[2006] UKAIT 64
- Case title: RS and FD (Appeals without grounds)
- Appellant name: RS and FD
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Jamaica
- Judges: Mr C M G Ockelton, Mr N W Renton, Mr J Bailey
- Keywords Appeals without grounds
The decision
RS and FD (Appeals without grounds) Jamaica [2006] UKAIT 00064
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Determined at: Nottingham Date: 1 June 2006
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Renton
Immigration Judge Bailey
Between
Appellant
and
THE ENTRY CLEARANCE OFFICER, KINGSTON
Respondent
And
Appellant
and
THE ENTRY CLEARANCE OFFICER, NICOSIA
Respondent
Where a notice of appeal is submitted without grounds, it will not normally be appropriate for extra time to be allowed for the submission of grounds. The failure to include grounds of appeal is a breach of Rule 8(1)(c) and can properly lead to determination without a hearing under Rule 15(2)(c).
DETERMINATION AND REASONS
1. The first appellant is a citizen of Jamaica. She has submitted a notice of appeal against the decision of the respondent on 27 February 2006 refusing her entry clearance to the United Kingdom as a visitor for six months. The Notice of Refusal gives the following reasons for the refusal:
“I have taken the compassionate aspects of this application and into consideration but consider that the following points outweigh them:
You have not shown that you are able on the balance of probabilities to maintain and accommodate yourself without recourse to public funds.
On the balance of probabilities, I am not satisfied that you have sufficiently strong family or economic ties to Jamaica to satisfy me that you intend to leave the United Kingdom on completion of your proposed visit.
I have taken account of your circumstances but am aware that they are modest by local standards. I therefore do not find it credible that you have sufficient incentive to leave the UK at the end of your visit.
I note that your sponsor has produced no evidence that they can pay for your trip. Given this I cannot be satisfied that they are able to finance your visit, as claimed.”
2. The notice of appeal is signed by the appellant but not dated. It was received, in time, by the respondent on 9 March 2006 and duly forwarded to the Tribunal. At section 3K of the form the appellant has not indicated whether or not she wishes to have her appeal decided at an oral hearing, but at 3L, in answer to the question “If you want an oral hearing, who will be present?”, she has ticked in the box next to “Sponsor(s)”, and written the name and address of her sponsors. She has also named the female sponsor as her representative. At the end of the form, in section 7, where there is a space marked “If you are sending any other documents with this form to support your appeal, please list them here:”, she has written “Bank Statement/Job Letter”. No such documents in fact accompanied the appeal form. Section 4, “Grounds of your appeal”, is completely blank.
3. The second appellant is a citizen of Turkey. She has submitted a notice of appeal against the decision of the respondent on 13 February 2006 refusing her entry clearance to the United Kingdom as a family visitor for three months. The reasons given by the respondent are as follows:
“You wish to visit your Uncle in the UK. You have presented a sponsorship declaration from him along with copies of his payslips and copy of his passport. You state on your form that he will cover the cost of your trip. However you have not produced any evidence of his financial status such as bank statements to show that he has adequate discretionary funds available to him to cover the costs relating to your trip.
I note that you are currently unemployed. You used to work until recently but gave up to look after your mother who is unwell. Your family supports you financially. YOU have present 2 bank statements in your name. However, I note that both statements are very recent with deposits being made on 27 January 2006 for one and the other was opened on 21 December 2005. There is no indication as to the origin of the funds. I cannot be satisfied that this is indeed a true reflection of your current personal and financial status.
Taking into account the above factors, I am not satisfied, on the balance of probabilities that the financial outlay on your proposed visit, or the reasons you have given, is commensurate with you or your sponsor’s current social and economic circumstances and therefore that you will indeed be able to meet the costs of your return journey as required by paragraph 41(viii).
I am not satisfied that you will be able to 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 and friends as required by paragraph 41(vi).
Taking all the above factors into consideration, I am not satisfied on the balance of probabilities that you are genuinely seeking entry as a visitor for a limited period as stated by you, not exceeding six months and that you intend to leave the United Kingdom at the end of the period of the visit stated by you as required under paragraph 41(i) and (ii).”
4. The appellant’s notice of appeal was received, in time, by the respondent on 2 March 2006. It is signed by the appellant and dated on that day. No representative is nominated, and the appellant has indicated at 3K that she does not wish to have her appeal determined at an oral hearing. There is no indication on the form that documents accompany it, but in fact the following documents are enclosed:
(i) A document in Turkish, of which no translation has been provided, apparently a cadastral or land registry certificate, not in the name of the appellant.
(ii) Bank statements for two accounts, corresponding exactly with those which are the subject of comment in the reasons for refusal.
(iii) A letter from a supermarket in Waltham Cross, on headed notepaper, indicating that an individual works there.
(iv) A similar letter, signed by the same person, constituting an invitation to the appellant to come to the United Kingdom for six weeks.
(v) A tenancy agreement, apparently relating to the sponsors.
(vi) Various pages of bank statements for the supermarket’s bank account, covering about a month in December 2005 and January 2006, and showing a balance beginning at nearly £3,000, varying thereafter, but rising to a peak of £3,630, before going overdrawn several times and ending the period overdrawn by over £1,000.
(vii) Several pages of statements for another account, with no indication of the account holder. The balance varies between about £2,400 in credit and £2.80 overdrawn.
Returning to the form itself, section 4, “Grounds of your appeal” has been left completely blank.
5. The relevant provisions in the Procedure Rules are as follows:
“Form and contents of notice of appeal
8.– (1) The notice of appeal must be in the appropriate prescribed form and must –
…
(c) set out the grounds of the appeal;
… .
Method of determining appeal
15.- (1) Every appeal must be considered by the Tribunal at a hearing, except where –
…
(b) paragraph (2) of this rule applies;
…
(2) The Tribunal may determine an appeal without a hearing if –
(a) all the parties to the appeal consent;
(b) the appellant is outside the United Kingdom or it is impracticable to give him notice of a hearing and, in either case, he is unrepresented;
(c) a party has failed to comply with a provision of these Rules or a direction of the Tribunal, and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing; or
(d) subject to paragraph (3), the Tribunal is satisfied, having regard to the material before it and the nature of the issues raised, that the appeal can be justly determined without a hearing.
(3) Where paragraph (2)(d) applies, the Tribunal must not determine the appeal without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make them make written representations as to whether there should be a hearing.”
6. The failure to set out the grounds of appeal is a breach of Rule 8(1)(c). As the Tribunal has decided in HH (Sponsor as representative) Serbia [2006] UKAIT 00063, a breach of the requirements of Rule 8 will in many cases not prevent an appeal being valid; but that does not mean that the breach has no effect at all. On the contrary, it has the effect set out in Rule 15(2)(c): the appeal may be determined without a hearing.
7. When notices of appeal have been received without any grounds, the Tribunal’s registry has in the past adopted the practice of writing to the appellant (and, if appropriate, any representative or sponsor) giving a period of about a month for the submission of grounds. Letters to that effect were sent out in both these cases, without any result. We do not think that such letters should be routinely sent to those who submit notices of appeal without grounds. It is for the appellant to mount the appeal, and to indicate the reasons why he says that the decision was wrong. He does that by submitting a notice of appeal. We do not read the Procedure Rules as permitting an appellant to delay sending the grounds of appeal until a time well after the notice of appeal itself has been submitted: they require the grounds of appeal to accompany the notice. A notice without grounds of appeal must, in the usual case, be read as indicating that although the appellant does not like the decision, he has nothing particular to say about why it is wrong.
8. Of course there will be exceptions: sometimes a properly completed notice of appeal will give some good reason why the grounds, or some of the grounds, cannot accompany it. In those circumstances, an Immigration Judge, probably the Duty Judge at the registry, may authorise time to be extended for submitting the grounds, and a letter can be sent out accordingly. But the routine of giving extra time in order to submit grounds should cease. Appeal forms without grounds will be passed to the Duty Judge in Loughborough for consideration of the way forward.
9. The first question for the Immigration Judge in such circumstances is likely to be whether the appeal should be determined without a hearing under sub-paragraphs (a), (b) or (c) of Rule 15(2). It is a matter for the Immigration Judge (the word in the Rule is “may”), but we think it is likely that in the vast majority of cases, appeals to which any of these provisions apply will be determined without a hearing. In particular, we would observe that the fact that the appellant has sought (or apparently sought) a hearing of the appeal is unlikely to have any impact on the issue in these circumstances.
10. Dealing with the appeal without a hearing does not mean ignoring the material on file. It does not mean necessarily dismissing the appeal. Even though there are no grounds of appeal, the Immigration Judge is bound to consider all the material before him. It may be that some documents sent in with the notice of appeal imply a submission by the appellant supported by evidence. If the respondent’s bundle has not yet arrived, it may be necessary to await it or seek it, in order to assess the effect of the implication, if it is material to the outcome of the appeal. But such cases, we anticipate, will be unusual. In appeals without grounds, the Tribunal’s decision is likely to be made, without further delay, in a form approximating to that which follows.
Decisions
11. The first appellant has submitted no grounds of appeal. Rule 15(2)(c) applies, and in all the circumstances of the case, including those we set out below, we consider that this appeal is appropriate for determination without a hearing, and we so determine it.
12. The burden of proof is on the appellant. She has submitted no grounds of appeal, and no additional documents. There is nothing in the material before us that gives any reason to suppose that the respondent’s decision was not made in accordance with the Immigration Rules. Her appeal is dismissed.
13. The second appellant has submitted no grounds of appeal. She does not seek a hearing and has nominated no representative. Rule 15(2)(a), (b) and (c) apply. In all the circumstances of the case, including those we set out below, we consider that this appeal is appropriate for determination without a hearing and we so determine it.
14. The burden of proof is on the appellant. She has submitted no grounds of appeal, but with her appeal form are a number of documents. These appear to be in part mere confirmation of the matters mentioned in the notice of refusal. The financial documents apparently relating to the sponsoring members of the appellant’s family certainly fall well short of establishing the family’s financial standing. The notice of refusal is fully reasoned and the materials now before us give no proper basis for supposing that the respondent’s decision was not made in accordance with the Immigration Rules. We find that the appellant has failed to discharge the burden of proof. Her appeal is dismissed.
C M G OCKELTON
DEPUTY PRESIDENT
Date:
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Determined at: Nottingham Date: 1 June 2006
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Renton
Immigration Judge Bailey
Between
Appellant
and
THE ENTRY CLEARANCE OFFICER, KINGSTON
Respondent
And
Appellant
and
THE ENTRY CLEARANCE OFFICER, NICOSIA
Respondent
Where a notice of appeal is submitted without grounds, it will not normally be appropriate for extra time to be allowed for the submission of grounds. The failure to include grounds of appeal is a breach of Rule 8(1)(c) and can properly lead to determination without a hearing under Rule 15(2)(c).
DETERMINATION AND REASONS
1. The first appellant is a citizen of Jamaica. She has submitted a notice of appeal against the decision of the respondent on 27 February 2006 refusing her entry clearance to the United Kingdom as a visitor for six months. The Notice of Refusal gives the following reasons for the refusal:
“I have taken the compassionate aspects of this application and into consideration but consider that the following points outweigh them:
You have not shown that you are able on the balance of probabilities to maintain and accommodate yourself without recourse to public funds.
On the balance of probabilities, I am not satisfied that you have sufficiently strong family or economic ties to Jamaica to satisfy me that you intend to leave the United Kingdom on completion of your proposed visit.
I have taken account of your circumstances but am aware that they are modest by local standards. I therefore do not find it credible that you have sufficient incentive to leave the UK at the end of your visit.
I note that your sponsor has produced no evidence that they can pay for your trip. Given this I cannot be satisfied that they are able to finance your visit, as claimed.”
2. The notice of appeal is signed by the appellant but not dated. It was received, in time, by the respondent on 9 March 2006 and duly forwarded to the Tribunal. At section 3K of the form the appellant has not indicated whether or not she wishes to have her appeal decided at an oral hearing, but at 3L, in answer to the question “If you want an oral hearing, who will be present?”, she has ticked in the box next to “Sponsor(s)”, and written the name and address of her sponsors. She has also named the female sponsor as her representative. At the end of the form, in section 7, where there is a space marked “If you are sending any other documents with this form to support your appeal, please list them here:”, she has written “Bank Statement/Job Letter”. No such documents in fact accompanied the appeal form. Section 4, “Grounds of your appeal”, is completely blank.
3. The second appellant is a citizen of Turkey. She has submitted a notice of appeal against the decision of the respondent on 13 February 2006 refusing her entry clearance to the United Kingdom as a family visitor for three months. The reasons given by the respondent are as follows:
“You wish to visit your Uncle in the UK. You have presented a sponsorship declaration from him along with copies of his payslips and copy of his passport. You state on your form that he will cover the cost of your trip. However you have not produced any evidence of his financial status such as bank statements to show that he has adequate discretionary funds available to him to cover the costs relating to your trip.
I note that you are currently unemployed. You used to work until recently but gave up to look after your mother who is unwell. Your family supports you financially. YOU have present 2 bank statements in your name. However, I note that both statements are very recent with deposits being made on 27 January 2006 for one and the other was opened on 21 December 2005. There is no indication as to the origin of the funds. I cannot be satisfied that this is indeed a true reflection of your current personal and financial status.
Taking into account the above factors, I am not satisfied, on the balance of probabilities that the financial outlay on your proposed visit, or the reasons you have given, is commensurate with you or your sponsor’s current social and economic circumstances and therefore that you will indeed be able to meet the costs of your return journey as required by paragraph 41(viii).
I am not satisfied that you will be able to 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 and friends as required by paragraph 41(vi).
Taking all the above factors into consideration, I am not satisfied on the balance of probabilities that you are genuinely seeking entry as a visitor for a limited period as stated by you, not exceeding six months and that you intend to leave the United Kingdom at the end of the period of the visit stated by you as required under paragraph 41(i) and (ii).”
4. The appellant’s notice of appeal was received, in time, by the respondent on 2 March 2006. It is signed by the appellant and dated on that day. No representative is nominated, and the appellant has indicated at 3K that she does not wish to have her appeal determined at an oral hearing. There is no indication on the form that documents accompany it, but in fact the following documents are enclosed:
(i) A document in Turkish, of which no translation has been provided, apparently a cadastral or land registry certificate, not in the name of the appellant.
(ii) Bank statements for two accounts, corresponding exactly with those which are the subject of comment in the reasons for refusal.
(iii) A letter from a supermarket in Waltham Cross, on headed notepaper, indicating that an individual works there.
(iv) A similar letter, signed by the same person, constituting an invitation to the appellant to come to the United Kingdom for six weeks.
(v) A tenancy agreement, apparently relating to the sponsors.
(vi) Various pages of bank statements for the supermarket’s bank account, covering about a month in December 2005 and January 2006, and showing a balance beginning at nearly £3,000, varying thereafter, but rising to a peak of £3,630, before going overdrawn several times and ending the period overdrawn by over £1,000.
(vii) Several pages of statements for another account, with no indication of the account holder. The balance varies between about £2,400 in credit and £2.80 overdrawn.
Returning to the form itself, section 4, “Grounds of your appeal” has been left completely blank.
5. The relevant provisions in the Procedure Rules are as follows:
“Form and contents of notice of appeal
8.– (1) The notice of appeal must be in the appropriate prescribed form and must –
…
(c) set out the grounds of the appeal;
… .
Method of determining appeal
15.- (1) Every appeal must be considered by the Tribunal at a hearing, except where –
…
(b) paragraph (2) of this rule applies;
…
(2) The Tribunal may determine an appeal without a hearing if –
(a) all the parties to the appeal consent;
(b) the appellant is outside the United Kingdom or it is impracticable to give him notice of a hearing and, in either case, he is unrepresented;
(c) a party has failed to comply with a provision of these Rules or a direction of the Tribunal, and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing; or
(d) subject to paragraph (3), the Tribunal is satisfied, having regard to the material before it and the nature of the issues raised, that the appeal can be justly determined without a hearing.
(3) Where paragraph (2)(d) applies, the Tribunal must not determine the appeal without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make them make written representations as to whether there should be a hearing.”
6. The failure to set out the grounds of appeal is a breach of Rule 8(1)(c). As the Tribunal has decided in HH (Sponsor as representative) Serbia [2006] UKAIT 00063, a breach of the requirements of Rule 8 will in many cases not prevent an appeal being valid; but that does not mean that the breach has no effect at all. On the contrary, it has the effect set out in Rule 15(2)(c): the appeal may be determined without a hearing.
7. When notices of appeal have been received without any grounds, the Tribunal’s registry has in the past adopted the practice of writing to the appellant (and, if appropriate, any representative or sponsor) giving a period of about a month for the submission of grounds. Letters to that effect were sent out in both these cases, without any result. We do not think that such letters should be routinely sent to those who submit notices of appeal without grounds. It is for the appellant to mount the appeal, and to indicate the reasons why he says that the decision was wrong. He does that by submitting a notice of appeal. We do not read the Procedure Rules as permitting an appellant to delay sending the grounds of appeal until a time well after the notice of appeal itself has been submitted: they require the grounds of appeal to accompany the notice. A notice without grounds of appeal must, in the usual case, be read as indicating that although the appellant does not like the decision, he has nothing particular to say about why it is wrong.
8. Of course there will be exceptions: sometimes a properly completed notice of appeal will give some good reason why the grounds, or some of the grounds, cannot accompany it. In those circumstances, an Immigration Judge, probably the Duty Judge at the registry, may authorise time to be extended for submitting the grounds, and a letter can be sent out accordingly. But the routine of giving extra time in order to submit grounds should cease. Appeal forms without grounds will be passed to the Duty Judge in Loughborough for consideration of the way forward.
9. The first question for the Immigration Judge in such circumstances is likely to be whether the appeal should be determined without a hearing under sub-paragraphs (a), (b) or (c) of Rule 15(2). It is a matter for the Immigration Judge (the word in the Rule is “may”), but we think it is likely that in the vast majority of cases, appeals to which any of these provisions apply will be determined without a hearing. In particular, we would observe that the fact that the appellant has sought (or apparently sought) a hearing of the appeal is unlikely to have any impact on the issue in these circumstances.
10. Dealing with the appeal without a hearing does not mean ignoring the material on file. It does not mean necessarily dismissing the appeal. Even though there are no grounds of appeal, the Immigration Judge is bound to consider all the material before him. It may be that some documents sent in with the notice of appeal imply a submission by the appellant supported by evidence. If the respondent’s bundle has not yet arrived, it may be necessary to await it or seek it, in order to assess the effect of the implication, if it is material to the outcome of the appeal. But such cases, we anticipate, will be unusual. In appeals without grounds, the Tribunal’s decision is likely to be made, without further delay, in a form approximating to that which follows.
Decisions
11. The first appellant has submitted no grounds of appeal. Rule 15(2)(c) applies, and in all the circumstances of the case, including those we set out below, we consider that this appeal is appropriate for determination without a hearing, and we so determine it.
12. The burden of proof is on the appellant. She has submitted no grounds of appeal, and no additional documents. There is nothing in the material before us that gives any reason to suppose that the respondent’s decision was not made in accordance with the Immigration Rules. Her appeal is dismissed.
13. The second appellant has submitted no grounds of appeal. She does not seek a hearing and has nominated no representative. Rule 15(2)(a), (b) and (c) apply. In all the circumstances of the case, including those we set out below, we consider that this appeal is appropriate for determination without a hearing and we so determine it.
14. The burden of proof is on the appellant. She has submitted no grounds of appeal, but with her appeal form are a number of documents. These appear to be in part mere confirmation of the matters mentioned in the notice of refusal. The financial documents apparently relating to the sponsoring members of the appellant’s family certainly fall well short of establishing the family’s financial standing. The notice of refusal is fully reasoned and the materials now before us give no proper basis for supposing that the respondent’s decision was not made in accordance with the Immigration Rules. We find that the appellant has failed to discharge the burden of proof. Her appeal is dismissed.
C M G OCKELTON
DEPUTY PRESIDENT
Date: