B e f o r e : LORD JUSTICE AULD LORD JUSTICE WARD and LORD JUSTICE ROBERT WALKER

Transcription

1 Neutral Citation No: [2002] EWCA Civ 44 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QUEEN'S BENCH DIVISION B e f o r e : Case No. 2001/0437 Royal Courts of Justice Strand, London, WC2A 2LL Monday 4 th February 2002 LORD JUSTICE AULD LORD JUSTICE WARD and LORD JUSTICE ROBERT WALKER THE QUEEN - and - SECRETARY OF STATE FOR THE HOME DEPARTMENT, ex parte LINDA BOAFO (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: , Fax No: Official Shorthand Writers to the Court) Mr Noah Weinegar (instructed by Corbin & Hassan for the Appellant) Mr Rhodri Thompson (instructed by The Treasury Solicitor for the Respondent) Judgment As Approved by the Court Crown Copyright

2 Lord Justice Auld: 1. This is an appeal by Linda Boafo against an order of Mr. Justice Stanley Burnton of 24 th January 2001 upholding a decision of the Secretary of State for the Home Department of 13 th June 2000 refusing to grant her indefinite permission to remain in the United Kingdom. 2. The Secretary of State so decided after and despite a determination by an immigration adjudicator of 25 th January 1999 in her favour on her appeal against an earlier refusal by him (the Secretary of State) of 30 th April The adjudicator s determination, under the jurisdiction given to him by section 19 of the Immigration Act 1971, was not accompanied by any directions for giving effect to it for which section 19(3) makes provision. The issues 3. The central issue in the appeal is whether the Secretary of State was entitled to reconsider and make a fresh decision in the matter after such a determination without directions for giving effect to it. The Secretary of State maintained that the absence of directions entitled him to depart from the ordinary rule that his decision stood or fell on the facts before him at the time he made it, 30 th April 1997, and that he could consider the matter afresh in June 2000 on the circumstances as they were then. Ms Boafo s case was that, in the absence of an appeal by the Secretary of State from the adjudicator s determination, he was bound by it, whether or not it was accompanied by directions and regardless of any change of circumstances. She maintained that it was wrong in law and unjust that the Secretary of State, by not appealing the adjudicator s decision, could reach a further decision on later facts and one which itself was unappealable save by way of judicial review. (see section 14(1) of the 1971 Act). Put another way, Ms Boafo s case was that that she had been deprived of the benefit of the decision of the adjudicator in her favour and that the Secretary of State s decision not to appeal and reconsider the matter had unfairly blocked trial of the real issue. 4. In the course of argument, Mr.Rhodri Thompson, on behalf of the Secretary of State, drew to the Court s attention a further issue going to the accuracy of information on which the Secretary of State had relied when reaching and adhering to his initial decision, a matter that does not seem to have been fully explored before the adjudicator or the Judge. For this reason I set out the facts and circumstances giving rise to the appeal more fully than would otherwise be necessary.

3 The facts 5. In March 1995 Ms Boafo, an overstayer of some five years, married a British citizen, Mr. Paul Burdett, and was granted permission to remain in the United Kingdom for 12 months as a foreign spouse. In September 1996 she applied for permission to remain indefinitely on the basis of that marriage on the grounds specified in Immigration Rule 287, namely that: (i) the applicant was admitted to the United Kingdom or given an extension of stay for a period of 12 months and has completed a period of 12 months as the spouse of a person present and settled here; (ii) the.applicant is still the spouse of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and (iii) each of the parties intends to live permanently with the other as his or her spouse. 6. As I have said, on 30 th April 1997 the Secretary of State refused the application. It is plain that, in doing so, he had confused or misunderstood some information he had received from the Department of Social Security. This was how he expressed his reason for refusal: following information received from the Department of Social Security that you and your husband are living together at different addresses, the Secretary of State is not satisfied that you and your husband intend to live together permanently. [my emphasis] Ms Boafo lodged a notice of appeal to an adjudicator maintaining that she and Mr. Burdett were indeed living together, but not at different addresses. This prompted the Secretary of State to reconsider his reason for refusal. By a decision letter of 15 th December 1997 he stated that his previous reason was not wholly applicable to Ms Boafo s circumstances and asserted that they were not living together. This is how he put it this time: following information received from the Department of Social Security that you and your husband are living at different addresses, the Secretary of State is not satisfied that you and your husband intend to live together permanently as husband and wife. But this reason, though more comprehensible than the first, is likely to have been factually incorrect, since the Department of Social Security, by a letter of 27 th November 1997, a copy of which was before the Court, had misinformed the Secretary of State. As Ms Boafo s advisers informed him in a letter of 4 th September 1998, the couple had been living

4 together throughout, albeit having moved address. The Secretary of State, by letter of 29 th September 1998, nevertheless adhered to his re-worded decision, noting that Ms Boafo s appeal to the adjudicator was due to be heard in December 1998 and seemingly leaving the issue to be resolved in that proceeding. 7. In September 1998, pending the hearing of the appeal, Mr. Burdett petitioned for divorce on the ground of Ms Boafo s unreasonable behaviour. In the petition he alleged that they had been resident at the same address, but living separate lives for about two and a half years, that is, since about March 1996 and before Mrs Boafo s original application in September He also stated his belief that she had only married him in order to obtain United Kingdom citizenship. 8. On 22 nd December 1998 the adjudicator heard the appeal. According to Ms Boafo, in an affidavit sworn in the application before the Judge, she and an uncle told the adjudicator in evidence that her marriage had broken down long after the Secretary of State s initial decision, that he had left her some two months before the hearing of the appeal and that he had issued proceedings for divorce which she was contesting. 9. On 7 th January 1999 the adjudicator issued his determination and reasons in Mrs. Boafo s favour. The only issue before him was whether Mrs. Boafo satisfied the requirements of Immigration Rule 287 for indefinite leave to remain as a spouse of a person present and settled in the United Kindom. Unfortunately, the only independent account or record of how the matter was put to the adjudicator is that contained in his reasons. He referred to the Secretary of State s representations: first, about Ms Boafo s poor immigration history giving rise to doubts about her credibility; second, doubts about the genuineness of her relationship with her sponsor; and, third, the Secretary of State s representation that she and her husband were living at different addresses. It is plain from the adjudicator s observation on the last mentioned representation that his attention was drawn to Ms Boafo s advisers letter of 4 th September 1997 to the effect that the Department had misinformed the Secretary of State on that matter, and that he had left it to be resolved by the adjudicator on the appeal. 10. However, as the Judge below observed, the adjudicator went on to deal with the matter as if the only issue before him was whether Mrs. Boafo had claimed social security benefits, and found that she had not done so. Seemingly, on that sole ground one that the Secretary of State had not advanced as a reason for refusal of her application - he allowed the appeal. As I have said, the only issue before him was whether Ms Boafo could satisfy the requirements of Immigration Rule 287. Whilst the adjudicator may have had in his mind that the Secretary of State may have been misled as to her non-qualification under that rule by material from the Department of Social Security falsely suggesting that she had claimed benefit, he did not explain his train of reasoning. He made no express findings as to the

5 relationship of Ms Boafo and her husband, nor did he relate it to the criteria of Rule 287. And, as I have said, he gave no directions. 11. I agree with the Judge below that the adjudicator s decision was highly unsatisfactory and that the Secretary of State could, and should, have appealed to an Appeal Tribunal under section 20 of the 1971 Act. The adjudicator s reasons are particularly unfortunate in their failure expressly to resolve the issue whether the couple had or had not been not living together at the material time - an important factor in the Secretary of State s initial decision. 12. In March 2000 Mr. Burdett s divorce petition, which Ms Boafo did not in the event defend, resulted in the grant of a decree absolute of divorce. 13. In June 2000 the Secretary of State reconsidered Ms Boafo s application in the light, not only of the adjudicator s determination, but also of the information about the breakdown and eventual dissolution of the marriage. In his decision letter of 13th June 2000, the subject of this appeal, he stated: The adjudicator based his decision to allow the appeal solely on the issue that Ms Boafo was not claiming Social Security benefits. This was not the reason for the refusal of her application dated 30 April 1997 and the determination does not address the basis of that refusal. Moreover, even before her attendance at the hearing on 22 December 1998, divorce proceedings were already under way against Ms Boafo which has resulted in divorce, decree absolute being made on 14 March The Secretary of State is therefore not satisfied that Ms Boafo is still the spouse of the person that she was granted an extension of stay to join, that the marriage is subsisting, and furthermore that the couple were living together and intended to live with each as his or her spouse at the time of the decision. Please see the copy of divorce proceedings enclosed. Consequently the Secretary of State is not prepared to take any further action on the recommendation to allow the appeal. Ms Boafo therefore has no basis of stay in the United Kingdom and must leave immediately. 14. When the matter came before the Judge there was an issue as to whether Ms Boafo had told the adjudicator of the difficulties in the marriage and of the divorce proceedings. As I have said, she and an uncle swore affidavits that they had given such evidence. The

6 Secretary of State did not accept that they had done so. Unfortunately, there are no notes of the evidence or other surviving record of the proceedings before the adjudicator. 15. Such matters, if mentioned to the adjudicator, could have been relevant as casting light upon the relationship of the pair in April 1997, the time with which the adjudicator was concerned and regardless of whether they were then living at the same address. Further, if mentioned to the adjudicator, the Secretary of State could not have regarded them as information of change of circumstances coming to light only after the adjudicator s decision (putting aside for the moment for the moment whether he was, in any event, entitled to reconsider his initial decision on that basis). However, the Judge, rightly in my view, considered that it would be unsatisfactory to rely on anyone s contentious recollection of what had been said to the adjudicator three years before in the absence of an independent record. He took the view that the outcome of the case should depend on the adjudicator s determination and reasons as they stood. The established law 16. The relevant provisions of the 1971 Act and their effect may be summarised as follows: i) Section 19(1)(a)(i) requires an adjudicator to allow an appeal if the decision was not in accordance with the law or any relevant immigration rules. ii) Section 19(2) empowers an adjudicator to review any question of fact upon which the decision was based. But in doing so, he must normally confine himself to evidence of relevant facts and circumstances as they were when the Secretary of State made his decision. See R v. IAT, ex p. Kotecha [1982] Imm AR 88 CA, in which this Court held that the appellate structure in immigration matters is not to be regarded as an extension of the original administrative decision-making function, but a process for enabling that decision to be reviewed on evidence as to the facts at its date. See also Yousuf v. ECO Karachi [1990] Imm AR 191, at 195, in which the Tribunal underlined the Kotecha principle. iii) However, the adjudicator has no power to make decisions reserved to the Secretary of State, for example, in allowing an applicant s appeal, he cannot himself grant permission to an appellant to enter or remain. iv) By section 19(3), if an adjudicator allows an appeal he is required to give such directions for giving effect to the determination as he thinks requisite, and the Secretary of State is bound to comply with them. The Immigration Appeal Tribunal has emphasised in Yousuf v.eco, Karachi, at 194, that the purpose of directions is

7 to give effect to the determination where that is necessary, that an adjudicator should normally only give directions when requested to do so by a party to the appeal and that there is nothing in the Act which requires directions to be given contemporaneously with the determination. Moreoever, the provision gives an adjudicator a wide discretion as to what directions (if any) he should make. For example, if he has made sufficient findings of fact to establish that the application should be allowed, he may direct the Secretary of State to grant permission to remain. Or he may direct the Secretary of State to reconsider the application, taking his (the adjudicator s) determination into account, which could include new information insofar as it might throw light on the facts at the time of the Secretary of State s original decision. Or he may direct the Secretary of State to make further enquiries into such facts. v) By section 20(1) of the 1971 Act, subject to procedural requirements as to permission to appeal, any party may, if dissatisfied with an adjudicator s determination, appeal to the Immigration Appeal Tribunal. The judge s ruling 17. The Judge helpfully set out three propositions, the first two of which, he said, conflicted with the third: (1) that the adjudicator considers the decision of the Secretary of State and the relevant facts at the date it was made, i.e., in this case 30 April (2) that an unappealed decision of an adjudicator is binding on the Secretary of State and the Applicant. (3) that the Secretary of State must consider any application made to him for indefinite leave on the basis of the facts as at that date. 18. The Judge cited as an example of the third proposition a decision of Mr. Justice Rose, as he then was, in R v. Secretary of State, ex p. Yousuf [1989] Imm AR 554, QBD. In that case an adjudicator allowed an appeal against a refusal of entry clearance, but gave no directions under section 19. The entry clearance officer, when the case was returned to him, made further enquiries, concluded that the adjudicator had been misled and again refused entry clearance. Mr. Justice Rose held that the officer was entitled to consider the matter afresh rather than resort to appeal: first, because in the absence of directions by the adjudicator, he had to consider the circumstances at the time the matter came before him again; and second, because, in considering the matter afresh, he had found a change of

8 circumstances, namely deception of the adjudicator, such as would justify him taking a different view from the adjudicator. 19. As I have said, the Judge in this case was of the view that, in the absence of directions, the Secretary of State could look at the matter afresh in the light of the up-to-date circumstances as revealed by any new information available to him. This is how the Judge put it: Section 19(3) envisages that the adjudicator who allows an appeal will normally give directions to give effect to his determination. If he does so, the Secretary of State must comply with those directions. The adjudicator is not bound to make directions, and the section envisages that he may not do so, or may only make a recommendation, which is not binding on the Secretary of State. If the adjudicator does not make a direction, the adjudicator s decision is binding in relation to his findings of fact, but not otherwise. If no directions are given, a fresh application for, in the present case, indefinite leave to remain will be considered by the Secretary of State, who must consider and determine it on the basis of the facts and circumstances at the date he considers the application; see Yousuf. For this purpose, the Secretary of State must treat as binding any finding of facts made by the adjudicator, unless it is discovered that the applicant misled the adjudicator, as in Yousuf, or other new relevant information or evidence is available to him. Whether the applicant did mislead or withhold facts from the adjudicator, or whether there is other new relevant material, is to be determined by the Secretary of State, subject to the normal appeal and review process. Yousuf is authority for the proposition that the Secretary of State is not limited to appealing the decision of the adjudicator. The submissions 20. Mr. Noah Weiniger, on behalf of Ms Boafo, made the following submissions: i) The Secretary of State has no power to set aside the determination of an adjudicator who has allowed an appeal from his, the Secretary of State s, decision and when the Secretary of State has decided not to appeal it. ii) In any event, the Secretary of State is not entitled, as a result of adopting such a course, to consider the matter afresh either on the original or changed circumstances.

9 iii) As a matter of construction of section 19(3) and the statutory machinery of which it formed part, the absence of directions does not deprive an adjudicator s determination of binding force; it is simply an administrative act for the purpose of giving effect to the determination. iv) Ex p. Yousuf is not authority for a general proposition that the Secretary of State is unfettered by the determination of an adjudicator who has not followed it up by directions. That was an entry clearance case to which quite different considerations and rules apply from those in applications for indefinite leave to remain under Immigration Rule 287. v) If an adjudicator when issuing his determination does not give directions, then, in the absence of an appeal, the only lawful executive decision of the Secretary of State is to implement the determination. vi) In the light of the reasoning of Mr. Justice Rose in ex p. Yousuf, there may be an exception in certain cases where an adjudicator has been deceived as to the material facts, but that normally the Secretary of State should choose a course of challenge, that is, by appeal to the Tribunal, which does not prejudice the claimant by depriving him of his entitlement to have the matter judicially determined, and tested on appeal if necessary, on the facts as they were at the time of the original decision. 21. Thus, Mr. Weiniger submitted that the Secretary of State, not having followed the avenue of appeal provided, is stuck with the adjudicator s determination, regardless of the absence of directions. He submitted that the Secretary of State should have dealt with the matter on the basis of the facts put before the adjudicator and, if not contending that the adjudicator was deceived, should have given effect to his determination. Thus, he maintained that the information as to the breakdown and eventual dissolution of the marriage over the intervening two and a half years was irrelevant to, and an invalid consideration in, the Secretary of State s decision. Indeed, he characterised it as perverse in that it moved the goal posts from the date of the original decision of 30 th April 1997, which was subject to the immigration appeal machinery, to the decision under challenge of 13 th June 2000, which was challengeable only by way of judicial review. 22. Mr. Rhodri Thompson, on behalf of the Secretary of State, prefaced his submissions by inviting the Court to look closely at the documentation in the appeal bundle demonstrating, as I have indicated, that the Secretary of State was wrong, or at least likely to have been wrong, in relying in his initial refusal of leave, on the assertion that Ms Boafo and her husband were not living together. The result, Mr. Thompson acknowledged, is that if the Secretary of State had acknowledged the error at the time as he now seemingly does the adjudicator, even if he had considered and ruled on the true issues before him, would

10 have been likely and entitled to reach the same decision and, if challenged, likely to have been upheld on appeal. Mr.Thompson also acknowledged that, as Ms Boafo had no means of appeal, save by way of judicial review, from this second decision, the Secretary of State should have dealt with the matter in a different way either by appealing the adjudicator s decision or by writing a minded to refuse letter inviting representations. He, therefore, conceded rightly in my view - that the Secretary of State s resistance to this appeal was unattractive. 23. Nevertheless, Mr. Thompson made the following submissions in support of the legality of the Secretary of State s conduct: i) In reliance on ex p. Yousuf, which he maintained was indistinguishable, the Secretary of State was not bound by the adjudicator s determination in the absence of any directions by him for giving effect to it. ii) In any event, this was not a case in which the Secretary of State differed from the adjudicator on the facts, for the adjudicator had not applied his mind to the Secretary of State s original reasons for refusal under Immigration Rule 287. iii) The Secretary of State was, therefore, entitled to reconsider the matter in June 2000 in the light of the then and changed circumstances of Ms Boafo s relationship with Mr. Burdett, including the fact that he was no longer her husband. Alternatively, he suggested that the Secretary of State was entitled to consider the matter afresh on the new information if and to the extent that it cast a different light on the material facts at the time of his original decision. 24. Accordingly, Mr. Thompson submitted substantially as the Judge below had ruled that the Secretary of State had been entitled to deal with the matter by reconsideration rather than by pursuing an appeal. Conclusions 25. For the purpose of this decision, I put to one side the unfortunate train of circumstances giving rise to the Secretary of State s mistaken reliance, in his original decision and before the adjudicator, on an assertion that Ms Boafo was not living at the material time with her husband. I also put to one side the adjudicator s failure to make any finding on that issue or more generally as to satisfaction of the requirements of Immigration Rule 287. Nevertheless, it is a salutary example of the importance, as Mr. Justice Rose emphasised in ex p. Yousuf, at 558, of the executive making use of available machinery of appeal when seeking to challenge the decision of an adjudicator, rather than attempting to circumvent it

11 by reconsidering the matter, whether on evidence going to the original or new facts. That is especially so where, as in a case like this, any fresh executive decision is unappealable save by way of judicial review. 26. On the question whether, as a matter of law, the Secretary of State was entitled to disregard the adjudicator s determination and to consider the matter afresh because it was not accompanied by directions, I take the first two propositions of the Judge as starting points. First, this appellate machinery is one of review, not rehearing, and both an adjudicator and the Tribunal are normally bound to determine appeals on the facts as they were at the date of the decision under challenge. And, second, an unappealed decision of an adjudicator is binding on the parties. However, I disagree with the Judge in his decision that an adjudicator s decision without directions is, by reason of their absence, not binding on the Secretary of State and that he may, in consequence consider the matter afresh in the light of new information. 27. As a matter of construction of section 19(3) and of the statutory machinery of which it forms part, the absence of directions from the adjudicator does not, in my view, deprive his determination of binding force in cases such as those of indefinite leave to remain which are concerned with the validity of a decision affecting existing immigration status. As Mr. Weiniger pointed out, the recitation in section 19(3) of the power to give directions is prefaced by and dependent on the allowance of the appeal Where the appeal is allowed. Moreover, it would be surprising if the provision had the effect contended for by the Secretary of State, since not every allowance of an appeal requires directions for giving it effect. It is essentially a matter for the adjudicator s discretion whether to give them. And, as the Immigration Appeal Tribunal pointed out in Yousuf v. ECO, Karachi, at 197, there is nothing in the statute requiring them to be given contemporaneously with the determination. Whether, on those accounts, they are to be characterised simply as administrative matters is open to doubt since, as the Tribunal accepted in that case, at , a question whether to give directions may be a matter on which an adjudicator should hear evidence and submissions and on which he may be called to exercise discretion. Nevertheless, in my view, on an issue such as this, of indefinite leave to remain, the absence of directions does not leave a determination incomplete so as to deprive it of effect. Any other approach could render the machinery of appeal to the Immigration Appeal Tribunal provided by section 20 of the 1971 Act largely redundant in the case of such appeals allowed by adjudicators not accompanied by directions. 28. There may be circumstances in which the executive may re-open a decision without appealing a determination of an adjudicator, for example, because there is fresh evidence, say of deception of the adjudicator about the facts on which the challenged decision was based, or where, as in the entry clearance case of ex p. Yousuf, the very nature of the second decision calls for decision on contemporaneous facts. But even in such cases, it would be wrong, in my view, for the Secretary of State, as a generality, to regard the matter

12 as hinging on the presence or absence of directions. If that were the effect of Mr. Justice Rose s reasoning in ex p. Yousuf, I would respectfully disagree with it. But I believe that Mr. Thompson is reading too much into, or giving too wide an application to his brief reference to that aspect at page 558 of his judgment. After stressing the importance of entry clearance officers using the machinery of appeal from adjudicators determinations rather than seeking to circumvent them by pursuing further inquiries with a view to denying entry on a different basis, he said that those strictures were not determinative of the case before him, for three reasons. The first was that, on the facts, the entry clearance officer was not seeking to side-step the adjudicator s decision: In the absence of directions by the adjudicator, the entry clearance officer had an obligation under rule 17 [of HC 169] to ask questions in order properly to consider the circumstances at the time that the matter came before him again. If, in pursuance of those enquiries, some possible fraud or deception on behalf of the applicant came to light, it might well be appropriate and indeed necessary in accordance with rule 17 to refuse entry. The second reason, which overlapped with the first, was that the entry clearance officer s performance of his obligations under rule 17 necessarily involves the making of up-to-date enquiries. And, the third was that the entry clearance officer's second decision was itself appealable, so as to render the pursuit of the discretionary remedy of judicial review inappropriate. Apart from anything else, much may depend on the directions given or that could have been given. For example, in ex p. Yousuf, the decision would have been the same if the adjudicator had directed the entry clearance officer, in considering the matter afresh, to make specific enquiries. 29. Thus, in my view, ex p. Yousuf is not authority for a general proposition that the Secretary of State is unfettered by the determination of an adjudicator allowing an appeal who has not followed it up by directions. As Mr. Weiniger submitted, by their very nature quite different considerations and procedure govern applications for indefinite leave to remain under Immigration Rule 287, which confers on the recipient the permanent status of a person entitled to indefinite leave whatever subsequently happens to the marriage. In contrast, the possession of an entry clearance qualifies for permission to enter only for a limited period; it does not remove the need for a port examination by immigration officers or, itself, constitute the grant of permission to enter; and each grant is subject to a right of appeal; see ex p. Yousuf, at For those reasons, I would allow the appeal against the Judge s decision refusing judicial review of the Secretary of State s decision of 13 th June 2000 declining to implement the adjudicator s determination in her favour and, in consequence, refusing her indefinite leave to remain in the United Kingdom. I would quash the Secretary of State s decision and direct that he grant Ms Boafo indefinite leave to remain.

13 Lord JusticeWard: I agree. Lord Justice Robert Walker: I also agree. Order: 1. The decision of the Respondent in respect of the Appellant contained in its letter dated 13 June 2000 is quashed. 2. The Respondent is to grant the Appellant indefinite leave to remain. 3. The Respondent is to pay the costs of the Appellant, here and in the Court below, such costs to be subject to a detailed assessment in default of agreement. 4. The Appellant s costs be subject to detailed assessment in accordance with regulation 107 of the Civil Legal Service (Costs) Regulation The Respondent within 14 days to file written submissions in support of his application for permission to appeal to the House of Lords, if so advised, and to notify the Court within that period if no such application is to be made; the Appellant within 14 days thereafter to file written submissions in reply, if so advised; and the Court to consider the application for permission to appeal on the papers and to notify the parties of its decision in writing. (Order does not form part of the approved judgment)