EN v Entry Clearance Officer, Kampala (Rwanda) [2002] UKIAT 01613 

TH32897-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 9 May 2002
Date Determination notified: 22 May 2002

Before

Mr S L Batiste (Chairman)
Mr N Kumar JP

Between

EN
	APPELLANT	
and
		
Entry Clearance Officer, Kampala	RESPONDENT	

DETERMINATION AND REASONS

1.              The Appellant, a citizen of Rwanda, appeals, with leave, against the determination of an Adjudicator, Mr P.P. Murphy, dismissing his appeal against the decision of the Respondent on 8 November 2000 to refuse entry clearance as a student wishing to follow a course in English as a foreign language.
 
2.              Ms A Swaniker, of the Immigration Advisory Service, represented the Appellant. Mr G Saunders, a Home Office Presenting Officer, represented the Respondent. 
 
3.              The appeal before the Adjudicator was conducted on submissions only. The Adjudicator dismissed the appeal for a number of reasons. He found inter alia that the Appellant had shown he knew nothing about the course. He had not researched the possibility of doing such a course in his homeland. His means were manifestly inadequate for him to survive in the UK for 6 months. English was irrelevant to his present employment. He had not shown how this course would lead to a claimed betterment of his life. The Adjudicator considered the Respondent was correct in her decision. 
 
4.              Leave to appeal was granted on the basis it was arguable that the Adjudicator had not when considering the Appellant's intent to leave the UK at the end of the course, attached weight to the fact that the Appellant had a wife and child in Rwanda. Also it was arguable that the Appellant had sufficient funds and the Adjudicator had reached a contrary conclusion without inviting submissions on the subject and contrary to the evidence.
 
5.              Ms Swaniker submitted that the Tribunal should decide the appeal itself and allow it or remitt for hearing de novo because the Adjudicator did not properly weight all the evidence before him. His erroneous conclusion about means, coloured his other findings and rendered them unsafe. 
 
6.              Mr Saunders acknowledged that there was no basis for the Adjudicator's finding as to means. He submitted that having a spouse and child in Africa has not prevented many people over the years coming to the United Kingdom. The Appellant came from a poor country and proposed to spend a lot of money on a course, which was not needed for his job and would not be of benefit to him in it. The extant issue was about intent, and the Tribunal should either decide the matter itself or remit it for rehearing.
 
7.              The Tribunal reserved its decision.
 
8.              Paragraphs 57 and 59 of HC 395 require inter alia that a person seeking leave to enter the UK as a student 
- is able and intends to follow a prescribed course; and 
- intends to leave the UK at the end of his studies; and
- is able to meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds.
 
9.              The Respondent said in terms in the explanatory statement that he was satisfied the Appellant appeared to have sufficient funds to pay for his course in United Kingdom.  It is of course open to an Adjudicator to reach his own and contrary conclusion about the adequacy of the financial arrangements.  However, if he intended to do so, he should first have given an opportunity to the Appellant's Representative to address his concerns. There is no evidence that he did so. Moreover he gave no reason for coming to his contrary conclusion, and it does not appear to us, without further explanation, to be justified on the evidence available. 
 
10.          We are therefore satisfied that the Adjudicator's determination was flawed and cannot stand, even on the remaining issues of intent, because we cannot tell how much the unsustainable conclusion about means coloured the rest of the conclusions. However, as the Adjudicator's findings were not based on any first hand assessment of oral evidence, and we have all the material evidence and full submissions before us, we are able, as urged by both Representatives, to reach our own conclusions about the appeal and we have proceeded to do so. 
 
11.          The burden of proof is on the Appellant and the standard of proof is a balance of probabilities
 
12.          His evidence to the Respondent was that he wished to take a 24 week course in English as a foreign language. The course papers in the bundle do not reveal any further information about at what level the course was pitched. At the time of the decision he was a married man with a child of 9 months. He had been employed for 4 years as a Purchasing Officer at Café Rwanda (Caferwa) in Kigali in Rwanda. He earned about £214 per month. He said he had been given the time off for his course by his company, who would pay half his salary while he was away. His wife also worked and they owned cattle. The Respondent had a letter from Caferwa, which was not included in the bundle before us. The Respondent expressed surprise that the letter, though addressed to the High Commission in Kampala, was a photocopy only and was written in English, which he said was unusual for a Rwandan. However as there were communication problems between Uganda and Rwanda, he was unable to verify it. An undated photocopy of a letter from Caferwa to the Immigration Advisory Service has been given to us. Like the Respondent, we have not seen any original. It is also in English, but the English is poor. It purports to confirm that the Appellant will be provided with half salary whilst he is away to maintain his record of employment and that success on the course will be of benefit to the Appellant and the company. This letter was expressly written to address questions asked by the Immigration Advisory Service, which reflect some of the concerns expressed by the Respondent in his refusal letter.
 
13.          As we have said, there is no evidential basis for disputing the Respondent's conclusion that the Appellant had sufficient funds to cover the 6 months course. In the explanatory statement, this was quantified as being £50 per week plus £750 for the course (£1950). That seems to us to be a low estimate for living expenses in the United Kingdom but the Appellant said he would be taking US$7,000 with him and we find that would be sufficient. The Respondent did not challenge the provenance of this sum. We therefore accept the Respondent's finding that the Appellant could afford to pay for the course and for his accommodation and maintenance. However in making this finding, we note that the Appellant earned only £214 per month or £2568 per annum in his employment. Even if his employer was willing to pay £592 in half pay for the 24 weeks absence, the balance of cost is a substantial proportion of the Appellant's annual income and savings and would require proper justification if the Appellant is to discharge his burden of proof.
 
14.          Before turning to intent, we find there is no good evidential basis for doubting the Appellant's ability to pursue the course, as the Respondent appeared to do. We note that the interview with the Respondent was conducted in Swahili but we do not know at what level the course was aimed. In the absence of evidence to the contrary it is not unrealistic to conclude, from the title of the course, that it was fairly basic and at most only a low level of English would be required at the start of the course. 
 
15.          The real issue is about the Appellant's intentions. The letter from Caferwa to the High Commission, which is not before us, apparently only recorded the Appellant had been given 6 months leave of absence. It did not mention that they would give him six months half pay or that they were aware he was seeking to study in the United Kingdom, or even he was applying for a visa. The second letter, to the Immigration Advisory Service, which was put before us, does refer to these matters. It appears to be only a photocopy document even though the Respondent previously expressed concern about this. However, even if we proceed on the basis that the letter originated from someone in Caferwa, as we have done, it raises a number of ambiguities. The level of English in it is poor but its sense can be made out. There is no explanation of why the provision of half pay was needed to maintain the Appellant's employment whilst he was away. It does say that the successful completion of the course would benefit both the Appellant and the company, but does not say what the benefit would be, if the Appellant did not need English before in his work and would be returning to the same job. It does not explain why no attempt was made to ascertain whether it was possible to learn English locally at much lower cost. It conflicts with the Appellant's statement in interview that the reason the company would not pay for the costs of the course was because "It's not the company. It's my own interest." If it was for his own interest, and not for the company, why then should they contribute even half pay for some six months? In any event, whatever the company may or may not intend to do, it is the Appellant's intentions which have to be assessed. We find, in the light of all this that the company letter's value is limited.
 
16.          We note that the Appellant was employed in a relatively low position in his company as a Purchasing Officer. We have not been told with whom he dealt in his work, but as he has done his job for 4 years without any real English, there would not appear to be any inherent need for it in that job. The company letter before us does not suggest any promotion would follow for the Appellant if he returned with a successful qualification. Also, if the Appellant had decided to better himself and his career prospects by learning English, one would have expected him first to enquire what basic courses in the English language were available locally. He might be able to get a firm grounding in the subject at home at low cost and then be able to benefit more from a relatively expensive course in the United Kingdom. Enquiry would establish whether this was feasible or not, and would have demonstrated a will to study English per se. It would have provided the information for making an informed cost/benefit assessment before spending a substantial proportion of his savings on coming to the United Kingdom to study at a fairly low level. We find that the Appellant's failure to do any of this, undermines the credibility of his stated intention to study English, and indicates that his real purpose is to obtain entry to the United Kingdom, rather than to study.
 
17.          Ms Swaniker argued that the Appellant had a powerful reason to return to Rwanda in that he had left his wife and child behind. However, in practice, this in itself is of little weight. As Mr Saunders pointed out, the Tribunal has seen very many cases over the years in which people are willing to leave their family at home, sometimes for considerable periods, whilst they gain entry to the United Kingdom, and then find work here. The reason lies in the huge comparative economic advantage, for ambitious people seeking betterment, between working in the United Kingdom rather than a poor country like Rwanda. 
 
18.          Taking the evidence as a whole, we come to the same conclusion as the Respondent in that the Appellant has not discharged his burden of proof as to his intentions as specified under the Rules. We find he has not established that he intends to study or that he intends to leave the UK at the end of his course of studies.
 
19.          For these reasons this appeal is dismissed.

 
Spencer Batiste
Vice-President