[2004] UKIAT 319
- Case title: BY (A good reason to exclude)
- Appellant name: BY
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Nigeria
- Judges: Mr J Perkins, Mrs G Greenwood, Miss SE Singer
- Keywords A good reason to exclude
The decision
Heard at Field House
On 13 October 2004
IMMIGRATION APPEAL TRIBUNAL
BY (A good reason to exclude) Nigeria [2004] UKIAT 00319
Date Determination notified:
....13/12/2004..................
Before:
Mr J Perkins (Vice President)
Mrs G Greenwood
Miss S E Singer
Between
Appellant
and
ENTRY CLEARANCE OFFICER, LAGOS
Respondent
Representation
For the appellant: Miss C. Record, Counsel, instructed by David A Grand
For the respondent: Miss T Hart, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Nigeria. He was born on 22 September 1964 and so is now forty years old. He appeals the decision of an Adjudicator, Mr R J Haynes, who, in a determination promulgated on 12 November 2003, dismissed his appeal against a decision of the respondent that he was not entitled to enter the United Kingdom as the husband of his wife and sponsor.
2. Like the Entry Clearance Officer, the Adjudicator was not satisfied that the appellant would be able to maintain himself and any dependants adequately without additional recourse to public funds in accordance with paragraph 281(v) of HC 395.
3. In his form IM2B dated 3 April 2002, the appellant said that he worked as a sales assistant. In response to the question ‘What employment do you intend to have in the United Kingdom?’ he replied ‘None at the moment’. He went on to say that no arrangements had been made for his employment in the United Kingdom. His wife was not presently employed although she is qualified as a nurse and his sponsor had not made any arrangements for employment in the United Kingdom.
4. The appellant was interviewed concerning his application on 22 July 2002. He was asked at question 76 if he had a job. He replied ‘Helping to [sell] some things like wrist watch. He has a big store.’ He was asked if he had a salary and he replied ‘Yes, any time I want money he gives me pocket money is (sic) 20,000 in a month’. He said that he hoped to work in the United Kingdom and would take any good job.
5. These things led to the Entry Clearance Officer refusing the application on 22 July 2002.
6. In his explanatory statement the respondent said that the appellant said he helped his brother sell wrist watches. He did not receive a regular salary. The casual payment of 20,000 Naira was worth about £100 per month. The Entry Clearance Officer noted that the appellant had no formal skills or qualifications. The Entry Clearance Officer said that he had ‘not come across well’ at interview and the Entry Clearance Officer was not satisfied that the appellant would find suitable employment in the United Kingdom.’
7. The case came before the Adjudicator on 3 October 2003. On that occasion the appellant was represented by Miss Record who asked the Adjudicator to look at additional evidence. This evidence had not been served in accordance with the requirements of the standard directions. The Adjudicator would not consider it. His approach was not satisfactory. Rule 48(5) of the Immigration and Asylum Appeals (Procedure) Rules 2003 is in the following terms:
‘An Adjudicator or the Tribunal must not consider any evidence which is not filed or served in accordance with time limits set out in these Rules or directions given under Rule 38, unless satisfied that there are good reasons to do so.’
8. When faced with applications to consider evidence served other than in accordance with directions, it is incumbent upon Adjudicators to show expressly that they have considered the requirements of Rule 48(5). Two things stand out form that Rule. The Rule is in strong mandatory terms. There is a clear presumption against receiving evidence served improperly. However, the evidence is to be received if there are “good reasons to do so”. Adjudicators really should set out the arguments raised in support of the contention that there were ‘good reasons’ and the Adjudicator’s response to the arguments raised. To the extent that the Adjudicator did not do that he was in error.
9. Before us things took an interesting turn because the appellant had neglected to provide us with any additional material in accordance with directions. We were provided with a witness statement and a letter from the potential employer dated 11 October 2004. These were served by facsimile on 4 October 2004. Standard directions required that they are provided in triplicate no later than fourteen days before the hearing. Plainly they had not been provided as they should have been. Miss Hart objected to us considering them.
10. We had to look at them in order to make an informed decision about whether they should be considered.
11. The witness statement was from the sponsor. It was dated 11 October 2004. The sponsor said that she had not attended before the Adjudicator because she thought that it was sufficient to show a job had been offered. She then gave details of her circumstances and said that the appellant would have an income of £18,000 a year from a job and would bring with him a capital sum of £5000 that had been saved ‘through his brother’s firm’. She was satisfied that the family could live on their means.
12. The second document is a letter from Mr who describes himself as the chairman/chief executive of Arms International Security Services Limited. Mr says that he knows the appellant and has known him for twenty-one years. He trusts him. He was prepared to offer him a job on arrival in the United Kingdom ‘as a full time security officer on a salary of £18,000 per annum’.
13. We are not prepared to take note of this additional evidence. There had been no application under Rule 21 of the Immigration and Asylum Appeals (Procedure) Rules 2003 and, much more importantly, the additional material does not appear to be relevant to any alleged error of law by the Adjudicator. There were no “good reasons” for us to consider them.
14. Miss Record told us that the document that the Adjudicator was asked to consider, but would not consider, was a letter dated 7 August 2003 from Mr . In all material respects other than the date, it was the same as the letter tendered to us.
15. If the Adjudicator had looked at that letter he would have known that he should not have considered it. Miss Record said that it was relevant and that was a good enough reason for its admission. With respect, that is wrong. Adjudicators should not look at anything that is not relevant. Mere relevance cannot amount to a ‘good reason’ to admit evidence that was served late although we are open to the possibility of it being appropriate to receive late evidence that is highly pertinent and particularly compelling.
16. The appellant had given no indication at all about how he would obtain work in the United Kingdom or what kind of work he was suited to do. Further, a letter of the kind offered that is unsupported by oral testimony and untested by cross-examination is of little weight especially when it is offered in circumstances where the respondent had no opportunity to investigate it.
17. The Adjudicator was had to consider with evidence relating to facts at the date of decision. Whilst it is quite right to say the appellant had indicated that he would obtain ‘any good job’ in the United Kingdom, it was wholly unforeseeable at the date of decision, 22 July 2002 that a job offer would emerge in August 2003.
18. The letter that was offered late to the Adjudicator was of very little value. Even if the Adjudicator had received it he would not have been able to place much weight on it.
19. Further, the Secretary of State decided not to attend the hearing before the adjudicator. It must be assumed that the Secretary of State gives some consideration to the nature of the cases and evidence when making a decision not to send a Presenting Officer. It would have been unfair to have taken notice of evidence that had not been served before the hearing. This is not a decisive point. Parties should attend hearings. However, the absence of a party is something to consider when deciding whether or not to receive evidence about which the absent party cannot have notice.
20. Although the Adjudicator can be criticised for not explaining better his refusal to receive evidence offered at the hearing, we find it impossible to say there is any material error of law here. There are many good reasons to refuse to consider the evidence.
21. The operation of this rule has been considered by the Tribunal in MD (good reasons to consider) Pakistan [2004] UKIAT00197
'Reported' and then in EA (Immigration - Rule 48(5)) Ghana [2004] UKIAT00227 which shows that “good reasons” may well be harder to find in immigration cases than in asylum and human rights cases where the consequences of error can be very grave. This case illustrates circumstances where there were plainly no good reason to admit evidence served late and the appeal is reported as an example of such circumstances.
22. It follows that we dismiss this appeal.
Jonathan Perkins
Vice President
APPROVED FOR ELECTRONIC DISTRIBUTION
On 13 October 2004
IMMIGRATION APPEAL TRIBUNAL
BY (A good reason to exclude) Nigeria [2004] UKIAT 00319
Date Determination notified:
....13/12/2004..................
Before:
Mr J Perkins (Vice President)
Mrs G Greenwood
Miss S E Singer
Between
Appellant
and
ENTRY CLEARANCE OFFICER, LAGOS
Respondent
Representation
For the appellant: Miss C. Record, Counsel, instructed by David A Grand
For the respondent: Miss T Hart, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Nigeria. He was born on 22 September 1964 and so is now forty years old. He appeals the decision of an Adjudicator, Mr R J Haynes, who, in a determination promulgated on 12 November 2003, dismissed his appeal against a decision of the respondent that he was not entitled to enter the United Kingdom as the husband of his wife and sponsor.
2. Like the Entry Clearance Officer, the Adjudicator was not satisfied that the appellant would be able to maintain himself and any dependants adequately without additional recourse to public funds in accordance with paragraph 281(v) of HC 395.
3. In his form IM2B dated 3 April 2002, the appellant said that he worked as a sales assistant. In response to the question ‘What employment do you intend to have in the United Kingdom?’ he replied ‘None at the moment’. He went on to say that no arrangements had been made for his employment in the United Kingdom. His wife was not presently employed although she is qualified as a nurse and his sponsor had not made any arrangements for employment in the United Kingdom.
4. The appellant was interviewed concerning his application on 22 July 2002. He was asked at question 76 if he had a job. He replied ‘Helping to [sell] some things like wrist watch. He has a big store.’ He was asked if he had a salary and he replied ‘Yes, any time I want money he gives me pocket money is (sic) 20,000 in a month’. He said that he hoped to work in the United Kingdom and would take any good job.
5. These things led to the Entry Clearance Officer refusing the application on 22 July 2002.
6. In his explanatory statement the respondent said that the appellant said he helped his brother sell wrist watches. He did not receive a regular salary. The casual payment of 20,000 Naira was worth about £100 per month. The Entry Clearance Officer noted that the appellant had no formal skills or qualifications. The Entry Clearance Officer said that he had ‘not come across well’ at interview and the Entry Clearance Officer was not satisfied that the appellant would find suitable employment in the United Kingdom.’
7. The case came before the Adjudicator on 3 October 2003. On that occasion the appellant was represented by Miss Record who asked the Adjudicator to look at additional evidence. This evidence had not been served in accordance with the requirements of the standard directions. The Adjudicator would not consider it. His approach was not satisfactory. Rule 48(5) of the Immigration and Asylum Appeals (Procedure) Rules 2003 is in the following terms:
‘An Adjudicator or the Tribunal must not consider any evidence which is not filed or served in accordance with time limits set out in these Rules or directions given under Rule 38, unless satisfied that there are good reasons to do so.’
8. When faced with applications to consider evidence served other than in accordance with directions, it is incumbent upon Adjudicators to show expressly that they have considered the requirements of Rule 48(5). Two things stand out form that Rule. The Rule is in strong mandatory terms. There is a clear presumption against receiving evidence served improperly. However, the evidence is to be received if there are “good reasons to do so”. Adjudicators really should set out the arguments raised in support of the contention that there were ‘good reasons’ and the Adjudicator’s response to the arguments raised. To the extent that the Adjudicator did not do that he was in error.
9. Before us things took an interesting turn because the appellant had neglected to provide us with any additional material in accordance with directions. We were provided with a witness statement and a letter from the potential employer dated 11 October 2004. These were served by facsimile on 4 October 2004. Standard directions required that they are provided in triplicate no later than fourteen days before the hearing. Plainly they had not been provided as they should have been. Miss Hart objected to us considering them.
10. We had to look at them in order to make an informed decision about whether they should be considered.
11. The witness statement was from the sponsor. It was dated 11 October 2004. The sponsor said that she had not attended before the Adjudicator because she thought that it was sufficient to show a job had been offered. She then gave details of her circumstances and said that the appellant would have an income of £18,000 a year from a job and would bring with him a capital sum of £5000 that had been saved ‘through his brother’s firm’. She was satisfied that the family could live on their means.
12. The second document is a letter from Mr who describes himself as the chairman/chief executive of Arms International Security Services Limited. Mr says that he knows the appellant and has known him for twenty-one years. He trusts him. He was prepared to offer him a job on arrival in the United Kingdom ‘as a full time security officer on a salary of £18,000 per annum’.
13. We are not prepared to take note of this additional evidence. There had been no application under Rule 21 of the Immigration and Asylum Appeals (Procedure) Rules 2003 and, much more importantly, the additional material does not appear to be relevant to any alleged error of law by the Adjudicator. There were no “good reasons” for us to consider them.
14. Miss Record told us that the document that the Adjudicator was asked to consider, but would not consider, was a letter dated 7 August 2003 from Mr . In all material respects other than the date, it was the same as the letter tendered to us.
15. If the Adjudicator had looked at that letter he would have known that he should not have considered it. Miss Record said that it was relevant and that was a good enough reason for its admission. With respect, that is wrong. Adjudicators should not look at anything that is not relevant. Mere relevance cannot amount to a ‘good reason’ to admit evidence that was served late although we are open to the possibility of it being appropriate to receive late evidence that is highly pertinent and particularly compelling.
16. The appellant had given no indication at all about how he would obtain work in the United Kingdom or what kind of work he was suited to do. Further, a letter of the kind offered that is unsupported by oral testimony and untested by cross-examination is of little weight especially when it is offered in circumstances where the respondent had no opportunity to investigate it.
17. The Adjudicator was had to consider with evidence relating to facts at the date of decision. Whilst it is quite right to say the appellant had indicated that he would obtain ‘any good job’ in the United Kingdom, it was wholly unforeseeable at the date of decision, 22 July 2002 that a job offer would emerge in August 2003.
18. The letter that was offered late to the Adjudicator was of very little value. Even if the Adjudicator had received it he would not have been able to place much weight on it.
19. Further, the Secretary of State decided not to attend the hearing before the adjudicator. It must be assumed that the Secretary of State gives some consideration to the nature of the cases and evidence when making a decision not to send a Presenting Officer. It would have been unfair to have taken notice of evidence that had not been served before the hearing. This is not a decisive point. Parties should attend hearings. However, the absence of a party is something to consider when deciding whether or not to receive evidence about which the absent party cannot have notice.
20. Although the Adjudicator can be criticised for not explaining better his refusal to receive evidence offered at the hearing, we find it impossible to say there is any material error of law here. There are many good reasons to refuse to consider the evidence.
21. The operation of this rule has been considered by the Tribunal in MD (good reasons to consider) Pakistan [2004] UKIAT00197
'Reported' and then in EA (Immigration - Rule 48(5)) Ghana [2004] UKIAT00227 which shows that “good reasons” may well be harder to find in immigration cases than in asylum and human rights cases where the consequences of error can be very grave. This case illustrates circumstances where there were plainly no good reason to admit evidence served late and the appeal is reported as an example of such circumstances.
22. It follows that we dismiss this appeal.
Jonathan Perkins
Vice President
APPROVED FOR ELECTRONIC DISTRIBUTION