APPEAL No. MG (Visit appeal – directions.) Jamaica [2004] UKIAT 00140

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 12 May 2004
Date Determination notified: 1o June 2004

Before

Mr H J E Latter - Vice President
Mr F T Jamieson
Mr M E Olszewski

Between

Entry Clearance Officer, Kingston 	APPELLANT	
and	 	
MG	RESPONDENT	

For the Appellant:	Mr L Parker, Home Office Presenting Officer
For the Respondent:	No appearance

DETERMINATION AND REASONS

1.	The Entry Clearance Officer, Kingston, appeals with permission against the determination of an Adjudicator, Mr C B Buckwell, who allowed the Respondent's appeal against the decision made on 24 April 2003 refusing her entry clearance to the United Kingdom as a visitor.  In this determination the Tribunal will refer to the respondent to this appeal as the applicant.  

2.	The applicant applied for entry clearance on 15 April 2003 for a visa to make a three week visit to relatives in this country.  Her application was refused for the reasons set out in the decision dated 24 April 2003.  The Entry Clearance Officer was not satisfied that the cost of the trip was commensurate with the applicant’s financial circumstances nor that she had sufficiently strong economic ties in Jamaica to satisfy him that she intended to leave on completion of her proposed visit.  He was not satisfied that she was a genuine visitor.  

3.	The applicant appealed against this decision and her appeal was heard by the Adjudicator on 6 August 2003.  For the reasons which he has set out in his determination he was satisfied that the requirements of paragraph 41 of HC 395 were fulfilled, that a genuine visit was intended and that the applicant would return to Jamaica at the end of that visit.

4.	He allowed the appeal and went on to direct that the applicant be granted entry clearance as a visitor.  In view of the time which had elapsed he directed the Entry Clearance Officer to grant entry clearance in consultation with the applicant, in order to ascertain when she would seek to make her rescheduled visit.  In the original entry clearance application form she had asked for the visa to be valid for two years.  He directed that such a period be accepted.  

5.	The grounds of appeal only seek to challenge the direction made by the Adjudicator.  It is argued that he had no power in law to make such a direction.  Reliance is placed on the authority of Obeid [1986] Imm AR 341. The grounds also refer to paragraph 5 of Schedule 4 of the Immigration and Asylum Act 1999 and argue that the direction given by the Adjudicator goes further than giving effect to the determination.  

6.	At the hearing before the Adjudicator there was no appearance on behalf of the applicant.  A letter has been received from her sponsor dated 10 May 2004 indicating that as her sponsor he is not about to get involved in a legal debate between two UK departments.  The applicant would have liked to visit the United Kingdom this time last year and would have liked to come this month but had not been able to do so because of the pending appeal.  

7.	In these circumstances the Tribunal will proceed with the hearing of the appeal in the absence of the applicant pursuant to the provisions of Rule 44 of the Immigration and Asylum Appeals (Procedure) Rules 2003.  

8.	Mr Parker adopted the grounds of appeal in his submissions.  He argued that Obeid was rightly decided and should be followed.  The Adjudicator should not have given any directions.  They were not necessary to give effect to the determination. 

9.	In Obeid the Tribunal held that when an appeal was allowed against the refusal of entry clearance in respect of a visitor application it was inappropriate to give directions for the issue of entry clearance.  The Tribunal wrote as follows:

	“The only issue before us concerns the direction of the Adjudicator when following the allowing of the appeal he directed the issue of ‘the appropriate entry clearance’.  As the Tribunal has said on many occasions, the problem with such a direction is that time has gone by.  In this case a decision was taken on 20 April 1985 in relation to an application to visit the United Kingdom for a stay of up to two months from that date.  Clearly the lack of justification of refusal of entry for a proposed visit made for express purposes on a different date cannot entitle a person to entry clearance for a visit made at a different time when indeed the purposes themselves may have changed.  Even assuming the purposes to remain the same, a proposed visitor must satisfy the Immigration Officer as to maintenance and accommodation and his ability to meet the costs of return or onward journeys.  In all the circumstances of visit cases, in the Tribunal’s view the normal consequences of the allowing of appeal are simply a finding that the refusal of entry was unjustified.”

10.	At the hearing the Tribunal referred Mr Parker to the determination in Sharif [2002] UKIAT 00953.  This was an appeal allowed on human rights grounds where the Adjudicator added a direction that the Appellant be granted indefinite leave to remain.  The Tribunal referred to the power to give directions in paragraph 21(5) of the Schedule 4 to the Immigration and Asylum Act 1999. The power to make a direction now appears in Section 87(1) of the Nationality, Immigration and Asylum Act 2002.  In paragraph 12 of Sharif the Tribunal wrote as follows:

	“The language at paragraph 21(5)(a) indicates that the Adjudicator should only make a direction if it is indeed necessary or required, to use the word in the sub-paragraph, to give effect to a determination.  It is true that it is put in the terms such directions as he thinks are required but it would be irrational for him and wrong to make any direction which was not in fact reasonably required.  Accordingly the Adjudicator was clearly wrong to make the direction that he did and we therefore propose in accordance with our powers given under paragraph 22(5) of the Fourth Schedule of the 1999 Act in affirming the Adjudicator’s determination to delete the direction that was given.”

11.	The Tribunal accepts Mr Parker’s submission that the direction given by the Adjudicator was not necessary to give effect to his decision.  There is no reason to believe that the Entry Clearance Officer will not comply with the Adjudicator’s determination.  He will still have to be satisfied when the rescheduled visit is made that the requirements of the Rules are fulfilled. It is for the Entry Clearance Officer to decide for how long the visa should be valid.  The Tribunal is satisfied that this direction was not necessary for the purpose of giving effect to the Adjudicator’s determination.  

12.	The Adjudicator’s decision to allow the appeal on its merits has not been challenged and the Tribunal affirm that decision but we set aside the direction given in paragraph 20 of the Adjudicator’s determination.  We sympathise with the point made by the Sponsor in his letter of 10 May 2004 and understand the applicant’s frustration at the delay in her visit.  Assuming there has been no drastic change in circumstances, there would appear now to be no reason why entry clearance should not be issued for a rescheduled visit.

13.	The Secretary of State’s appeal is allowed to the extent that the direction is deleted.  The decision to allow the appeal against the refusal of entry clearance as a visitor stands and is unaffected by this decision. 

		H J E LATTER
		VICE PRESIDENT