Rahman, R (on the application of) v Entry Crearance Officer & Anor [2006] EWHC 1755 (Admin)

Case No CO/5506/2005

[2006] EWHC 1755 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 14 June 2006

Strand

London WC2

B E F O R E:

MR JUSTICE NEWMAN

Between

THE QUEEN ON THE APPLICATION OF AZAZUR RAHMANClaimant

-v-

Between

ENTRY CLEARANCE OFFICER - E HUDDYDefendant

SECOND SECRETARY - DEREK JONESDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR A MUSTAKIM (instructed by Oxford House Immigration) appeared for CLAIMANT

MR R PALMER (instructed by Treasury Solicitor) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE NEWMAN: This application for judicial review raises an issue as to whether it is open to an Entry Clearance Officer and an adjudicator (now an immigration judge), who has allowed an appeal against a refusal to issue an entrance clearance certificate and has issued no directions under section 87 of the Nationality, Immigration and Asylum Act 2002, to re-refuse the application for entry clearance. In this judgment I shall refer to an adjudicator since this case concerns a decision of an adjudicator, but of course under the amended provisions that now means an immigration judge.

[2]The Diplomatic Service Procedures, which lay down, for entry clearance officers, instructions as to how they should proceed, but which do not have the force of law, specifically provide that in defined circumstances a re-refusal is permitted. Under paragraph 27.11, under the heading, "When an appeal is allowed", the following appears:

"When an adjudicator allows an appeal and directs that an entry clearance be issued, there is a statutory duty under Section 87 of the 2002 Act for the ECO to comply with the direction, unless the determination is subject to further appeal. Sometimes, the adjudicator will allow an appeal but not give directions for issue. (i) ... (ii) When the Home Office informs the ECO that an appeal has been allowed, that no appeal has been lodged with the Tribunal and that the adjudicator has not given directions, the ECO should interview the appellant to ascertain whether s/he still wishes to travel, the category of entry clearance required and whether there has been any change of circumstances. This should generally not be a detailed interview. The entry clearance should be issued UNLESS there has been significant and material change of circumstances since the refusal decision of which the adjudicator would be unaware or a material deception has come to light of which the adjudicator would be unaware."

[3]Paragraph 27.12, under the heading, "Refusing those who have had appeals allowed", the following appears:

"Posts should not seek to re-refuse those whose appeals have been allowed without directions from the adjudicator. The criteria for re-refusing an entry clearance are restricted to either a significant and material change in circumstances since the refusal decision or a material deception of which the adjudicator would not have been aware. Any re-refusal must be endorsed by an ECM. The refusal notice must be copied to the appellate authority via APC to link with their file, together with a covering note to advise the adjudicator that [if] the appellant returns to seek a direction under Section 87(1) of the 2002 Act the reasons why the ECO was not prepared to issue the entry clearance should be borne in mind. Copies of these should be sent to UKvisas Policy Section."

[4]Whilst not having the force of law, Mr Palmer, who has appeared for the defendant Entry Clearance Officer, submits that these paragraphs in the Diplomatic Service Procedures accurately reflect the law as was laid down, in particular in the case of R v Secretary of State for the Home Department ex parte Mohammed Yousuf [1989] Imm App R 554, and subsequent cases, in particular R v Secretary of State for the Home Department ex parte Linda Boafo

[2002] 1 WLR 1919

[5]In his carefully prepared argument for the claimant, Mr Mustakim submits the contrary. He submits that the binding effect of an adjudicator's decision on an appeal cannot be diminished by permitting the Entry Clearance Officer to be, in effect, judge in his own cause when there is a determination in existence by an adjudicator. He submits that in, for example, an alleged case of fraud or deception practised upon an adjudicator, the proper course is not to permit, as the Diplomatic Instructions Procedures suggest, the Entry Clearance Officer to revisit the matter himself and re-refuse the entry clearance. He submits that not only does it diminish the due respect which should be accorded to the decision of the adjudicator, but it is a procedure which, if it is allowed, will create a risk of abuse which it is likely can only be inadequately monitored. He submits that no injustice to the issues in such a case will be caused if the ECO's exclusive remedy is held by this court to be that he must proceed by way of an appeal to the AIT on a point of law. By that route, he submits, due control on the position can be maintained and proper limits can be imposed on the ECO's conduct. The legal limits which can be imposed in such a situation will follow, namely(1) that he has to show a point of law;

(2) that if it is a case of alleged fraud which has come to the notice of the ECO since the matter was before the adjudicator, there will be a burden on the ECO to establish a basis for the fresh evidence to be admitted under the rules in Ladd v Marshall; and

(3) he says there will have to be clear and sufficient proof of fraud being made out before the Tribunal. These requirements he says can do nothing other than serve to uphold the adjudicator's decision and the interests of justice by balancing the interests of the applicant for entry and the proper and legal control of immigration.

[6]Mr Mustakim's arguments are underpinned by cases, to which he has carefully taken the court, concerning the circumstances in which an adjudicator's decision can be set aside (for example, on grounds of fraud), where the adjudicator has determined a person's immigration status. Those cases include the case of Boafo to which I have already referred; to the case of Shaheen

[2005] EWCA Civ 1294

; and to Saribal (a decision of Moses J) [2002] INLR 596. Thus, one can see the nature of the issue which I must resolve.

[7]In my judgment, Mr Mustakim's argument ignores the following:(1) the nature and character of entry clearance as it can be seen to be by reference to the relevant legislation and the rules made under the legislation, namely the Immigration Rules; and

(2) the authorities themselves to which he has referred, which, in my judgment, expressly go no further than showing what the position is in connection with what can be conveniently referred to as status cases.

[8]His argument, with respect, fails to draw a distinction between the status cases and the importance of the right which is conferred in a status case, and the limited nature of the right which is acquired by an entry clearance certificate, and the limited nature of a determination by an adjudicator, who comes to a conclusion to allow an appeal against the refusal of an entry clearance certificate, but gives no direction. The limited nature of his decision is governed by the principle that entry clearance considerations are, according to their nature and character, determined in accordance with the facts as they exist at the time that the Entry Clearance Officer makes his decision. That is not to say that a decision of an adjudicator allowing an appeal against refusal by an Entry Clearance Officer does not have status, and that it does not have any binding effect for any purpose at all. It does. In broad terms, its effect is stated by way of summary in the Diplomatic Service Rules, and, in particular, the paragraphs to which I have referred.

[9]I must now briefly state the facts. The claimant is a citizen of Bangladesh who applied for an entry clearance as a working holidaymaker. His application was refused on 8 April 2004, but he appealed against that decision to an adjudicator. By a decision dated 21 January 2005, the adjudicator allowed the appeal, finding in particular that the claimant would be able to be maintained and accommodated by his sponsor without recourse to public funds and that there was no reason to believe that he could not return to Bangladesh at the end of his working holiday. The adjudicator recorded that the claimant had provided "evidence of his savings", and that he had ample funds to meet the costs of travel to and from the United Kingdom. As I have already foreshadowed, the adjudicator did not give any direction.

[10]In paragraph 8, the adjudicator went on to say:

"8. He said nothing at interview which would justify the ECO's finding that he intended to stay in the United Kingdom longer than the two years he was allowed. There is no evidence before me which even remotely suggests that his intentions are dishonest. His circumstances do not support the ECO's suspicions (and that is all I find them to be) that he does not intend to leave the UK on completion of his holiday. 9. No reasons are given for why the ECO was not satisfied on the issue of finances. The appellant has produced evidence of his savings. He has relatives in the UK who have offered free accommodation to him and he has ample funds to meet the costs of his travel to and from the UK. Additionally he will of course be able to add to his savings by working here and evidence of employment available to him has been produced."

[11]Following this decision, the Entry Clearance Officer reviewed the file and in the file there were bank statements from a bank called the Pubali Bank. They appeared to be forged. Enquiries were made and they led to information being obtained from the bank which confirmed the suspicions of forgery. The information from the bank is contained in the document (page 63 of the bundle) dated 8 March 2005 and it is signed by an employee of the High Commission in Bangladesh. It records a talk over the telephone with somebody at the bank, and it refers to the bank balances to the relevant bank account, and the figures as given for the entries which were believed to be forged, namely entries for 15 March 2004, 9 March 2004 and 11 January 2004, are very significantly less than the entries which appeared in the bank statements. On the basis of that information, it was the view of the Entry Clearance Officer that false documents had been lodged in support of the application and that the adjudicator had not been aware of the potentiality for this deception. Thus, on 21 March 2005, the officer re-refused the entry clearance on the grounds that she was not satisfied that the claimant had the means to pay for his return and onward journey; not satisfied that he was able to maintain and accommodate himself without recourse to public funds; not satisfied that he intended to leave the United Kingdom at the end of his working holiday. He also referred to paragraph 320(21) of the Immigration Rules which provides that an application could be refused, and normally would be refused, on the ground of a submission of a false document in support of an application, whether or not it was submitted with the applicant's knowledge.

[12]One or two points of detail, which, in my judgment, have no bearing on the substance of the issue I have to decide, have been drawn to my attention: for example, in the manuscript document at page 63 of the bundle, rather than referring to the Pubali Bank, refers to the Rubali Bank. As it happens, I am informed that there is indeed a Rubali Bank and a Pubali Bank, but, in my judgment, nothing turns on that and it does not affect the appropriate weight which can be attached to the document. The account is the relevant account; the account number is the relevant account number, and it has been confirmed that it was nothing more than an error, and indeed insofar as the error crept into the decision, it was nothing more than an error in that regard as well.

[13]Thus, we reach a stage where it is appropriate to consider the core of the case, namely the true character and nature of entry clearance and the relevant authorities. Before doing that, I must record that certain submissions have been advanced to me about the quality of the evidence pointing to the possibility of fraud by way of the submission of the false documents. As to that, it is clear that, quite sensibly and appropriately, those acting for the claimant, as well as commencing these proceedings by way of judicial review, have also lodged an appeal -- a protective appeal, it could be regarded -- against the re-re-refusal of the Entry Clearance Officer. Since I am satisfied, as I have indicated, that the application for judicial review must fail, and for reasons which I will amplify lead to the question of whether or not there has been a fraud being determined by the adjudicator upon the appeal, I propose not to become involved in expressing my views about the quality or strength of the evidence which is relied upon by the Entry Clearance Officer in support of an allegation of fraud. That will be a matter for the adjudicator to consider free of any view that this court might express. All I would say is that there is sufficient material before this court to enable it to conclude that the allegation which has been made is neither fanciful, frivolous or without basis. It is an allegation which merits investigation.

[14]So I will now turn to the statutory framework and the relevant Immigration Rules. Section 33 of the Immigration Act 1971 defines entry clearance in these terms:

"'Entry clearance' means a visa, entry certificate or other document which, in accordance with the Immigration Rules, is to be taken as evidence [or the requisite evidence] of a person's eligibility, though not [a British citizen], for entry into the United Kingdom (but does not include a work permit)."

[15]In my judgment, quite properly, Mr Palmer emphasises that the effect in law of an entry clearance certificate is that it is evidence of a person's eligibility for entry. Again, in my judgment correctly, he emphasises that a person armed with an entry clearance certificate must always get over the next hurdle, which is that upon arrival at the port of entry he or she must obtain leave to enter.

[16]Section 4 of the Immigration Act 1971 provides:

"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers ..."

[17]Thus, the individual armed with an entry clearance certificate on arriving at the port of entry nevertheless has to satisfy the immigration officer that he or she should be granted leave to enter. In hypothetical circumstances, for example where after an entry clearance certificate has been granted and the entry clearance officer has become aware of the possibility of fraud having been used to obtain the certificate, the entry clearance certificate could not advance the position of the holder very far if the officer were to inform the immigration officers at the relevant port of entry of the belief held and the material upon which that belief was held. That would give rise to a proper enquiry as to whether leave to enter should be granted. But more than that, when one turns to look at the Immigration Rules, one can see at rules 24 through to 30C what the statutory rules say in relation to entry clearance. Rule 25, in its material part, refers to the entry clearance:

"These documents are to be taken as evidence of the holder's eligibility for entry into the United Kingdom, and accordingly accepted as 'entry clearances' within the meaning of the Immigration Act 1971."

[18]In certain circumstances, an entry clearance certificate can have the effect as leave to enter the United Kingdom. That is not so in this case and it requires statutory procedures to be engaged. Rule 27 provides:

"An application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision, except that an applicant will not be refused an entry clearance certificate where entry is sought in one of the categories contained ..."

[19]Rule 30A provides:

"An entry clearance may be revoked if the Entry Clearance Officer is satisfied that: (i) whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing, or orally for the purposes of obtaining the entry clearance; or (ii) a change of circumstances since the entry clearance was issued has removed the basis of the holder's claim to be admitted to the United Kingdom, except where the change of circumstances amounts solely to his exceeding the age ... (iii) ..."

[20]An applicant for an entry clearance as a working holidaymaker must meet each of the requirements in paragraph 95(i) to (ix) of the Immigration Rules, which include requirements that he:

"(iv) has the means to pay for his return or onward journey; and (v) is able and intends to maintain and accommodate himself without recourse to public funds; and ... (viii) intends to leave the UK at the end of his working holiday."

[21]There is a right of appeal against the refusal of an entry clearance: see section 82(1) of the Nationality, Immigration and Asylum Act 2002. In relation to such an appeal, the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse, and may not consider evidence which concerns a matter arising after the date of the decision: see section 85(5). If an immigration judge allows an appeal under section 82, he may, as I have indicated, at his discretion give a direction for the purposes of giving effect to his decision.

[22]The position in relation to the giving of directions has received the attention of judges from time to time, and for present purposes particular reference perhaps can be made to the case of the Entry Clearance Officer in re MG Jamaica

[2004] UKIAT 00140

, and in particular at paragraph 9. This case before the Vice-President of the Immigration Appeal Tribunal, Mr Latter, has facts closely similar to this case. The Entry Clearance Officer was not satisfied about the financial circumstances of the applicant; not satisfied that she was a genuine visitor. The adjudicator allowed the appeal, and taking the view that a long period of time having elapsed in the case, he directed the Entry Clearance Officer to grant entry clearance in consultation with the applicant in order to ascertain when she would seek to make her scheduled visit. The appeal to the Tribunal was only to challenge the fact that a direction had been made by the adjudicator to question the legality of him having done so.

[23]Another authority was referred to, namely Obeid [1986] Imm App R 341, and the Vice-President in MG Jamaica cited a passage from Obeid and adopted it to this effect:

"The only issue before us concerns a direction of the adjudicator when following the allowing of the appeal he directed the issue of 'the appropriate entry clearance'. As the Tribunal has said on many occasions, the problem with such a direction is that time has gone by. In this case a decision was taken on 20 April 1985 in relation to an application to visit the United Kingdom for a stay of up to two months from that date. Clearly the lack of justification of refusal of entry for a proposed visit made for express purposes on a different date cannot entitle a person to entry clearance for a visit made at a different time when indeed the purpose themselves may have changed. Even assuming the purposes to remain stay the same, a proposed visitor must satisfy the Immigration Officer as to maintenance and accommodation and his ability to meet the costs of return or onwards journeys. In all the circumstances of visit cases, in the Tribunal's view the normal consequences of the allowing of appeal are simply a finding that the refusal of entry was unjustified."

[24]In so far as the Vice-President adopted that statement of the position, I have nothing to add to it. It is plainly right, having regard to the rules that Entry Clearance Officers make their decisions as to whether or not to issue a certificate according to the facts and circumstances as they are known to the Entry Clearance Officer at the time.

[25]From that short synopsis of the rules and the concept of entry clearance, it is clear that there is a material distinction between the nature of the rights acquired by somebody who is issued with an entry clearance certificate, and someone who has their status decided by an adjudicator on appeal. The matter, in my judgment, is made entirely clear if consideration is given to the judgment of Rose J (as he then was) in ex parte Yousuf [1989] Imm App R 554. The case establishes the following propositions:(1) If following a successful appeal, there is a change of circumstances in relation to the application for entry, that is something which the Entry Clearance Officer is not only entitled to consider, but which he must consider in determining whether or not to issue an entry clearance (that is in a case where there is no direction from the adjudicator).

(2) The Performance of his duty is to be distinguished from any wholly improper attempt made by an Entry Clearance Officer to circumvent an adjudicator's decision by pursuing further enquiries with a view to denying entry on a different basis.

(3) If in the course of reviewing the up-to-date circumstances in connection with an application, which has been successful on appeal (an Entry Clearance Officer discovers deception), that may constitute circumstances which are sufficient to justify the Entry Clearance Officer taking a different view from the adjudicator, who has acted in ignorance of the deception.

(4) The existence of a right of appeal against the adjudicator's decision does not limit the ECO to that course. Later in this judgment I shall come back to the nature and content of any right of appeal that there may be against the adjudicator's decision.

(5) An applicant may pursue an appeal against a re-refusal decision, and that is an appropriate forum for resolution of a disputed factual question. I have already adverted to the fact that, in this case, there is an appeal in being by way of a notice of appeal having been issued, and the fact that that will be the proper forum for the resolution of the factual issues.

[26]In my judgment, close examination of the decision in ex parte Yousuf makes it clear that what will not be permitted is conduct on the part of the Entry Clearance Officer, which simply amounts to a deliberate attempt to circumvent an adverse decision which has been reached by the adjudicator, by simply carrying out further investigations with a view to coming up with a new basis for refusing entry clearance. What the judge decided on the material before him was that he was not persuaded that the Entry Clearance Officer was seeking to sidestep the adjudicator's decision. Indeed, he considered that, according to the then rules, namely rule 17, he was entitled to consider the circumstances at the time as they came before him. That remains the position here. The judge went on to observe:

"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 ... to refuse entry. Put another way, if there is deception on the part of the applicant, the discovery of that deception is in my judgment capable of being a change in circumstances such as would justify the Entry Clearance Officer taking a different view from that of the adjudicator made in ignorance of that deception."

[27]The fact that rule 17 is no longer in existence, in my judgment, has no bearing upon the reasoning which the judge has put forward. It plainly is sensible that when a matter has to be investigated, namely to see whether the circumstances have changed then, if in the course of those enquiries, deception or fraud, which had only previous been suspected is confirmed, or if further information is disclosed, it should be a perfectly proper and, indeed, a required course that a diligent Entry Clearance Officer should fully investigate matters.

[28]The possibility of fraud being used in order to obtain advantages under this legislation is something which must be at the forefront of those who are concerned to exercise their powers. The judge in ex parte Yousuf went on to add that although the Entry Clearance Officer has a right of appeal, it does not, in my judgment, follow that he is limited to that appeal. He has his obligations to perform. In my judgment, that remains the law. He has his obligations to perform because he is required to consider whether or not to issue an entry clearance certificate by reference to the facts as they are before him and any proper investigation of the facts to which the case gives rise.

[29]As to the right of appeal, as I foreshadowed, the question, which is indeed a critical question for the argument advanced by Mr Mustakim, is that the right of appeal of an Entry Clearance Officer is a sufficient remedy. That will need to be examined because, as is common ground and accepted, the Entry Clearance Officer has only a right of appeal on a point of law. So much therefore for the case of Yousuf.

