Rahman, R (on the application of) v Entry Crearance Officer & Anor

An adjudicator’s decision allowing an appeal against refusal of entry clearance, without directing its issue, is binding within its proper limits. Entry clearance concerns eligibility assessed by reference to the circumstances existing when the Entry Clearance Officer makes the decision. The officer may therefore consider subsequent changes or newly confirmed deception, provided this is not a device to circumvent the adjudicator’s determination. A right of appeal on a point of law is not the officer’s exclusive remedy, particularly where the disputed issue is a contested question of fact. The adjudicator’s findings remain the framework for reconsideration so far as the underlying facts remain unchanged.

The claimant, a Bangladeshi citizen, applied for entry clearance as a working holidaymaker. An adjudicator allowed his appeal against refusal, finding that he had adequate funds, accommodation and an intention to leave the United Kingdom, but gave no direction under section 87 of the Nationality, Immigration and Asylum Act 2002.

After reviewing the file, the Entry Clearance Officer obtained information suggesting that bank statements relied upon before the adjudicator had been forged. The officer re-refused entry clearance on financial, maintenance and intention-to-leave grounds, also relying on paragraph 320(21) of the Immigration Rules. The claimant sought judicial review, arguing that the officer was bound by the adjudicator’s decision and could only challenge it by an appeal on a point of law. The central issue was whether re-refusal was legally open in these circumstances.

1. The claim was dismissed. The Entry Clearance Officer was entitled to re-refuse the application, subject to the claimant’s protective appeal determining whether fraud or deception had in fact occurred.
2. Entry clearance is evidence of eligibility for entry, not itself leave to enter. Under section 33 of the Immigration Act 1971 and the Immigration Rules, the application is generally decided by reference to the circumstances existing at the time of decision. The certificate therefore confers a more limited right than a determination of existing immigration status.
3. The absence of a direction under section 87 of the 2002 Act does not make the adjudicator’s decision irrelevant. It remains binding and provides the framework for the later decision. The Entry Clearance Officer cannot depart without reason from findings concerning facts which remain unchanged.
4. However, where circumstances have changed or deception previously unknown to the adjudicator is discovered or confirmed, the officer may, and may be required to, investigate and make a fresh decision. The officer must not conduct further enquiries merely to manufacture a different basis for refusal and circumvent the adjudicator’s adverse decision. R v Secretary of State for the Home Department, ex parte Yousuf [1989] Imm App R 554 was applied, and its reasoning was expressly approved in Boafo [2002] 1 WLR 1919.
5. The suggested exclusive route of an appeal on a point of law was inadequate for a contested factual allegation of fraud. The principles concerning objectively verifiable error of fact identified in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49 and explained in Shaheen v Secretary of State for the Home Department [2005] EWCA Civ 1294 did not provide a sufficient route for resolving this dispute.
6. The claimant’s protective appeal was the appropriate forum for determining whether deception had occurred. The court expressed no view on the strength of the fraud evidence. The defendants received the usual costs order, enforceable only with the court’s permission.

First-instance judicial review decision. The judgment records that the claimant had also lodged a protective appeal against the re-refusal, but no appellate decision is stated.