A v Entry Clearance Officer Lagos (Nigeria) [2004] UKIAT 00019 (11 February 2004) [2004] UKIAT 00019

UKIAT
A v Entry Clearance Officer Lagos (Nigeria) [2004] UKIAT 00019 (11 February 2004)
[2004] UKIAT 00019 · 2004-02-11
[1]APPEAL No. [2004] UKIAT 00019 A (Nigeria) IMMIGRATION APPEAL TRIBUNAL Date of hearing: 27 January 2004 Date Determination notified: 11 February 2004 Before Mr J Perkins (Chairman) Rt Hon Countess of Mar Between A APPELLANT and ENTRY CLEARANCE OFFICER - LAGOS RESPONDENT DETERMINATION AND REASONS Before us the appellant was represented by Mr R Budworth of Counsel instructed by Tolulope A Laleya, Solicitors and the respondent was represented by Miss C Hanrahan, a Home Office Presenting Officer.[2]The appellant is a citizen of Nigeria. He was born on 30 January 1979 and so is now almost 25 years old. He appeals the decision of an Adjudicator, Mr James R Devittie, who in a determination promulgated on 12 May 2003 dismissed his appeal against a decision of the Entry Clearance Officer that he was not entitled to enter the United Kingdom as a visitor.[3]At paragraph 5 of the determination the Adjudicator says:
"In considering this appeal I shall bear in mind that it is for the appellant to show that on a balance of probabilities, the decision of the ECO is not in accordance with the law and the immigration rules."
[4]Whilst this does reflect the language of paragraph 21 of Schedule 4 of the Immigration and Asylum Act 1999, it is a phrase that gives us some concern. It is clear from the Act, and is long settled law, that, subject to the need to show respect for, which does not mean necessarily coming to the same conclusion as, the opinions of people who have heard a claimant or other witness, the adjudicator must decide the case for himself on the material before him. (We note in parentheses that there is a very helpful passage in Macdonald & Webber 5 th edition at 18.78 explaining the adjudicator's powers when "reviewing questions of fact")[5]In paragraph 6 the Adjudicator says:
"I am satisfied that the ECO correctly found that he was not satisfied that the appellant was seeking entry genuinely for the purpose stated and that he would return at the end of his visit."
The issue before the Adjudicator is not whether or not he agrees with the Entry Clearance Officer but whether the appellant has satisfied the Adjudicator that he is entitled to entry to the United Kingdom. Adjudicators do not review decisions of Entry Clearance Officers. It is the Adjudicator's duty to make up his own mind on the evidence before him.[6]It is also concerns us that the Adjudicator does not mention the relevant immigration rule in the determination. He was being required to consider paragraph 41 of HC 395. The Entry Clearance Officer did not make it as clear as he should have done but it is apparent that the Entry Clearance Officer was not satisfied that the appellant "is genuinely seeking entry as a visitor for the limited period as stated by him, not exceeding 6 months: and intends to leave the United Kingdom at the end of the period of the visit as stated by him:" These are the requirements of paragraph 41(i) and (ii) of HC 395. Almost certainly the Adjudicator had this fully in the front of his mind but it would have been better if he had stated it unequivocally at the start of the determination.[7]The grounds of appeal criticise the Adjudicator for not considering the appellant's case but for simply setting out the substance of the Entry Clearance Officer's reasons for refusing the application and the grounds of appeal. That criticism is justified. This determination does not show any analysis of the relevant evidence.[8]At paragraph 6 of the determination the Adjudicator, having accepted positive aspects of the appellant's case, says "I am unable however to find fault with the reasoning that the appellant as a young single man has not demonstrated sufficiently strong ties with Nigeria". The Adjudicator did not have to find fault with that reasoning. It is not a requirement of the rules that the appellant has strong ties with Nigeria. Certainly it is a fact in the case that can illuminate other evidence but it is irrelevant that the Entry Clearance Officer thought this an important point unless he persuades the adjudicator that it is by relevant argument. What the Adjudicator should have been doing was asking himself if the evidence persuaded him that the appellant satisfied the requirements of the rules.[9]In his Form IM2A dated 28 August 2002 the appellant said that he wanted to visit the United Kingdom for a period of 4 weeks for a family visit.[10]The Entry Clearance Officer accepted that the appellant had two sisters and a brother living in the United Kingdom and that one sister had lived there since 1993. The Entry Clearance Officer found that the appellant was unable to provide a satisfactory explanation as to why he wanted to visit her after all this time and went on to find that lack of explanation led him to doubt the appellant's intentions. The appellant indicated that he intended to do his service with the National Youth Corp and to complete his studies and then work in the family business. The Entry Clearance Officer found that the appellant had not shown sufficiently strong family, social and economic ties in Nigeria to conclude that he intended to return. The Entry Clearance Officer also found the financial outlay on the proposed trip to be disproportionate to the appellant's circumstances. It is not particularly clear how the Entry Clearance Officer came to the conclusions that he did. The Adjudicator was not impressed with them. The Adjudicator found expressly that there was no justification for the Entry Clearance Officer's opinion that the appellant could not provide any reason why he wanted to visit his sister and the Adjudicator expressly accepted that the appellant's mother had sufficient funds to make available to the appellant for his visit.[11]With respect to the Adjudicator there is simply no basis for the Adjudicator's conclusion that the appellant did not intend to return to Nigeria at the end of his visit. Indeed, more correctly, the Adjudicator did not reach this conclusion. What the Adjudicator did was to find himself unable to disagree with the Entry Clearance Officer in reaching that conclusion. This illustrates clearly how the Adjudicator misdirected himself. There is no proper basis for the conclusion that the appellant does not intend to return to Nigeria at the end of the proposed visit or that the appellant was not genuinely seeking entry as a visitor for the limited period as stated by him.[12]We do not know what is in this appellant's mind. However, we are quite satisfied that the evidence before the Adjudicator, and indeed the Adjudicator's findings of fact, when applied properly to the rules should have led him to the conclusion that the appeal ought to be allowed.[13]We allow this appeal. Jonathan Perkins Vice President 27 January 2004