MC (ss 88: meaning of "a passport") Gambia [2008] UKAIT 00030 (09 April 2008) [2008] UKAIT 00030

UKAIT
MC (ss 88: meaning of "a passport") Gambia [2008] UKAIT 00030 (09 April 2008)
[2008] UKAIT 00030 · 2008-04-09
[1]MC (ss 88: meaning of "a passport") Gambia [2008] UKAIT 00030 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 14 December 2007 Date Determination notified: 09 April 2008 Before Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Immigration Judge Corke Between MC APPELLANT and THE ENTRY CLEARANCE OFFICER, BANJUL RESPONDENT For the Appellant: Mr. S. McDonald of IAS For the Respondent: Mr. A. Mullen, Home Office Presenting Officer DETERMINATION AND REASONS In relation to an application for entry clearance, "a passport" in s 88(3)(b) of the 2002 Act means a valid passport satisfactorily establishing the holder's identity. The appellant, a citizen of Gambia, appealed to the Tribunal against the decision of the respondent on 27 December 2006 refusing him entry clearance to the United Kingdom as the husband of a person present and settled in the United Kingdom. The Immigration Judge held that in the circumstances of this case the appellant had only a limited right of appeal and he dismissed the appeal on the grounds available to the appellant. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.[2]The appellant came to the United Kingdom apparently in 2004. He travelled from Gambia to Senegal and then from Senegal to the United Kingdom on a false Liberian identity card and a Guinean passport in a name which is different from that which he now uses. He claimed asylum in the United Kingdom using a story that was false. Following the refusal of his claim, an attempt was made to remove him to Senegal, the country in which he had embarked for the United Kingdom. In Senegal, apparently for the first time, he told a small part of what is now said to be the truth, that is to say that he was from Gambia. The Senegalese authorities refused to accept him and he was returned to the United Kingdom. He was granted temporary admission but failed to obey the terms on which it was granted and absconded. He started a business as a trader in jewellery in Edinburgh.[3]In the course of that business he met the woman who is now his wife. In March 2006, when the appellant had been unlawfully in the United Kingdom for nearly two years, they became engaged to be married. They travelled to Gambia for the marriage, which took place on 19 December 2006. Although no question has been raised about it previously, we should point out that the appellant travelled on the document that he says is his own passport. It was issued on 9 April 2003. The reason why that may be surprising is that according the appellant's witness statement he gave his Gambian passport in April 2004 to the agent who supplied him with the false identity, false documents and false story that he used for his asylum claim.[4]Following the marriage the appellant's wife returned to the United Kingdom, and he made the application which is the subject of the present appeal. The appellant's application was, of course, accompanied by his passport. The notice of decision is in the following terms: "You have applied for entry clearance to the United Kingdom as a husband BUT: I am not satisfied, on the balance of probabilities, that you meet the requirements of paragraph 320(3) of the Immigration Rules, in particular: I am not satisfied that you have not failed to produce a valid national passport or other document that satisfactorily establishes your identity and nationality Because I have considered your application on the evidence you have provided. This includes your responses to the minimum 57 questions on the visa application form and the documents you have submitted, as well as any additional information provided by you in section 10 of the visa application form. The onus is on you, the applicant, to provide satisfactory information to evidence that you meet the requirements of the Immigration Rules. Home Office records indicate that you applied for leave to remain in the UK outside of the Immigration Rules in 2004. At that time you did so under a different name, date of birth and nationality to the ones that you have now applied under. I cannot therefore be satisfied of your true identity and therefore I am not satisfied that you have provided a passport or other document that satisfactorily establishes your identity and nationality. I therefore refuse your application. Your application does not attract a full right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002. Your right to appeal is limited to any or all of the grounds referred to in section 84(1)(b) and (c) of the Nationality, Immigration and Asylum Act 2002" [that is to say that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 or section 6 of the Human Rights Act 1998]." (The reference to an application for leave to remain outside the Rules is unexplained. It is not very obviously a reference to an asylum application; but, for the purposes of this determination, we must assume that the information the Entry Clearance Officer had related to the asylum application described by the appellant).[5]The appellant's grounds of appeal to the Tribunal were simply "the appellant meets the requirements of para 320(3)". This is perhaps an unpromising ground, given the words of that sub-paragraph which we set out below. The ground was, however, expanded by a skeleton argument before the Immigration Judge, which makes two substantive arguments. The first is that, because para 320 includes the words "in addition to the grounds of refusal of entry clearance", the respondent was obliged to consider the application under the relevant substantive Immigration Rules and to give his view on them as well as on para 320 itself. The second is that the respondent had produced no evidence supporting his assertion that para 320(3) applied to this case. The skeleton argument submits that the passport produced in connection with the application is indeed the appellant's own genuine passport. Neither the grounds of appeal nor the skeleton argument deals specifically with the question whether the appellant had only a restricted right of appeal, nor do they raise any of the grounds which would be arguable if the appellant's right of appeal is restricted.[6]The Immigration Judge dealt with that issue. He found that the appellant's right of appeal was limited. He noted that race discrimination was not an issue in this case but considered the appellant's human rights. He found that the appellant's wife, who had given oral evidence before him, was "wholly credible and reliable" as to the matters on which she had personal evidence and that she was therefore able to corroborate the appellant's account of those matters. Because he accordingly found that the appellant had given a truthful account of his relationship with his wife he "gave weight", as he put it, to the rest of the appellant's account of his history, a matter of which the appellant's wife can have no knowledge except from the appellant. The Immigration Judge said that there was nothing to suggest that any of the documents produced before him were other than genuine: he accepted them as genuine. He gave little weight, however, to one particular letter which merely asserted that inquiries had been made as to the appellant's identity with a satisfactory result.[7]Looking at the matter as a whole he concluded that the appellant had established his identity to the satisfaction of the Tribunal. He nevertheless dismissed the appeal insofar as it relied on Article 8, because there was no basis for saying that the appellant's family life with his wife could not reasonably be enjoyed in Gambia. There was no evidence that the appellant could not continue to live in Gambia, and his wife had said that she would go and live there if necessary. He did not consider whether the appellant met the requirements of the Immigration Rules relating to the admission of a spouse, because of the limitation on the rights of appeal. He noted that it was open to the appellant to make a new application.[8]The grounds for reconsideration do not challenge the Immigration Judge's conclusion on human rights issues. They are concerned exclusively with the question whether para 320(3) applied to the appellant and whether the right of appeal was removed by the respondent's opinion of the genuineness of the passport.[9]Paragraph 320 of the Statement of Changes in Immigration Rules , HC 395 reads, in part, as follows: "320. In addition to the grounds for refusal of entry clearance 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: Grounds on which entry clearance or leave to enter the United Kingdom is to be refused ... (3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality; …".[10]Section 88 of the Nationality, Immigration and Asylum Act 2002 reads in part as follows: " 88. Ineligibility(1) This section applies to an immigration decision of a kind referred to in section 82(2)(a), (b), (d) or (e). [The decision under appeal is a refusal of entry clearance within the meaning of section 82(2)(b).](2) A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependant – … (b) does not have an immigration document of a particular kind (or any immigration document) …(3) In subsection (2)(b) 'immigration document' means – … (b) a passport, … (d) a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.(4) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).[11]The grounds for reconsideration, and the skeleton argument before us, expanded by Mr. McDonald in his oral submissions, take the point that the wording of s 88(3)(b) does not specify that the passport in question must be in any sense a valid one, and that no such requirement should be implied into the section. It is submitted on the appellant's behalf that it would be wrong in principle if an appellant were deprived of a right of appeal merely by the respondent's assertion about the documents produced in connection with the application; and it is further asserted that an applicant who produces a passport is not caught by s 88 merely by the respondent's view of the validity or genuineness of the passport.[12]These submissions must be rejected. It is clear from the terms of s 88 that the point of reference is the reasons for the refusal, not the accuracy or validity of those reasons. If the ground for the refusal is one of those specified in s 88(2), the appeal to the Tribunal is limited to the grounds specified in s 88(4).[13]The question then is whether refusing an application on the ground that a passport tendered by the appellant is not "a passport or other document that satisfactorily establishes your identity and nationality", with an explanation that the supporting reason is that the appellant had previously dealt with the United Kingdom authorities in a different name and identity, is "the grounds that the applicant does not have a passport", to take the appropriate words from s 88.[14]Mr. McDonald supported his submission that the appellant was not caught by s 88 by reference to other statutory provisions, showing that there is sometimes a specific requirement of a valid passport. He referred us also to R (NA) v SSHD [2007] EWCA Civ 759 , in which the Court of Appeal examined para 320(3) in the context of a person who produced a passport of a type that the Secretary of State, in an attempt to regulate the decisions of Entry Clearance Officers, had decided was not to be accepted as evidence of validity. We have found the decision in NA to be of little assistance in this appeal. The Court there was concerned with a phrase in the Immigration Rules referring specifically to a "valid" passport, and was concerned with a question entirely different from that which we have to answer.[15]We recognise that there are provisions in the statutes, in statutory instruments, and in the Immigration Rules which are more specific than the simple phrase "a passport" used in s 88. We do not, however, find that that fact is of assistance to the appellant in this appeal. If the appellant's submission were to be accepted, it would follow that s 88 would not restrict the appellant's rights of appeal if any document being, or purporting to be, a passport were produced in connection with the application. For example, an appellant might produce a valid passport belonging to somebody else: that would undoubtedly be providing a passport, but it is inconceivable that being able to produce someone else's passport was intended by the legislature to be of any relevance in this context. It therefore follows that there must be some implied restriction on the general words "a passport". The appellant's submission that there is no restriction simply cannot be right.[16]Paragraph 4(2)(a) of Schedule 2 of the Immigration Act 1971, in relation to the examination of passengers by an immigration officer on their arrival in the United Kingdom, provides that, if required, a person shall "produce either a valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship". Mr. McDonald referred us to that as an example of the type of statutory wording which he sought to contrast with that used in s 88. Although we reject his argument that s 88 contains no inherent or implied qualification at all, para 4(2)(a) of Schedule 2 is of some interest, because it provides an indication of the sort of document that might be demanded from a successful applicant for entry clearance on his arrival in the United Kingdom. More specifically to the point is para 24 of the Immigration Rules. That is as follows:
"The following must produce to the Immigration Officer a valid passport or other identity document endorsed with a United Kingdom entry clearance issued to him for the purpose for which he seeks entry: (i) a visa national; (ii) any other person (other than British Nationals (Overseas), a British overseas territories citizen, a British Overseas citizen, A British protected person or a person who under the British Nationality Act 1981 is a British subject) who is seeking entry for a period exceeding six months or is seeking entry for a purpose for which prior entry clearance is required under these Rules. Such a person will be refuse leave to enter if he has no such current entry clearance. Any other person who wishes to ascertain in advance whether he is eligible for admission to the United Kingdom may apply for the issue of an entry clearance."
[17]It is clear from that paragraph that an entry clearance, to be effective, must be endorsed in "a valid passport or other identity document". A person who applies for entry clearance must be intending to obtain an effective entry clearance, and so must be intending to obtain an entry clearance which complies with the requirements of para 24. Similarly, an Entry Clearance Officer can be concerned only to provide entry clearance by way of endorsement on a document of the sort described in para 24, because endorsement on any other document would be ineffective for the purpose of giving entry clearance.[18]For these reasons it appears to us that para 24 of the Immigration Rules sheds a great deal of light on what must be meant by "a passport" in s 88. Insofar as it applies to decisions on entry clearance, the requirement of a passport must be seen as a requirement to have a passport of the sort which, if an entry clearance was endorsed on it, would meet the requirements of para 24. It therefore needs to be a valid passport. Further, because on arrival in the United Kingdom a person may be subject to examination under, amongst others, the provisions of para 4(2) of Schedule 2 to the 1971 Act, it must be a passport which establishes his identity.[19]We therefore conclude that insofar as s 88 refers to refusals of entry clearance, the phrase "a passport" in s 88(3)(b) is to be taken as a reference to a passport, the endorsement of which with entry clearance, would enable the appellant to meet the requirements of para 24 of the Immigration Rules and, if required to do so, para 4(2)(a) of Schedule 2 to the 1971 Act. For those purposes it needs to be a passport which is valid and which satisfactorily establishes his identity. The refusal of entry clearance on the ground that a passport is not valid or on the ground that the passport produced does not establish the applicant's identity is a refusal on a ground specified in s 88 and, in accordance with the provisions of that section, the applicant's right of appeal against the adverse decision is limited.[20]The Immigration Judge treated the appeal as so limited and our conclusion is that he was right to do so. He did also find that the passport was genuine and that the appellant's identity is as indicated in it. In case there should be further litigation on this matter we ought perhaps to indicate that we might not have been so ready to reach that conclusion. The appellant himself is abroad and thus gave no oral evidence before the Immigration Judge. The evidence of the sponsor, which the Immigration Judge accepted as credible, can have very little force in relation to the appellant's identity: the sponsor can know no more than the appellant has told her. The Immigration Judge was shown the passport. The very fact that a passport has travelled over national boundaries without its holder is itself a matter which our view calls for explanation, particularly where there is an assertion that the holder is in fact someone different from the person named in the passport. Further, it is noticeable that the appellant appears to have given, for different purposes, three different addresses in a very short period of time. His address as given to the registrar for the district of Edinburgh in order to obtain a certificate of no impediment to the sponsor's marriage to him was an address in Edinburgh; his address given to the registrar in Banjul some six days later was "Kololi K.S.M.D. The Gambia"; but in his own certificate of no impediment, dated a few days before either of these, he is described as "ordinarily residing at Siffoe Village in the Western Division of the Republic of the Gambia".[21]We, however, are not required to reach any view on the appellant's identity or on the validity of his passport. As we have said, the only matter before us is related to the question whether the Immigration Judge was correct in regarding his rights of appeal as limited. We have concluded that the Immigration Judge was correct. It follows that (no race discrimination claim having been made) the appellant's right of appeal was limited to human rights grounds. There is no reason to cast any doubt on the Immigration Judge's conclusions on that issue, summarised in para 7 of this determination.[22]For the foregoing reasons, having found that the Immigration Judge made no material error in law, we order that his determination, dismissing this appeal, shall stand. C M G OCKELTON DEPUTY PRESIDENT

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