Xia v Entry Clearance Officer

����������� This is an appeal by Liu Bi Xia ("the appellant") against the decision of the Immigration Appeal Tribunal ("the tribunal") notified on 11 October 2001 under Schedule 4 of the Immigration and Asylum Act 1999 ("the 1999 Act").� The appeal raises the issue whether rule 128(iii) of the Immigration Rules (HC 395) requires an adjudicator under the 1999 Act to act on "objective" evidence in addition to "subjective" evidence so as to determine whether a person is capable of undertaking the employment described in his or her work permit.

����������� A work permit was issued by the Department of Economic Development in Northern Ireland ("the Department") to the appellant, who is Chinese, on 19 May 2000 to permit her to work as a head chef at the Happy Valley restaurant, 47 Castle�Street, Comber.� The unchallenged evidence was that such a permit would only be issued after advertisement of the job and after the Department was satisfied that no EU worker had presented himself or herself as available.

����������� The appellant applied for Entry Clearance on 31 October 2000 and on two other occasions in November and December 2000.� These applications were refused by the Entry Clearance Officer at Guanzhou, China ("the respondent").� "The grounds were that the Officer was not satisfied that the appellant was capable of undertaking the employment specified on her work permit and was not satisfied that she did not intend to take employment other than that specified on her work permit.

����������� The appellant appealed to a Special Adjudicator under the 1999 Act.� The appeal was heard at Belfast on 3 May 2001 and the decision of the Special Adjudicator was promulgated on 1 June 2001.

����������� He set out the history of the application, the evidence which he had read and heard and dealt with the reasons why the respondent refused entry clearance.� He set out paragraph 128 of the Immigration Rules in full, including paragraph 128(iii) which reads as follows: