APPEAL No. [2003] UKIAT 00168 B (Sri Lanka)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 28 November 2003
Date Determination notified: 11.12.2003

Before
Mr J Freeman (Chairman)
His Honour Judge Huskinson
Mr F T James
Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT	APPELLANT	
and	 	
	RESPONDENT	

Miss A Holmes for the Secretary of State
No appearance for the claimant

DETERMINATION AND REASONS

Miss A Holmes for the Secretary of State
No appearance for the claimant

This is a Home Office appeal against the decision of an adjudicator, Mr S Qureshi, allowing an appeal against refusal of a family visit visa. The claimant had applied to visit his family in this country for one year, ticking the box rather surprisingly provided opposite the description “Visitor”.  He had apparently done so despite the leaflet handed out, making it clear that “you are not allowed to work in the UK and you must intend to leave after a maximum of six months” and on the basis of a letter from his uncle offering to sponsor him “for a period of one year’s vacation in the UK”.

2.	The adjudicator seems to have decided this case on the basis that “I do not hold the application to come as a visitor for one year against the appellant since that mistake was made by the sponsor who thought that was possible.  He has since realised his error and wishes the appellant to only come for six months”.  That is in essence the sole ground of appeal, since the relevant paragraph of the Rules, paragraph 41(1), requires a person seeking leave to enter as a visitor to show that he intends to stay for a period not exceeding six months.  The adjudicator apparently took the view that this was capable of being modified after the date of the decision under appeal.  
3.	We disagree: this is not a case such as those described as SK [2002] UKIAT  05613*, which amounted to an effective judicial repeal of § 77(4) of the 1999 Act: rather it is a question of the requirements of the statute and Rules as to which decisions are subject to statutory appeal, and which are not.  This was a decision to refuse a visit visa for a period of twelve months: by § 60 (7)(c) of the 1999 Act, refusal on the ground that a period was sought exceeding that permitted by the Immigration Rules does not entitle a person to appeal.

4.	That was the situation faced by the adjudicator in this case; and in our view he should have refused to entertain the appeal at all.  However, we must go on to say that we regard the application form as we have described it as somewhat misleading: it is called IM2A. We think that the line which begins “Visitor” urgently needs to be redesigned.  It may or may not be that the claimant did intend at the date of decision to stay for more than six months, so that the application should have been refused on its merits in any case; but, since there is no appeal before us, that is not for us to say.  We hope that any future application by him will be considered on its merits; but on this occasion the Home Office appeal is allowed.

John Freeman
(chairman)