United Kingdom Asylum and Immigration Tribunal

APPEAL No. [2004] UKIAT 00077 E (Cameroon)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 April 2004

Date Determination notified: 23 April 2004

Before
Miss K Eshun (Vice President) Mr M J Griffiths Mr A F Sheward
Between

 

Entry Clearance Officer Yaounde	APPELLANT
and
E	RESPONDENT

For the appellant: Miss K Prendergast, Home Office Presenting Officer For the respondent: Her sponsor's husband, Mr Nzembala Kabamba
DETERMINATION AND REASONS
1. The appellant, Entry Clearance Officer, appeals with leave of the Tribunal against the determination of an Adjudicator (Mr G Jamieson) allowing the visit appeal of the respondent, a citizen of Cameroon.
2. The respondent, who now would be referred to as the claimant, applied for entry clearance to the United Kingdom to visit her sister, Madeline Neh in Bedford to participate in her sister's traditional marriage to Nzembala Kabamba. The Entry Clearance Officer refused the application by decision dated 24 April 2003, pointing out that her sister had already married in 1999, and that the claimant and no invitation to a traditional wedding and did not even know when it would take place. The claimant had also failed to produce evidence as to her sister's immigration status in the UK. In addition, the Entry Clearance Officer considered that the claimant had produced forged documents and her reliance on these documents seriously damaged her credibility as a genuine visitor. He also doubted that the claimant was related to the sponsor.
3. In response to the refusal the claimant produced a number of documents, including an invitation to the traditional wedding, an endorsement of her sister's passport showing that her sister had no time limit on her stay in the United Kingdom, a copy of her marriage certificate showing her husband to be a medical doctor. She also produced a bank statement showing that she had over £4,000 available to her during her visit. The Adjudicator was satisfied with these documents and was satisfied that the claimant would be able to maintain and accommodate herself adequately without recourse to public funds.
4. The Entry Clearance Officer had doubts about the documents produced by the claimant in relation to her employment. He also had doubts about her place of employment, which was said to be A Z International Ltd.
5. It would appear from the determination that the Adjudicator himself had doubts about the claimant's place of employment. In spite of these doubts he did not agree with Entry Clearance Officer that the claimant had produced forged documents in relation to a company which either did not exist or in which she was not a Secretary. The ECO had telephoned the company and had said that the telephone number was a call box and the person to whom she had spoken claimed not to know the claimant. At paragraph 12 of the determination, it was apparent that the Adjudicator himself had checked the website address of the company on the internet on 8 July 2003 and had found that it was not available. In spite of this he stated that these things can change and therefore would not seek to draw from this that the claimant had produced forged documents from A Z International Ltd.
6. The Adjudicator then allowed the appeal and issued directions in order to give effect to his determination.
7. The appellant appealed against those directions on the grounds that in asking the Entry Clearance Officer to make enquiries about the claimant's place of employment, the Adjudicator was placing the standard of proof on the wrong party. Miss Prendergast relied on the grounds of appeal. She submitted that the onus was on the claimant to show that she is employed by A Z International Ltd once the Entry Clearance Officer had found that she did not. When the Adjudicator set directions for the Entry Clearance Officer to grant entry clearance, which Miss Prendergast said he was entitled to do, his placement of a condition that the claimant obtains from the Ministry of Commerce and Finance in Cameroon proof as to the incorporation of A Z International Ltd as a bona fide company operating in Cameroon, undermined his earlier findings.
8. In reply the sponsor stated that the Adjudicator gave directions to the Entry Clearance Officer to carry out further investigations about A Z International Ltd. We pointed out to him that the Entry Clearance Officer was under no obligation to carry out such investigation. The onus was on the claimant to produce proof of evidence that A Z International was a bona fide company operating in Cameroon. Mr Kabamba did not have proof of this.
9. The duty of an Adjudicator is to allow or dismiss an appeal and he may issue directions in order to give effect to his determination. What the Adjudicator is not in a position to do is issue directions amounting to an investigation of the part of the Entry Clearance Officer or issue directions which appear contingent on his decision. The onus is on a claimant to prove their case. In requiring the ECO to undertake an investigation in order to prove the bona fides of A Z International Limited, the Adjudicator was effectively shifting the burden of proof on to the ECO. This amounts to an error in law.
10. In my opinion the existence of the company the claimant said she worked for was relevant to her credibility. The Adjudicator obviously has doubts about this otherwise he would not have checked the website address. In this regard, I should say that it is generally not satisfactory for an Adjudicator to make their own investigation on the internet without giving the parties an opportunity to respond. In this case the Adjudicator did not hold his negative finding against the respondent so no unfairness was caused. Nevertheless the fact remains that, had the Adjudicator not had doubts about the company, he would not have issued a direction contingent upon production of evidence from the Ministry of Commerce and Industry in Cameroon, or some other suitable source, as to the incorporation of the company for which she works, A Z International Ltd as a bona fide company of rating in Cameroon. In view of the doubts that he had, the Adjudicator should have dismissed the appeal. He erred in allowing the appeal and erred in issuing the directions in the terms set out in his determination.
11. Therefore, on the totality of the evidence before us we cannot uphold the Adjudicator's determination and directions. The appellant's appeal is allowed.

Miss K Eshun

Vice President