United Kingdom Asylum and Immigration Tribunal

GO (Right of appeal: ss 89 and 92) Nigeria [2008] UKAIT 00025

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 20 November 2007

Date Determination notified: 25 March 2008

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Grubb

Between

GO	APPELLANT
and
AN IMMIGRATION OFFICER, HEATHROW	RESPONDENT

For the Appellant: Mr. Rana of John & Co Solicitors For the Respondent: Mr. L. Tarlow, Home Office Presenting Officer

DETERMINATION AND REASONS

A person who has entry clearance taking effect as leave to enter granted before arrival but whose leave is cancelled on arrival is not caught by s 89(1) because he has made no application for leave to enter but has no in-country right of appeal if s 92(3B) applies to him.

1. The appellant, a citizen of Nigeria, appealed to the Tribunal against a decision of the respondent on 29 September 2006. An Immigration Judge allowed her appeal. The respondent sought and obtained an order for reconsideration. Thus the matter comes before us.
2. In view of what we have to say about the Immigration Judge's determination, we need to set out the facts and the documentation of this case in some detail. The appellant's husband was in the United Kingdom as a student. It appears that, before the date of the decision with which we are concerned, his last entry was in July 2006. The appellant herself obtained a multiple entry visit visa for the purpose of visiting him while he was here. She also, it appears, sought entry clearance as a student herself. That application was refused. The refusal did not, however, directly affect her visit visa, which she used to travel to the United Kingdom, arriving in the afternoon of 29 September 2006. Under the provisions of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161), she was, as a holder of such a visa, treated on arrival as a person who had been granted leave to enter before arrival. On arrival, however, she was examined by an immigration officer, who, no doubt acting under para 321A of the Statement of Changes in Immigration Rules, HC 395, cancelled her leave to enter. He issued her with a notice of decision in the following terms:

"You have presented a visa endorsed visit which had effect as leave to enter the United Kingdom on 22/07/2005. However, I believe that your purpose in arriving in the United Kingdom today is to study, which is different from the purpose specified in the entry clearance. I therefore cancel your leave to enter.

As stated above, I believe that your purpose in arriving in the United Kingdom is to engage in a full time course for a period of two years. I have arrived at this conclusion as the establishment of 'Information Technology & Health and Social Science College' have confirmed that you are enrolled on this course and due to start this course on 02/10/2006.

I therefore refuse you leave to enter the United Kingdom."

There is then the statement of the Immigration Officer's proposal to remove the appellant and a statement that she has no right to appeal against the decision before removal. There is a list of possible reasons for that, with boxes, but none of them has been ticked.

3. The appellant left the United Kingdom. Within the period limited by the rules for appealing from abroad, she served a notice of appeal against the decision. We do not need to set out the grounds of appeal in which the appellant made assertions about the purpose of her visit and about her proposed course in Croydon: for present purposes we need only say that the grounds of appeal raise no human rights issues. The appeal was listed for hearing, at which the respondent evidently protested, asserting that there was no right of appeal in this case. A hearing fixed for 20 March 2007 was therefore adjourned, and the respondent indicated that the reason for the assertion that the appellant had no right of appeal before removal was that she did not have an entry clearance valid for the purpose for which her application for leave to enter was made, as provided by s 89(1) of the Nationality, Immigration and Asylum Act 2002 as amended. The Immigration Officer's covering letter asserts that in the circumstances, the appellant has no right of appeal. Nevertheless, approximately contemporaneously, the Immigration Officer was preparing a fuller statement in the form of a "report", which is dated 11 March 2007. After repeating the reasons for refusal from the notice of decision, the report continues as follows:

"The passenger sought entry as a visitor for a period of five months to visit her husband, …whom she stated was attending an aviation training course in the United Kingdom. She stated that her husband had been in the United Kingdom since July 2006.

The passenger held funds of £100.00 and a return ticket dated 28/02/2007.

Local records indicated that the passenger had been refused a long term student entry clearance on the 29/08/2006 in Abuja, Nigeria.

During interview the passenger stated that she had applied for a student visa to attend a two year Diploma in Advanced Business Administration at the college of 'Information Technology & Health Social Science College' based in Croydon. She stated that she had been refused the visa as she had not presented original documents to the Entry Clearance Officer. She stated that she was currently appealing the decision and understood that she could enter the United Kingdom as a visitor. She stated that the duration of her visit would consist of visiting Oxford with her husband. The passenger stated that [she] had two children aged seven and five years and that her mother-in-law would be looking after them.

In terms of employment, the passenger stated that she sold handbags and shoes from her house in Ibadan, Nigeria and that this was a joint venture between herself and her sister. When questioned as to why she chose this period of time to visit the United Kingdom, she stated that her husband had invited her.

The above named school was contacted and confirmed that the first year's deposit had been paid and that the passenger should report to the college on 02/10/2006. They stated that they were not aware of any deferment.

I considered the facts of the case. I could not be persuaded that the passenger intended to spend six months visiting Oxford. Also when questioned as to why she had chosen to visit her husband at this period in time, which was in fact so close to the initial registration date at the college she simply stated that she had been invited. Furthermore she had just started a business venture which she would be neglecting for some time.

In light of the above and with the authority of Chief Immigration Officer, N. Green I accordingly refused her entry to the United Kingdom and cancelled her entry clearance."

4. The matter was again listed for hearing and following a hearing on 3 May 2007, Immigration Judge Brewer issued his determination on 16 May. We need to set it out in full, and we do so, omitting the heading, although observing that in that heading the respondent is wrongly described as the Secretary of State for the Home Department.

"DETERMINATION AND REASONS

Details of the Appellant

1. The Appellant, a citizen of Nigeria, is female. The Appellant was born on 17^th September 1974.

Substantive Issues under Appeal

2. This appeal is under the Nationality Immigration and Asylum Act 2002, against a Decision to remove the Appellant from the UK. The Decision was made by the Respondent on 29^th September 2006.

3. I have considered whether the Decision would breach our obligations under the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms ("the 1950 Convention").

The Proceedings

4. I heard no oral evidence by the Sponsor/Appellant but I did hear oral submissions from both Representatives, all of which are fully set out in the Record of Proceedings. I have also taken into account the follow documents which have been placed before me;

i. The Explanatory Statement and its annexes.

ii. The Appellant's bundle

5. At the end of the hearing I reserved my decision which I now give with my reasons.

THE EVIDENCE AND SUBMISSIONS

The Applicable Law

6. In human rights appeals, it is for the Appellant to show that there has been an interference with his or her human rights. If that is established, and the relevant article permits, it is then for the Respondent to establish that the interference was justified. The appropriate standard of proof is whether there are "substantial grounds for believing the evidence.

7. The point in time at which I have to consider the relevant facts, for both immigration and human rights issues (save for Article 3), is the date of the Decision as stated in paragraph 2 above. The requirements of the Rules, which are relevant to this appeal, are set out in paragraph 3.

The Appellant's Claim

8. The Appellant claims that she was genuinely entering the UK as a visitor. She held a visa to do so and the decision was wrong in law. She was not intending to enter as a student. Her application to do that had already been refused and she is appealing.

HUMAN RIGHTS AND THE 1950 CONVENTION

Article 8

9. Under this Article I have to determine the following separate questions

i. Is there an interference with the right to respect for private life (which includes the right to physical and moral integrity) and family life?

ii. Is that interference in accordance with the law?

iii. Does that interference have legitimate aims?

iv. Is the interference proportionate in a democratic society to the legitimate aim to be achieved?

10. I find that the decision of the Immigration officer was incorrect. In September 2006, the Appellant's husband was a student in the UK. And she was entering with a visit visa to see him. I find that she was not entering the UK to come as a student. She had previously applied for a visa to do that and it had been refused. Her visit visa was issued on 22^nd July 2005 to visit her husband. He has now finished his course and has returned to Nigeria. The Appellant was refused entry and returned forthwith to Nigeria. She is anxious that her immigration history is not besmirched. She was not interviewed and given little opportunity to state her case. I note that the report was prepared in March 2007. It appeared that the visit visa was not picked up by the Immigration Officer.

Other Articles

11. I find that no rights under any other Articles are engaged in this appeal.

Decision on the Human Rights Appeal

12. In the light of the above conclusions, I find that the Decision appeal against would cause the United Kingdom to be in breach of the law or its obligations under the 1950 Convention.

SUMMARY OF DECISIONS

13. I allow the appeal under Article 8 of the 1950 Convention."

5. It can be seen at once that this is a somewhat surprising document. In the context of this case, we have to say, with regret, that we consider it to be well below the professional standard that could be expected by the parties or the taxpayer. Having misdescribed the respondent, the Immigration Judge goes on to misdescribe the decision at para 2. He then omits any reference to the relevant immigration law but states merely that he has considered whether the decision was a breach of the appellant's human rights. By para 7, however, he appears to be concerned with questions of immigration law, indeed he even refers (incorrectly), to having set out the relevant requirements of the Rules in para 3. In para 4 it is by no means clear what the phrase "the Sponsor/Appellant" means: there could be no oral evidence from either as, by the date of the hearing, they were outside the United Kingdom. In view of what follows, it is interesting to know that he regards himself as having taken into account the documents described in para 4. There is no explanatory statement in this case, but there is the report which we have set out above. It is difficult to know what is meant by "the Appellant's bundle", which in a more accurately-phrased determination might be an odd way of describing three sheets of paper consisting of the first page of a two page e-mail and pages 3 and 4 of another six page document electronically produced.
6. The Immigration Judge appears not to be troubled by the question whether he had jurisdiction to determine an appeal, a matter which, as the Senior Immigration Judge who ordered reconsideration pointed out, is by no means simple. He does not appear to have been troubled by the fact that the grounds of appeal raised no question of human rights. Further, he does not appear to have been very concerned with the evidence before him. The only time he descends to any detail on it is at para 10, rather oddly sandwiched between treatments of "Article 8" and "Other Articles". He there states that the appellant was not interviewed, although the report, which was before the Immigration Judge, describes an interview and the appellant's responses at the interview. He says that "it appeared that visit visa was not picked up by the Immigration officer", although both the report and the notice of decision refer clearly and accurately to the fact that the appellant was travelling on a visitor's visa. Whilst in these two respects describing the officer as having failed to do what he ought to have done and did in fact do, the Immigration Judge omits any reference to any factors in the case tending against the appellant. It is not clear what he means by the decision of the Immigration Officer being "incorrect", as he gives no reason for reaching that conclusion. Although it may be that the statement of the Immigration Judge's task in para 9 of the determination is reasonably correct, he entirely fails to perform it. It is difficult to conceive of any basis upon which the refusal of a visit visa to the claimant could breach her human rights, and certainly no reason is given.
7. It follows that in allowing the appellant's appeal the Immigration Judge totally ignored questions of jurisdiction and of immigration law; despite there being so little evidence before him he ignored part of it and misstated another part; he elected to deal only with human rights, although no such issues were raised by the appellant and in doing so failed properly to carry out the task he had set himself; and his conclusions as a whole entirely lack reasons. The document simply fails to demonstrate that the judge has properly performed his judicial function in this case. What is disturbing is that it looks very much as though it has been prepared according to a template on the Immigration Judge's computer. If that is so there may be many other similarly defective determinations. We hope not.
8. Before us Mr. Rana made a valiant attempt to defend the determination, submitting that it is clear from para 10 that the Immigration Judge accepted the appellant's account and took the Immigration Officer's Report into account. As we have indicated, it is clear from para 10 that the Immigration Judge did not consider the evidence as a whole, taking into account evidence against the appellant as well as that in her favour. Mr. Rana also submitted that it is clear from para 9 that the Immigration Judge had the step by step approach in Razgar in mind and that it is clear from para 12 that he took into account the task in para 9 and the findings in para 10. Unfortunately that is by no means clear. Even if Mr. Rana's submissions on those topics were accepted, however, they would not cure the other omissions which we have identified. There cannot be the slightest doubt that the Immigration Judge's determination contains material errors of law.
9. We now turn to the task of substituting a determination.

Jurisdiction

10. The appellant had a visit visa which on her arrival in the United Kingdom which took effect (unless cancelled) as leave to enter the United Kingdom granted in advance of her arrival. If it is to take such effect, it does so without any further formalities. An Immigration Officer is, however, entitled to examine a person who holds such a visa, and may under certain circumstances cancel the leave to enter. The relevant statutory provisions relating to that process, and to the right of appeal, are as follows.
11. In paragraph 2A of Schedule 2 to the Immigration Act 1971:

"(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.

(2) He may be examined by an immigration officer for the purpose of establishing –

(a) whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled;

(b) whether that leave was obtained as a result of false information given by him or his failure to disclose material facts; or

(c) whether there are medical grounds on which that leave should be cancelled.

(2A) Where the person's leave to enter derives, by virtue of section 3A(3), from any entry clearance, he may also be examined by an immigration officer for the purpose of establishing whether the leave should be cancelled on the grounds that the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance.

…

(8) An immigration officer may, on the completion of an examination of a person under this paragraph, cancel his leave to enter.

(9) Cancellation of a person's leave under sub-paragraph (8) is to be treated for the purposes of this Act and Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) as if he had been refused leave to enter at a time when he had a current entry clearance."

12. In the Nationality, Immigration and Asylum Act 2002 (as amended):

"89(1) A person may not appeal under section 82(1) against refusal of leave to enter in the United Kingdom unless –

(a) on his arrival in the United Kingdom he had entry clearance, and

(b) the purpose of entry specified in the entry clearance is the same as that specified in his application for leave to enter.

(2) Subsection (1) does not prevent the bringing of an appeal on any or all of the grounds referred in section 84(1)(b), (c) and (g).

….

92(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

…

(3) This section also applies to an appeal against refusal to leave to enter the United Kingdom if –

(a) at the time of the refusal the appellant is in the United Kingdom, and

(b) on his arrival in the United Kingdom the appellant had entry clearance.

(3A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter

(3B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 (c.77) resulting from cancellation of leave to enter by an immigration officer –

(a) under paragraph 2A(8) of that Schedule, and

(b) on the grounds specified in paragraph 2A(2A) of that Schedule.

…"

12. The notice of decision served on the appellant stated that she had no in-country right of appeal. The subsequent letter from the immigration officer to the Tribunal specified that the reason for the appellant's having no in-country right of appeal was that s 89(1) applied to her. But, as the immigration officer's letter also asserts, in those circumstances the appellant would have no right of appeal at all. The first question, is, therefore, whether s 89(1) applies to a person whose entry clearance takes effect as leave to enter granted before arrival. We have reached the firm conclusion that it does not. There are three reasons. The first is that s 89(1), in its terms, applies to a person who makes an application for leave to enter. A person who has entry clearance which takes effect as leave to enter does not make any application for leave to enter: he has no need to do so, because he already has that for which he would be applying. The second reason is that if s 89(1) completely removed the right of appeal in all cases where leave to enter had been cancelled under para 2A(2A) of Schedule of 2 to the 1971 Act, on the basis there set out, the provisions of s 92(3A) and (3B), separately removing an in-country right of appeal in such cases would be superfluous. The third reason is that if there is any ambiguity in s 89(1), it should in our view be construed in order to preserve rather than remove a right of appeal.
13. For all these reasons we conclude that s 89(1) does not apply to the appellant. The immigration officer was wrong to say that the appellant had no right of appeal; he was doubly wrong to say that the appellant had no in-country right of appeal because of the provisions of s 89(1), because if they had applied she would have had no right of appeal at all.
14. The appellant is, however, caught by s 92. Although under the provisions of para 2A(9) of Schedule 2 to the 1971 Act she is to be treated as a person refused leave to enter at a time she had current entry clearance, sub-ss (3A) and (3B) of s 92 of the 2002 Act remove the benefit that sub-s (3) of that section would have given her. Her right of appeal is exercisable only from abroad. It is indeed from abroad that she has exercised it.

Decision

15. We turn then to the facts. We have already set out almost all the evidence of this case. After refusal of a student's visa the appellant travelled on her visitor's visa. On arrival in the United Kingdom she was challenged as to her intentions. Investigation showed that she was registered for a course in the United Kingdom starting shortly after her arrival. The immigration officer did not believe her claim that she had deferred her course because she had not been able to obtain a visa; his suspicions were confirmed by a telephone call to the college. Further questioning of the appellant did not persuade him that she genuinely intended only to make a visit to the United Kingdom. The appellant's grounds of appeal assert the genuineness of her intentions, but are not evidence and add little. The only relevant evidence is the e-mail to which we have made reference. It must be what the Immigration Judge regarded as the "Appellant's bundle", although he makes no reference to its contents. The e-mail is from the appellant to her solicitors dated 24 April 2007, that is to say shortly before the hearing. It has attached to it below what purports to be correspondence between the appellant and the college. In an e-mail dated 25 September 2006 to "info@thesecretary.net" the appellant asks to defer her admission until the following year. The reply is as follows:

"Thank you for your email. We may defer your admission until next year, kindly advise us when you are able to reapply.

Regards

College Administrator"

Compared with the precision of the information given by the Immigration Officer, we regard that document as entirely unpersuasive. There is nothing to show that the e-mail address is the e-mail address of the college in question: the "College Administrator" is unnamed, and even without those difficulties there is no clear indication that the appellant can defer her admission, nor is there any indication of financial arrangements in relation to the deposit which had already been paid.

16. Looking at the evidence as a whole as we do, and bearing in mind that the burden of proof is on the appellant, it seems to us, that, for the reasons he gave, the Immigration Officer was amply justified in his suspicions. There is every reason to suppose that the appellant intended to undertake her course, for which she had registered and paid, and which began the week after her arrival in the United Kingdom: and there is little if any reason to suppose the contrary. The Immigration Officer was entirely justified in cancelling her leave and insofar as he exercised his discretion in doing so we see no reason to say that his discretion should have been exercised differently.
17. The appellant has raised no issues of human rights. Her husband was in the United Kingdom undertaking a course of studies whilst she remained in Nigeria. That was the arrangement they chose. She was able to come to the United Kingdom within the terms of the visitors rules and provided that she did not abuse the privilege given to her by a multiple entry visa. We can see no conceivable basis for saying that refusing her leave to enter in the circumstances of this case breached her human rights.
18. For the forgoing reasons, having found that the Immigration Judge materially erred in law, we now substitute a determination dismissing the appellant's appeal.

C M G OCKELTON

DEPUTY PRESIDENT

Date: