Case No: CO/3325/2000
Neutral Citation Number: [2001] EWHC Admin 782
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand, 
London, WC2A 2LL

6 February  2001
before :

THE HON. MR JUSTICE STANLEY BURNTON

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	between			
	Linda Boafo	Claimant	
	And		
	The Secretary of State for the Home Department	Defendant	
			
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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K Hammond instructed by Corbin & Hassan Solicitors	
For the Claimant	
		
Lisa Giovanetti instructed by the Treasury Solicitor	
For the Defendant	
		
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Judgment
As Approved by the Court
Crown Copyright ©

Mr Justice STANLEY BURNTON: 
1.	This is an application by the Claimant, Linda Boafo, for judicial review of the decision of the Secretary of State for the Home Department dated 13 June 2000 refusing to implement the decision in her favour of an Immigration Adjudicator of 25 January 1999 and consequently refusing to grant her indefinite leave to remain in the United Kingdom.  The issue in this case concerns the powers of the Secretary of State following a determination under section 19 of the Immigration Act 1971 by an adjudicator who does not give directions.
2.	Ms Boafo is a citizen of Ghana.  She arrived in the UK in December 1989 and was granted leave to enter for 7 days.  On 8 March 1995 she married Paul Burdett, and British citizen.  In consequence, on 21 September 1995 she was granted leave to remain in the UK for 12 months as a foreign spouse.  On 2 September 1996, she applied for leave to remain in the UK for an indefinite period.  The application was refused on 30 April 1997, and she appealed to an adjudicator.  On 23 September 1998, Mr Burdett petitioned for divorce on the ground of his wife’s unreasonable behaviour.  His petition alleged that he and the Applicant had been residing at the same address, but living separate lives, for approximately 2½ years, i.e., since about March 1996.  The hearing before the adjudicator took place on 22 December 1998, and his decision was promulgated on 7 January 1999.  The divorce petition was not defended, and on 14 March 2000, her husband was granted a decree absolute of divorce.  On 13 June 2000, the Secretary of State made the decision referred to above which is the subject of these proceedings.
3.	The Applicant’s application for indefinite leave to remain was made under Rule 287 of the Immigration Rules:
The requirements for indefinite leave to remain for the spouse of a person present and settled in the United Kingdom are that:
(i)	the applicant was admitted to the United Kingdom or given an extension of stay for a period of 12 months and has completed a period of 12 months as the spouse of a person present and settled here; and
(ii)	the applicant is still the spouse of the person he or she was admitted or granted an extension of stay to join and  the marriage is subsisting; and
(iii)	each of the parties intends to live permanently with the other as his or her spouse.
4.	Clearly, the requirements of this Rule were not satisfied at the date of the hearing before the adjudicator.  It is a matter of contention whether they were satisfied at the date of the original refusal of leave, i.e., 30 April 1997.  It is not disputed that the requirements of the Rule were not satisfied that the date of the decision which is the subject of these proceedings, i.e., 13 June 2000, and indeed that was the reason given for refusal of indefinite leave.
5.	The adjudicator referred to the doubts entertained by the Secretary of State as to the relationship between the Claimant and her husband, based in part on the allegation that she had made claims for social security payments from a different address to her husband’s.  However, the adjudicator dealt with the matter before him as if the only issue was whether the applicant had claimed social security benefits.  He found that she had not, and for that reason he allowed the Applicant’s appeal.  He did not give any directions.  He did not address the requirements of Rule 287, and he made no finding as to the relationship between the Claimant and her husband.  His decision was highly unsatisfactory, and could, and should, have been appealed by the Secretary of State.  However, there was no appeal.
6.	The present case arises because of the conflict of three principles:
(1)	The principle that the adjudicator considers the decision of the Secretary of State and the relevant facts at the date it was made, i.e., in this case 30 April 1997.
(2)	The principle that an unappealed decision of an adjudicator is binding on the Secretary of State and the Applicant.
(3)	The principle that the Secretary of State must consider any application made to him for indefinite leave on the basis of the facts as at that date: see, e.g., R v Secretary of State for the Home Department, ex parte Yousuf [1989] Imm AR 554.
7.	The Claimant contends that the Secretary of State was bound to give effect to the decision of the adjudicator, who overruled the refusal of leave.  
8.	Furthermore, if and to the extent that the Secretary of State was entitled to look at any change of circumstances after the date of the adjudicator’s decision, or any facts becoming known only after the date of the decision, the Claimant contends that there were no such facts.  She and her uncle have sworn affidavits stating that they gave evidence before the adjudicator as to the then difficulties in the marriage, and that there were divorce proceedings, but that the breakdown in the relationship was subsequent to the decision of the Secretary of State in April 1997.  These statements are not accepted by the Secretary of State.  There are no notes of the evidence before the adjudicator or other surviving record of the proceedings before him.
9.	The Secretary of State, relying on Yousuf, submits that where an adjudicator, when allowing an appeal, does not give a direction, he does not have to appeal the decision of the adjudicator, but is entitled to consider the facts and circumstances as at the date the application for leave comes before him thereafter.  The facts at 13 June 2000 were such that the Applicant was not entitled to indefinite leave to remain.
10.	Mr Hammond, for the Claimant, is right that events after the date of the Secretary of State’s decision of April 1997 were not necessarily relevant to the issue before the adjudicator.  However, they were relevant if they cast light on the relationship of the Applicant and her husband as at April 1997.  The divorce proceedings were clearly highly relevant to the question whether, as at April 1997, each of the Applicant and her husband intended “to live permanently with the other as his or her spouse” for the purpose of Rule 287.  The adjudicator referred to the evidence of the Applicant and her uncle as follows:
In her evidence, as well as her answers to the cross-examination by the Home Office Presenting Officer, Mr Sheikh, she touched upon various matters surrounding this appeal.  However, some of these matters like her previous marriage and her cavalier attitude towards the change of name were irrelevant to the issues before me.  The Appellant's maternal uncle, N. Asare Addy, also gave evidence confirming that the Appellant was his niece and that he was a witness to her marriage.
11.	 Having regard to the adjudicator’s reference to the third reason which had been given for the Secretary of State’ refusal to grant leave to stay, I have to say that I find it incredible that the adjudicator would not have referred to the divorce petition if it had been referred to in evidence.  However, it is clearly unsatisfactory for this or any application for judicial review to depend on anyone’s contentious recollection or account of what was said 3 years ago, where there is no adequate contemporaneous written or other record of what was said.  The resolution of a case such as the present should if possible depend on the contents of the adjudicator’s decision and any direction or recommendation he makes.
12.	The resolution of the present case in my judgment turns on section 19 of the Immigration Act 1971 and general principles.  Section 19 is as follows: 
Determination of appeals by adjudicators
(1)	Subject to section 13(4) and 16(4) above, and to any restrictions on the grounds of appeal, an adjudicator on an appeal to him under this Part of the Act-
		(a) shall allow the appeal if he considers-
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and
	(b) in any other case, shall dismiss the appeal.
(2)	For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of state by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.
(3)	Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite, and may also make recommendations with respect to any other action which the adjudicator considers should be taken in the case under this Act; and, subject to section 20(2) below, it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them.
(4)	Where in accordance with section 15 above a person appeals to the Appeal Tribunal in the first instance, this section shall apply with the substitution of references to the Tribunal for references to an adjudicator.
13.	Section 19(3) envisages that the adjudicator who allows an appeal will normally give directions to give effect to his determination.  If he does so, the Secretary of State must comply with those directions.  The adjudicator is not bound to make directions, and the section envisages that he may not do so, or may only make a recommendation, which is not binding on the Secretary of State.  If the adjudicator does not make a direction, the adjudicator’s decision is binding in relation to his findings of fact, but not otherwise.  If no directions are given, a fresh application for, in the present case, indefinite leave to remain will be considered by the Secretary of State, who must consider and determine it on the basis of the facts and circumstances at the date he considers the application: see Yousuf, cited above.  For this purpose, the Secretary of State must treat as binding any finding of facts made by the adjudicator, unless it is discovered that the applicant misled the adjudicator, as in Yousuf, or other new relevant information or evidence is available to him.  Whether the applicant did mislead or withhold facts from the adjudicator, or whether there is other new relevant material, is to be determined by the Secretary of State, subject to the normal appeal and review process. Yousuf  is authority for the proposition that the Secretary of State is not limited to appealing the decision of the adjudicator.
14.	It follows that it will normally be in the interests of an appellant to ask for directions to be given by the adjudicator if his or her appeal is successful, particularly in a case of where the appellant is seeking indefinite leave to remain.  In the absence of a direction he or she will be at risk of a change in circumstances following the appeal.
15.	As it happens, in the present case, as I have mentioned, no direction was made by the adjudicator.  He made no express finding of any relevant facts.  So far as his decision reveals, he did not consider whether the divorce petition cast light on the relationship of the Applicant and her husband as at April 1997.  His decision discloses no finding as to the intention of the Applicant and her husband at that date to continue to live together.
16.	As in Yousuf, in the absence of a direction made by the adjudicator, the Secretary of State had to consider the Applicant’s application on the basis of the facts and circumstances subsequently prevailing.  The Applicant could not then satisfy the requirements of Rule 287.  The Secretary of State was entitled to decide as he did on 13 June 2000.
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MR JUSTICE STANLEY BURNTON:  My judgment in this case has been distributed in draft, and the conclusions I have reached are set out in that draft.
MR UNDERWOOD:  Thank you very much.
MR WEINIGER:  My Lord, I appear on behalf of the applicant in this matter.  I did not appear at the previous hearing, as you will clearly recognise.
MR JUSTICE STANLEY BURNTON:  Yes.
MR WEINIGER:  I was instructed with these papers very recently indeed to seek permission to appeal.
MR JUSTICE STANLEY BURNTON:  Let me hear what is said on the other side.
MR UNDERWOOD:  My Lord, we resist.  We say this is a very clear explanation of the law, as it was.
MR JUSTICE STANLEY BURNTON:  And it is right.
MR UNDERWOOD:  And it is right, yes.  Your Lordship identified the three competing assertions, as it were, reconciled them, and we say impeccably, of course. There is no fundamental point of law here.  My friend seeks to draw a distinction between entry clearance on the one hand and leave to remain on the other, and says that Yousuf applies to one and it was a mistake applying Yousuf to the other.  My Lord, that is a distinction without a difference.  The point is where an adjudicator  addresses himself to a limited aspect of an appeal, it does not then make a direction, and the Secretary of State has to consider the whole matter, the Secretary of State is only bound by that finding of fact and no more.  It is as straightforward as that.
MR JUSTICE STANLEY BURNTON:  Effectively, I did follow Yousuf.
MR WEINIGER:  You did follow Yousuf, and I do rely on Yousuf as showing very clearly (a) there are other considerations which may be taken account of in different circumstances and (b) the requirement for directions is not fatal to a binding decision‑making judgment on the Secretary of State.
      The distinction which I seek to make is not merely between a permission to enter for the purpose of a visit, which I say is a temporary matter which inherently involves change in circumstances as time goes on; the true distinction between a visitor's entry and a spouse's entry is that the entry of a spouse, which is governed by the particular provisions of rules, is a permanent once‑and‑for‑all endowment of status.
      My submission is that the date of the original decision, there is a status involved, which the adjudicator held the applicant, the appellant there, was entitled to.  The distinction, therefore, is, in  essence, a case where any departure by the Secretary of State after the appeal from the determination of appeal is a deprivation of status.  That is something which simply does not apply.
MR JUSTICE STANLEY BURNTON:  I did not think the case was being argued on that basis.
MR WEINIGER:  My Lord, I was not present and was not instructed.  I understood that the respondent's essential argument was that the Secretary of State was not bound, and the argument was that the Secretary of State was bound, and that is implicit in that Yousuf did not apply.
      At page 558 of Yousuf, in my submission there is very clear exposition of the possibility of the distinction.  It is in the second paragraph, where it is provided:
"In my judgment, if an entry clearance officer or those acting on his behalf feel that an adjudicator overruling the decision of an entry clearance officer has reached a wrong decision, the proper course is to pursue an appeal in accordance with the rules to an Immigration Appeal Tribunal.  It would be wholly improper for an attempt to be made to circumvent the adjudicator's decision by pursuing further enquiries with a view to denying entry on a different basis." 
    My Lord, that circumstance must apply somewhere.  At the end of the passage ‑‑
MR JUSTICE STANLEY BURNTON:  In this case there was a question ‑‑ I am sorry to interrupt you ‑‑ there was a  question as to whether or not the divorce petition had been disclosed to the adjudicator.
MR WEINIGER:  Yes.  My Lord, you determined that question by saying that you are not going to make an adverse finding, and I did not therefore tend to reopen that.  That has been a determination which has been made.
MR JUSTICE STANLEY BURNTON:  Right, and the determination, has it been made?
MR WEINIGER:  That is in the judgment which I read.  It is not going to ‑‑
MR JUSTICE STANLEY BURNTON:  Who is to determine the question of ‑‑
MR WEINIGER:  Well, my Lord, I think that is not a relevant question in the scheme of things.  My submission is that this goes back to the date of the decision.  If the Secretary of State can establish that there has been deception, and that is not advanced in his refusal letter of 13 January, the second one, then there may be another argument open.  But that is not the case here.
      This is, boiled down, a simple case in a sense that here is a woman who has achieved spouse status, has gone through the hurdle of the first instance application which is required under the rule which  contemplates one more application.  She has gone through that, and the Secretary of State responded and made an unlawful decision that was held to be unlawful.  In my submission, that is where the passage in Yousuf bites, by saying that is the sort of decision which cannot be circumvented.  It is a completely different situation than visitor status.
      We are looking at the question, a very important question, of status, and I gave the example ‑‑ I know one should not argue by analogy.
MR JUSTICE STANLEY BURNTON:  Sometimes you have no choice.
MR WEINIGER:  Sometimes I have no choice, my Lord.  The case of the hearing of an appeal which is due to take place on Tuesday; on the Monday the British spouse dies.  That hearing can take place.  When the adjudicator makes his determination, he is entitled and must look back to the original date of the decision.  Is it the case that after that woman ‑‑
MR JUSTICE STANLEY BURNTON:  There was no question about that in the argument before me, but the issue of the divorce petition does say something about the relationship of the parties in the period leading up to the issue of the petition.
MR WEINIGER:  My Lord, if you look at the actual facts,  you will see that there is a curious conflict between the husband's presentation ‑‑
MR JUSTICE STANLEY BURNTON:  Two‑and‑a‑half years.  No, I remember.
MR WEINIGER:  Well, two‑and‑a‑half years is not supported by a letter ‑‑
MR JUSTICE STANLEY BURNTON:  I know.
MR WEINIGER:  ‑‑ which the husband actually wrote.
MR JUSTICE STANLEY BURNTON:  Yes.
MR WEINIGER:  So in my submission, the fact that a spouse, for personal reasons, would seek to diminish the opportunities and strength of the case of an applicant ‑‑ and one can understand that in the personal family concept, it does not establish that as the fact.
MR JUSTICE STANLEY BURNTON:  Clearly it seems to me that there is much to be said for the Court of Appeal looking at the question of the effect of an adjudicator's decision in the absence of directions.  Therefore, I am going to give leave.
MR WEINIGER:  I am grateful, my Lord.
MR JUSTICE STANLEY BURNTON:  Whether it should be expedited is up to the Court of Appeal.  Any orders in respect of costs?
MR WEINIGER:  I am legally aided, and I will ask for a legal aid taxation order.  Legal aid taxation, my Lord.