United Kingdom Asylum and Immigration Tribunal

CS (Race discrimination, proper approach, effect) Jamaica [2006] UKAIT 00004

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: On 13^th December 2005

Date Determination notified: 10 January 2006

Before
The Honourable Mr Justice Hodge OBE, President Mr A McGeachy, Senior Immigration Judge
Between

CS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr M Gill (Counsel) For the Respondent: Ms M Donnelly-Wells (Home Office Presenting Officer)
DETERMINATION AND REASONS

In claims of racial discrimination raised in appeals in the AIT, a finding must be made if race discrimination is alleged. But it does not follow automatically where a finding of discrimination is made, that the decision under the immigration rules is itself unlawful.

1. The appellant is a national of Jamaica, born on 3^rd August 1975. The appellant married the sponsor, his wife, on 10^th December 2003, whilst he was in the United Kingdom. He was removed from the United Kingdom by the respondent on 9^th January 2004. He had been granted leave to enter as a visitor for six months and thereafter overstayed the period of the visitor's visa. On 10^th February 2004, the appellant applied for entry clearance as a spouse. This was refused by the respondent in a notice of decision dated 29^th April 2004.

This Reconsideration

2. The appellant's appeal came before an adjudicator (Miss Manjit Kaur Obhi) on 22^nd October 2004. In a determination promulgated on 10^th November 2004, she dismissed the appeal.
3. The Entry Clearance Officer (ECO) had rejected the appellant's application for entry clearance on the basis that he had not met the requirements of paragraph 281 of the Immigration Rules [HC395]. The appeal brought under Section 82 (1) Nationality, Immigration and Asylum Act 2002 was advanced, under Section 84 (1) (a) and (b) of the 2002 Act. The appellant originally asserted that the decision was "not in accordance with the immigration rules" (Section 84 (1) (a)). At a late stage, he claimed that the decision was "unlawful by virtue of Section 19 B of the Race Relations Act 1976 (C.74) (Discrimination by Public Authorities)" (Section 84 (1) (b)). Permission was given to make this amendment on 6^th September on 2004. The appeal was adjourned to enable the entry clearance officer to respond to this allegation.
4. The adjudicator's decision was as follows:

"I find that the decision of the entry clearance officer may have been affected by the incorporation into that assessment, of a negative stereo-typical belief.

In relation to the Immigration appeal, on the basis of my own objective assessment of the information before the respondent at the relevant time, I dismiss the appeal."

5. The appellant applied for permission for leave to appeal to the then Immigration Appeal Tribunal. The grounds of appeal were:

"The adjudicator has erred in her conclusion with regard to the matter of the allegation that the respondent (ECO) had exhibited racism in carrying out his duty.

a) At paragraphs 38-42 the (sic) states, finds and concludes that the ECO displayed expression of a negative stereotype of Afro-Caribbean men and the decision of the entry clearance officer is unlawful and cannot stand. This indicates that she had found the ECO to have acted in a manner contrary to the race relations (sic), however, she goes on to dismiss the immigration appeal, in particular of the appellant's intention to live with his wife.

b) It is incumbent upon the adjudicator to indicate how her findings of racism on the part of the respondent does not influence the decision to refuse the appellant.

c) It is submitted that the adjudicator has erred in her conclusion that the immigration decision is independent of the act of discrimination on the part of the respondent."

6. Permission to appeal was granted on 1^st April 2005, on the basis that the grounds of appeal were "just arguable".
7. By Article 5 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 Commencement No 5 and Transitional Provisions) Order 2005 (SI 2005/565) any appeal which immediately before the commencement of the 2004 Act was pending before the Immigration Appeal Tribunal shall after commencement of that Act be dealt with by the Asylum and Immigration Tribunal as if it had originally decided the appeal and it was re-considering its decision. Hence we are reconsidering this appeal.

The Racial Discrimination Finding

8. The adjudicator set out her findings on the race discrimination aspect of this appeal between paragraphs 39 and 42.

"39 …….. it is claimed that Question 61 is not a question but a series of comments, which set out the ECO's misconceptions about Afro-Caribbean men. These misconceptions are based on a belief in a negative stereotype of a particular group of people, such that that belief undermines the ability to approach any assessment wholly objectively. To support this assertion the appellant relies on the following comments contained in Question 61 of the interview.

"You have now married a woman who is older than you. As you know, marriage is not always the norm amongst Jamaican males. I'm not making any criticisms, just observations. Some people would look at this relationship, against those considerations I have just said, and conclude that you married as a way of remaining in the UK. I am not saying I agree."

This sentence taken on its own, out of the context of the remainder of the interview is highly offensive, and legally wrong. The considerations to which the ECO refers, are not part of the rules which he must apply, but are a view of Afro-Caribbean men which in my view would be seen by any reasonable person to express a negative stereotype of a section of the community. If it is a consideration against which the ECO has assessed the application, then to any reasonable bystander he has incorporated a negative stereotype into that assessment and thereby fettered his discretion under the rules. In addition by applying it he has unwittingly treated the appellant less favourably than he would have done a non-Jamaican man. It was suggested by Mr Gomez that the reference to Jamaican males was in essence a reference to black men because when ordinary people speak of Jamaican men, they associate them with black men, and not white Jamaicans and therefore the discrimination was based on the appellant's colour, and not his nationality. The distinction between colour and nationality is important because of the disregard introduced in relation to nationality and ethnic origins in respect of immigration decisions which appears at Section 19D of the 1976 Act (as amended). I accept Mr Gomez's interpretation in relation to the reference to Jamaican males being in reality a reference to colour and not to nationality, as being a reasonable inference to draw.

40 The dangers of applying negative stereotypes to certain sections of the community were considered in some depth by Lord McPherson in the Stephen Lawrence Inquiry Report. His Lordship quotes extensively from the work of Dr Robin Oakley and states (in relation to the police, because that was the organisation he was studying) that the police are brought into contact with a skewed cross section of society, 'with the well-recognised potential for producing negative stereotypes of particular groups. Such stereotypes become the common currency of the police occupational culture.' This in turn leads to a form of institutionalised racism which is defined by the Commission for Racial Equality as 'those established laws, customs, and practices which systematically reflect and produce racial inequalities in society. If racist consequences accrue to institutional laws, customs or practices, the institution is racist whether or not the individuals maintaining those practices have racist intentions.'

41 The letter from the Entry Clearance Officer is unhelpful, in that he does not address the allegation. He says that he has not studied the Report of Lord McPherson, or read any of the latest theories on racism. He says that he is 'vaguely' aware of the theory of institutionalised racism. At best there is a superficial and indirect understanding by the ECO that his approach to this application may have not been entirely appropriate. Yet, he refutes any suggestion that he has ever exhibited racist attitudes. In the context of the definition, which I set out above, I accept that this ECO is not intentionally racist or intentionally discriminatory, this is apparent from looking the interview as a whole. The interview does not disclose an attempt by him to intentionally discriminate against the appellant on the grounds of his colour; but as Mr Gomez, in my opinion, rightly stated, his letter appears to miss the point, and does not address the allegation.

42 The comments, which I have quoted, in my opinion, and display an expression of a negative stereotype of Afro-Caribbean men. There is no other conclusion that I can reach. In the circumstances I find that the decision of the Entry Clearance Officer is unlawful and cannot stand."

9. Allegations of racial discrimination are raised relatively rarely in appeals before the Asylum & Immigration Tribunal and its predecessors. But when such an allegation is raised, the Tribunal must determine it. As was pointed out in Emunefe v Secretary of State for the Home Department [2005] EWCA Civ 1002, when a claim under the Race Relations Act is made in an immigration appeal, there is an obligation to make a decision on the claim as a matter of statutory duty (Section 86 (2) (a) Nationality, Immigration and Asylum Act 2002). Under the previous legislation, it had been a requirement to reach a decision on any race discrimination claim but that was provided for by a Practice Direction.
10. Immigration Judges must therefore decide racial discrimination claims, if they are contained in the grounds of appeal before then. The standard of proof is the ordinary civil standard, on the balance of probabilities. The burden of proof is on the appellant. The proper approach to reaching decisions on these sometimes complicated issues is set out in Anya v University of Oxford and another [2001] EWCA Civ 405.

"..[The Tribunal must] identify clearly, and arrange in proper order the main issues for decision eg:

a) Did the act complained of actually occur? In some cases there will be conflict of direct oral evidence. The Tribunal will have to decide who to believe. If it does not believe the applicant and his witnesses, the applicant has failed to discharge the burden of proving the act complained of and the case will fail at that point. If the applicant is believed, has he brought his application in time, and if not, is it just and equitable to extend the time?

b) If the act complained of occurred in time, was there a difference in race involving the applicant?

c) If a difference in race was involved, was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial group in the same, or not materially different, relevant circumstances?

d) If there was a difference in treatment involving persons of a different race, was that treatment "on racial grounds"? Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent?

In answer to each of these questions the Tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence."

11. Guidance was given by the Court of Appeal in King v Great Britain China Centre [1992] ICR 516 as to how to approach any "explanation of the less favourable treatment ….given by the respondent". At para 7 (4), it was said " if no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law….. but almost common sense."
12. The adjudicator in this appeal analysed the evidence appropriately and took all the relevant steps as set out above. She concluded that there was, in effect, race discrimination in that the adverse decision in this appeal displayed "an expression of a negative stereotype of Afro-Caribbean men". There is no challenge to this finding. The adjudicator put the relevant steps in her reasoning as required by the law and reached a conclusion on the facts which was open to her. The clear finding she made at paragraph 42 was not, however, carried forward to her conclusions at paragraph 54 and following. She concludes "I find that the comment made by the ECO in question 61 discloses a negative stereotypical belief and as such suggests that the decision of the ECO may have been discriminatory". It is unhelpful to qualify the apparently clear findings made at para 42 quoted above. Conclusions reached in the body of a judgement must be carried through to any summary of conclusions at the end of that judgement.

Error of Law

13. The appellant contends that the decision of the adjudicator to dismiss the appeal displays two material errors of law. First, the adjudicator made a finding of racial discrimination. She went on to fail, it is said, to show how that did not influence the decision to reject the appellant's application. Second, it is said that the adjudicator erred in concluding that the immigration decision is independent of the finding of an act of discrimination on the part of the respondent.
14. In this case, the adjudicator referred to the apparent view expressed by the entry clearance officer that "marriage was not the norm amongst Jamaican males" and "this marriage was contracted as a way of remaining in the UK". The finding that the Entry Clearance Officer had racially discriminated against the appellant called into question the genuineness of the appellant's marriage. But the adjudicator in fact reached a different conclusion and found that the marriage "is a genuine marriage".
15. It was argued before us for the appellant, that the finding of racial discrimination "infects" the whole decision making process. As a result, it was said, once the finding is made, the appeal should be allowed to the extent that it was remitted back for further consideration. It appeared also to be argued that the appeal might alternatively be neither be allowed or dismissed, but in effect, adjourned back for further consideration. This cannot be right.

The manner in which appeals are determined is set out in Section 86. The Tribunal must determine any matter raised as a ground of appeal (Section 86 (2)). So Immigration Judges must make decisions on the information that is before them. The structure of the legislation requires two decisions to be made in an appeal such as this. One decision is whether the decision appealed against is not in accordance with the Immigration Rules (Section 84 (1) (a)). A further decision must be made as to whether the immigration decision is unlawful as a result of breach of the Race Relations legislation (Section 84 (1) (b)).

16. Section 86 (3) of the 2002 Act provides that the Tribunal

"must allow the appeal in so far as [it] thinks that a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including the immigration rules). "

Further, by Section 86 (5),

"in so far as subsection (3) does not apply [the Tribunal] shall dismiss the appeal."

17. There are distinct grounds of appeal being dealt with in this case. The first is whether the decision is in accordance with the immigration rules. The second is whether there was racial discrimination. The weighting of the adjudicator's ultimate decision on the race discrimination issue was not wholly clear. But we consider it can properly be read as meaning the original decision by the Entry Clearance Officer was "not in accordance with the law". The prohibition within the Race Relations Act had been broken. Hence "in so far as" that occurred the decision was wrong, and the appeal might have been allowed. Certainly we consider the adjudicator decided the race relations ground of appeal in favour of the appellant.
18. However, the adjudicator having made the discrimination finding, went on as she was required to do, to give detailed consideration to whether this appellant's claim actually satisfied Rule 281 of the Immigration Rules. She appears to have doubted that the marriage was subsisting. She was satisfied that accommodation was available. She was not satisfied that the maintenance requirements were met. In our judgement, she carried out an independent assessment of the evidence as she was required to do. She heard from the sponsor. She looked at all the relevant documentary evidence. She had submissions from both parties. She was aware that the decision of the Entry Clearance Officer was "infected by racial discrimination". But she went on and considered whether the appellant met the requirements of the immigration rules. She clearly decided that the Immigration Rules were not satisfied by this appellant. Hence Section 86 (3) which requires the appeal to be allowed, did not apply. Section 86 (5) provides "in so far as subsection 3 does not apply [the Tribunal] shall dismiss the appeal." This is what she did.
19. In those circumstances, we cannot see that the adjudicator made any error of law. In any case, where race discrimination is alleged, the Immigration Judge must make a decision on that point. A way to approach that decision is set out above. If the racial discrimination alleged is proved, the judge must say so in the determination. Where such a finding is made the appellant has further rights. The finding may be used to support a claim under part III of the Race Relations Act 1976. By Section 57A (3) of the Race Relations Act 1976, the relevant court is required to treat the act complained of as unlawful. A clear decision on the ground of appeal alleging race discrimination needs to be made if these rights are to be available to appellants.

It will be a matter for the judge to decide, in so far as the race discrimination finding casts doubt on the ultimate decision of the Entry Clearance Officer, as to whether that decision remains in accordance with the law. That may conclude the appeal in the appellant's favour. But, in so far as it does not, the Immigration Judge must make an independent assessment of the case, aware of, but not adversely affected by any race discrimination. If it is decided that the decision was in accordance with the law, or with the immigration rules then it will be right to reach a conclusion which ultimately dismisses the appeal.

20. Here, the finding of racial discrimination made by the adjudicator meant the decision by the Entry Clearance Officer that the marriage was not genuine was itself wrong. However, she did not accept that the appellant had discharged the burden of proof that he was able to maintain himself without recourse to public funds. He did not satisfy paragraph 281 (v) of the Immigration Rules. Her ultimate conclusion was also that the marriage was not subsisting. In those circumstances, her conclusions were not affected, as she found the ECO's may have been, by the apparent discriminatory attitude of the Entry Clearance Officer.

Decision

21. We therefore conclude the original Tribunal did not make a material error of law in this case. But for the sake of clarity we express our decision as follows:

The appeal on race relations grounds is allowed. The decision of the adjudicator on immigration grounds dismissing the appeal shall stand.

Mr Justice Hodge

President

19.12.2005