KH
Heard at: Field House		TM (Views of ECO-Weight Attached) Paskistan [2005] UKIAT 00044 	
On:  23 December 2004			

IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     27/01/2005	
Given orally in court	
			
	Before:		

Mr J Barnes (Vice President)
Mrs R Faux JP
Ms S Singer
	
Between	
	
Entry Clearance Officer – Kiev	
	
		APPELLANT	
			
	and		

		RESPONDENT 	

DETERMINATION AND REASONS

1.	 The appellant was represented before us today by Mr C Delaney, a Home Office Presenting Officer.  The respondent was represented by Mr P Richardson of Counsel instructed by Nasim & Co Solicitors.

2	The respondent is a citizen of Pakistan born on 2 January 1978 who on 8 July 2003 applied to the Entry Clearance Officer in Kiev for entry clearance to come to the United Kingdom as a student. On 20 August 2003 that application was refused for the following reasons,

"I am not satisfied that you will be able to follow your proposed course of study, I am not satisfied that you intend to follow your proposed course of study, I am not satisfied that you intend to leave the United Kingdom on completion of your studies."

3.	When that decision was subsequently appealed by the respondent there was a substantial explanatory statement setting out the appellant's reasons for decision.  The appeal was heard on 13 April 2004 by Mr P R Boardman an Adjudicator, when both parties were represented and he concluded after considering the totality of the evidence and the submissions made to him that he accepted that at the date of the appellant’s decision the respondent was able and intended to follow the stated course of study and that he intended to leave the United Kingdom on completion of his studies.   He then sets out in paragraph 17 of his determination at some considerable length the reasons for those views by reference to the appellant's reasons for refusal as explained in the explanatory statement and a review of the evidence before him.  At the time this appeal came before us the only matter in issue was the ability of the respondent in terms of his command of English to follow the intended course.  This is dealt with in the grounds of appeal as follows:

"At 17c, the Adjudicator has said how the e mails showed a level of proficiency with the English language, however, he had failed to consider the Tribunals conclusions in the case of Ahmad IAT AR 254 that 'it might as a rule be a commendable course for adjudicators to follow in considering findings by entry clearance officers when they have seen and heard applicants which the Adjudicator has not'.  The ECO contends that the adjudicator has placed little weight to the findings of the ECO who witnessed first hand the appellant at interview, and as such his findings are perverse and flawed."

4.	This is an appeal to which Section 101 of the Nationality, Immigration and Asylum Act 2002 applies and an appeal will lie to the Tribunal only on a point of law. Only if we conclude that there has been a material error of law on the part of the Adjudicator are we entitled to revisit the claim on a merits basis.  This follows from the judgment in CA v Secretary of State for the Home Department [2004] EWCA Civ 1165.  

5.	The relevant part of the Adjudicator's reasoning at paragraph 17c is as follows:

"The respondent was not satisfied that the respondent had the ability to follow the course of study [the second reference to the respondent is clearly a mistake for an intended reference to the then appellant who is now the current respondent before us] because the English language proficiency certificates produced showed a decline in his overall English ability between May 2001 and June 2002, and the respondent had difficulty communicating with the appellant at interview.  However, Ms Maciel [who then appeared for the respondent] submitted at the hearing before me that the appellant's English Test Report Forms at Annex G of the respondent's bundle showed a decline in only one of the four test areas, namely writing, and that the appellant's evidence in his letter at Annex H of the respondent's bundle was that he could not perform well because his uncle had died the day before the test; that although the appellant's proposed course was a technical course, it was not a degree course; that his course at Gujrat Institute of Technology from 1997 to 2000 had been conducted in English, and that his English had been good, as confirmed by the letter dated 26 July 2002 at Annex F of  the respondent's bundle; that so far as the interview was concerned the appellant had given relatively long answers to many of the questions, rather than merely giving one-word answers, and that showed a level of proficiency with the language, even if the interviewing officer had had to repeat some of the questions; and that the appellant's e-mails with Bromley College themselves showed a level of proficiency with the English language which indicated that he would have the ability to follow the course.  I accept those submissions, which, again, I find persuasive on a balance of probabilities."

6.	Before us it was Mr Delaney's submission for the Entry Clearance Officer that the Adjudicator had effectively overruled the Entry Clearance Officer and in so doing had failed to give proper account to the note made by him at the end of the interview record which is in the following terms:

"Applicant asked to be interviewed today in English, however it should be noted that each question required rephrasing in three or four different ways and very slow enunciation before he could understand. I am quite certain that would not be able to follow lectures in the UK of a specialised nature."

Given that clear and strong reference from the Entry Clearance Officer it was his submission that the Adjudicator had not properly applied the case law by giving adequate weight to what the Entry Clearance Officer had said.  He pointed out that in an earlier application when he was interviewed in Urdu on 11 September 2001 the appellant himself accepted that his English was weak. Although there was an English language course available as a pre-course to the technical course he intended to study, the date of the application made by the respondent for entry clearance was such that he had effectively prevented himself from being able to undertake that course and would have to go straight into the main course which he sought to follow.  All those factors should have been reflected by the Adjudicator in his submission and those factors would lead properly to the view that the Adjudicator had erred in law in failing to provide adequate weight to the comment of the Entry Clearance Officer.

7.	Mr Richardson submitted that there was no apparent error of law at all on the part of the Adjudicator in reaching his findings when he has clearly taken into account the reasoning of the Entry Clearance Officer from the way in which he dealt with the three issues at sub-paragraph 17a, b and c of his determination.  We, of course, are concerned now only with the issue in relation to paragraph 17c.  It was his submission that one had to look at the e-mails additionally because they showed a certain level of imperfection of English but nevertheless a clear understanding and ability to communicate in writing.  Additionally, the appellant's own previous English language courses could be given appropriate weight. He had produced two certificates under the International English Language Testing system which was an internationally recognised standard adopted by the Secretary of State for immigration purposes; in the first certificate of 21 May 2001 he had reached an overall  band of 5; and in the second of 15 April 2002 an overall band of 4.5, which happened to be the band level which the Secretary of State in his published material regarded as being adequate for immigration purposes for knowledge and understanding of the English language.  It was his submission that when one looked carefully at the nature and contents of the series of e-mails with the college the respondent was adequately demonstrating a real interest and concern in the nature of his life during the courses that he intended to follow by enquiring about accommodation, diet and similar matters. All these matters reflected an overall capacity to communicate in English.  He pointed out that included in the international standards was the ability to listen in respect of which the respondent had achieved band 4.5 in each certificate, and in respect of reading band 5 in each certificate.  He had also scored similarly on his ability to speak and thus to communicate directly orally which would be necessary for the purposes of his course.  

8.	We take into account also that it is plain from the general qualifications of this respondent that the course which he intended to follow was an extension of levels of understanding of matters with which he was in general terms familiar and, simply as a matter of comment on our part, that may be contrasted with the situation where a nervous interviewee is unable to dictate the course of questioning to which he will be subjected during an interview and is likely to be on somewhat less familiar territory.  Nevertheless, we say that simply by way of comment because, looking at paragraph 17c in this Adjudicator's careful and cogent determination, it is in our view apparent that he has taken into account the totality of the evidence which was before him and has properly balanced it in a way which enabled him to reach a conclusion applying the correct standard of proof, namely the balance of probabilities.  

9.	Whilst we do not in any way quarrel with the concept that it is appropriate for an Adjudicator to give proper weight to the views of an Entry Clearance Officer who has had the opportunity of seeing and hearing an applicant for entry clearance, albeit under interview conditions which may not be the most ideal, it would nevertheless be wrong in our view to suggest as a matter of law that those views have to be regarded as binding on the Adjudicator. There would otherwise be no purpose whatever in the judicial review process which the Adjudicator is bound to undertake and there would not be that balance of fairness between the parties which is essential for judicial purposes in our system.  Where an Adjudicator shows he has clearly considered and weighed all that has been put into the evidence before him, including the views expressed by the Entry Clearance Officer, we do not consider that it will be easy for anyone then to suggest that he is not entitled to reach his own independent conclusion based on a review of the totality of the evidence before him as this Adjudicator has done.  We do not see that there has been any material error of law on the part of the Adjudicator in his approach to his task and, applying the ratio in CA, we are not entitled to go behind his findings and to revisit them on a merits basis.  It is always the case that in any adversarial system one party may take the view that an Adjudicator should have reached a different conclusion from that which he did but that is not to say that the conclusion arrived at is one that is to be regarded as being perverse unless there are clear grounds for showing that the Adjudicator has failed properly to consider all the evidence in arriving at his conclusions.

10.	For the above reasons this appeal is dismissed.

J Barnes
Vice President