[30]Next, one can turn to Boafo. The issue in Boafo related to a decision in connection with a person's application for indefinite leave to remain in the United Kingdom. The Secretary of State in that case grounded his argument upon the basis that he was entitled to reconsider and make a fresh decision in the matter where there were no directions for giving effect to the grant of the indefinite leave to remain. The argument he had to face is, in effect, the argument which Mr Mustakim has adopted and deployed in the case before me, namely that the adjudicator's determination meant that he was bound by it, whether or not it was accompanied by directions and regardless of any change in circumstances. The argument was that it was wrong in law and unjust for the Secretary of State, by not appealing the adjudicator's decision, to reach a further decision on later facts and one which itself was unappealable save by judicial review.

[31]Enough has been said by way of reference to that case to indicate the differences which can be seen between it and this case. The judgment, however, is important for the conclusions which are stated in it. In paragraph 26, Auld LJ, who in effect gave the leading judgment of the court, stated: "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 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.

[32]Then a little later in that paragraph, Auld LJ refers to Yousuf: 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 [that is, the directions]."

[33]Then a little later in paragraph 28, Auld LJ says as follows:

"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."

[34]In my judgment, the decision of the Court of Appeal in Boafo expressly approves the relevant part of the reasoning of Rose J in ex parte Yousuf. In my judgment, paragraph 28, insofar as I have quoted, determines for the purposes of this court the issue in the case. The executive may re-open a decision in the circumstances there talked about, which are the very circumstances which, in my judgment, have arisen on the facts of this case.

[35]I therefore turn next to what I described as the line of authority which Mr Mustakim drew upon in order to advance his argument before me. As the authorities so far reviewed indicate, on an application for indefinite leave to remain, it is not ordinarily open to the Secretary of State to consider a matter afresh after its successful appeal. The Secretary of State can impugn the decision of an appellant authority by evidence of fraud proved to a very high standard on the basis of Ladd v Marshall principles: see Saribal v Secretary of State for the Home Department

[2002] EWHC 1542

and Momin Ali v Secretary of State for the Home Department [1984] Imm App R 23. It is also open to the Secretary of State to appeal against a decision of the appellate authority where evidence of the deception comes to light on the basis of material error of fact in accordance with the principles set out in E and R v Secretary of State

[2004] EWCA Civ 49

, see in particular paragraph 64, and is further explained by the Court of Appeal in Shaheen V Secretary of State for the Home Department

[2005] EWCA Civ 1294

. In particular, as to the case of E and R and Shaheen, short reference to the judgment of Brooke LJ in the latter will be sufficient. In my judgment, it will be sufficient because it follows from what I have already said that there is a critical distinction between the grant of an entry clearance certificate or the exercise of statutory powers in accordance with those provisions, and those provisions which lead to determination of existing immigration status.

[36]In paragraph 15 of Shaheen, Brooke LJ put two questions as the two main questions which were in the appeal:

"i) Did the IAT commit an error of law in its consideration of the issue(s) of law that formed the agenda for the Secretary of State's appeal to that Tribunal? ii) If it did, then should we admit the new evidence from the Birmingham Heartlands Hospital, and what are the principles of law we should apply when determining this appeal?"

[37]In an earlier case, Brooke LJ had occasion to refer to a judgment of Carnwath LJ in E and R, and in paragraph 17 he reverts by way of quotation citation to that judgment and to eight examples given by Carnwath LJ in his review of the case law which seem to demonstrate that where appeal or jurisdiction is limited to correction of errors of law, occasionally there may be an ability to find a window of opportunity for intervention when a minister of an inferior body or tribunal had taken a decision on the basis of a foundation of fact which was demonstrably wrong. The eight examples are listed in paragraph 17 by way of citation in his judgment.

[38]In paragraph 30 of his own judgment, quoting Carnwath LJ at paragraph 64, Brooke LJ said as follows:

"... a common feature of all these cases, even where the procedure was adversarial, in that the Secretary of State or the particular statutory authority had a shared interest with both the particular appellant and with any tribunal or other decision-maker that might be involved in the case in ensuring that decisions were taken on the best information and on the correct factual basis. At para 66 he identified asylum law as representing a statutory context in which the parties shared an interest in co-operating to achieve a correct result. He went on to suggest that the ordinary requirements for a finding of unfairness which amounted to an error of law were that: (i) there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; (ii) it must be possible to categorise the relevant fact or evidence as 'established' in the sense that it was uncontentious and objectively verifiable; (iii) the appellant (or his advisers) must not have been responsible for the mistake; (iv) the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."

[39]In my judgment, the upshot of all of this is that the submission advanced by Mr Mustakim that the appropriate course which this court should uphold in order to meet the ends of justice and fairness, is that the Entry Clearance Officer should appeal to the Tribunal, simply does not meet the needs of justice. The reality of the position is that, unless the Entry Clearance Officer can get within the framework of the four ordinary requirements as defined by Carnwath LJ, and in particular present a position which is uncontentious and objectively verifiable, there would be no point of law which could be accepted by the Tribunal. In this case, it is contentious.

[40]The evidence satisfies me that this claimant does not accept that any fraud has been perpetrated. It is, therefore, to suggest a non-route to the resolution of the issue to urge that there must be an appeal. It confirms the sense that there is in the Immigration Rules and in the line of the authority to which I have been referred and followed. There can be a proper and full enquiry into the issue as to whether or not there was fraud and if necessary that can be determined by an appropriate appellate judge, namely the adjudicator. In my judgment, none of this is in any way surprising, having regard to the requirement that entry clearance certificates must be issued in accordance with the circumstances prevailing at the time of the decision.

[41]So far as the more general submissions of Mr Mustakim are concerned, namely his plea that this court should accord due respect to the binding judicial determination of an adjudicator, I should add that the upshot of the argument and the decision of this court is not that the decision of the adjudicator is not binding and effective as between the ECO and the applicant at all. It will, in the circumstances which I have indicated, be effective to the limits which the law permits it to be effective. It will be effective so as to provide the framework for the decision which has to be made, and the framework of the decision is the facts as they are at the time the Entry Clearance Officer has to reconsider the matter in the light of the adjudicator's decision. The Entry Clearance Officer would not be free to depart without reason from the determination of the adjudicator so far as it relates to facts which remain the same at the time the Entry Clearance Officer is considering the position.

[42]Particularly in relation to situations where there has been a mistake of fact and a possibility of deception, everything points to it being essential for the proper maintenance of the legislation that, if there has been an error of fact and if there has been a deception, that it should be properly investigated, not forestalled, not prevented by unduly oppressive requirements and chance requirements that the Entry Clearance Officer may or may not be able to establish a point of law, or may or may not be able to establish fraud to a certain standard. It is a simple resolution of the matter before another judicial determination, namely a further appeal to an adjudicator.

[43]I can see no injustice or unfairness, nor can I see any conflict with the due respect which should be accorded to an adjudicator's decision.

[44]With regard to my essential conclusion in respect of these issues, I do not propose to deal with some of the other very much more subsidiary points which Mr Mustakim raised, for example, the absence from the DSP of procedures specifically addressing the possibility of appealing a determination of the adjudicator; nor his complaint, for example, that in this case, whilst the procedures indicated the need for an interview, no interview took place. All that I would say, going back to very much the early part of this judgment, is that I do urge that some attention is given to the terms of the Diplomatic Service Procedures paragraph 27(2), and in particular to the last sentence of that rule, where as presently formulated it seems to me to be garbled. "The refusal notice must be copied to the appellate authority via APC to link with their file, together with a covering note to advise the adjudicator that [I think possibly the word 'if' has been left out] [if] the appellant returns to seek a direction under Section 87(1) of the 2002 Act the reasons why the ECO was not prepared to issue the entry clearance should be borne in mind." I take it that the thrust of this requires that where the Entry Clearance Officer is re-refusing, he should be alert to the possibility that the applicant could apply to the adjudicator, where no entry clearance certificate has been issued, for a direction under section 87(1) that one be issued. The instruction contemplates that, in order for that to be properly considered by an adjudicator, the adjudicator ought to be aware of the reasons why there has been a re-refusal or, looked at from another point of view, why no entry clearance certificate has been issued in the light of a decision which otherwise seemed favourable to the applicant.

[45]Again, it does not seem right, as Mr Mustakim has observed, that there is no provision for the applicant to be notified of this. But it seems right too that if that is a step which has been taken in connection with a possible judicial determination under section 87(1), then the applicant should be sent a copy of the letter which is sent to the adjudicator. To that extent, therefore, Mr Mustakim's instinct for propriety was correct. But nevertheless, none of that touches the substance of this case which, in my judgment, must lead this application for judicial review being dismissed.

[46]Thank you both. Any applications?

[47]MR MUSTAKIM: Your Lordship, there is an application in relation to costs.

MR JUSTICE NEWMAN: Sorry, what are you --

[49]MR MUSTAKIM: Costs, your Lordship.

MR JUSTICE NEWMAN: You need an assessment?

[51]MR MUSTAKIM: Yes.

MR JUSTICE NEWMAN: You can have that.

[53]MR MUSTAKIM: I am obliged. Your Lordship, there is another point. You have raised various issues in relation to this case -- the distinction between entry clearance cases, for example, and non-entry clearance cases. Your Lordship, as I have sought to say, entry clearance cases can themselves become status cases, for example out of country asylum appeals. That would become a status case, in effect, because if he is granted -- if his appeal is allowed in the United Kingdom, that in effect would amount to a status case, your Lordship. The point is that this distinction has never been made by the Court of Appeal in the context of a specific entry clearance case, your Lordship. It is because this is an important issue and it is of public importance, your Lordship, I would respectfully urge you to consider granting permission to apply to the Court of Appeal to deal with this matter specifically on this issue. There are a host of other issues which your Lordship has pointed out in relation to the importance of the sanctity of the decisions of the adjudicator and the determination and the binding effect. Your Lordship, because it has never been determined, these particular points by the Court of Appeal, I would respectfully urge your Lordship to consider granting permission for that to be determined.

MR JUSTICE NEWMAN: Do you want to say anything?

[55]MR PALMER: My Lord, the matter has been adequately dealt with by my Lord's judgment and by the Court of Appeal in (inaudible).

[56]MR JUSTICE NEWMAN: Thank you. No, you will have to go to the Court of Appeal if you want to take that any further. Thank you very much.

[57]MR PALMER: My Lord, there is an application on behalf of the Entry Clearance Officer for her costs in that matter, and I ask for the order that they be subject to detailed assessment if not agreed. It may be that in light of the fact that the claimant is publicly funded, there will never become an opportunity to --

MR JUSTICE NEWMAN: Then there has to be an appropriate formula.

[59]MR PALMER: I think the usual form is not to be enforced without permission of the court, but I ask for that order.

MR JUSTICE NEWMAN: Is there any resistance to that order?

[61]MR MUSTAKIM: Well, your Lordship, it is a case which, as your Lordship pointed out, there are so many issues. There are also propriety issues in relation to failures of procedures and things of that nature. It is not a case which has come before your Lordship without merits as such, or as an abuse of the court time, your Lordship. In those circumstances, I would respectfully urge you to consider that it is not appropriate to award costs in this situation.

[62]MR JUSTICE NEWMAN: Thank you. There should be the usual order. It means that it will not be enforced without leave of the court. This being a case where the claimant is in receipt of public funding, the defendant should have an order for costs. Thank you.