Tribunal decisions

The decision

Heard at Field House

On: 23 June 2004

IO (“Points in Issue”) Nigeria [2004] UKIAT 00179

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:
6 July 2004

Before:

Mr J Perkins
(Vice President)
Mr A G Jeevanjee
Miss C St.Clair

Between

Appellant

and

ENTRY CLEARANCE OFFICER LAGOS

Respondent

DETERMINATION AND REASONS
1. ( ) was not represented before us and, as was to be expected, did not appear. However, his sister, ( ), attended before us and answered some questions. The respondent was represented by Mr A Hatton, a Senior Home Office Presenting Officer.
2. The appellant is a citizen of Nigeria. He was born on 12 March 1986 and so is now seventeen years old. He appeals the decision of an Adjudicator, Mr K.S. Nevin, who in a determination promulgated on 29 May 2003 dismissed his appeal against the decision of the Entry Clearance Officer that he was not entitled to visit his sister in the United Kingdom.
3. The Entry Clearance Officer refused the application on 3 February 2003. The reasons given in the form GV51 Family Visitors are quite inadequate and it is disappointing to see that decisions of this quality are still being prepared. The Entry Clearance Officer had to make a decision about the appellant’s ability to satisfy the rules relating to visitor visas. The refusal of an entry clearance shows no analysis whatsoever of the relevant rules. It does not even refer to them.
4. The requirements to be met by a person seeking leave to enter the United Kingdom as a visitor are set out in paragraph 41 of HC 395. There are seven clauses to Rule 41. The Entry Clearance Officer does not actually refer to any of them. The Entry Clearance Officer noted that the appellant had no previous experience of travel to the United Kingdom, that he was a sixteen year old unmarried man, that he wished to visit his sister who had been in the United Kingdom for the past sixteen years whom he had not sought to see previously, and that he was a student, financially dependent on his parents who had no income or assets of his own and that he had produced no evidence of sponsorship for his visit to the United Kingdom. These things may well each be true. They are not of themselves reasons to refuse the application although it is possible that they could have led the Entry Clearance Officer to find that some particular requirements of the rules were not satisfied.
5. These factors seemed to lead the Entry Clearance Officer to the conclusion that he was ‘not satisfied that only a short visit is intended’. It is not a requirement of the rules that only a short visit is intended although 41(i) requires that a person ‘is genuinely seeking entry as a visitor for a limited period as stated by him, not exceeding six months; and 41(ii) continues ‘intends to leave the United Kingdom at the end of the period of the visit as stated by him.’
6. Entry clearance officers considering applications from potential visitors who are doing their work properly will have the requirements of rule 41 of HC 395 in the forefront of their minds, if not literally in text before them. If the Entry Clearance Officer had intended to say something like “In the light of these facts I am not satisfied that you will maintain and accommodate yourself adequately out of resources available to you without recourse to public funds, or taking employment; or will be maintained and accommodated adequately by relatives or friends” as required by rule 41(vi) of HC 395 he could have done so easily. Significantly the Entry Clearance Officer did not say this. The best that we can do is to assume that the Entry Clearance Officer was not satisfied that the claimant met the requirements of paragraph 41(i) and 41(ii).
7. The Entry Clearance Officer continued: ‘In view of the above, I am not satisfied that you are settled and well established in your country of origin.’
8. As the Adjudicator rightly appreciated, the Adjudicator was obliged to decide the case for himself but it is a long established convention in immigration cases (which includes visitor applications) that unless a point had been put in issue by the Entry Clearance Officer an appellant is entitled to assume that the adjudicator would not decide it against him without putting him on notice of that possibility.
9. This convention was particularly important in this case as the appellant had not been interviewed by the Entry Clearance Officer and (as he was entitled to do) asked for a “paper appeal”. It is very difficult to see how the Adjudicator could have given the appellant notice without adjourning the case out of the list but appeals against applications for a visitor’s visa have to be heard promptly. It is inherently likely that it will be more just to assume that the Entry Clearance Officer had good reasons for not raising a point than it will be to adjourn the appeal.
10. It follows that the only points that should have been in issue before the Adjudicator were the appellant’s intention to leave the United Kingdom at the end of the visit as stated by him and the genuineness of his seeking entry for a limited period not exceeding six months. The Adjudicator found very clearly at paragraph 8 of his determination that the appellant has an incentive to return to his home in Nigeria at the end of his holiday in the United Kingdom. Regrettably the adjudicator did not follow through his reasoning and make a clear finding about the appellant’s intentions. Having considered the determination as a whole we find that the only reasonable inference is that the adjudicator found that the claimant did intend to leave the United Kingdom to return to Nigeria after a short holiday with his sister.
11. Given that other aspects of the rule had not been put in issue by the Entry Clearance Officer the Adjudicator should have allowed the appeal.
12. In the circumstances we allow this appeal and we direct that suitable entry clearance be endorsed on the appellant’s passport as soon as that can reasonably be arranged.
13. The Tribunal is well aware the entry clearance officers often work under great pressure. Nevertheless each applicant is entitled to a proper decision. We set out below a summary of the approach that we say should be taken when considering visitor applications and appeals:
a) If entry clearance officers are not satisfied that an applicant has met the requirements of a particular clause of rule 41 they must say so clearly and identify the rule unequivocally, preferably both by its number and a direct quotation from it.
b) Applicants are entitled to assume that their ability to satisfy the particular requirements of the rules is not in issue unless the Entry Clearance Officers unequivocally puts it in issue.
c) Adjudicators hearing appeals must decide the case for themselves on the totality of the evidence but must not decide that a requirement of the rules is not satisfied unless the Entry Clearance Officer clearly said that it was not satisfied OR the Adjudicator has given the appellant express notice that the Adjudicator is not satisfied that an appellant can satisfy the particular requirements of a clause of rule 41.
d) The injustice to the appellant inherent in any delay caused by an adjudicator putting in issue the appellant’s ability to satisfy the requirements of part of the rule that the entry clearance officer did not put in issue will usually be greater than the injustice caused by the Adjudicator assuming that the entry clearance officer had good reason for not expressly saying that the requirements of a particular clause were not met.
14. As indicated above, we allow this appeal.

Jonathan Perkins
Vice President
25 June 2004