JC (Part 9 HC395, burden of proof) China [2007] UKAIT 00027 (08 March 2007) [2007] UKAIT 00027

UKAIT
JC (Part 9 HC395, burden of proof) China [2007] UKAIT 00027 (08 March 2007)
[2007] UKAIT 00027 · 2007-03-08
[1]The appellant is a citizen of China. He seeks reconsideration of a determination of Immigration Judge Shanahan notified on 6 February 2006 dismissing his appeal against a decision of the Entry Clearance Officer (ECO) Guangzhou dated 15 February 2005 refusing to grant him entry clearance as a work permit holder. The respondent decided that the appellant did not meet the requirements of paragraph 128 and also fell foul of paragraph 320(15) of the Immigration Rules HC 395. Paragraph 128 states:
" Requirements for leave to enter the United Kingdom for work permit employment 128. The requirements to be met by a person coming to the United Kingdom to seek or take employment (unless he is otherwise eligible for admission for employment under these Rules or is eligible for admission as seaman under contract to join a ship due to leave British Waters) are that he: (i) holds a valid Home Office work permit; and (ii) is not of an age which puts him outside the limits for employment; and (iii) is capable of undertaking the employment specified in his work permit; and (iv) does not intend to take employment except as specified in his work permit; and (v) is able to maintain and accommodate himself and any dependents adequately without recourse to public funds; and (vi) in the case of a person in possession of a work permit which is valid for a period of 12 months or less, intends to leave the United Kingdom at the end of his approved employment; and (vii) holds a valid United Kingdom entry clearance for entry in this capacity except where he holds a work permit valid for 6 months or less or he is a British National (Overseas), a British protected person or a person who under the British Nationality Act 1981 is a British subject."
[2]Paragraph 320(15), the other ground of refusal, is one of the general grounds of refusal set out at part 9 of the Immigration Rules HC395. It states that entry clearance should normally be refused if:
"whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document;"
The structure of part 9[3]Apart from the case of RM ( Kwok On Tong :HC395 para 320) India [2006] UKIAT 00039 and BA (321A Immigration Rules mandatory) Nigeria [2006] UKAIT 00080 , there is little case law on the general grounds of refusal. What was reported under the former IAT (we bear in mind for example Olufosoye [1992] Imm AR 141, Tekere (01/TH/174), [2001] UKIAT 01TH00174 and Dube ( [2002] UKIAT 01367 ), relates to versions of the Immigration Rules quite different from the current ones. Part 9 of the HC395 Rules contains "general grounds" for the refusal of entry clearance, leave to enter (320, 321), cancellation of leave to enter or remain (321A) and variation of leave to enter or remain (322). (It also deals at paragraph 323 with grounds on which leave to enter or remain may be curtailed, but these are left to one side here, as they possibly have a unique status). The opening sentence of paragraph 320 states:
"In addition to the grounds for refusal of entry or leave to enter set out in parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply."
[4]Several features of these general grounds need clarifying.[5]First, each identifies an additional legal basis of the decision; they are not a set of extra reasons.[6]Second, although they are grounds "additional" to specific substantive grounds under parts 2-8 of the Immigration Rules that does not mean they cannot form a stand alone basis for refusal; they can. For example, if a person seeks entry for a purpose not covered by the immigration rules,and so paragraph 320(1) applies, that means he must be refused (Indeed, a decision taken on such a ground is one of those which cannot be appealed on immigration grounds alone: see s.88 (2)(d) of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act".)) It follows from this that if a person is refused on one or more substantive grounds under Parts 2-8 and on one or more general ground under part 9, he has two hurdles to surmount. Even if he can show on appeal that one of the two grounds (the substantive and the general) is wrong, he will still fail to meet the requirements of the Immigration Rules if the other ground is made out; and so, his appeal under the Immigration Rules will fail.[7]Third, they fall into two categories: grounds in respect of which refusal is mandatory (320(1)-(7), 321A(1)-(6), 322(1)) and grounds which give discretion (expressed as "should normally be refused"), (320(8)-(21), 321, 322(2)-(11), 323).[8]Fourth, they are a mixed bag and do not easily fit into neat categories. Some are sui generis and have been added over time in response to very specific circumstances: e.g. paragraph 320(4) dealing with Channel Tunnel arrivals. Many are concerned with documentation. They represent, as it were, the list of general grounds which the Home Secretary currently thinks must or should operate to complement the substantive immigration rules.[9]Fifth (assuming both substantive and general grounds are being relied on), there is really no hard and fast rule for immigration judges to adopt so far as concerns the order in which the should be addressed. The subject-matter of the general grounds is too diverse for there to be such a rule. The Home Office IDIs advise their staff, at least in respect of some subparagraphs, to first address the substantive rather than the general requirements of the Rules (in parts 2-8), but they primarily advise that for pragmatic reasons (less scope for argument on appeal). Much will depend on which general ground is matched with which substantive requirement(s). However, where the general ground is one in mandatory form, taking it first would seem logical since a decision on that may be dispositive of the appeal – or may indeed establish ineligibility for an appeal: see above paragraph 6.[10]Sixth, in relation to all of the general grounds the burden of proof is on the decision-maker (entry clearance officer, immigration officer, Secretary of State) to establish the facts relied upon. Their common thread is that they depend for their validity on the decision-maker being able to establish a precedent fact. Unless it is not contested, the precedent fact needs to be established for the duty or power to be exercised. As can be seen from their early formulation as "general considerations" (see e.g. HC509, HC510), the general grounds, now found at part 9 of HC395, seek to cover circumstances where the Home Secretary considers that a person should not succeed under the Immigration Rules even though he meets the ordinary substantive requirements. They are general grounds for saying "no". (That in respect of such grounds the decision-maker is put to proof may be thought salutary, since otherwise their operation could create an executive "override" capable of undermining the efficacy of the substantive rules.)[11]Another reason why the burden rests on the decision-maker is that each of these grounds alleges in one way or another a failing or a wrongdoing on the part of an applicant. As regards failings, they refer to an applicant's failure to give information, furnish documents, give undertakings or consent or respond to a request to attend an interview (320(3), (5), (8), (8A), (10), (14), (16), (20), 321A(6), 322(9), 322(11), 322(10)), failure to show acceptable intentions (320(4), (9)), restricted returnability (320(13), 321(iii), 322(8)), failure to observe the time limits or conditions attached to any grant of leave to enter or remain (320(11), 322(3)), failure by a sponsor to give an undertaking to be responsible for maintenance and accommodation (322(16)), failure by the person concerned to honour any declaration or undertaking given as to intended duration and/or purpose of stay (322(7), (322(6)), refusal to undergo a medical examination (320(17), (321(iii)), undesirability of admission for medical reasons (321A(3)) and failure to maintain or accommodate himself and any dependants without recourse to public funds (322(4)).[12]As regards wrongdoings, they cover persons subject to a deportation order or exclusion personally directed by the Secretary of State (320(2)(6), 321(iii), 321A(4)), persons whose character, conduct or associations or the fact that they represent a threat to national security makes permitting them to remain undesirable (322(5)), the obtaining of a previous leave to enter or remain by deception (320(12)), the making of false representations or giving of false information or failure to disclose any material fact for the purposes of obtaining employment documents (320(15), (321(i), 321A(2), 322(2)), a change in circumstances since entry clearance was issued or leave given (321(ii), 321A(1)), commission of an offence punishable with a term of 12 month imprisonment (320(18)) or the existence of a criminal record (321(iii)) and exclusion deemed conducive to the public good (320(19), 321A(5)).[13]So far as the standard of proof is concerned, we consider that what the Immigration Appeal Tribunal said in Olufosoye [1992] Imm AR 141 still holds good:
"insofar as the justification consists of deception or other criminal conduct the standard of proof will be at the higher end of the spectrum of balance of probability" (see also R v IAT ex parte Nadeem Tahir [1989] Imm AR 98 CA). This approach reflects that of the House of Lords in R v Secretary of State for the Home Department ex p.Khawaja [1984] AC 74 and is consistent with subsequent case law (see e.g. Bishop [2002] UKIAT 05532 ). In R (AN & Anor) v Secretary of State for the Home Department [2005] EWCA Civ 1605 Richards LJ stated at [62]: "
Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application . In particular, the more serious the allegation or the more serious the consequences if the allegation is proven, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities".[14]Each of the general grounds has an exclusionary, rather than an inclusionary, intent. The applicant is not showing why he qualifies; rather the decision-maker is seeking to show why he is, or should normally be, dis qualified.[15]However, once the decision-maker establishes the underlying facts, the burden shifts to the appellant. It shifts to the appellant even when the general ground concerned is discretionary, stating that refusal should normally be refused. That follows from the fact that the legislative structure of the Nationality, Immigration and Asylum Act 2002 requires the appellant to prove that the decision was not in accordance with the law (including the immigration rules) or that a discretion exercised in making a decision should have been exercised differently.[16]Returning to paragraph 320(15), we remind ourselves that it states that entry clearance should normally be refused if:
"whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document;"
[17]As such, it belongs to a subgroup of grounds in respect of which there is an exclusionary discretion ("should normally be refused"). Since the ground is one which requires establishment of a precedent fact, in this case false representations having been made, the burden of establishing the fact lies on the decision-maker. RM gives important guidance on this rule's application. At paragraph 14 the Tribunal makes the point that where any of the (mandatory) subparagraphs (1) to (7) of paragraph 320 applies, a grant of entry clearance would necessarily be not in accordance with the law. Where, however, the facts indicate an application of (discretionary) subparagraphs 320(8) to (21), then:
"…the position is quite different. Under those subparagraphs, although the presumption is clearly against entry clearance, there is no bar on a grant of entry clearance. A grant of entry clearance would not therefore conflict with the Rules, and an Immigration Judge's finding that circumstances apply to the case does not prevent him allowing an appeal"
. The appellant's case[18]The Immigration Judge upheld the decision of the ECO on both substantive and general grounds: he found, in view of his limited level of skills that the appellant did not meet the requirements of paragraph 128(iii) "is capable of undertaking the employment specified in the work permit" and 128(iv) "does not intend to take employment except as specified in the work permit". And he found that the appellant was caught by the exclusionary provisions of paragraph 320(15) because he had made false representations to obtain his work permit. In this regard he attached weight to the ECO's evidence that when a site visit was paid to the appellant's place of work in China, the appellant and his employer knew about this beforehand and falsely represented things as a result.[19]The grounds for reconsideration attacked both findings. When these came before Senior Immigration Judge Chalkley he found no arguable merit in the grounds which attacked the Immigration Judge's conclusion on paragraph 128. Reconsideration was ordered solely on the paragraph 320(15) point of challenge.[20]At the outset of the hearing before us we pointed out to the parties that it seemed to us that when ordering reconsideration the Senior Immigration Judge concerned had overlooked that reconsideration only lies where there is a real possibility that upon reconsideration a different decision may be made: see Rule 26(6) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. What we had in mind was that an appellant cannot succeed in an appeal under the Immigration Rules unless he meets all relevant requirements of those Rules: see RM ; and secondly, that, in the context of this case the Immigration Judge (like the respondent) had relied on a failure to meet two sets of requirements: those under paragraph 128 and those under paragraph 320(15). Accordingly, even if Mr Lam could persuade us that paragraph 320(15) was wrongly relied on, the appeal could still not succeed, by virtue of the fact that no arguable error of law had been found in the Immigration Judge's conclusion that the requirements of paragraph 128 were not met.[21]However, the appellant's grounds of appeal to the Immigration Judge had disputed the ECO's reason under both paragraph 128 and 320(15) and, on the basis of the approach set out by the Court of Appeal in DK (Serbia ) [2006] EWCA Civ 1747 (approving AH (Scope of Section 103 reconsideration ) Sudan [2006] UKAIT 00038 ), we considered we should not shut the appellant out from seeking to persuade us that the Immigration Judge's conclusions on paragraph 128 were also legally flawed.[22]Mr Lam sought to persuade us that the way in which paragraphs 128 and 320(15) had been applied in this case meant that they had to be treated as inextricably linked and so, if we found that the Immigration Judge materially erred in law in finding that paragraph 320(15) applied, then we were obliged to find his assessment of the appellant's case in relation to the requirements of paragraph 128 similarly flawed.[23]We are prepared to accept that the Immigration Judge's reliance on paragraph 320(15) was flawed. In forming this view we particularly bear in mind the following. Firstly paragraph 320(15) is not one of the general grounds on which entry clearance or leave to enter is to be refused (i.e. a mandatory refusal ground), but only one on which entry clearance or leave to enter should normally be refused (i.e. a discretionary refusal ground). That is relevant because it is not at all evident that the ECO or the Immigration Judge recognised that they were exercising discretion as opposed to applying a mandatory rule. Secondly, the Immigration Judge himself disagreed with the respondent's view that the appellant and his employer between them had colluded over the site visit and had falsely represented what the appellant actually did: see paragraph 32. Thirdly, he did not accept that the appellant's National Occupational Skills Standard Certificate was false: see paragraph 39. Bearing in mind that when the respondent alleges false representations it is at least for him in the first instance to establish the precedent facts on which he relies, we think the Immigration Judge erred in upholding the respondent's reliance on 320(15).[24]However, this still leaves the fact that the appellant was found not to have met the requirements of paragraph 128.[25]We cannot accept Mr Lam's argument about the interdependency of paragraphs 320(15) and 128 in the abstract. The most obvious distinction is the one we have just identified: the application of the burden of proof is different for each. For one the burden is on the respondent to first establish the facts on which he relies; for the other the burden rest with the appellant to prove his case. Hence even where the reasons for finding that paragraph 320(15) applies are exactly the same as the reasons for finding paragraph 128 requirements are not met, the outcome under each paragraph may not necessarily be the same, depending on how application of the burden of proof moderates the assessment. Further, whereas one cannot succeed under paragraph 128 unless one meets all its requirements, application of paragraph 320(15), as we have seen, imports a discretion (albeit one which should normally lead to refusal).[26]Nevertheless, we do accept that in certain cases depending on the facts the two provisions may be closely interrelated: when for example, the use of false representations also demonstrates that the appellant does not have the capability or the requisite intention to undertake the work specified (paragraph 128(iii) and (iv)). More generally, if an immigration judge decides that (for example) dishonesty alleged under paragraph 320(15) is not established, that may sometimes incline him to take a different view than he would otherwise as to the appellant's credibility in relation to substantive requirements of the Rules, especially those concerned with the appellant's intentions.[27]However, as Mr Lam conceded, on the facts of this case, the reasons the Immigration Judge gave for concluding that the appellant did not meet the requirements of paragraph 128 (at least under the only contested requirement, subparagraph (iii)), existed independently of the reasons for considering he had used false representations. Thus in paragraphs 31-40 the Immigration Judge relied on the evidence indicating that the appellant had poor knowledge of storage and hygiene, that he practiced poor hygiene at his restaurant and that the state of the restaurant "seriously calls into question the appellant's skills knowledge and experience of good hygiene practices".[28]Mr Lam's argument might have been capable of showing interdependence between the findings on false representations and paragraph 128(iv) relating to intention to perform the specific employment. But that still left subparagraph 128(iii), which is the only relevant subparagraph of paragraph 128 with which we are concerned in this case.[29]Accordingly, we consider that this application for reconsideration cannot succeed. The appellant was properly found unable to meet one of the essential requirements of paragraph 128: errors in the immigration judge's reasoning in respect of paragraph 320(15) did not infect his reasoning in respect of paragraph 128. Hence the appellant's appeal was bound to be dismissed.[30]Thus, even though the Immigration Judge erred in law in concluding that the appellant stood to be refused entry clearance for the additional reason of having used false representations contrary to paragraph 320(15), this was not a material error. The Immigration Judge's conclusions on paragraph 128 were ones which were open to him on the evidence.[31]It follows that the decision of the Immigration Judge to dismiss the appellant's appeal must stand. Signed Date Senior Immigration Judge Storey

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