LSH
Heard at:  Field House			
On 7 January 2005		AH (Determination without hearing – mistake) Eritrea [2005] UKIAT 00015	

IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     24th January 2005	

	Before:		

Mr P R Lane (Vice President)
Mrs E Morton
Mr N Kumar, JP
	
Between	

	
		APPELLANT	
			
	and		

ENTRY CLEARANCE OFFICER – ASMARA
	
		RESPONDENT 	
	
Appearances:

For the appellant:		Ms V Nassar, Counsel, instructed by
				Messrs Dillons & Co, Solicitors
For the respondent:		Ms K Evans, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1.	The appellant, a citizen of Eritrea, appeals with permission against the determination of an Adjudicator, Mr E H Woodcraft, sitting in Bradford, in which he dismissed the appellant’s appeal against the decision of the Entry Clearance Officer, Asmara to refuse to grant the appellant leave to enter the United Kingdom as a visitor.

2.	The appellant, born in October 1944, wished to visit the United Kingdom for the first time, in order to attend the wedding of his daughter.  Having interviewed the appellant, the Entry Clearance Officer refused the application.   The Entry Clearance Officer found that three of the appellant’s four children were living in the United Kingdom and that the remaining child lived not with the appellant but with her mother in Eritrea.   Although the appellant’s children had been in the United Kingdom since 1988, the appellant had not visited them before.   The appellant was separated from his wife, who in fact also lived in the United Kingdom, but was not legally divorced from her.   The appellant earned “a very minimal income of 12,000 Nakfa (£500) per annum from a mini bus” that the appellant ran and he had “minimal savings and no other assets in Eritrea”.    The sponsor daughter’s invitation to the appellant indicated that her invitation was in respect of four persons and the Entry Clearance Officer was “not satisfied from the documents submitted that she does have sufficient funds because of the costs of maintaining four persons”.  Having regard in particular to the appellant’s “modest circumstances and limited ties in Eritrea” the Entry Clearance Officer was not satisfied that the appellant was seeking entry to the United Kingdom for the purpose of a short visit or that he intended to leave the United Kingdom after the stated period of that visit.

3.	The appellant appealed against the Entry Clearance Officer’s decision.   On the appeal form, which the appellant signed and which is dated 6 October 2003, the appellant was asked to choose one of two options:-

a	your appeal will be decided only on the basis of the information you have provided in this form (and any other information you may have attached)

	OR

 	b	your appeal will be decided at a hearing.

	Once you have chosen one of these options you cannot later change to another option”.

4.	A square box was included on the form in respect of option “a” and option “b”.    The form stated “please tick a box”.    The appellant ticked the box in relation to option “a”, as opposed to ticking the box indicating that he wished the appeal to be decided at a hearing.

5.	Earlier in the same appeal form, the appellant had been asked to provide details of the person who would be acting for him in the United Kingdom.   He was asked to give details of “your representatives (if any)” and “the family member you are visiting”.  The appellant left blank the boxes relating to “your representative” but filled in the name, address and telephone number of his daughter as “the family member” that he was visiting.

6.	Underneath this, the appeal form asked “if you are having a hearing of your appeal, do you want your family member (named above) to attend the hearing?”  Again, two boxes were provided, labelled respectively “yes” and “no” and the appellant was asked to “please tick a box”.   He ticked the box marked “yes”.

7.	Immediately underneath the box on the appeal form for the appellant’s signature, name in block letters and date, there is a section headed “TO BE COMPLETED BY ENTRY CLEARANCE MANAGER”.  There, in different coloured ink from what had gone before, the reference number 00818 was inserted.   In relation to the “type of appeal” that is to say whether “Paper” or “Hearing” the Entry Clearance Manager ticked the box marked “Paper”.  The appeal was recorded as being received on 6/10/03.   

8.	Underneath this is a declaration by the Entry Clearance Manager dated 21 October 2003 stating that he had “considered the grounds of appeal set out in Part 3 of this form and the attached supporting documentation, and uphold the decision to refuse the applicant entry as a visitor”.

9.	Rule 45(1)(a) and (b) of the Immigration and Asylum Appeals (Procedure) Rules 2003 provides that an Adjudicator or the Tribunal may, subject to certain exceptions not here relevant, determine an appeal without a hearing if –

	(a)	all the parties to the appeal consent;

	or
	
	(b)	the party appealing against a relevant decision is outside the United Kingdom or it is impracticable to give him notice of a hearing and, in either case, he is unrepresented.

10.	The Adjudicator in the present case proceeded to determine the appeal upon the papers on 17 February 2004.   No hearing of the appeal took place.   No notice of hearing was sent by the Immigration Appellate Authority to the appellant or his daughter.  

11.	The Adjudicator considered the documentation before him, including the notice of appeal and the materials that had been attached to it by the appellant.  The Adjudicator made the following findings of fact:-

“8.	The original reason for the request was that Miss [H A], the appellant’s daughter, was marrying on 2 August 2003 and wished to invite her father and three other relatives to attend the wedding.   These were two of the appellant’s sisters and the appellant’s mother.   The appellant had said in interview that his daughter was an accountant which was how she could afford to pay for all four members to travel to the United Kingdom for the wedding.   The sponsor Miss [HA] produced a bank statement which appears to show salary paid into her account on 23 May 2003 in the sum of £1,318.75.   I do not find that the Sponsor is able to demonstrate that she would be able to afford all four visitors.  I cannot be satisfied therefore that she would be able to maintain the appellant and the cost of maintaining the other three visitors would have too great an impact upon her finances.

 9.	The appellant’s own income in Eritrea is very small and he would not be able to support himself.  Further it does not appear that he has sufficient economic ties in Eritrea such that he would wish to return to Eritrea at the conclusion of his visit.  The fourth child of the appellant lives with the child’s mother in Eritrea not with the appellant.  I do not find that the appellant has sufficient family and economic ties such that he is able to demonstrate on the balance of probabilities that he would return to Eritrea at the conclusion of the visit”.

12.	The Adjudicator concluded at paragraph 10 of the determination that “on the evidence as a whole… the appellant is not able to demonstrate that he would return to Eritrea on the conclusion of his visit.   In the circumstances it appears to me there would be a breach of Immigration Law and Rules by allowing this visit.   The visit is therefore refused”.    The Adjudicator’s decision was “Appeal refused”, by which he is taken to have dismissed it.

13.	The grounds of appeal to the Tribunal assert that the sponsor daughter was not given the opportunity to go to the hearing of the appeal even though the appellant “indicated that I would prefer oral hearing and not paper”.  The grounds further assert that the appellant was unable to instruct a legal representative to advise the family “because no notice was sent to my daughter in the UK”.

14.	Before the Tribunal, Ms Nassar submitted that, had the sponsor daughter been able to appear at a hearing before the Adjudicator and give evidence, it could well have been the case that the Adjudicator’s conclusions would have been different.   Ms Nassar further submitted that the Adjudicator, faced with a notice of appeal on which the appellant had ticked the box marked “yes” against the question “if you having a hearing of your appeal, do you want your family member… to attend the hearing?” should have arranged for an oral hearing to take place or, at least, should have ensured that the sponsor daughter was contacted in order to ascertain whether the appellant was asking for an oral hearing.   The fact that this box had been ticked meant, in Ms Nassar’s submission, that the ticking of box “a” on page 3 of the notice, indicating that the appeal was to be decided only on the basis of written materials, could not be taken at face value.    

15.	The appeal to the Adjudicator in the present case was brought under section 82 of the Nationality, Immigration and Asylum Act 2002.   That being so, the effect of section 101 of that Act is to empower the Tribunal to overturn the Adjudicator’s determination only if that determination contains a material error of law.   On the basis of the written materials before the Adjudicator, the Tribunal finds that he was entitled as a matter of law to the conclusions set out at paragraphs 8 to 10 of the determination.

16.	The central issue in the present case is, accordingly, whether in the circumstances the Adjudicator erred in law in proceeding to determine the appeal without a hearing.   Before the Tribunal, there was discussion as to what happens in practice when an appeal notice is submitted to the Entry Clearance Manager.   There is, however, no evidence before the Tribunal on this issue.

17.	The Tribunal finds that in the circumstances of this case the Adjudicator cannot be said to have erred in law in proceeding as he did.   The only possible basis upon which an error of law could be said to arise is that identified by the Court of Appeal in the case of E & R [2004] EWCA Civ 49, that is to say, a mistake of fact giving rise to unfairness.   If the position had been that the appellant had placed a tick against the box indicating that he wished his appeal to be decided at a hearing, as opposed to on the basis of the information provided in the form, together with other attached information, and the Adjudicator had failed to notice this and so proceeded to determine the appeal without a hearing, that would constitute a mistake on the part of the Adjudicator that if left uncorrected would give rise to unfairness.  The error would thus be one of law, with the result that the determination would have to be set aside and a fresh hearing arranged, unless the circumstances were plainly such that the appellant had no prospect of succeeding, whether or not the sponsor was able to give evidence.

18.	That is, however, not what happened here.  In order for a mistake of fact to give a rise to unfairness and become an error of law, neither the appellant nor his advisers must have been responsible for the mistake. That is one of the ordinary requirements identified in E & R.   Even if it is accepted in favour of the appellant that his real intention all along was to have an oral hearing at which his daughter would be able to attend and give evidence on his behalf, his ticking of the box beside alternative “a” on page 3 of the notice of appeal led to the chain of events which resulted in the Entry Clearance Manager identifying the appeal as a “paper” one, to the Immigration Appellate Authority treating it as a “paper” case and to the Adjudicator proceeding to determine the appeal without a hearing.   In short, even if there can be said to be a mistake, the appellant was responsible for it.
	
19.	The appellant has the right to make a fresh application to the Entry Clearance Officer for leave to enter the United Kingdom in order to visit his daughter and other family members.   The documentation which the appellant has submitted in connection with the Tribunal hearing suggests that various matters have changed since the date of the Entry Clearance Officer’s decision in the present appeal.  The mechanical problems which beset to the appellant’s mini bus, and which resulted in a diminution in his income, appear to have been resolved.   The post-decision evidence regarding the financial circumstances of the appellant’s daughter, who is now married, arguably disclose a healthier financial position.    It is no longer the case that the daughter wishes to invite a total of four people simultaneously to visit the United Kingdom.   We say this because the Tribunal would not in any sense wish or expect its decision in the present case adversely to affect any fresh application for entry clearance as a visitor which may be made by the appellant.

20.	This appeal is dismissed.

P R Lane
Vice President

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