[2004] UKIAT 26
- Case title: BO (ECO's Duties per D S Abdi)
- Appellant name: BO
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Nigeria
- Judges: Mr C M G Ockelton, Miss B Mensah, Mr P R Moulden
- Keywords ECO's Duties per D S Abdi
The decision
BO (ECO's_Duties per D S Abdi) Nigeria [2004] UKIAT 00026
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 2nd February 2004
Determination delivered orally at Hearing
Date Determination Notified
16 February 2004
Before:
Mr C M G Ockelton (Deputy President)
Miss B Mensah
Mr P R Moulden
Between
Entry Clearance Officer, Lagos
Appellant
and
Respondent
DETERMINATION AND REASONS
1. The Appellant is the Entry Clearance Officer Lagos. He appeals, with permission, against the determination of an Adjudicator, Ms C Jarvis, allowing the appeal of the Respondent, a citizen of Nigeria, against his decision on 20th February 2003 refusing entry clearance to the United Kingdom as a visitor. Before us today the Entry Clearance Officer has been represented by Mr Deller. The Respondent did not appear and was not represented. We exercised our discretion to proceed in his absence.
2. The procedure adopted by the Entry Clearance Officer in this case is one which gives all of us, and indeed we are right to say, Mr Deller, some cause for concern. It appears that the applicant, having made his application, was invited for interview at the Entry Clearance Officer’s premises in Lagos, and was invited to bring with him documents relating to his application. The invitation was fixed for 27th February 2003. However, the Entry Clearance Officer’s decision was made on 20th February 2003 apparently ignoring much of the material which the applicant had already forwarded and, of course, dealing with the matter without an interview.
3. It is a matter of some wider concern because it is within our personal knowledge that there have been a number of recent applications to the Tribunal for permission to appeal which have raised similar issues. There is no doubt in the present case that the decision was indeed made on 20th February before the date fixed for the interview. All the relevant documents emanating from the Entry Clearance Officer bear his date stamp of the 20th February 2003.
4. The Adjudicator allowed the appeal under schedule 4, paragraph 21(1)(a) of the 1999 Act on the basis that the Entry Clearance Officer’s decision was not in accordance with the law. She referred to the well known decision of the Court of Appeal in Abdi [1996] Imm AR 148, and she concluded her determination by remitting the appeal to the Respondent Entry Clearance Officer to enable a full and proper consideration of all the documentary evidence and to allow an interview to take place in the light of all the documentary evidence so that a fresh decision can be reached.
5. The Entry Clearance Officer’s grounds of appeal broadly speaking are that the Adjudicator was not entitled to behave in that way. He has argued that Abdi applies only to matters outside the immigration Rules. That may well be so, but the Entry Clearance Officer has an obligation to act in accordance with the law, meaning, as Abdi makes clear, the genera law, not merely the law relating to British nationality and passports and so on. It is quite clear in this case that the Entry Clearance Officer behaved in breach of the most basic rules of natural justice in making his decision on the applicant’s case.
6. In our view, for that reason, the Adjudicator was entirely correct to decide to allow the appeal on the basis that the decision against which the Respondent appealed was a decision which was not in accordance with the law. The effect of that was not, we think, that the matter needed to be formally remitted to the Entry Clearance Officer. It was that, the Entry Clearance Officer’s decision having been set aside, he had an outstanding application before him which awaited lawful decision.
7. We would emphasise that we do not intend that this decision or Abdi or any other decision in which there has been found to be a defect of law be treated as an encouragement to Adjudicators to trawl through the process of a decision-maker in order to find some minor breach of the law. It is quite clear that the normal task of the Appellate Authorities is to examine or re-examine an application or decision in the light of the relevant immigration Rules and the Conventions. But where, as in the present case, there has been a gross failure to follow ordinary legal principle, we think it is right for the Appellate Authorities to set aside the decision so that the Government has a proper opportunity to make the decision properly and anew.
8. For the reasons we have given, the Entry Clearance Officer’s appeal is dismissed. The Respondents application remains outstanding before him.
C M G OCKELTON
DEPUTY PRESIDENT
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 2nd February 2004
Determination delivered orally at Hearing
Date Determination Notified
16 February 2004
Before:
Mr C M G Ockelton (Deputy President)
Miss B Mensah
Mr P R Moulden
Between
Entry Clearance Officer, Lagos
Appellant
and
Respondent
DETERMINATION AND REASONS
1. The Appellant is the Entry Clearance Officer Lagos. He appeals, with permission, against the determination of an Adjudicator, Ms C Jarvis, allowing the appeal of the Respondent, a citizen of Nigeria, against his decision on 20th February 2003 refusing entry clearance to the United Kingdom as a visitor. Before us today the Entry Clearance Officer has been represented by Mr Deller. The Respondent did not appear and was not represented. We exercised our discretion to proceed in his absence.
2. The procedure adopted by the Entry Clearance Officer in this case is one which gives all of us, and indeed we are right to say, Mr Deller, some cause for concern. It appears that the applicant, having made his application, was invited for interview at the Entry Clearance Officer’s premises in Lagos, and was invited to bring with him documents relating to his application. The invitation was fixed for 27th February 2003. However, the Entry Clearance Officer’s decision was made on 20th February 2003 apparently ignoring much of the material which the applicant had already forwarded and, of course, dealing with the matter without an interview.
3. It is a matter of some wider concern because it is within our personal knowledge that there have been a number of recent applications to the Tribunal for permission to appeal which have raised similar issues. There is no doubt in the present case that the decision was indeed made on 20th February before the date fixed for the interview. All the relevant documents emanating from the Entry Clearance Officer bear his date stamp of the 20th February 2003.
4. The Adjudicator allowed the appeal under schedule 4, paragraph 21(1)(a) of the 1999 Act on the basis that the Entry Clearance Officer’s decision was not in accordance with the law. She referred to the well known decision of the Court of Appeal in Abdi [1996] Imm AR 148, and she concluded her determination by remitting the appeal to the Respondent Entry Clearance Officer to enable a full and proper consideration of all the documentary evidence and to allow an interview to take place in the light of all the documentary evidence so that a fresh decision can be reached.
5. The Entry Clearance Officer’s grounds of appeal broadly speaking are that the Adjudicator was not entitled to behave in that way. He has argued that Abdi applies only to matters outside the immigration Rules. That may well be so, but the Entry Clearance Officer has an obligation to act in accordance with the law, meaning, as Abdi makes clear, the genera law, not merely the law relating to British nationality and passports and so on. It is quite clear in this case that the Entry Clearance Officer behaved in breach of the most basic rules of natural justice in making his decision on the applicant’s case.
6. In our view, for that reason, the Adjudicator was entirely correct to decide to allow the appeal on the basis that the decision against which the Respondent appealed was a decision which was not in accordance with the law. The effect of that was not, we think, that the matter needed to be formally remitted to the Entry Clearance Officer. It was that, the Entry Clearance Officer’s decision having been set aside, he had an outstanding application before him which awaited lawful decision.
7. We would emphasise that we do not intend that this decision or Abdi or any other decision in which there has been found to be a defect of law be treated as an encouragement to Adjudicators to trawl through the process of a decision-maker in order to find some minor breach of the law. It is quite clear that the normal task of the Appellate Authorities is to examine or re-examine an application or decision in the light of the relevant immigration Rules and the Conventions. But where, as in the present case, there has been a gross failure to follow ordinary legal principle, we think it is right for the Appellate Authorities to set aside the decision so that the Government has a proper opportunity to make the decision properly and anew.
8. For the reasons we have given, the Entry Clearance Officer’s appeal is dismissed. The Respondents application remains outstanding before him.
C M G OCKELTON
DEPUTY PRESIDENT