United Kingdom Asylum and Immigration Tribunal

OE and NK (No hearing; compliance with Rules) Nigeria [2006] UKAIT 00055

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 23 June 2006

Date Determination notified: 04 July 2006

Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Miss E Arfon-Jones, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Grubb
Between

OE and NK	APPELLANT
and
ENTRY CLEARANCE OFFICER - ABUJA	RESPONDENT

(1) The power to determine an appeal without a hearing under r15(2) is discretionary. (2) The appellant's failure to enclose the notice of decision with the notice of appeal is a failure to comply with the Rules but it does not make the appeal invalid. (3) The respondent's failure to send the appeal bundle (with or without a direction to do so) is a failure to comply with the Rules or a direction but it does not amount to conceding the appeal or reversing the burden of proof. (4) It may be possible to deal with the fact that a document is missing by issuing a further direction to send it, stating precisely what the consequence will be if this direction is not complied with.

DETERMINATION AND REASONS
1. We have considered and determined these reconsiderations together as they raise some similar issues.

OE

2. The first appellant is a citizen of Nigeria. This is the reconsideration, at his instance, of his appeal against the respondent's decision on 7 June 2005 refusing him entry clearance as a student. The second appellant is a citizen of Nigeria. This is the reconsideration, at the instance of the respondent, of her appeal against the respondent's decision on 6 September 2005 refusing her entry clearance as a student.
3. In each case we have exercised our discretion to proceed without a hearing under Rule 14(2)(b) as applied by Rule 29 of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
4. The first appellant submitted a notice of appeal to the respondent on 24 June 2005. It was accompanied by grounds of appeal in three pages of manuscript and a letter headed "Study Leave" from the appellant's employer. Despite what is asserted in the appeal form, it was not accompanied by the notice of decision. Other annotations on the form indicate that further documents will follow, and invite the respondent to submit other documents to the Tribunal. On receipt of to the notice of appeal the Tribunal required the respondent to file with the Tribunal the documents mentioned in Rule 13(1) by 9 December 2005. Those documents have never been filed. As a result, the Tribunal has no access to the original application form or any documents supporting the application when it was made.
5. This being a case to which Rule 15(2)(b) applied, the appeal was passed to an Immigration Judge for consideration of whether it should be determined without a hearing. The Immigration Judge appears to have decided that it was an appropriate case to be so determined. He issued a determination, of which the relevant parts are as follows:

"The appellant lodged his notice of appeal in terms of Rule 6 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 but in terms of Rule 8(2) the notice of appeal must 'if reasonably practicable' be accompanied by the notice of decision against which the appellant is appealing or a copy of it. The appellant has no representative and presumably therefore the notice of decision was served upon him which instigated his lodging of a notice of appeal. The appellant has failed, in terms of Rule 8, to include the notice of decision or a copy of it therewith. There is no evidence to show that it was not reasonably practicable for him to include this. Accordingly therefore, the appellant has failed to meet the requirements of Rule 8(2) of the Procedure Rules referred to above.

Accordingly therefore, I have to dismiss this appeal through want of jurisdiction a proper appeal not having been lodged."

6. The grounds for reconsideration are accompanied by the notice of decision. It shows that the appellant's application was refused under sub-paragraphs (ii), (iv) and (vi) of paragraph 57 of HC 395, the reasons being as follows:

"The course you propose to study is widely available in Nigeria and leads to the same qualification at a significantly cheaper cost and you cannot satisfactorily explain why you do not undertake the course here.

The cost of your tuition, maintenance and accommodation is to be borne by your sponsor. Funding your education will impose an additional financial burden upon him and I am not satisfied that this increased financial outlay is commensurate with his current economic circumstances and that such funds will be actually be available to you in the United Kingdom. Therefore I am not satisfied, on the balance of probabilities, that you are able to meet the cost of the course and maintain and accommodate yourself without recourse to employment or public funds.

The cost of your tuition, maintenance and accommodation is to be borne by you sponsor, you have not provided any evidence that he is willing to fund you. Furthermore you have provided company bank statements, you have provided no evidence that your sponsor has access to these funds. The balance of this account is modest to say the least. I am not satisfied that sufficient funds are available to fund your trip. In light of the aforementioned I am not satisfied, that you are able to meet the cost of the course and maintain and accommodate yourself without recourse to employment or public funds.

Your proposed course of study is unrealistic because it is inconsistent with your previous pattern of study/previous job experience and does not represent a progression in your education/previous employment pattern and you have not been able to give me credible explanation for this change of direction.

You have been unable to satisfactorily explain how your course will be of benefit to you or enhance your future prospects and as such I am not satisfied that the cost of these studies is proportionate to your current economic circumstances and advantages you might derive from this course of study.

Your account of your personal, economic and social circumstances and how you will use these studies does not satisfy me, on the balance of probabilities, that you intend to leave the United Kingdom on completion of your course."

7. Because of the conclusion reached by the Immigration Judge about his jurisdiction, the substantive elements of the appellant's case have not been considered on appeal.

NK

8. In the case of the second appellant the notice of refusal is in the following terms:

"I am not satisfied, on a balance of probabilities, that you meet all the requirements of paragraph 57 of the Immigration Rules, and in particular

that you are able and intend to follow your proposed course

that you intend to leave the United Kingdom on the completion of any studies, BECAUSE you plan to undertake a BTEC in hospitality supervision at Birmingham College of Food. Currently you work for Hideva restaurant as a waitress earning 4000 Naira (£16) a month. You claim that after your studies you will return and hopefully own the place. I do not find it credible that an employee on such a low income would be prepared to return to there [sic] present place of employment rather than look for better job prospects elsewhere."

9. The appellant's notice of appeal, accompanied by extensive grounds but no further documentation, was received on 5 October 2005. The Tribunal thereupon required the respondent to file the documents mentioned in Rule 13(1) by 23 December 2005. In this case too those documents have never been filed.
10. The appeal was passed to an Immigration Judge for consideration of whether it should be determined without a hearing. The Immigration Judge evidently decided that it should be. The sole substantive paragraph of her determination is as follows:

"On 2 October 2005 the respondent was directed by the AIT to file by 23 December 2005 a copy of the decision to which the notice of appeal relates, any other document giving reasons for that decision and any application form, record of interview, or any other unpublished document which is relied upon by the respondent. He did not do so and there is no explanation for his failure. I have in the bundle the refusal decision, the notice of appeal and nothing else – nothing at all. I do not have the documents relied on by the respondent including the appellant's own statement of her employment and income. The notice of appeal refers to the respondent having bank statements of her sponsor. They are not in my bundle. If what the respondent said were true, I would be very tempted to dismiss this appeal. However, in the absence of these documents I am unable to assess the respondent's challenge to the appellant's application and I cannot assess whether what the respondent said about her application is true or what she herself said in her Visa Application Form. I have no choice therefore but to accept the appellant's claim, effectively unchallenged."

She therefore allowed the appeal.

11. The respondent's grounds supporting the application for reconsideration assert that the determination does not show why the Immigration Judge considered that the respondent's decision was not in accordance with the Immigration Rules.

Determination with a hearing

12. For reasons that we shall give below, we consider that in both these cases the Immigration Judges erred in law. Their first error, however, was one to which no reference was made in the grounds for reconsideration. It was the assumption, which they both apparently made, that these appeals had to be determined without a hearing. That was not correct. Rule 15 gives a discretion. It is no doubt fair to say that where the appellant has elected determination without a hearing, or where there is no United Kingdom representative in an out-of-country appeal, the discretion will normally be exercised in such a manner as to allow determination without a hearing. But it is clearly a matter for the Immigration Judge to decide. If the appeal cannot properly or justly be determined on the basis of the documents on file, no Immigration Judge should regard himself or herself as forced to proceed without a hearing. That is not what the Rules require.
13. In deciding whether to proceed without a hearing, an Immigration Judge will no doubt bear in mind the source of any difficulties. If there has been a failure by the appellant, it may be that he has only himself to blame. A failure by the respondent should not of itself cause the appellant to lose his appeal, but (as we also explain below) cannot of itself entitle the appellant to succeed.
14. We should make it clear that we do not say that in either of these cases there should have been a hearing. The position is simply that the question should have been considered. The problem with each of the determinations is that they both fail to consider the question and then imply that the Immigration Judge was not entirely content to deal with the appeal on the basis of the material on file.
15. Secondly, the consequence of failing to comply with a requirement of the Rules is prescribed by the Rules. It is not (as the Immigration Judge in the first appeal before us appears to have thought) that there is no valid appeal; nor is it (as the Immigration Judge in the second appeal before us appears to have thought) that the party whose failure it is is regarded as no longer contesting the appeal. Rule 15(2)(c) provides that the Tribunal may determine an appeal without a hearing if:

"a party has failed to comply with the provision of these Rules or a direction of the Tribunal, and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing."

16. This provision is, of course, of little effect if it has already been decided that the appeal is to be determined without a hearing. But if the power under this sub-paragraph of the Rules is to be exercised, the determination ought clearly to indicate the process by which the decision to proceed without a hearing was reached.
17. Rule 51(4) is as follows:

"Where the Tribunal has given directions setting time limits for the filing and serving of written evidence, it must not consider any written evidence which is not filed or served in accordance with those directions unless satisfied that there are good reasons to do so."

This rule cannot apply in the present case, because there has been no evidence submitted later than a direction by the Tribunal required. In a case in which it does apply – for example if the respondent's bundle is late – we think that there will usually be 'good reasons' to consider whatever evidence is available if the alternative is to attempt to decide an issue without evidence or on the basis of woefully inadequate evidence. But, again, the impact on the innocent as well as the defaulting party must be taken into account.

