EK v Secretary of State for the Home Department

LORD JUSTICE BROOKE: This is an application by an appellant whom we will call EK, for permission to appeal against a determination by a panel of the Asylum and Immigration Tribunal (“AIT”) on 12 October 2005, who dismissed on a reconsideration her appeal against the refusal of an entry clearance officer in Colombo on 7 November 2003 to grant her entry clearance to settle permanently in this country as a dependent daughter of a person who had indefinite leave to enter. The adjudicator had originally allowed her appeal on 2 June 2004, but on 23 September 2004 the Immigration Appeal Tribunal (“IAT”) granted the Secretary of State permission to appeal against that decision. The AIT heard this matter as if it were a reconsideration of the appeal pursuant to articles 4 and 5 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005.

This is not an asylum appeal. It is an appeal to an adjudicator pursuant to section 82(1) and (2)(b) of the Nationality, Immigration and Asylum Act 2002 against the refusal of entry clearance. By section 84(1)(a) and (e) of that Act such an appeal may lie on the grounds that the decision to refuse entry clearance was not in accordance with immigration rules or was not otherwise in accordance with the law. Section 85(5)(b) of the Act provides that the adjudicator is only entitled to consider the circumstances appertaining at the time of the decision to refuse entry clearance. The former jurisdiction of the IAT, and the current jurisdiction of the AIT, on a reconsideration is limited to points of law. Although by rule 51(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 the AIT is entitled to allow evidence to be given, by rule 51(6) they are only entitled to consider evidence relating to matters which obtained at the time of the decision to refuse entry clearance.

So much for the legal framework. As far as the facts are concerned the appellant, who was born in May 1980, applied on 27 October 2003 for entry clearance to enable her to settle permanently in this country as the dependent child of her father. He had sought asylum here in 1999 and was eventually granted asylum in February 2001. The appellant’s mother sought entry clearance at the same time as her daughter. She was duly granted entry clearance as a dependent spouse and came to this country in 2004, leaving her daughter behind. It was common ground that in order to obtain entry clearance the appellant had to bring herself within rule 317(i)(f) of the Immigration Rules, which provides so far as is relevant that:

“317.

The requirements to be met by a person seeking indefinite leave to enter … the United Kingdom as the … dependent relative of a person present and settled in the United Kingdom are that the person

(i)

is related to a person present and settled in the United Kingdom in one of the following ways: …

(f)

the … daughter … over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom”.

What was in issue in this case was whether the appellant was “living alone” at the time that she made her application was decided, and whether she was “living in the most exceptional compassionate circumstances”. There are records of two short interviews with the appellant by the entry clearance officer on 27 October 2003. In the first interview she said she lived with her mother, who was not doing anything. Her father worked as a cleaner at an airport in the UK, and she also had a sister living in the UK who went there in 1995. Apart from her mother and herself in Sri Lanka, her mother had two brothers and a sister there, and her father’s three sisters were also there. She needed a visa to join her father. In the second interview she said that she was not only living with her mother. She was also living with two of her aunts, who were her father’s sisters. One of them had three sons and the other had a daughter. Eight people were living in the three-bedroomed house, and she and her mother were paying rent. Her mother’s sister and brother were living close by in the same village and she saw them twice a month. She also had two or three friends in the village.

The entry clearance officer found that she was not living in the most exceptional compassionate circumstances because:

“[1] You are aged 23. You are an able bodied person with no apparent long-term medical condition. You are currently living with your Mother, Aunt who has three sons, and your other Aunt who has one daughter. You live in a three bedroom house with modern facilities such as gas, electric, television, and radio. You state that you are supported financially by your Father in the United Kingdom.

[2] Given your current living circumstances and that you have friends in the village and other family members that you see regularly each month I am not satisfied that you live in the most exceptional compassionate circumstances that would entitle you under the Immigration Rules to settle with your Father in the UK”.

The entry clearance officer added that the decision was considered to be proportionately justified in the interests of immigration control. No separate issue arises on this appeal under the Human Rights Act.

On the appeal against this decision the adjudicator received written and oral evidence from the appellant’s father. He said he had wanted his daughter to join him as soon as he was granted refugee status. His wife had been reluctant to travel to England without her daughter, but he had more or less forced her to. The hearing before the adjudicator took place on 20 May 2004 and the adjudicator permitted the father to give up-to-date evidence of how his daughter was living. He said she was living with distant relatives who were treating her as if she were a servant. The situation at their house had got worse after her mother had left Sri Lanka. She complained to him over the telephone that she was being treated badly. Her father said that there were nine children living in the house in addition to the adults, and the house had only two bedrooms and an additional prayer room. When the occupants had had their evening meal the room would be cleared in order to enable people to sleep in it. He had been sending his daughter an average of £100 to £150 per month as her sole source of income. She had been studying computing at the time when her mother left her, but her studies were disrupted then and he could not say if she was continuing on her course. He said that the so-called aunts were not blood relatives. He had given his daughter about £1,500 to enable her to return to Sri Lanka from India in order to apply for entry clearance.

The adjudicator accepted what the father had told him. In paragraph 15 of his determination he directed himself that the only issue was whether the appellant was living alone outside the United Kingdom in the most exceptional compassionate circumstances. He appears to have treated that as a question to be answered as at the date of the hearing of the appeal in May 2004, as opposed to considering it at the date of the decision about entry clearance in November 2003. He accepted that the mother had been essentially forced to join her husband; and that the people with whom the appellant was living were not close family members and were treating her with less than complete kindness and affection, and that the two-bedroomed house was currently home to nine children and five or so adults. He said that the family had had to move within Sri Lanka, where they continually experienced problems. They eventually had to go to India. After describing how the father had come to this country and in due course applied and obtained refugee status here, the adjudicator said he had visited his wife and children in India three times. It was on the third occasion, in April 2003, that he provided funds to enable them to go back to Sri Lanka so that they could obtain passports and apply to join him in England. They were in a refugee camp in India and there had been some delay in obtaining permits. They had only gone to Sri Lanka for the purpose of seeking entry clearance and the appellant had lived in her current accommodation for just a few months before her mother obtained entry clearance.

The adjudicator said at paragraph 19 of his determination that he took into account the appellant’s age and fitness and her possible ability to support herself. After describing the unsatisfactory conditions in which she was living, he said that the major consideration was that the mother had been a constant presence in the appellant’s life until her reluctant departure to join the father in this country. The intention all along had been for the appellant to be part of the family in this country. The adjudicator took into account cultural matters to which the father had attested. He ended his determination by saying that at the date of the explanatory statement in November 2003 the entry clearance officer should have been aware that the mother would be going to England. He had misunderstood the extent of the accommodation that was available and the degree of the relationship between the appellant and the other adults in the house. Nor had he considered the accommodation and financial issues. He said he was satisfied that the appellant was effectively living alone in Sri Lanka in the most exceptional compassionate circumstances.

The Secretary of State was granted permission to appeal on all the grounds of appeal he advanced. Three of these grounds were particularly important. In short there was a challenge to (1) the adjudicator’s failure to explain how the appellant was living alone when the evidence that she “was living with family”; (2) the adjudicator’s failure to make any findings on the discrepancies between the appellant’s account at her interview and her father’s evidence at the hearing, or to explain why the father’s evidence was given more weight and the appellant’s evidence ignored; (3) the finding that the appellant was living in the most exceptional compassionate circumstances was not supported by the evidence, even if that evidence was accepted at face value.

The AIT started their determination by identifying a plain and obvious error of law in relation to ground (1) above. The adjudicator had failed to make any finding whatsoever in paragraph 19 of his determination on the question whether the appellant was or was not living alone outside this country. He had failed to deal with, consider, or make any finding on, this issue. The AIT said that they did not have to determine ground (2) above at this stage because it was appropriate for them to conduct a fresh hearing in the reconsideration process at which they would not restrict the issues to be argued. It was agreed that they should proceed immediately to this task, and the father gave his evidence all over again.

In their reconsideration of the merits of the appeal, the AIT started by setting out the relevant part of the appellant’s evidence at her interview. They said that on any objective reading of that evidence it was “as plain as could be” that she was not at that time living alone outside the UK. They accepted that it was possible that someone could live alone under someone else’s roof. They said that the question here was whether a person was living alone in the sense that he or she was not living as part of a family or social unit that lived together. In his evidence the father had confirmed the statement he had made in May 2004. He then went on to give oral evidence directly contrary to what the appellant had said in her interview. The AIT said that the father had a burning desire that his daughter should join him and his wife in England. In the face of the appellant’s clear and unambiguous evidence, they rejected the father’s evidence that the “aunts” with whom his daughter was living were not his sisters. They noted that there had been no talk of mistreatment in his May 2004 statement, and they rejected his evidence about harsh or unkind treatment. They felt that he had “tailored” his evidence.

In the circumstances, they found that the appellant was not living alone outside the United Kingdom. Even if she was, she was not living in the most exceptional compassionate circumstances. She was now a woman of 25 who had completed a six month computer course. She had been receiving £100 to £150 per month from her father, but she was of an age when it would be reasonable for her to seek employment. She was living with members of her family in overcrowded accommodation, but she should be able, subject to sufficient financial resources, to seek alternative accommodation if she chose. There was nothing to elevate this case into one relating to the most exceptional compassionate circumstances.

In due course Moses LJ gave the appellant permission to appeal, and today we have had the opportunity of considering the arguments placed before us by Mr Manjit Gill QC who has placed everything before us on his client’s behalf that he possibly could in clear and incisive submissions. He started by arguing that the adjudicator had not committed the error of law found by the AIT. He submitted that, although the adjudicator had not identified the legal test that he was applying when he decided that the appellant was living alone in this crowded household, the reasons for his conclusion were clear from the way that he framed his decision. He had approached the matter on the basis that it was meaningful to regard the appellant as living in a unit with her mother. Her mother was due to go to England to join her father, and she could in a meaningful sense be referred to as living alone.

The difficulty about this way of arguing is that we do not know what test the adjudicator applied, and the Secretary of State, as the other party to the decision, was entitled to know what reasons were being given when the decision of the entry clearance officer was being set aside. In R Iran v Secretary of State for the Home Department [2005] EWCA Civ 9882 are set out at paragraphs 13, 14 and 15 the governing rules which apply when it is to be suggested that an error of law was committed because an adjudicator had not given proper reasons for a decision.

Particularly applicable in this case is the adjusted version of Lord Phillips MR’s judgment in English v Emery Reimbold and Strick Limited [2002] EWCA Civ 605, [2002] 1 WLR 2409 that I set out in paragraph 14 of my judgment. In particular Lord Phillips MR said that the issues, resolution of which were vital to the adjudicator’s conclusion, should be identified and the manner in which he resolved them explained. In this case, like the AIT, I find it impossible to determine how he reached the conclusion that the appellant was living alone in the household that she had described. For those reasons I am satisfied that the AIT was correct to detect the error of law which it identified.

Mr Gill then submitted that the AIT ought not, in the exercise of its discretion, to have proceeded to consider the evidence completely afresh. It should have limited the reconsideration simply to considering the findings of fact made by the adjudicator, and then applied the appropriate legal test to those facts in order to decide whether the criteria set out in the rule were satisfied. The difficulty with that submission is that, as I have said, there were other challenges to the adjudicator’s decision and in particular the ground I have described as ground (2), in which complaint was made that the adjudicator had completely ignored everything that the appellant had said to the entry clearance officer and had not explained why he had preferred the evidence of the father to the evidence of the daughter in the many respects in which they were self-contradictory. The AIT showed itself aware of that ground of challenge in paragraph 6 of their determination when they decided that they would not determine that ground as a ground of appeal because they would be proceeding straight away, having identified an error of law, to a reconsideration afresh.

Mr Gill submitted that although the AIT ought not to apply a formalistic approach to their duties, it was incumbent on them to go through the grounds of appeal one by one and determine whether an error of law was detected before deciding what form of reconsideration it should apply. In the present case it would not have taken the tribunal more than a quarter of a minute to detect that there was substance in the complaint that the adjudicator had failed to take into account what the appellant had said to the entry clearance officer, because he did not mention it anywhere in his determination. In my judgment there is no substance in this complaint, and the AIT was entitled to proceed in the way they did.

Mr Gill then complained that the AIT applied the wrong test when they considered the evidence afresh. He also complained that they made the mistake which the adjudicator made of looking at later evidence in determining the up-to-date position. As I have already made clear in paragraph 2 above, the test both before the adjudicator and on a reconsideration was whether the entry clearance officer was correct as at November 2003. Enquiry into that matter does not permit evidence to be adduced of matters which occurred a good deal later unless for some reason of other it appertained at the time of the actual decision that was being made.

Mr Gill has drawn our attention to decided authority on the question of what is meant by “living alone”. In Hosan Jan v Entry Clearance Officer [2002] UKIAT 05330 the IAT quoted an adjudicator as saying at paragraph 20:

“I have considered the cases of PAW and Alyha BEGUM to which I was referred. In those cases it was held that an appellant could be regarded as living alone, although physically there was another person in the same household because that other person was not either willing or able to give the appellant in those cases the support necessary.”

Mr Gill told us that the two earlier cases could not now be traced, but he submitted that this quotation suggests that the AIT in the present case was applying too prescriptive a test.

He then took us to Husna Begum v Entry Clearance Officer, Dhaka [2001] INLR 115. That was a case in which the appellant’s brother had been living with her in Bangladesh at the time that she sought entry clearance, but he was due to come to this country, and the Court of Appeal criticised the tribunal for ignoring the fact that on the departure of the brother the appellant would be on her own. In paragraph 47 Buxton LJ said:

“I first say in general terms, however, that it is necessary to look at the evidence for what it tells us about what is going to happen, not only now but for a reasonable time in the future. [Counsel for the Secretary of State] fairly said that, although strictly the question is as to the position at the date of the decision, it could hardly be reasonable to decide the case on the basis that a situation existed at the date of the decision but was not going to exist in the immediate future. I think, for instance, of the evidence about the position of the brother, who may have been available to protect the applicant at the immediate date of the decision. It seems to me that it would not be right to rely on that finding alone without averting at all to the question of how long that situation is going to last”.

This court remitted that case to the tribunal for further consideration as to whether or not, if one put the brother on one side, in the case of an appellant who was not living in a house with other people (as the present appellant was on the facts of this case) she was living alone within the meaning of the rule.

It seems to me that this is not a case in which we need go into any great detail as to what is or is not meant by “living alone”. On the findings of the tribunal the appellant was living with her father’s two sisters. They were not treating her unkindly or harshly. She was paying them rent which was being provided by her father in England, and although the accommodation was overcrowded, even in the absence of her mother it could not be said that she was living alone. In my judgment it is quite impossible to fault that conclusion as a matter of law, and I would reject Mr Gill’s submissions.

Mr Gill then went on to criticise, correctly, the AIT for the way in which in paragraph 12 of their decision they had considered the up-to-date position of the appellant. However, in my judgment there is not a shred of evidence to support the contention that if they had considered the position as of November 2003 they would have been satisfied that she was living in the most exceptional compassionate circumstances even if, contrary to their finding, they had concluded that she was living alone. Mr Gill urged on us the consideration that this girl has had a miserable life, first going with her parents from house to house in Sri Lanka, then travelling to a refugee camp in India and living with her mother there for a number of years, before coming to this house in Sri Lanka as a staging post in what she and her parents thought would be a successful application for entry clearance to enable her to join her parents in England in a new home. However, in my judgment this background to the appellant’s situation, although not taken into account by the AIT, cannot amount to the most exceptional compassionate circumstances within the meaning of the rule, and for those reasons I would dismiss this appeal.

I would add that further evidence has been given to this court which Mr Gill accepted is not admissible on this appeal, about the misfortunes that have befallen the appellant in Sri Lanka in recent years, particularly in connection with the tsunami disaster. However, he accepts that the way would be open to the appellant to make a fresh application for entry clearance based on the up-to-date position. It is not appropriate for this court to say more about this aspect of the matter.

For those reasons I would dismiss this appeal.

LADY JUSTICE ARDEN: I agree that this appeal should be dismissed. I would like to leave open the question of the full meaning of the term “living alone”. As the adjudicator made an error of law, and in view of the tribunal’s decision about the absence of most exceptional compassionate circumstances, it is unnecessary to decide the meaning of that term on this appeal. With that minor qualification I agree with what my Lord has said, and that this appeal should be dismissed.

LORD JUSTICE WALL: I also agree.