Tribunal decisions

The decision

SA (Entry clearance - Student - Documentary evidence) Pakistan [2003] UKIAT 00002
IMMIGRATION APPEAL TRIBUNAL

Date heard: 14 April 2003
Date notified:..28.05.03

Before

DR H H STOREY (CHAIR)
DR A U CHAUDHURY

Between

ENTRY CLEARANCE OFFICER, ISLAMABAD

Appellant

And

Respondent

DETERMINATION AND REASONS

1. The appellant, the Entry Clearance Officer, Islamabad, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr A C B Markham David, allowing the appeal of the respondent, a citizen of Pakistan, against the decision to refuse to grant entry clearance as a student. Mr J Morris appeared for the appellant. Mr of Counsel instructed by Solicitors appeared for the respondent. To avoid confusion the respondent is hereafter referred to as the “claimant”.

2. We have decided to remit this appeal. The adjudicator did not have certain documents before him. He considered that, as the claimant had said in his notice of appeal that he was sending 12 documents, including an affidavit from his father and evidence of his father’s business, “he must be able to rely on the fact that they will be before the Adjudicator when the appeal is finally heard”. He noted that the Entry Clearance Officer had not notified the appellate authorities of any failure to receive the documents. He concluded: “Thus, in my view, the only course I can take is to act as if the documents were before me and to assume that they say what the appellant sets out in his notice of appeal”. At paragraph 8 he stated:

“In these circumstances I think the only fair course is for me to assume that the evidence relating to his father’s business is sufficient to satisfy me on the balance of probabilities that he is able to meet the costs of the course and maintain and accommodate himself without recourse to public funds. The only other course open to me would have been to adjourn this appeal until the missing documents were found, which might be an indefinite period and would undoubtedly be an injustice to the appellant”.

3. We have some sympathy with the position the adjudicator found himself in in this case. The Immigration and Asylum Appeals (Procedure) Rules 2000, which governed this case when he heard it, do not require the immigration authority (in this case the Entry Clearance Officer) to send to the appellate authority documents accompanying the notice of appeal except in specified circumstances not relevant in this case (see Rules 10 and 8). There was no appearance from either party. If there had been representation the adjudicator could have clarified with the Home Office Presenting Officer whether the documents had in fact been received. If the claimant’s representatives had appeared he could have expected them to produce copies of the documents the claimant sent when he appealed. No request for an adjournment. Even as a result if the adjudicator still had power to adjourn of his own motion, that was subject to the requirement set out at Rule 31 that he only do so if refusal would prevent the just disposal of the appeal.

4. Nevertheless it remains that the adjudicator was not entitled to assume that evidence, which he had not seen, established the claimant’s case just because the claimant said it did. The burden of proof was on the claimant to show that he met the requirements of the Immigration Rules at the date of decision. The Entry Clearance Officer had decided on the basis of the claimant’s own account at interview that the claimant had not shown there would be adequate finances to cover the cost of his studies. He noted that the claimant’s studies equated to approximately 3 years income of his father and that the balance of the accounts produced was “not enough”. He recorded asking for tax and other evidence and originals of bank statements. He further recorded that the claimant said he could provide these.

5. When the matter came before the adjudicator, the adjudicator did not have before him any further documentary evidence from the claimant. All he knew was that claimant stated he had sent 12 documents with his grounds of appeal, three of which appeared to bear on the father’s financial position: an affidavit from his father and evidence of his father’s business and a valuation certificate of property. He also knew that the claimant had said in his appeal letter that his father was in a position to bear his tuition expense including his living in the UK for 30 months and that he had produced an “affidavit and all the evidences according to british high commissioners student visa rules”.

6. However, the adjudicator did not know whether any of this evidence was in fact probative of the claimant’s case. We cannot see that the failure of the claimant to avail himself of the opportunity afforded by the appeal system for him to be represented by a nominated representative should place him in a more beneficial position than if a representative had attended

7. The Immigration and Asylum Appeals (Procedure) Rules refer to the need for justice in the disposal of appeal. They are not a recipe for blind justice. The adjudicator effectively treated evidence as being before him which was not and he wrongly treated the onus of proof as resting on the Entry Clearance Officer to disprove that the claimant satisfied the requirements of the Immigration Rules relating to students.

8. There is a further reason why we consider that we should allow the Entry Clearance Officer’s appeal. The claimant and his representatives were made aware through the determination granting leave that the issue of whether documents were actually sent with the claimant’s notice of appeal was central to the case. They were also aware that directions set by the Tribunal required further evidence to be submitted within a specified time period. No such evidence has been forthcoming.

9. Even if we had been satisfied the adjudicator dealt satisfactorily with the issue of financial ability, the decision before him also included a finding that the claimant had not shown he intended to leave the United Kingdom at the end of his studies. The adjudicator gave no reasons whatsoever for why he considered the Entry Clearance Office was wrong to reach this finding. That in itself was sufficiently to fundamentally flaw the determination.

10. For the above reasons and in accordance with the provisions of Rule 22 of the Immigration and Asylum Appeals (Procedure) Rules 2003, the appeal is allowed to the extent that it is remitted to be heard by an adjudicator other than Mr A C B Markham David. Plainly if no further evidence is forthcoming from the claimant when the case is heard again, the adjudicator will have to dismiss the claimant’s appeal on the basis that he failed to discharge the onus of proof on him to show he met in full the requirements of the Immigration Rules relating to students.

DR H H STOREY
VICE-PRESIDENT