ASYLUM AND IMMIGRATION TRIBUNAL

CP (Section 86(3) and (5); wrong immigration rule) Dominica [2006] UKAIT 00040

THE IMMIGRATION ACTS

Heard at: Field House				Date of Hearing:  7 March 2006
							Date of Promulgation: 03 May 2006

Before:

Mr C M G Ockelton Deputy President of the Immigration and Asylum Tribunal
Senior Immigration Judge Goldstein
Senior Immigration Judge Grubb

Between

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant:		No appearance
For the Respondent: 	Mr C Avery, Home Office Presenting Officer

Where the Secretary of State (or Entry Clearance Officer) applies the wrong immigration rule, the resulting immigration decision is technically unlawful.  However, subject to the requirements of fairness, an Immigration Judge should apply the correct rule when deciding an appeal.   If the appellant satisfies the requirements of the correct rule, the appeal will be allowed in full under s 86(3) of the 2002 Act.  If any (or all) of the requirements are not satisfied, the appeal will be dismissed in substance under s 86(5).  However, the appeal will be allowed in part under s 86(3) to the limited (and inconsequential) extent that the decision was ‘not in accordance with the law’.  See also RM (Kwok On Tong: HC395 para 320) India [2006] UKAIT 00039.

DETERMINATION AND REASONS

1.	The appellant is a citizen of the Commonwealth of Dominica born on 30 May 1993.  She arrived in the United Kingdom on 8 December 2004 and was granted leave to enter for six months as a visitor.  On 19 May 2005, she applied for indefinite leave to remain as the dependant child of JK and SK both British Citizens.  JK, she claimed, was her mother’s sister and thus, her aunt.  On 31 August 2005, the Secretary of State refused her application to extend her leave and her appeal was dismissed by an Immigration Judge, Mr P D Burns in a decision sent on 9 November 2005.  An order for reconsideration was made on 18 November 2005 by a Senior Immigration Judge.

2.	At the reconsideration hearing on 7 March 2006, neither the appellant nor her representatives, Barant & Co, Solicitors appeared.  The Tribunal was satisfied that the Notice of Hearing dated 12 December 2005 had been properly served on the appellant and her representatives and that there was no satisfactory explanation for their non-appearance.  Hence, it was proper to proceed in the absence of the appellant and her representatives under rule 19(1) of the 2005 Procedure Rules and we decided to do so.  

3.	The appellant’s application was governed by paragraph 299 (with reference to paragraph 298) of Statement of Changes in Immigration Rules, HC 395 as a dependent relative seeking settlement in the UK with a relative settled in the UK.  There is no doubt that the sponsor in this case is settled in the UK as she is a British Citizen.   It is claimed that she is the appellant’s maternal aunt.  For reasons which are not apparent from the file, the Secretary of State wrongly made his decision under paragraph 302 (with reference to paragraph 301) of HC 395 which governs applications in certain cases where the sponsor has only limited leave.  Before the Immigration Judge, the Secretary of State’s error was recognised by the parties and, as is clear from paragraph [9] of the determination, it was accepted that the judge should decide the appeal on the basis of the correct rule, namely paragraph 298.   

4.	So far as relevant, paragraph 298 of HC 395 provides as follows:

“The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or relative present and settled in the United Kingdom are that he:
(i) is seeking to remain with a parent, parents or relative in one of the following circumstances:
….
(d) one parent or a relative is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care;…”

5.	The Immigration Judge dismissed the appeal on the basis that, on the evidence, the appellant had not established: (1) that the sponsor was related to her as claimed (para [24]); and (2) that even if she were, that there were “serious and compelling family or other considerations which make exclusion of the child undesirable” (paras [25]-[30]).

6.	The appellant’s Grounds for Review and the basis upon which reconsideration was ordered do not assert that the Immigration Judge committed any error of law in deciding that the requirements of paragraph 298 were not met.   Rather, the appellant argues that the Immigration Judge should have allowed the appeal once it was clear that the Secretary of State had applied the wrong immigration rule.  She relies upon section 86(3) of the Nationality, Immigration and Asylum Act 2002. 
 
7.	So far as relevant, section 86 provides as follows:

“(3)  The Tribunal must allow the appeal in so far as it thinks that –
(a) the decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules),
…
 (5)  In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.”

8.	Sections 86(3) and (5) dictate how the Tribunal must dispose of appeals by requiring an appeal to be allowed in so far as the decision was “not in accordance with the law (including immigration rules)” and otherwise that it be dismissed.  The appellant argues that the decision was not in accordance with “immigration rules” because it was taken under paragraph 301 which was the wrong rule.

9.	The argument has little to commend it.  First, the appellant’s representatives accepted at the hearing that the Immigration Judge should decide the appeal under paragraph 298 and the hearing proceeded with evidence called on that basis.  Second, it is not contended in the Grounds of Review that the appellant could succeed under paragraph 298, the substantive requirements of which are identical to those applied by the Secretary of State albeit derived wrongly from the terms of paragraph 301.   It is not suggested that the Immigration Judge erred in any way in deciding that the appellant did not fulfil these requirements.   If, as is suggested in the grounds, the appeal should have been allowed, such that the appellant’s application for leave remains outstanding before the Secretary of State, on the incontestable findings of the Immigration Judge the appellant could not possibly succeed.  Thus, if the argument is correct it could only be seen as a triumph of form without substance in this case.  

10.	Nevertheless, can it be said that an immigration decision based upon the wrong immigration rule is “not in accordance with the law (including immigration rules)”?  Put another way, does the original decision-maker have a legal obligation to apply the correct immigration rule?  The answer to that is, in our view, to be found in the Immigration Act 1971 and the Rules themselves.

11.	The basis for the immigration rules is contained in sections 1(4) and 3(2) of the Immigration Act 1971.  Section 3(2) requires the Secretary of State to lay before Parliament 

“statements of rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter…”  (emphasis added)

12.	Section 1(4) states, inter alia, that:

“[t]he rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom....shall include....” (emphasis added)

13.	The italicised words in both sections 3(2) and 1(4) seem to us to be ones of obligation imposing a legal duty upon those who “administer” the Act in regulating entry and stay in the UK to follow and apply the Rules.   The 1971 Act, on its face, requires Entry Clearance Officers, Immigration Officers and the Secretary of State himself to apply the immigration rules from time to time in force.  Parliament must, in our view, have intended that this legal duty required the relevant decision-maker to apply the correct rule applicable to the individual’s circumstances put forward to gain entry to or to stay in the UK.

14.	Further, the obligation is reflected in the immigration rules themselves in paragraphs 1 and 4 of HC 395.  Reference is rarely made to the early paragraphs of HC 395 which do, in fact, contain important and, sometimes, crucial provisions.  Paragraph 1 states, inter alia:

“The Home Secretary has made changes in the Rules laid down by him as to the practice to be followed in the administration of the Immigration Acts for regulating entry into and the stay of persons in the United Kingdom....”   (emphasis added)

15.	Here again we see the words of obligation and legal duty seen early in sections 1(4) and 3(2) of the 1971 Act.   Paragraph 3 makes the obligation arguably even clearer:

“These Rules come into effect on 1 October 1994 and will apply to all decisions taken on or after that date...” (emphasis added)

16.	Reading these provisions together, we are left in no doubt that they impose a legal duty upon decision-makers acting to regulate entry and stay in the UK to apply the immigration rules and, specifically, to apply the correct immigration rule applicable to the circumstances put forward by the individual in his application to entry or stay in the UK.  The matter can, perhaps, be tested in this way.  If it were not for the appellate system operating in immigration cases, legal challenges to decisions by those officials making decisions under the Immigration Acts and the immigration rules would be brought by way of applications for judicial review in the Administrative Court.  We have no doubt that an Administrative Court Judge would have no difficulty in concluding that the decision-maker acted unlawfully if he had applied the wrong immigration rule.  It is axiomatic in a public law context that a decision-maker acts unlawfully if he makes a decision on the wrong legal basis, for instance by applying the wrong legal provision.   Mutatis mutandis, with the appellate system we actually have in place, such a decision is “not in accordance with the law ”.  

17.	What does this mean for the application of sections 86(3) and (5) of the 2002 Act?  It seems to signify that the appeal, at least to some extent, should be allowed under section 86(3).   We emphasis the words “to some extent” because, for the reasons we now give, in the usual case the immigration judge will go on to determine the appeal on the basis of the correct rule and the evidence before him.  The effective outcome of the appeal will be determined by that process.  

18.	It is within the collective experience of the members of the Tribunal sitting in this case that the approach taken at the hearing is the normal one followed where the original decision-maker applies the wrong immigration rule.  Of course, an Immigration Judge is not under an obligation to “embark upon a roving expedition among the rules” for a rule that applies to the claimant’s case (Uddin v IAT [1991] Imm AR 134 at p 144 per McCowan LJ).  However, once the correct rule is identified, it is the Immigration Judge’s obligation to apply that rule, subject to the requirements of fairness so that the parties have a proper opportunity to deal with the relevant evidential and other issues that arise.   The issue of fairness will most likely arise where the substance of the correct rule differs from that applied by the decision-maker or where the appellant is unrepresented at the hearing.

19.	If the appellant succeeds on the evidence under the correct rule, the appeal will, of course, be allowed in substance and not merely because the original decision was legally defective having been made under the wrong rule.  

20.	If, by contrast, as in this case any (or all) of the requirements of the correct rule are not satisfied, the appeal will be dismissed in substance.  For the reasons we have already given, the decision is “not in accordance with the law” but the fault in the decision as made is for all practical purposes cured by the appellate process.  The appeal must be allowed to that limited extent but the appellant’s victory will be Pyrrhic.  There is no outstanding application before the decision-maker and no question of the Immigration Judge directing further consideration of the appellant’s application.

21.	The practical effect of the approach we set out above is that cases of this sort will be, if at all possible, decided by Immigration Judges on the evidence at a hearing.  The legislation does, after all, give the Tribunal a fact-finding role in immigration cases.  It will avoid the unnecessary cycle of appeals being routinely allowed for the original decision-maker to consider the appellant’s application again.  

22.	Whilst this will be the proper approach in many cases there will be instances where the immigration judge is unable to, or cannot fairly, proceed to determine the appeal on the basis of the correct immigration rule.   It may be that because of the decision-making process the Immigration Judge lacks the relevant evidence upon which to make his decision.  For example, recourse to evidence relevant to the correct rule – particularly where its requirements differ from the rule actually applied - may be impossible in an out-of-country appeal where the appellant is not represented or where there is no appeal hearing because it is a ‘paper case’.  A further example might arise where the decision-making process is so unfair as to amount to a breach of the rules of natural justice (BO (ECO's Duties per D S Abdi) Nigeria [2004] UKIAT 00026 – ECO’s decision taken prior to date fixed for interview: “a gross failure to follow ordinary legal principle”).  In cases of this sort, the only proper course of action for the Immigration Judge will be to allow the appeal as not being in accordance with the law.  The appeal will be allowed with the effect that the appellant’s application remains outstanding and there will be a direction that the decision-maker considers it correctly under the Rules.  This is because, in contrast to the situation in paragraph 20 above (and in this case), the fault cannot be cured by the findings within the appellate process.  

23.	There is a further situation which may result in an appeal being partially allowed.  Suppose the Immigration Judge is able to reach conclusions in favour of an appellant on some of the requirements of the correct immigration rule, but because of the faulty decision-making process, not able to make any findings on others.  That, of course, is not this case because the substance of the correct rule was not materially different from the one actually considered by the Secretary of State.   In order to allow the appeal outright under the immigration rules, the Immigration Judge must be satisfied by evidence or concession that all the requirements of the correct rule are met: R v IAT ex parte Kwok on Tong [1981] Imm AR 214.  Nevertheless, in respect of what the Immigration Judge has decided, the decision is not in accordance with the immigration rules.   As presently advised, it seems to us that in such a case, the proper course would be for the Immigration Judge to allow the appeal to that extent for the decision-maker to reach a decision on the remaining requirements of the correct rule.

24.	In an appropriate case, there is nothing incongruous in an Immigration Judge allowing an appeal in part under section 86(3) and otherwise dismissing it under section 86(5).  Indeed, it is specifically contemplated in section 86(3) which enjoins the Tribunal to allow the appeal “in so far” as it was “not in accordance with the law (including immigration rules)”.  It is done every day in cases where the Immigration Judge accepts the human rights grounds of an appeal but not, for example, the asylum grounds.  The appeal is allowed in part and otherwise dismissed.   Likewise in a race discrimination case, an appeal may be allowed on the limited basis that the race discrimination grounds are established but otherwise dismissed because the Immigration Judge is satisfied on all the evidence that the appellant did not meet the requirements of the immigration rules: CS (Race Discrimination, proper approach, effect) Jamaica [2006] UKAIT 00004.  Here, of course, the partial success may not be without effect as the appellant may rely upon the Immigration Judge’s finding of unlawful race discrimination in a County Court action for damages: section 57A(3), Race Relations Act 1976.

25.	That last point apart, the proper disposal of the appeal in the race discrimination example is analogous to this case.  The Secretary of State applied the wrong immigration rule and, as a consequence, his decision was, to that extent, unlawful and “not in accordance with the law”.  However, the Immigration Judge properly went on to apply the correct rule.  The appellant presented her evidence and the Immigration Judge made a number of findings leading to the conclusion that she had failed to meet the requirements of paragraph 298.  Thus, the Secretary of State’s decision was, in fact, “in accordance with immigration rules” as determined at the hearing.   The appellant lost on the substance of her appeal under the immigration rules and to that extent the appeal should have been dismissed under section 86(5).  The appellant’s partial success is limited to the solace of knowing the Secretary of State acted unlawfully.  She is not entitled to any further relief, for example a direction that the Secretary of State should reconsider her application. 

Decision

26.	The Immigration Judge correctly dismissed the appeal on the substance of the immigration rules.  He should, however, have allowed the appeal to the limited (and in this case inconsequential) extent that the decision was not in accordance with the law.  We substitute a decision to that effect.  

A GRUBB
SENIOR IMMIGRATION JUDGE

          Date: