Case No: C5/2008/2973
Neutral Citation Number: [2009] EWCA Civ 919
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/00071/2008]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 30th April 2009

Before:

LORD JUSTICE PILL
LADY JUSTICE SMITH
and
LORD JUSTICE WALL

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Between:

	MZ (PAKISTAN)	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Miss S Naik and Mr Z Nasim (instructed by Mayfair Solicitors) appeared on behalf of the Appellant.
Mr S Kovats (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

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Judgment
Lord Justice Pill:

1.	This is an appeal against a decision of the Asylum and Immigration Tribunal (“AIT”) in a determination by an immigration judge promulgated on 21 October 2008.  The judge dismissed the appeal by MZ against a decision of the Secretary of State made on 20 January 2008 refusing entry to the appellant.  He appealed against that finding.  His appeal was allowed by the AIT in a decision promulgated on 7 March 2008.  An order for reconsideration was made by the Tribunal on the ground that the original determination may have shown an error of law.  In the decision of  October 2008 it was held that there had been an error of law in the earlier decision in the appellant’s favour.  The AIT went on to consider the evidence and dismissed the appellant’s appeal.  

2.	The appellant is 34 years old, a citizen of Pakistan.  He was given entry clearance as a student on 1 September 2004.  In May 2005 he visited Pakistan for a month and returned to the United Kingdom.  In October 2004 he was granted an extension of leave to enter as a student until 31 December 2008.  He spent three weeks in Pakistan in June 2006 and again was readmitted.  In November 2007 he visited Pakistan and it was on his return on 24 December 2007 that his leave to enter was cancelled at port.  The appellant was detained until 28 January 2008.  A notice of appeal against the decision had been lodged and on that date he was granted bail.

3.	There was evidence of what the appellant had been doing during his stay of about three years, subject to the departures I have mentioned, in the United Kingdom.  He first was to undertake a BSc course in Hotel Management at Brunel University.  That was changed to a diploma in Hotel Management at Thames Valley College of Technology.  That college closed in December 2006, and the appellant enrolled for a Bachelor of Business Administration (“BBA”) in Hotel Management at the West London School of Management and Technology.  In November 2007 he enrolled on a one-year course in Human Resource Management at that school.  The course was due to commence on 15 January 2008 and its commencement was later deferred first until June 2008 and then to September 2008.  

4.	It is difficult to express in a sentence or two precisely what the finding of the Tribunal in October 2008 was.  The appellant gave evidence and was represented.  His credibility was clearly challenged.  It was challenged on the basis that what he was saying was inconsistent with what he had said in the course of a detailed interview on arrival on 24 December 2007.  It is clear that the Immigration Judge found serious inconsistencies between the evidence being given at the hearing and the contents of the interview in December 2007.  

5.	Miss Naik, on behalf of the appellant, challenges the findings of the Immigration Judge.  First, she has been in error as to the burden and standard of proof applied.  Secondly, she applied the wrong rule.  Thirdly, she wrongly found that the change of college which had occurred was a change of circumstances within the meaning of the rule.  In fact the judge applied the wrong rule, because there had been an amendment after the relevant date, which Mr Kovats for the Secretary of State accepts was the date of entry, and the rule applied was the rule as amended.  I will recite the material part of that before considering the rule which should have been applied.

“321A. The following grounds for the cancellation of a person’s leave to enter to remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply -- 

(1) there has been such a change in the circumstances of that person’s case since the leave was given, that it should be cancelled or 

(2) false representations were made or false documents were submitted (whether or not material to the application, and whether or not to the holder’s knowledge), or material facts were not disclosed in relation to the application for leave;”

The change related to subparagraph (2) of 321A.  The rule which should have been applied simply stated:
“the leave was obtained as a result of false information given by that person or by that person’s failure to disclose material facts.”

Thus the change, which need not be considered in detail, was to state that the false representations were to be taken into account “whether or not material to the application”. 

6.	Mr Kovats realistically accepted that there were errors of law in the Immigration Judge’s determination.  It is not disputed that the Immigration Judge was entitled to find that her predecessor in March 2008 had erred in law.  That error has been in the approach to the evidence available and in particular to the evidence about the interview.  That finding is not challenged on behalf of the appellant.  No criticism is made of the reasoning by which the Immigration Judge in October 2008 concluded that a second-stage reconsideration was therefore necessary.  

7.	Mr Kovats concedes that there were errors of law in the Immigration Judge’s subsequent approach.  He concedes that the burden of proof was mis-stated.  He concedes that the Immigration Judge applied the wrong rule and he concedes that, even on the rule she applied, she was “muddled” as between the two limbs: that is, the change of circumstances limb and the false representations limb.  

8.	Mr Kovats’ submission is that there is no point in remitting because the outcome would be inevitable.  What in substance the Immigration Judge did, he submits, was to base her decision on a change of circumstances, the change of circumstances being that the appellant was no longer a student.  That is not stated in terms, Mr Kovats accepts, but it is an inevitable inference from the reasoning of the Immigration Judge.  Furthermore, submits Mr Kovats, though this too is not stated by the Immigration Judge, it is clear that she was accepting the interview record as a true one, not only that it was properly recorded, but that it stated the true state of affairs.  That was to be preferred to the oral evidence, in which the appellant contested what he had said at interview, claiming that he had been misunderstood, and gave a different account of his activities.  

9.	This, submits Mr Kovats, is a stark case.  To remit it would be a hollow exercise.  If one stands back and has regard to the contents of the interview, there is no prospect on a re-hearing of the credibility of the appellant being accepted.  There would be only one possible outcome upon a remittal. 

10.	I need to say something more about the errors of law.  Mr Kovats accepts that the burden of establishing the facts for the purposes of Rule 321A is upon the Secretary of State: see JC (Part 9 HC395 -- Burden of Proof) China [2007] UKAIT 00027.  Senior Immigration Judge Storey stated at paragraph 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.”

The reason given for that (paragraph 11) is that: 
“…each of these grounds alleges in one way or another a failing or a wrongdoing on the part of each applicant”

I refer to the judge’s approach to the burden of proof.  Paragraph 15 (having set out the circumstances):
“I am not persuaded that this decision should be reversed.  I am mindful of the fact when interviewed he admitted paying for his degree.  This is because the appellant has failed to make out his case.”

Later in the same paragraph the judge stated: 
“It follows therefore from everything that I have already found, that he is not credible and not a straightforward witness that he has not made out his case and for the above cited reasons therefore this appeal does not succeed.”

11.	As to the application of the rule, the “muddle” to which Mr Kovats referred is first in failing to distinguish between the two limbs of the rule.  The Immigration Judge appeared to base her findings on false representation.  She was in error in that respect, submits Mr Kovats, because her true finding was in relation to a change of circumstances: that is that the appellant was no longer a student.  As to change of circumstances, one further error needs to be noted.  The judge found at paragraph 13: 
“He did fail to notify the Secretary of State of his change of circumstances when he changed college.  I find this to be a change of circumstances as set out in 321A”

Mr Kovats accepts that a change of college does not of itself necessarily constitute a change of circumstances.  In GO-O & Ors v SSHD [2008] EWCA Civ 747, Sedley LJ stated at paragraph 14:
“Rather the second subrule appears to accept that, so long as the course meets one of those prescribed standards, the choice is the student’s.  This in turn defines the ‘capacity’ in which the student, under subrule (ix), is given entry clearance: it is as a student, not as a student of a particular college or institute.”

Sedley LJ elaborated on that reasoning at paragraphs 19 to 21:  He said (paragraph 20) that: 
“It could still intelligibly mean what ever course of study the student had settled on.”

That decision turned on a separate rule, but Mr Kovats accepted that the principle would apply in the current situation and that the Immigration Judge has erred in law in that respect.  His submission is that the appellant was not a student at all when he sought re-entry. 

12.	Thus the change of circumstances found by the Immigration Judge is agreed not to be a change of circumstances at all.  At paragraph 14 the Immigration Judge stated: 
“I find that false representation has been provided and material facts not disclosed for the purpose of seeking leave.  There has therefore been such a change of circumstances since it was granted that I find it should be cancelled in accordance with paragraph 321A of the Immigration Rules.”

Thus the two limbs of the rule have been elided.  The finding is that the representation is in itself a change of circumstances.  Mr Kovats accepts that cannot be the case.  The two limbs must be considered separately.  He submits that the expression by the Immigration Judge reveals an underlying finding that the appellant was no longer a student and it is that underlying finding which the court should rely on and should refuse to remit.

13.	Mr Kovats says that findings of fact were made by the Immigration Judge, although he accepts not findings clearly set out but which he says were in substance made: first that the truth was in the record of interview and secondly that the record of interview, which was truthful, demonstrated that the appellant had not been a student during his stay in the United Kingdom.

14.	Not only are there no such findings of fact but, on an analysis of the Immigration Judge’s decision, the findings of fact, or some of them, which Mr Kovats submits were made were not in fact made.  For example, he submits that there was a finding of fact that the appellant had paid £1,000 for a degree certificate.  However, at paragraph 12 the Immigration Judge noted: 
“This is further compounded by stating that he had paid £1000 to his degree.  He seeks to deny all these answers.”

No finding follows that the oral evidence was dishonest.  Mr Kovats submits only that there was an inference in the determination read as a whole.

15.	I refer to that as one example of the absence of findings of fact as distinct from legitimate comments about whether the appellant was credible.  Credibility is of course a matter for debate, but it should normally be followed by the judge setting out the findings of fact which result from that consideration.  There is a finding of fact that the appellant had twice failed his dissertation.  On other matters which I need not set out in detail it is far from clear what precise findings the Immigration Judge was making.  There was room for argument.  For example the appellant could not begin his course in January 2008 because he was not released from custody until later in that month, a consideration which was not taken into account by the Immigration Judge.  There were other issues as to what the appellant had been doing and the extent to which he had been studying.  

16.	It is necessary to consider whether, notwithstanding the substantial errors of law in the determination, the court can accept Mr Kovats’ submission that remittal would be a hollow exercise because there could only be one answer.  That issue has been considered, for example by Laws LJ in CA v SSHD [2004] EWCA Civ 1165.  At paragraph 14, Laws LJ stated:
“If it could truly be shown that the result before the adjudicator must have been the same even if there had been no legal error, there would be scope for the Tribunal to dismiss the appeal despite the error.”

In Shane Shrimpton v The Secretary of State [2005] EWCA Civ 1381 there was an error of law, and Laws LJ again considered that:
“the question remains, however, was the error of law a material one?”

17.	Miss Naik has understandably drawn attention to the difference between the rule as it should have been applied and the rule which was applied.  That involves consideration of the materiality of misrepresentations, which the judge did not conduct.  However, as to the more general question Laws LJ stated this: 

13.For my part I see very great force in Miss Grey's submissions. There would be a formidable hill for this appellant to climb were the matter to go back. But the question for us is whether there is a possibility that the Tribunal properly directing itself might decide that this was an exceptional case; whether, in other words, it is legally possible that the facts here might disclose an exceptional case of the kind contemplated in Huang. [That was an Article 8 case but the principle applies here too] 
14.   After considering the matter with some anxiety I find myself unable to rule out that possibility.  On ordinary principles the appellant is entitled to have his case determined by the proper tribunal according to law.  I have already expressed considerable reservations about the merits; but it would not be right for me to go further, because the AIT (as it now is) will have to consider the matter itself.  But for my part the judgment I have delivered should not be construed as giving the appellant a fair wind. 

18.	I have not in the course of this judgment made any detailed comment upon the facts, but I repeat what Laws LJ said at the end of that paragraph.  Following my conclusion that the case should be remitted, it should not be construed as giving the appellant a fair wind.  Clearly the appellant had a difficult task having regard to the contents of the interview in 24 December 2007.  The question is whether he is entitled to a further hearing.  As Wall LJ stated in the course of argument, there must be a judicial process.  The statute provides for that and the Tribunal exists to provide it.  

19.	It is important that basic procedures be followed: first that the correct rule is applied; second that the correct burden of proof is applied.  I cannot accept Mr Kovats’ submission that the burden of proof is not material here.  I have referred to the stress laid upon it by the Immigration Judge in her approach to burden of proof.  Third, the judge must make findings of fact.  As I have explained, the findings of fact in this case are far from clear and on some points non-existent.  The judge considered whether there were inconsistencies but did not draw conclusions from them which she thought should be drawn.  Fourth, the rule must be applied correctly.  There was a plain failure here to distinguish between the two limbs of the rule, and Mr Kovats is obliged to accept that the finding was on that limb of the rule on which, in the event, he does not seek to rely.  It further has to be borne in mind that this is a case where there had been a finding of fact by the Tribunal, on an earlier occasion, in the appellant’s favour on credibility.  

20.	To allow this determination to stand would in my judgment be to exclude any judicial role from the decision-making process.  This court is not the fact-finding tribunal.  I understand Mr Kovats’ reliance on the contents of the interview, but an applicant is entitled to have a judicial consideration on appeal of his case, having regard to the considerations which I have stated.  

21.	This appellant was entitled to that consideration.  The cumulative errors were such that he did not receive it, and it would be inappropriate for this court to stand back and form its own views of the facts and make a ruling on the basis for which Mr Kovats submits.  For those reasons I would remit this case.  It is depressing to have to do so as it has already twice been before the Tribunal.  There are errors of law in both decisions.  Time is passing, which is not in anyone’s interests, but in my judgment that is inevitable. Moreover the consideration by the Tribunal should include a consideration of the facts and of credibility.  When granting leave on legal points, Moore-Bick LJ stated that he would not grant leave on the challenge to the factual findings.  Having regard to the conclusions I have reached on the legal points, there must in my judgment be a reconsideration of the entire case.  The burden of proof and the proper application of the rules will inevitably involve a consideration of the credibility of the appellant.  

22.	For those reasons I would allow this appeal to the extent of remitting the case to the Tribunal.

Lady Justice Smith. 

23.	I agree, for the cumulative reasons given by Pill LJ, that this appeal must be allowed and the case remitted for full reconsideration including reconsideration of the facts.

24.	I wish to add a few words to emphasise the fundamental ground on which I would base my decision.  The crucial issue for the Immigration Judge was whether the appellant was a bona fide student.  If he was not, there could be only one result.  He should not be allowed to enter this country.  The appellant appeared to have admitted in interview that he had obtained a degree by paying for it and had not attended college regularly, nor had he taken any examinations.  However, his case at the hearing was that the Immigration Officer had misunderstood him.  He was a genuine student, he had taken examinations and he had not paid for his degree, only for his course.  What was required from the Immigration Judge was a clear and reasoned finding as to the truth of that composite issue.  Regrettably the Immigration Judge did not make a clear or reasoned finding, although I accept Mr Kovats’ submission that it must be inferred that she did not accept the oral evidence and preferred the evidence of the interview.

25.	However, the Immigration Judge erroneously directed herself that the burden of proof lay on the appellant throughout the proceedings.  That was not so, as is conceded.  In respect of the facts the burden lay on the Secretary of State.  In paragraph 15 of her judgment, as Pill LJ has pointed out, the judge twice said that the appellant had not made out his case.  Mr Kovats has submitted that the findings of fact are clear enough and it matters not that the wrong burden of proof was applied.  The judge had simply disbelieved the appellant and any error as to the burden of proof had been immaterial.  I cannot accept that submission.  It seems to me that the Immigration Judge clearly misdirected herself as to where the burden of proof lay on the primary facts.  That in my view must be a material and fundamental error of law.  It follows that the findings of fact cannot stand, the appeal must be allowed and the case must go back for full reconsideration, regrettable though that is.

Lord JusticeWall:  

26.	I agree also that this appeal should be allowed for the reasons given by Pill LJ and Smith LJ.  I add a short judgment of my own, essentially by way of repetition and emphasis of the important points which they have made.  I am the first to acknowledge that as a stranger to this jurisdiction I need to exercise considerable care before I disagree with the determination of a specialist tribunal.  I am also aware of the extreme pressure under which the AIT has to work.  At first blush and on reading the appellant’s interview, I am also sympathetic to Mr Kovats’ submission that there can only be one outcome to the appellant’s application to remain in this country as a student and thus only one answer in the event of a remission by this court to a differently constituted AIT.  However, in the final analysis the process for cancelling the appellant’s leave to remain as a student is a judicial process to which basic rules of law apply.  In this context I would like expressly to associate myself with my Lord’s citation of the judgment of Laws LJ in Shane Shrimpton v SSHD.  These rules include in my judgement the proper application by the AIT of the burden of standard of proof, the need to apply the rules correctly and the need to make clear findings of fact.  In the trite phrase “justice will not only be done but be seen to be done” or, to put the matter more colloquially, the thing must be done properly.  In my judgment therefore it would not in the circumstances of this case be a proper exercise of our function were we simply to dismiss the appeal on the ground that, despite the fundamental errors of law made by the Immigration Judge and the manifest deficiencies in her reasoning process, the outcome is inevitable and there is accordingly no point in a remission to a different tribunal for determination.  This appellant, like every other litigant, is entitled to a fair hearing and due process.  In my judgment were we to dismiss this appeal we would in effect be telling the world that that process is immaterial.  It is something which in my judgment this court cannot and should not do. 

27.	I would accordingly allow the appeal to the extent and with the consequences my Lord and my Lady propose.

Order: Appeal allowed