18. In both the present appeals we have decided to proceed with the reconsideration without a hearing not because of any breach of the Rules or directions, but because in each case the appellant has indicated that he is content for the matter to be dealt with without a hearing, the respondent has not sought a hearing, the appellant is outside the United Kingdom and unrepresented, and, given the opportunities that each party has had that, we consider it unlikely that any further material relevant to the determination of these appeals will be forthcoming.

Decision: OE

19. The first appellant's appeal is not invalid for failure to comply with Rule 8. His failure has merely the consequences we have set out above.
20. The first appellant knows the points that the Entry Clearance Officer took against him. They are set out in the notice of refusal. It is somewhat difficult to evaluate the points relating to the contents of the letter of sponsorship, because the Entry Clearance Officer has still not forwarded that letter to us, and the appellant's grounds relating to it are based on his recollection of what it said. If this appeal had depended on it, we might have had to cause a further direction to be sent to the Entry Clearance Officer: we suspect that the appropriate terms would be that unless the documents required by Rule 13 were sent within a specified time, the Tribunal would assume that the respondent was content for the Tribunal to take the content of those documents as what the appellant says it is. (That is, of course, quite different from suggesting that the respondent is to be taken as no longer contesting the appeal or that the assessment of the content of the documents should be in favour of the appellant.)
21. In this case, however, the outcome of the appeal does not depend on any missing documents. The first reason for refusal is that the appellant has given no satisfactory explanation why he does not undertake a similar course in Nigeria, much more cheaply. His response in the grounds is to indicate that there are forty five universities in Nigeria and to ask whether it is a crime to study abroad. It does not appear to us at all unreasonable to expect that a person who embarks on a project which will cost his sponsor many thousands of pounds should have formulated some reason for the expenditure of such a sum of money. It would perhaps not have to be a reason with which everybody would agree: but, if there is no reason at all for taking the course in England, a decision-maker is entitled to think that the course itself is not the real reason for wanting to travel.
22. The last of the reasons given by the respondent is that the appellant's account of his personal, economic and social circumstances and how he will use the studies does not satisfy him that the appellant intends to leave the United Kingdom on the completion of his course. The appellant's response is to point out that he proposes to return to the same employment after completing his course, that (perhaps in order to help his uncle expand the scope of his business) he needs "more exposure to the outside world", and that "back home there are vast opportunities". All that may be true, but it gives no reason at all for undertaking the proposed course and committing his sponsor to the very considerable expenditure on it.
23. For those reasons the first appellant fails to satisfy us on the balance of probabilities on the evidence before us that at the date of the decision he intended to undertake the course proposed, or to leave the United Kingdom on completion of his studies. That is sufficient to dispose of this appeal, but we should add that (whilst recognising that we are handicapped by not having the original sponsorship letter before us) we do have some doubts about the financial aspects of this case. In particular, we find it very surprising that the appellant's proposed sponsor was apparently unable or unwilling to provide a further letter of support to accompany the grounds of appeal or the grounds for reconsideration.

Decision: NK

24. Turning now to the second appellant's appeal, it appears to us that, having noted that the respondent had failed to comply with his obligations to supply documents to the Tribunal, the Immigration Judge went far beyond her powers or duties in her reaction to that failure. As we have indicated, the consequences of a failure to comply with directions or a provision of the Rules are very limited. What the Immigration Judge appears to have done in this case is to have reversed the burden of proof and to have failed to carry out her duties under Section 86.
25. Although she said in her determination that the appellant's story was "effectively unchallenged" she knew that it was challenged in the terms of the notice of refusal. She was required to allow the appeal only in so far as the evidence taken as a whole showed that the appellant had discharged the burden of proof of showing that she should have been granted, rather than refused, the visa she sought. If the Immigration Judge was, as she said, "unable to assess" the respondent's challenge it is extremely difficult to see how she could have thought that the burden of proof had been discharged.
26. For these reasons we consider that the Immigration Judge materially erred in law in her determination.
27. We have considered the material before us. As the Immigration Judge noted, "if what the respondent said were true, I would be very tempted to dismiss the appeal". The truth of what the respondent said about the appellant's income is confirmed in the grounds of appeal. The foundation of the respondent's suspicions about the appellant's intention to leave the United Kingdom is confirmed in the grounds of appeal where the appellant says "if after completing my studies I am given a better job in the UK I could apply for extension of stay and work there".
28. Nothing in the grounds of appeal does anything substantially to meet the points made against the appellant in the notice of refusal. The cost of the proposed course and the appellant's maintenance in the United Kingdom remains grossly disproportionate to the perceived benefits of receiving an "increase of salary" or perhaps being "taken to the post of the manager" of the restaurant where she now works. The sentence cited at the end of the previous paragraph shows that she has no firm intention to leave the United Kingdom at the end of her studies. She has not persuaded us that she met or meets the requirements of paragraph 57 of HC 395.

Conclusion

29. For the foregoing reasons we find that in each case the Immigration Judge made a material error of law and we substitute in each case decisions dismissing the appeal.

C M G OCKELTON

DEPUTY PRESIDENT

Date: