators appear to have accepted this argument and two of them decided that the requirement for an entry clearance was not applicable, either because the applicant was lawfully in the United Kingdom and should not therefore be required to leave to get a document to establish that he should be permitted to remain or because the requirement to leave was in the circumstances disproportionate. The third decided that the requirement did not contravene the provisions of the Association Agreement, but made a recommendation that the appellant, Ms. Petleva, should be granted exceptional eave to remain. All the adjudicators decided that the appellants before them met the requirements of Rule 212 other than 212(vi). They were able to do so because they had, by virtue of being allowed temporary admission while their asylum claims were being considered, been able to establish their businesses. If they had applied for an entry clearance in Bulgaria before leaving for the United Kingdom, they would not have succeeded in overcoming at least 212(u) and (iii) and might have had problems with (iv) and (v). Thus the reality is, as Mr. Fransman Q.C. who appeared for them had to accept, that they have, if their claims succeed, managed to avoid the requirements of the Rules and to gain an advantage over those who seek to comply with them, by making false claims for asylum and taking advantage of the time taken in investigating, deciding upon and having appeals in connection with those claims to set up in business in the United Kingdom. Nevertheless, as Mr. Fransman correctly submitted, if the law requires them to receive a favourable answer, distaste at their tactics cannot produce a different result.
6. A similar Association Agreement to that with Bulgaria exists in relation to the Czech Republic. It contains articles identical to those in issue in the present cases. The Divisional Court has made a reference to the European Court of Justice in two cases involving citizens of the Czech Republic, Julius Barkoci and Marcel Malik, who sought to rely on the Association Agreement to enable them to set up business in the United Kingdom. They too had sought asylum but their claims had been rejected. The essential questions for determination by the European Court of Justice are whether the relevant articles of the Agreement have direct effect so as to enable a challenge to be made to the U.K. law and in particular Rule 212 and whether the provisions of Article 59 should enable them to succeed in their claims. As is obvious, the determination of the questions in Barkoci and Malik will directly affect these three cases. On 26 September 2000 Advocate General Mischo gave an opinion which gives no comfort to the applicants (Barkoci and Malik being applications for judicial review) but the decision of the Court is awaited.
7. There is however a discrete issue which could be determinative of the appeals independently of that which has been referred to the European Court of Justice. It is suggested that the Secretary of State has or at the material time had a policy which involved waiving the requirements of Rule 212(vi) whenever an applicant clearly and manifestly satisfied the other requirements of the Rule. The Secretary of State has denied the existence of such a policy.
8. The appeals come before us because on 28 June 2000 a tribunal consisting of two legally qualified members (Mr. Rapinet and Mr. Shrimpton) failed to agree. So it is that the appeals have had to be reheard by a tribunal of three.
9. In the reference to the European Court of Justice, it was stated in Paragraph 64 that:-

"because neither applicant had held entry clearance, the Immigration Officer merely considered whether their applications so clearly and manifestly satisfied the other requirements enumerated in the Immigration Rules (in particular, paragraph 212) that the mandatory entry clearance requirement should be waived."

This led those advising the appellants to raise the question whether what was there set out reflected a policy and when the appeals came before the tribunal on 9 March 2000, they were adjourned to enable the Home Office to explain the position. This resulted in two letters from Miss Balmforth, a Chief Immigration Officer. One was 10 the solicitors representing Mr. Koprinkov dated 28 April 2000, the other to the solicitors representing Ms. Petleva dated 8 May 2000. There is no separate letter in Mrs. Ganeva's case but clearly the same principles will apply to her appeal as apply to the others'. The letters are not in identical terms since they deal with the individual facts of the two cases. However, the relevant paragraphs are in all material respects in the same terms so that it suffices to cite one only. It reads, so far as material:-

"The Immigration Service has ... taken note of Article 59 which states that Parties to the Agreement should not apply their laws and regulations 'in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreement'. It is with this clause in mind that the Immigration Service has undertaken, rather than refusing applications under the Association Agreement without any consideration at all on the ground that a mandatory entry clearance is not held, to interview applicants in order to assess whether their circumstances are such that the requirement might, exceptionally, be waived. The cases are not considered substantively. Substantive consideration is a matter for the entry clearance officer.... Where entry clearance is absent in an 'on entry' case, the immigration officer will undertake only a summary examination to see if the applicant 'clearly and manifestly' meets the remaining requirements under the Immigration Rules. In the few instances where this has been the case, leave to enter has been granted on a wholly exceptional basis, outside the normal requirements of the Immigration Rules".

10. The letters refer to this approach as a 'policy' and promise further substantive consideration of the cases after receipt of the ruling of the European Court of Justice. They also state that there was a refusal to waive on the ground that to do so would be unfair to those who complied with the Rules. In any event, Mr. Plender Q.C. (who appears for the Secretary of State) submits that what is being described is not a policy in the sense that it sets out criteria which, if met, will lead to a waiver so that a legitimate expectation of success is created. It is merely an indication that where, on a somewhat cursory examination, it is clear and manifest' that an applicant meets all the requirements of the Rules save for the possession of an entry clearance, he may be granted leave to enter if, but only if. to refuse would breach Article 59. Discretion quite clearly remains and its exercise can properly reflect misuse of procedures. As Mr. Plender pointed out, the approach is based on the principle of proportionality and the obvious sort of case to which it may apply is where an otherwise qualifying applicant needs to come at short notice to seize a business opportunity and is open and frank when seeking leave to enter.
11. Mr. Fransman told us that if only the Secretary of State had stated categorically that there was no policy, he would, as he put it, have rolled over and conceded the point. But he got the letters which refer to a policy. In our view, the letters are not well drafted. In one sense, it may be proper to describe the practice as a policy, but it is really no more than an indication that, mindful of Article 59, there will always be a consideration given, albeit not in depth, to an individual case to see if it is appropriate to grant leave notwithstanding the absence of a relevant entry clearance. And a favourable exercise of discretion will not even be considered unless the short interview establishes that the applicant clearly and manifestly meets the other requirements of the rules.
12. In these cases, the immigration officer was not satisfied that the applicants did clearly and manifestly meet the requirements of the Rules other than possession of an entry clearance. The letters show that leave would have been refused even if they had. Whatever label is applied to the approach taken to these cases, it cannot in our judgment be regarded as a policy which raises a legitimate expectation that on 2iven facts leave will or even is likely to be granted. At most it requires an immigration officer not to rely on the absence of an entry clearance to lead to an inevitable refusal of leave but to consider whether to exercise his discretion if satisfied on a cursory examination of the existence of certain facts.
13. Mr. Fransman has relied on the decision of the Court of Appeal in Secretary of State for the Home Department vAbdi [1996]Imm AR. 148. That case involved the Secretary of State's published policy on Somali family reunion. The IAA's powers on appeal are dictated by what is now Paragraph 21 of Schedule 4 to the Immigration and Asylum Act 1999, which repeats in a slightly different format but with no material change in its meaning Section 19 of the Immigration Act 1971. It suffices to set out the material provisions of Paragraph 21 which reads:

-"(1) On an appeal to him ..., an adjudicator must allow the appeal if he considers -

(a) 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

(b) if the decision or action involves the exercise of a discretion by the Secretary of State. that the discretion should have been exercised differently but othervise must dismiss the appeal.

(3) For the purposes of sub-paragraph (1), the adjudicator may review any determination of a question of fact on which the decision or action was based.

(4) For the purposes of sub-paragraph (I )(b). no decision or action which is in accordance with the immigration rules is to 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".

The tribunal's powers are the same: Paragraph 22. The Court in Abdi , following dicta of Lord Bridge in R v LA.T. cx p. Bakhtaur Singh [1986] 1mm. A.R. 352 at p.360, stated:

"-if it can be shown that the Home Secretary failed to act in accordance with established principles of administrative or common law, for example if he did not take account of or give effect to his own published policy, that was not 'in accordance with the law"'.

In Abdi the applicant had failed because the Secretary of State did not accept that those whose entry was sought were dependants within the meaning of the policy. Section 19(2) of the 1971 Act (now Paragraph 21(3) of Schedule 4 to the 1999 Act) enabled the adjudicator to conclude that as a matter of fact the Secretary of State's conclusion was incorrect. The Court accordingly decided that discretion had been exercised to refuse leave on a wrong basis and that the case would have to be remitted to the Secretary of State to reconsider the exercise of discretion on a correct basis.

14. It is clear that Paragraph 2 1(4) applies so that neither the adjudicator nor the Tribunal can review the exercise of discretion. The decision would only be contrary to law if it fell foul of Wednesbury principles (Associated Provincial Picture Houses Ltd. V Wednesburv Corporation [1948] 1 KB 223). It is difficult to see how that could be established since the immigration officer is not required to go into the facts in any detail and will operate on the basis that he can only consider a favourable exercise of discretion if satisfied that there is a clear and manifest compliance with all the rules save the possession of an entry clearance. A review of the facts by the adjudicator, assuming it to be a legitimate exercise, will not establish that the original decision was contrary to law. In any event, as we have already said, the exercise of discretion on the basis of unfairness to others cannot be reviewed and therefore the appeals could not have been allowed on any ground based on the way in which applications under Rule 212 were considered.
15. As will perhaps be apparent, we do have some difficulty with Abdi. Bakhtaur Szngh was a case in which the Secretary of State had failed to take account of a material consideration and there was no question of reviewing any determination of a question of fact. Peter Gibson L.J. at p. 157 recognised the problem when, having cited Lord Bridge's observations, he said:-

"These remarks are only obiter dicta and it is not obvious that Parliament by section 19(1)(a)(i) intended adjudicators to have the power to examine the validity of the Home Secretary's decision by reference to all the matters that would be relevant for a judicial review of the decision "

We have to consider how far the Abdi principles can be taken. We are, for example, satisfied that, although 'the general law' and 'established principles of administrative or common law' are to be applied. adjudicators and the tribunal cannot decide whether Immigration Rules or any subordinate legislation is ultra vires. The law in Paragraph 21(1) means that laid down by common law, statute, subordinate legislation or Immigration Rules. The juxtaposition of "not in accordance with the law or with any immigration rule applicable" in our view make it plain that Parliament did not intend that adjudicators should have to consider the validity of any rule. They will, of course, have to construe them (if they can) in accordance with s.3(1) of the Human Rights Act 1998 to be compatible with Convention rights.

16. The tribunal considered in Onen V Secretary of State for the Home Department (R.1450:

(4 February 1997) the extent to which Abdi should be applied. The appellants sought leave to enter to join a family member who had been granted exceptional leave to enter the U.K. but had been refused asylum on the ground that there were compelling compassionate circumstances. The applications were made pursuant to the family reunion policy, but the only material issue was whether there existed compelling compassionate circumstances. The tribunal in the course of its decision (page 6 of the transcript with which we were provided) said this:

-"But the governing principle underlying the Abdi judgment approved in Hersi (Hersi and others v Secretan' of State for the Home Department [1996] 1mm. A.R.569) requires an identification of the 'decision' which was said not to be in accordance with the law and the 'facts' which have led to that decision ... [T]he difficulty is where the prerequisite for a policy is not restricted to a simple issue of fact such as whether an event has taken place on one day or another or is not a factual conclusion itself based on primary facts (as whether a person is or is not dependent)".

The Tribunal correctly recognised that the question whether any circumstances relied on could be regarded as compassionate or, if compassionate, compelling involved the exercise of judgment which could not be reviewed. But it had to be based on facts which could be reviewed. Only if the review of the facts showed that the judgment could not rationally have been exercised as it had been would the decision not have been in accordance with the law. Thus in such a case in our judgment the adjudicator would not be entitled to allow an appeal unless his review of the facts showed that the decision could not stand. Nor could he do more than allow the appeal and direct reconsideration. So much must follow from the inability to reconsider discretion.

17. Thus we do not altogether go along with the observation of the tribunal in Onen (at page 7):-

"If it were shown that the Secretary of State's view on the material facts was erroneous or that there were material facts not considered, the decision that there were no compelling compassionate circumstances would not be in accordance with the law."

No doubt, in many cases a mistaken view of a factual matter would be likely to mean that the exercise of judgment or discretion was irrational, but it would not necessarily follow.

18. However, it is not necessary to go further into the problems created by Abdi. We are bound by and must do our best to apply it. It does not in the circumstances of these cases avail the individual applicants.
19. This determination will not dispose of these appeals but will be taken into account when the decision of the European Court of Justice is received.

Sir Andrew Collins

President