AW (Duties of Immigration Judge) Pakistan [2008] UKAIT 00072

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at:  Field House                                  		Date of Hearing: 3 June 2008	

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge McKee

Between

AW
Appellant
and

ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent

Representation
For the Appellant:		No appearance
For the Respondent:		Ms R. Brown, Home Office Presenting Officer 

Immigration Judges have a duty to act fairly in relation to both parties when reaching a decision on an accurate understanding of the evidence before them.  Although there may be reason to criticise Entry Clearance Officers, such criticism should not be offered except when it applies, and does not entitle the Immigration Judge to abandon his duty to make a decision on the evidence.

DETERMINATION AND REASONS

1.	The appellant, a citizen of Pakistan, appealed to the Tribunal against the decision of the respondent on 20 September 2007 refusing him entry clearance to the United Kingdom as a student.  Immigration Judge Thorndike allowed the appeal in a determination sent out on 28 February 2008.  The respondent sought and obtained an order for reconsideration.  Thus the matter comes before us.

2.	Notice of the time and place of the reconsideration were sent to the appellant and his representative, both in Pakistan.  The appellant has no representative in the United Kingdom.  At the time and place appointed for the hearing there was no appearance by or on behalf of the appellant.  We exercised our discretion to proceed in his absence.

3.	The notice of refusal gives reasons for the refusal in six paragraphs.  The first three relate to the appellant’s abilities in the English language.  The respondent indicates that he is not satisfied that the appellant has sufficient knowledge of English to follow the three-year diploma course for which his visa was sought.  There was no independent assessment of his ability in English available and no other substantial evidence of the appellant’s abilities.  The other reasons relate to maintenance and accommodation: the respondent took the view that the appellant had not shown that the person upon whom he was to depend for his support during the course was closely related to him as he claimed, or that that person had sufficient funds to support him, or that he would use his funds for that purpose.

4.	The notice of appeal was received by the British High Commission in Islamabad on 19 October 2007 and by the Tribunal’s office in Loughborough on 14 November 2007.  The respondent was directed to file his bundle, including the application form, the record of interview, and any other unpublished documents upon which he relied in accordance with r 13 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, by 14 December.  The respondent ignored that direction.  It is indeed within the knowledge of every member of this Tribunal that Entry Clearance Officers typically treat judicial directions, and regulations made by Parliament, with utter disdain.  On 19 December 2007 the respondent was reminded of the direction and the Rules and was given until 13 February 2008 to comply.  It need hardly be said that the respondent did not comply.  On 26 February the Immigration Judge determined the appeal, in accordance with the appellant’s wish to have the matter determined without a hearing.  In the course of the determination he wrote:

	“The difficulty in this case is that there is a lack of documentary evidence.  It is clear that this has been caused by the respondent, for whatever reason.  The respondent has not sent a copy of the appellant’s application form or of the sponsor’s bank statement.  Although this puts the appellant at some disadvantage, I am not going to allow that to prejudice the appeal.”

5.	Before we indicate the way in which the Immigration Judge made his decision, we should identify a number of other features of the determination.  The first is at para 7:

	“There is nothing to indicate in the papers sent to me that the decision was reviewed, following receipt of the appeal.  I find this to be very disturbing as any appellant who appeals has the right, in the name of justice, for the decision to be reviewed.  I presume the respondent had specific reasons for not reviewing the decision.”

6.	
As the Immigration Judge was at pains to point out, he did not have the respondent’s bundle, and had no means of knowing whether the assertion he made about the respondent’s conduct was right or not.  We are unaware of any principle of justice which gives a person who has entered a statutory appeal (but not, apparently, any other person) a right to have a decision reviewed.  Then at para 9 the Immigration Judge writes this:

		“I am aware that an immigration judge must be very wary of interfering with an entry clearance officer’s finding of fact particularly where the entry clearance officer is aware of the local conditions.”
 
7.	That seems to us to be simply wrong.  No doubt the decision maker’s knowledge of local conditions is entitled to respect, but the point of an appeal is that the judge comes to the evidence afresh.  The Entry Clearance Officer’s decision is the reason for the appeal, but has no other standing so far as the appeal is concerned.  The Immigration Judge is to decide, on the evidence, whether the application should have been granted rather than being refused.  

8.	The third point relates the material before the Immigration Judge.  Despite the Immigration Judge’s observations about the respondent’s failure to submit the bundle, at para 8 he records as follows:

	“The documents before the Tribunal are those in the respondent’s bundle.” 
	
9.	At para 13, he confirms that he has taken into account the respondent’s explanatory statement (which, no doubt, would have accompanied the bundle if it had been sent to him) as “evidence”.  He notes that he has also taken into account “written submission and other documents received from the appellant”, which, appears from para 15, were “sent directly to the Tribunal in Bradford”.

10.	This is entirely unsatisfactory.  Despite not having the respondent’s bundle, the Immigration Judge purports, in two separate places, to take it into account.  Further, he proposes to take the explanatory statement into account as “evidence”, although it could be little more than submissions.  He gives no indication that he would take into account any other documents in the bundle.  So far as the documents sent “directly to the Tribunal” are concerned, we reserve comment for later in this determination.

11.	On the basis of the material before him the Immigration Judge decided that, at the date of the decision, the appellant met the requirements of the Immigration Rules.  So far as the appellant’s ability in English was concerned, the Immigration Judge noted that the appellant had taken the IELTS examination on 1 December 2007 and achieved a score of 5.5.  He wrote:

	“Taking the issue of English first, it is clear that the appellant was prompted to take the IELTS examination following the comments and criticisms of the entry clearance officer.  Therefore, I do not regard that as new, post-decision, evidence.  It is clear that with a score of 5.5 the appellant is well able to follow the course.”

12.	Looking then at financial matters, the Immigration Judge concluded on the material before him that the sponsor “either owns, or works for, or works with, KASB Securities Limited”.  He wrote that he was “satisfied on the balance of probabilities that the sponsor is either a professional stockbroker or is very active in the stock broking business”.  He said he was happy to accept the sponsor’s word as to his relationship to the appellant and his willingness to provide funds for the appellant’s studies.  Having resolved the disputed issues in the appellant’s favour, he accordingly allowed the appeal.  

13.	The grounds for reconsideration challenge the Immigration Judge’s decision on the grounds, first, that passing an IELTS test on 1 December 2007 is not of itself evidence of ability at any particular level on the date of the decision, 20 September 2007; secondly, that the Immigration Judge erred in taking into account documents sent “direct to the Tribunal” without giving the respondent or anybody representing the respondent an opportunity to examine them and make submissions on them.  

14.	The second complaint raises an issue which, if we may say so, is blindingly obvious.  Even if it were not obvious, the matter is governed by r 51(7) of the Asylum and Immigration Tribunal (Procedure) Rules, which provides as follows:

	“Subject to section 108 of the 2002 Act [which is not material here], the Tribunal must not take into account any evidence that has not been made available to all the parties.”

15.	We are surprised that even an Immigration Judge who is able to make the errors we have already identified in his determination did not have a sufficient concept of the principles of fairness to ensure that he made his decision on the basis of evidence available to all parties, even if he had been unaware of the rules of natural justice or of the Procedure Rules under which he was operating.  His decision to take into account, against the respondent, evidence which to his knowledge the appellant had sent directly to the Tribunal without involving the respondent, is a clear error of law.  Whatever the content of the evidence, it is material because it goes to the fairness of the proceedings.  A party who loses an appeal in such circumstances as this can have no confidence in the independence of the judge.

16.	In our view the respondent’s objection to the Immigration Judge’s conclusion on the appellant’s ability in English is also well made.  The Immigration Judge assumes, apparently without any evidence, that it was the refusal that had caused the appellant to take the test.  He also assumes, apparently without any evidence, that the appellant’s English ability at the time he took the test was the same as the appellant’s English ability at the time of the refusal.  There was no basis for either of those assumptions, and on the material before the Immigration Judge it would have been equally likely that, following the refusal, the appellant had decided to take tuition in English in order to enable him to achieve a 5.5 score in the IELTS by December.

17.	For the reasons we have given, the Immigration Judge materially erred in law.

18.	In making our own determination, we are assisted by the fact that the respondent did deign to send his bundle to the Tribunal about ten weeks late.  It is recorded as having arrived on 3 March 2008.  A Tribunal more cynical than ourselves might wonder  whether it had been submitted only after the Immigration Judge’s decision was made known (it was sent out on 28 February 2008) in order to support a reconsideration.

19.	The documents available to us shed some light on the history of the appellant’s knowledge of English.  He obtained 95 marks out of a possible 150 in compulsory English as a secondary school student in 2004, but only 83 out of 200 in compulsory English in his higher certificate in 2006.  In 2007 he undertook a “special foundation” course in English and obtained 66% in the examination.  There is nothing before us showing the level at which a “special foundation” is set, but a hint of the standard of English of the institution offering it may be gathered from a note at the bottom of the result card as follows:

	“This result is declared, errors and omissions, if any, are accepted as a notice only and does not in itself confer any right or privilege independently.”

20.	The appellant’s student visa questionnaire contains some information about his claim to proficiency in English.  The relevant question, on page 6 of the questionnaire, is answered as follows:

	“I got my whole education from best English medium in institutes throughout.  I always go good marks in English.  I also completed English language proficiency course NUML Islamabad.  My command at English language is very good.”

21.	In the application form itself, the appellant writes as follows:

“I am appearing for IELTS next month.  I have also completed English language course from NUML.  My medium of edu was also Eng.”

22.	As it happens, that entry confirms that the Immigration Judge’s supposition was wrong.  The appellant intended to do an IELTS test when he made his application: the test was not prompted by the refusal.  Further, the appellant undertook, or certainly intended to undertake a test in October.  We will not speculate why the certificate before the Immigration Judge followed a test in December, but we see nothing in the material before us (including that which was before the Immigration Judge) to show that the appellant had, at the date of the decision, achieved a sufficient level of proficiency in English to enable him to follow a course in the United Kingdom without further study of the language.

23.	So far as concerns matters of finance, it is perhaps convenient to begin with the material that was before the Immigration Judge.  The grounds of appeal assert that the appellant’s “real cousin…is maintaining a very sound and constant bank account and owned very precious moveable and immovable assets.  He is doing stock exchange business at Peshawar.  He is financially very sound and in a position to meet my educational expenditure abroad”.  The grounds add that the appellant’s mother will also provide support.  The grounds were accompanied by a witness statement from the cousin, stating that he is “doing exchange business at Peshawar/Karachi”.  Neither document mentions KASB Securities Limited.  There is a statement of the trades of KASB Securities Limited on isolated days November and December 2007.  The statement does not mention the name of the sponsor.  Any link between the sponsor and the statement must be regarded as entirely hypothetical and we cannot understand the basis on which the Immigration Judge reached his conclusions, given that there was no other material before him.  We have the advantage of being able to take into account the respondent’s bundle as well.  It contains no financial evidence other than affidavits from the appellant’s cousin and his mother asserting the cousin’s activity in “stock exchange business”.  Again, there is nothing to link either the appellant’s cousin or his mother with a firm called KASB Securities, or to lead on to suppose that any wealth possessed by KASB Securities belongs to the cousin or is his to dispose of for the benefit of the appellant’s education.  It is perfectly clear that the appellant cannot meet the financial requirements of the Immigration Rules.  

24.	We regard this appeal with some concern because much of the Immigration Judge’s determination was wrong in law, unfair, or clearly not supported by the evidence.  His determination will have raised quite unjustified hopes in the appellant’s mind.  We, however, must determine the appeal on the evidence and it is on the evidence before us that we substitute a determination dismissing it. 

C M G OCKELTON
DEPUTY PRESIDENT
          Date: