NA (Bangladesh) & Ors v Secretary of State for the Home Department

LORD JUSTICE PILL: This is an appeal by NA, NA and NA against a decision of the Asylum and Immigration Tribunal, Mr John Freeman presiding, sent out on 7 September 2006.

The tribunal allowed an appeal against a decision of a tribunal, Mr M A Khan, sitting alone, promulgated on 15 June 2005. The tribunal went on to affirm the decision of the Secretary of State to refuse entry clearance to the appellants on the ground that they did not meet the requirements of Rule 297 of the Immigration Rules. The appellants are girls under the age of 18 who are at present in Bangladesh. Their sponsor is their father, Mr AK, who has been in the United Kingdom for many years and is entitled to live here. They are aged 16, 14 and 13 respectively; they are sisters, and citizens of Bangladesh. Their mother is still in Bangladesh. Their brothers were admitted in similar circumstances in 2003.

The issue has been whether they meet the requirements of Rule 297. Insofar as is material, that provides:

e) one parent is present and settled in the United Kingdom… and has had sole responsibility for the child’s upbringing;

is under the age of eighteen;

is not leading an independent life, is unmarried, and has not formed an independent family unit; and

can, and will, be maintained adequately by the parent, parents or relative the child [was admitted] to join without recourse to public funds.”

Mr Khan, the Khan tribunal -- I hope that expression does not give offence -- allowed the appeal under the Rules. He also allowed an appeal under Article 8 of the European Convention on Human Rights. It is accepted by Mr Morgan, on behalf of the appellants, that there is no independent Article 8 claim, so the appeal turns on the court’s conclusion on the Immigration Rules.

The issue before the court is whether the sponsor has sole responsibility for the appellants’ upbringing within the meaning of Rule 297(i)(e). I have referred to 297(v) because there was before the Khan tribunal an issue about the ability to maintain the appellants within the meaning of the rule.

The Khan tribunal carefully set out the cases of the parties and did so in some detail. AK, the sponsor and appellants’ father, gave oral evidence which was summarised by the tribunal in this way:

A Home Office presenting officer was present at the hearing and cross-examined the sponsor, who stated that he did not know precisely where the children’s mother was living, but she lived with her own parents. His daughters do not visit their mother because she suffers from mental illness. The appellants’ mother lives about 18 to 20 miles away from where the appellants live. He, the sponsor, made frequent trips to Bangladesh. One of the brothers also gave evidence. He said he was in a permanent job, and paid £150 net a week:

I add for completeness, first, that the sponsor and children’s mother were divorced in 1996. Secondly, the sponsor’s mother has unhappily since died but that has no bearing upon the present decision.

There was evidence before the Khan tribunal of a village visit conducted on behalf of the British High Commission in Bangladesh. The Freeman tribunal referred to it. Mr Morgan, for the applicants, submits that there is insubstantial evidence of any involvement at all by the children’s mother in their care and control.

On the basis of the evidence, it was arguable that the sponsor had the sole responsibility for the appellants within the meaning of the Rules. The words “sole responsibility” have been the subject of many cases in the courts and these are summarised at Macdonald 6^th edition, paragraphs 11.90 and following. Reference is made to Sloley v Entry Clearance Officer Kingston Jamaica [1973] ImmAR 54. Where responsibility has not been delegated to a grandmother or other relative who is looking after the child, but has been abdicated, the parent in the United Kingdom will not be treated as having sole responsibility. In that case, sole responsibility in that parent was found to exist, the tribunal considering as relevant the source and degree of financial support of the child, and whether there was cogent evidence of genuine interest in and affection for the child by the sponsoring parent in the United Kingdom. In Cenir v Entry Clearance Officer[2003] EWCA Civ 572, the court stressed the importance of the parent with responsibility, albeit at a distance, having direction over or control of important decisions in the child’s life. As to the position of a parent still in the country where the children are, it was held in Nmaju v IAT[2001] INLR 26 that to disqualify a child for admission the other parent’s involvement needs to have amounted to an independent exercise of responsibility. By reference to Emmanuel v Secretary of State for the Home Department [1972] ImmAR 69, it appears that distant past responsibility by the other parent should not render the sponsoring parent’s responsibility other than sole.

The Khan tribunal found at paragraph 26:

The Secretary of State appealed against that decision. It was submitted first that the evidence as to sole responsibility, and in particular the position of the mother who was still in Bangladesh, was insufficiently considered, and that amounted to an error of law. Secondly, there was an error of law in the finding that the sponsor’s father “and the three brothers” have sole responsibility. That was submitted to be clearly in contravention of Rule 297, which considers sole responsibility in the context of parents only.

Application for reconsideration was made; that was directed by a Senior Immigration Judge on 1 July 2005:

The Freeman tribunal found that there was an error of law in a conclusion as to sole responsibility without any sufficient consideration of the evidence or sufficient reasons, and in particular consideration of the potential involvement of the mother. They stated at paragraph 8:

Mr Morgan submits that there was no error of law by the Khan tribunal. He accepts that the conclusion on this point was briefly stated. He relies on the fact that the evidence as to sole responsibility has been fully set out in the determination and reasons. He submits that the Khan tribunal, which would be expected to have a close knowledge of the situation in Bangladesh, including the circumstances in which families manage their affairs, was by silence seeking merely to draw a veil of discretion over the mother. The tribunal wished to preserve her dignity by not referring to her divorce and her mental illness.

I cannot accept that submission. Where a natural parent continues to live in the same country as the children, and not a great distance from them, it is a necessary part of the reasoning on sole responsibility normally to consider the position of that parent. The conclusion of the Khan tribunal cannot stand, in my judgment, in the absence of a consideration of whether the mother in Bangladesh had a part of the responsibility, within the meaning of that word in the authorities. I agree with the Freeman tribunal that there was an error of law in the failure of the Khan tribunal sufficiently to set out and reason the matters relied on in reaching its conclusion.

As to the point on the construction and use of the rule by the Khan tribunal, and in particular the reference to the brothers, the Freeman tribunal took the view that, having found an error of law, they were as a part of their reconsideration entitled to consider the point. They were not deterred from doing so, and neither in my judgment should they have been deterred, by the direction of the Senior Immigration Judge granting a reconsideration. It is clear that the Khan tribunal and the parties before it were working on the basis of the correct rule. Rule 317 deals with a similar though different matter, and the wording in the grounds of application -- the figure 317 -- can only have been a clerical error. Mr Morgan accepts that the tribunal could not be debarred from considering the construction of Rule 297.

The appeal does not turn on the point, but the right of a tribunal which has found an error of law to take a broader view of the material before the first tribunal was upheld in this court in DK Serbia EWCA Civ 1747 in the judgment of Latham LJ, with whom Longmoor LJ and Moore-Bick LJ agreed. Latham LJ stated at paragraph 21:

This is not a case where the matters considered by the Freeman tribunal are unaffected by the errors of law. On behalf of the Secretary of State, Mr Sharland submits, first, that there was an error (as I have already found) in the approach of the Khan tribunal to the question of sole responsibility, insofar as the mother may have been involved. Secondly, he submits there was an error of law by the Khan tribunal in its application of Rule 297 because the appellants were held to have come within the Rules, notwithstanding that the finding was that it was the appellants’ father “and the three brothers” who had sole responsibility.

It was in my judgment open to the Freeman tribunal to consider the evidence and the findings on both those points. However, what they did was to base their decision, which upheld the original decision of the Secretary of State, on the “brother” point. They stated at paragraph 2:

The Freeman tribunal then, and I have already referred to their reasoning, correctly found in paragraph 8 an error of law in failing to consider the position of the mother. They proceeded to consider a point on international comity which Mr Sharland accepts does not contribute to their conclusions and need not be considered in this court. They continued at paragraph 10:

The Freeman tribunal would have been entitled to conduct an enquiry and to make findings of fact on the “mother” point. They decided not to do so on the ground that there was no purpose in directing a full consideration because the appellant was bound to fail on the “brother” point.

Mr Morgan submits that there should be consideration of that question because of the evidence given to the Khan tribunal. He submits that, particularly in the context of a family such as this, the question of earnings being treated as the family “pot” should be considered. The brothers would have their responsibilities to the family as a whole. They would be expected to help their sisters. The head of the family was the father and the fact that assistance is given by the sons in no way affects his sole responsibility for the appellants within the meaning of the Rules. The brother who gave evidence about his contribution to the sisters did refer to the funds being forwarded through the father, which adds weight to that view of the family responsibilities and finances.

Within the meaning of the authorities, it appears to me arguable that there can be sole responsibility in a father in circumstances such as these, even when the funds which the father is using to discharge his responsibilities and to enable him to maintain responsibility within the meaning of Rule 297 come from other members of the family.

Mr Morgan submits that the sons’ involvement in family money matters arose because of issue being taken by the Secretary of State before the Khan tribunal as to the family’s ability to maintain the appellants if they came to the United Kingdom. It is clear from Rule 297(v) that family funds are arguably material in that context because the rule provides that the adequate maintenance may be “by the parent, parents or relative of the child”. In dealing with that point, it was relevant to call evidence from the brothers as to their earnings, the sponsor not then being in employment. Mr Morgan submits that unfortunately that has been carried over into a consideration of 297(i)(e).

There is no doubt that in the submissions made to the Khan tribunal on behalf of the appellants, it was argued that:

What is clear is that there was an error of law in the Khan tribunal. I do not know whether the Khan tribunal had overlooked the fact that the relevant sub-rule does provide for the sole responsibility of the parent or whether, as Mr Morgan submits, it would in the circumstances of this family from Bangladesh, have been assumed by the tribunal that contributions by the brothers were to be regarded, for the purposes of a construction of the words “sole responsibility”, as being that of the head of the family, the father. There was an error of law in that the tribunal did not explain itself on that question. The question now is as to the consequence of that and whether the original decision of the Secretary of State should be upheld or whether, as Mr Morgan submits, there should be a remission of the two issues -- that is, the “mother” issue and the “brother” issue -- for reconsideration by the tribunal.

The brother issue formed no part of the appellants’ grounds of appeal to this court and, notwithstanding the submissions made, I find it impossible to understand why the point which was made orally and forcefully this morning in relation to the “brother” point had not been stated as a ground of appeal. Mr Morgan submits, however, that the court should have regard to the issue; it would not be just to dismiss this appeal and thereby refuse the appellants remedy to which they may be entitled under the Rules because of the procedure followed in this case.

There are points which weaken the position strongly expressed by Mr Sharland that an appellant should not be allowed at this late stage to raise a fresh point. He submits that there is no error of law by the Freeman tribunal and that it is only if this court finds an error of law by the Freeman tribunal that there is power to remit. In this case, I do not accept that. There was a plain error of law by the Khan tribunal in relation to its approach to the question of sole responsibility on the “brother” issue. In their brief references to the point, the Freeman tribunal must in my judgment be taken to have adopted that error. It is surprising that neither parties nor tribunal saw the point now made, a point which, with knowledge of family circumstances such as these, I find unsurprising that it has, albeit belatedly been made.

The Khan tribunal proceeded on the basis of the submissions put to it. The Secretary of State was represented before the Kahn tribunal and it was not pointed out on his behalf that it was wrong to use the expression “the father and the three brothers” or that there was, in the light of the authorities, an arguable alternative way of putting the case: it was the father’s sole responsibility and in discharging that he received assistance from other members of the family.

The failure to take the point sooner must also be seen in the context of the clerical error to which I have referred. The Senior Immigration Judge ordering the reconsideration did not consider that the Secretary of State was entitled to take the “brother” point because the wrong rule had been referred to. In my judgment that was an incorrect finding and the Freeman tribunal were entitled to consider it but I would, with respect, have expected them, and in particular the parties before them, to be alert on the evidence to the point which has now plainly arisen in this court.

Reference has been made to the case of Robinson [1998] QB 929; a refugee case. Mr Sharland submits that this is not a refugee case, but a case on the construction of Rules permitting entry and it does not assist in the present context. In a passage, which begins at page 945H, in the judgment of the court given by Lord Woolf, Chief Justice, a discretion is permitted to the court to grant permission where a point has not previously been taken. That discretion clearly must be exercised with care. There is a public interest in the finality of litigation and it is a very important principle that parties should advance before a court or tribunal the points which they seek to make. However, in this case, first, there was a plain error or misapprehension in the appellants’ favour on the part of the Khan tribunal in an assumption that Rule 297 covered the position of a parent and siblings. Secondly, before the Freeman tribunal the present appellants may have been lulled into a false sense of security by the direction in their favour which the judge granting a reconsideration had made.

The Freeman tribunal, in the brief manner I have indicated, relied on the consequences of the erroneous, as stated, finding of the Khan tribunal. There is in my judgment a real prospect -- and I put it no higher than that -- that on the point taken this morning, the “brother” point, the appellants would succeed upon a reconsideration. I also find that on a reconsideration of the “mother” point, which the Freeman tribunal did not conduct for the reason given, the appellants also have a real prospect of success.

In the very unusual circumstances of this case I have come to the conclusion that the court should be prepared to consider the point raised this morning. If that point is to be argued it has to be on the facts; it has to be by way of remission. For the reasons I have given I would allow the appeal to the extent of ordering that the appeal against the Secretary of State’s original decision be remitted to a differently constituted tribunal in order to consider both the points to which I have referred.

LORD JUSTICE WALL: I agree. I add a short judgment of my own partly because we are disagreeing with the specialist tribunal. In my judgment the sequence of events here is most unfortunate. The submission was made to Mr Khan that on the balance of probabilities the children’s father and his sons had had sole responsibility for the three applicants. Mr Khan accepted that submission without hearing argument on it in paragraph 27 of his judgment, which my Lord, Lord Justice Pill, has read. The Secretary of State, as he was entitled to do, then sought a reconsideration of Mr Khan’s decision on three grounds, only two of which are relevant for today’s purposes, and the second of which again my Lord has read. In making his application the Secretary of State made an error on the three brothers/sole responsibility point. He refers specifically to rule 317. That that was a mistake: it should have been rule 297. Equally unfortunately however, in my view, the Senior Immigration Judge who dealt with the question of reconsideration thereupon refused to allow that ground to be advanced saying that it was “without merit as it is legally incorrect” -- that being because of the mistake in the reference to the rule.

It therefore appears that when the matter then came before Mr Freeman’s tribunal for reconsideration the point was not open to the Secretary of State to take and was not open to the applicants to rebut. Mr Sharland makes the point today that we do not know what happened before Mr Freeman’s tribunal because neither counsel present today was there to argue the point; both parties, it appears, were represented by solicitors. But as my Lord has pointed out, Mr Freeman’s tribunal dealt with the matter in very short order indeed in paragraphs 2 and 10 of their reasoning which again my Lord has read and which I will not repeat. It therefore seems to me that although Mr Freeman’s tribunal dealt with the matter in a way which they deemed to be satisfactory, the point was not fully or properly argued on either side. However, as I see it, Mr Freeman’s tribunal used the error which they deemed Mr Khan’s tribunal to have made in relation to sole responsibility as a basis for holding that there was no point in further remission because the Secretary of State would be bound to succeed on it. In my judgment, the fact that they reached that conclusion apparently without argument was unfair to the applicants.

We have today been taken by Mr Morgan to Macdonald and to a number of authorities which appear -- I put it no higher -- to make it at least possibly arguable that with the developing law it may well be possible for Mr Morgan to advance the argument for the tribunal that a parent can have sole responsibility, notwithstanding the fact that the financial consequences of it are shared with his sons. If that point is arguable and has not been argued, it seems to me there is an unfairness to the applicant which needs to be addressed. The question is whether we should grant permission given the fact that this point was not taken by Mr Morgan in his current Notice of Appeal and only emerged in argument during the course of this morning.

Speaking for myself, I do not see this strictly as a Robinson point. I see it much more as a procedural point and I am influenced by the fact that the point was clearly raised before the Khan tribunal, was not allowed to be raised before the Freeman tribunal but was nonetheless used by the Freeman tribunal as a means of deciding the case. In those circumstances it seems to me that the overriding objective, which includes fairness and justice, requires that the applicant should at least have the opportunity to argue this point, and indeed the point about the children’s mother before a freshly constituted tribunal.

I am left at the end of the argument with a sense of unease and unfairness. It may be of course that the Secretary of State is quite correct and that on the facts found by Mr Khan it is simply impossible for this case to fall within Section 297(e). That, however is not a point as I see it that has been fully or properly argued and it is certainly not a point that is capable of being resolved in this court.

Therefore like my Lord, I agree that this matter should be remitted for reconsideration by the AIT on the two points concerned.