TM (Jamaica) & Anor v Secretary of State for the Home Department

LORD JUSTICE DYSON: This is an appeal by two sisters, in substance against a decision refusing them entry clearance to settle in the United Kingdom with their mother. They were born in January 1988 and July 1990. The sisters belong to a Jamaican family. I shall refer to their mother as “the sponsor”. The sponsor arrived in the United Kingdom in September 1991. In April 2003 she was granted indefinite leave to remain in the United Kingdom as a foreign spouse. On 20 April 2004 the two appellant sisters applied for entry clearance. The entry clearance officer refused their application on 27 April 2004. The relevant immigration rule is rule 297 of HC395 which, so far as is material, provides as follows:

“The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent … present and settled … in the United Kingdom are that he:

(i)

is seeking leave to enter to … join a parent … in one of the following circumstances:

…

(e)

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

(f)

one parent … is present and settled in the United Kingdom … and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and  

(ii)

is under the age of 18; and

(iii)

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

(iv)

can, and will, be accommodated adequately by the parent … the child is seeking to join without recourse to public funds in accommodation which the parent … the child is seeking to join, own(s) or occupy(ies) exclusively; and

(v)

can, and will, be maintained adequately by the parent … the child is seeking to join, without recourse to public funds; and

(vi)

holds a valid United Kingdom entry clearance for entry in this capacity.”

On 14 July 2004 the appellants lodged their appeal. On 3 February 2005 the Adjudicator dismissed the appeals. The sponsor gave evidence before the Adjudicator. The appellants were represented by counsel. The Adjudicator recorded that the sponsor said that her mother in Jamaica, who was 76 years old, was unwell and could not manage the girls. The younger sister, who was 14, had been in a sexual relationship with a man. The Adjudicator also said that the sponsor confirmed that she was concerned that her younger daughter was sexually active and described the pressure on young girls from men in the neighbourhood. At paragraph 17 the Adjudicator said:

“I accept that there is no member of the family in Jamaica who can provide the girls with full time care. I accept that their father has not seen them for many years. I have been told that their paternal grandfather has died. There is some uncertainty about this but I do find that there is no adult family member who is able to supervise or care for the two girls in Jamaica.

It has been suggested by the sponsor that both girls have been exposed to the risk of sexual abuse. A letter from Dr Dane Levy of the Edgewater Medical Centre dated 5^th January 2005 describes C (who is 14) as ‘sexually active’ and in need of, ‘proper guidance and care’. Both Dr Levy and the girls’ Principal at High School, Mrs McCook, take the view that the girls should be with their mother as they are at a critical stage in their development.

It is clear that the sponsor has sent regular payments to her mother for the children’s care during the last two years. Nevertheless, it also appears to me that the main care provider has been the children’s grandmother who has provided them with accommodation and physical and emotional support. I have no doubt that the appellant loves her children and I accept that she has visited them on three occasions since she left Jamaica but her lengthy absence from their lives since she left Jamaica over 12 years ago has, in practice, left most of the parental responsibility in the hands of their maternal grandmother. I do not find that the sponsor has had sole responsibility for the appellants’ upbringing, nor do I find that the circumstances described in the evidence concerning the present care arrangements amount to ‘serious or compelling family or other considerations’. I accept that C is sexually active. I accept their grandmother is unable to provide for her grandchildren in the way as a parent could. Nevertheless, according to Mrs McCook the girls are bright and intelligent and making good progress at school. Although C appears to be more affected by her mother’s absence, it is difficult to predict whether she would benefit from moving to the United Kingdom where she would have to settle into a new school and environment and compete with five siblings, including a sick two year old (S) for her mother’s attentions. S has cardiac problems having been born prematurely (see letter from St Mary’s Hospital) and is awaiting surgery at the present time. I have no doubt that the sponsor will be fully occupied with her care in the coming months.”

At paragraph 20 the Adjudicator said:

“Although the accommodation may be adequate for the children’s needs, I am not satisfied that the appellants would be maintained without recourse to public funds, even if the sponsor has £2,000 in savings from money put aside via a ‘pardoner group’. In my view the appellant, although she is able to supplement her income with a part time job, is almost entirely dependent on public funds for her own and her children’s maintenance.”

The Adjudicator then considered the claim under article 8. He referred at paragraph 23 to the decision of this court in Edore v Secretary of State for the Home Department [2003] EWCA Civ 716:

“... the question of whether an interference or lack of respect is proportionate to the need for control over immigration and for the maintenance of the system for its enforcement, is a matter for the Secretary of State’s judgment in the first place and is only reviewable if it is outside the range of reasonable responses open to him”.

The Adjudicator said:

“It would be an exceptional case where circumstances fell outside the rules and the compassionate discretionary policy, and yet were such that exclusion was an unreasonable response by the Secretary of State.”

He continued at paragraph 24:

“I have considered in detail the facts of this particular case. Whilst I acknowledge that there are some advantages to the appellants being reunited with their mother I take the view that the facts are not exceptional. The two girls are in full-time education and are doing well at school. They are in good health. They have a close emotional bond with their grandmother with whom they live. There is evidence that other family members are available in Jamaica to assist them and give them support and they have regular contact with their mother by telephone. They are used to their mother being absent from their lives. It is twelve years since she was their main carer. Although C, in particular, has experienced problems and is sexually active there is no suggestion that they are out of control or suffering significant harm. They are old enough to assist in the home and are not entirely dependent on their grandmother for their emotional needs. It is not entirely clear that they would benefit from a move to a strange country, a new home, school and peer group. I do not consider that their exclusion would be disproportionate to the interests of immigration control.”

The two sisters appealed to the Immigration Appeal Tribunal. Their appeals were dismissed on 21 July 2006. I shall refer to the relevant parts of the tribunal’s determination when I deal with the grounds of appeal to this court. The first ground concerns the way in which the tribunal addressed the issues raised by the sexual activity of the younger sister. This ground, as developed by Miss Laughton, falls under three heads. The first head is that the Adjudicator failed to make a finding on what was said to be a core issue in the case, namely the circumstances surrounding the younger sister’s sexual activity. There was before the Adjudicator a statement from the sponsor which included at paragraph 11:

“I am very anxious for my daughters to leave where they are living now. It isn’t safe for them in that neighbourhood. I have recently found out that my youngest daughter was forced to have sex with an older man. I arranged for a neighbour to take her to see to doctor but it was not until I went to Jamaica myself at Christmas that the doctor would discuss it with anyone. I also spoke to C about it. This is a neighbourhood where children are at risk. It isn’t safe for my daughters to go out in the evening after school. Now that my mother is getting frail, she is unable to protect them. Their doctor and teacher are also of the opinion that they should be with me. For these reasons also, I request they be given entry clearance to settle with me in the UK.”

The tribunal dealt with the complaint that the Adjudicator had not adequately addressed the issue of the younger sister’s sexual activity at paragraph 7 to 10 of its determination:

“The next ground of appeal relied on by Miss Laughton was that the Adjudicator had failed properly to take into account C’s young age and the extent to which she might come to a significant harm in Jamaica if she continued to reside in that country. Miss Laughton placed very heavy emphasis during this appeal hearing upon one sentence in the sponsor’s evidence before the Adjudicator which was not elaborated upon in oral evidence as one might reasonably have expected it to be elaborated upon and/or particularised if great store was to be relied upon it during submissions. We refer to paragraph 11 of the sponsor’s statement … [That is then set out.]

“As the sponsor appears to have spoken about this incident to both C and the doctor one might reasonably expect her to know many details concerning this allegation. We have checked the Adjudicator’s record of proceedings and notes of the evidence where the following questions and answers are recorded.

‘Q: Concerned younger daughter sexually active?

A: Yes.

Q: With someone she chooses to?

A: No.

.

Q: What were the circumstances?

A: It is a pressured relationship. She has been traumatised. I have been through it. She calls me and cries.’

“Miss Laughton’s submission was very largely based upon the risk to C arising out of this unparticularised allegation. It seems that it was not thought appropriate by Counsel who represented the appellants at the appeal hearing, to elicit any further information from the sponsor about this allegation when given the opportunity to do so during oral evidence. The complaint against the Adjudicator is that he did not make a specific finding about this issue or consider its ramifications and/or importance in the general assessment of the appellants’ claims. The Adjudicator was left with a situation where the sponsor gave no evidence concerning in what way her youngest daughter was ‘forced’ to have sex. There was no allegation of rape and no suggestion that any complaint had been made to the police to the effect that a sexual offence (of rape or some lesser offence) had been committed. The sponsor merely made reference to ‘an older man’. The Adjudicator had no evidence before him which disclosed whether the ‘older man’ was three years older, five years older, ten years older, twenty years older or fifty years older than C. And yet, Miss Laughton’s submissions were based upon the wholly unjustified assumption that the reference to an ‘older man’ must be taken as implying that C had fallen prey to some very much older man whose conduct might be regarded as depraved. If the Adjudicator had made any such finding it would not have been justified on the evidence adduced before him.

Miss Laughton submitted that in paragraph 18 of the Adjudicator’s determination he does not do justice to this aspect of the case. He started that paragraph by saying that:

‘It has been suggested by the sponsor that both girls have been exposed to the risk of sexual abuse’.

That was a fair representation of the evidence. It is wholly inappropriate for the appellants and/or their Counsel to suggest that the Adjudicator failed to make a proper finding when he could only make findings upon the evidence which was adduced before him. As we have said, that evidence did not condescend to particularise the rather vague and general allegation made by the sponsor. Miss Laughton pursued this issue on the basis that it was mainly relevant to the appeal under Article 8 ECHR.

We take the view that this aspect of the case, concerning C’s sexual activity, has been very much elevated before us to a position which it simply did not assume before the Adjudicator. In our judgment it is quite wrong, on appeal, to seek to elevate this allegation to a status which it previously did not enjoy particularly when it is sought to elevate it on the basis of construing the scant and unparticularised evidence in as favourable a way as possible to the appellants. In our judgment the more appropriate approach to that scant evidence concerning C’s sexual activities is to note that her natural mother does not appear to have taken the matter particularly seriously. She did not report the matter to the police or cause another adult family member to make such a report on behalf of her daughter. In her witness statement she mentioned the matter almost in passing. If this was a matter that troubled her greatly it is reasonably to be expected that full details would have been given in preference to the vague and unparticularised brief mention that appears in the witness statement (see above)”.

Miss Laughton submits that the assertion that the younger sister had been subject to forced sexual activity was highly relevant to the question whether the exclusion of, at any rate, that child, was undesirable and/or would breach her Article 8 rights. She submits that the Adjudicator made no findings on the circumstances surrounding the sexual activity. She also submits that this is not a case where the Adjudicator held that the evidence was too vague or unparticularised for findings to be made. That was a point made by the tribunal. The Adjudicator, she submits, simply failed to consider the point at all, as is evident from the complete lack of reference in the determination to the sponsor’s evidence on this point. She submits that this is shown to be all the more apparent by the fact that the tribunal perused the record of proceedings, which showed that the sponsor had actually given evidence about the circumstances surrounding her younger daughter’s sexual activity.

Miss Laughton submits that, since the second appellant was a child who clearly had been involved in sexual activity, it was inappropriate simply to conclude that the evidence was not sufficiently clear and that therefore the Adjudicator did not need to make any findings about it. She also points out that as is made clear by the US State Department report which was before both the Adjudicator and the tribunal, sexual intercourse with a child under 16 in Jamaica is at the very least statutory rape. In summary, therefore, the Adjudicator failed in his duty to make findings about a core issue and the tribunal erred in law in failing to recognise this.

Mr Kovats takes a threshold point on jurisdiction which is based on section 85 of the Nationality Immigration and Asylum Act 2002 which, so far as is material, provides:

“(4)

On an appeal under section 82(1) … against a decision [the Adjudicator/the Tribunal] may consider evidence about any matter which [he/it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of a decision.

“(5)

But in relation to an appeal under section 82(1) against refusal of entry clearance …

(b)

[the Adjudicator/the Tribunal] may consider only the circumstances appertaining at the time of the decision to refuse.”

The point made by Mr Kovats is that there was, and indeed still is, no evidence as to when the alleged forced sexual activity took place, and in particular as to whether it took place before or after the decision of the Entry Clearance Officer. Accordingly he submits it has not been shown that it -- that is to say the forced sexual activity -- was a circumstance appertaining at the time of the Entry Clearance Officer’s decision. That is true, and indeed Miss Laughton does not dispute it, but this jurisdictional point was not raised before the tribunal. In these circumstances I prefer not to decide the appeal on the basis of this point.

In my judgment the tribunal was right to hold that the Adjudicator made no error of law in his treatment of this part of the evidence. It seems to me that the Adjudicator did implicitly accept that it was undesirable for the younger sister to be sexually active given her age and the evidence and submissions that he recorded.

It is also important to have in mind that in the first sentence of paragraph 18 the Adjudicator did say that it had been suggested by the sponsor that both girls had been exposed to the risk of sexual abuse, and the Adjudicator referred to the letter from Dr Levy and the view of Mrs McCook. It seems to me that reading the determination as a whole the Adjudicator did not find that the appellant was at such a risk of sexual abuse as to make good her case under either paragraph 297(i)(f) of the Rules or Article 8 of the European Convention on Human Rights. No doubt the findings of the Adjudicator could have been fuller but to say that is very far from saying that the findings such as they were amounted to an error of law.

I should add that I agree entirely with the views expressed by the tribunal in paragraphs 7 to 10 of its determination about the importance of this issue as it was presented to the Adjudicator. It seems to me as it did to the tribunal that this point has now assumed an importance which it simply did not have before the Adjudicator. As for the case insofar as it is based upon Article 8 of the Convention, the Adjudicator directed himself correctly as to the approach which should be adopted in applying Article 8(2) in an immigration context. The Adjudicator was entitled to conclude, both in relation to the sexual activity point but also more generally, that the interference with the appellant’s Article 8 rights was proportionate to the need for immigration control.

I turn to the second head under the first ground of appeal. Miss Laughton submits that the tribunal made a mistake amounting to an error of law in its consideration of the evidence relating to the younger sister’s sexual activity in a particular respect. I have already referred to paragraph 7 of the tribunal’s determination and in particular the evidence given by the sponsor about her daughter’s sexual activity not having been:

“… elaborated upon in oral evidence as one might reasonably have expected it to be elaborated upon and/or particularised if great store was to be relied upon it during submissions.”

Miss Laughton points out, however, that in the same paragraph the tribunal referred to the Adjudicator’s record of proceedings where the sponsor, she submits, clearly did elaborate upon this evidence. She submits that as the failure to elaborate on the written evidence orally was apparently one of the reasons why the tribunal found that the Adjudicator did not need to make findings on that evidence, it was extremely material. Nevertheless, she submits that despite quoting that evidence the tribunal clearly made a factual mistake when stating that the sponsor did not give evidence about it.

I accept the submissions of Mr Kovats in his skeleton argument on this point. He submits that Miss Laughton misunderstands what the tribunal said at paragraph 7 of its determination. It is necessary to read the sentence, and indeed the paragraph as a whole. The tribunal did not say that the sponsor gave no oral evidence about the sexual activity of the second appellant. The tribunal’s point was a different one: namely, that the sponsor did give oral evidence about the sexual activity of the second appellant but her evidence both written and oral did not contain detail such as one might reasonably expect to find if the point was central to the appellant’s case.

In my judgment there is no substance in this second head. Indeed, I would go further and say that even if, contrary to my view, there were a mistake of fact as suggested by Miss Laughton, it certainly was not a mistake of fact amounting to an error of law.

The third heading under the first ground of appeal is that the tribunal acted in a procedurally unfair manner when it considered the evidence relating to the second appellant’s sexual activity. As we have already seen, at paragraph 7 of its determination the tribunal quoted an extract from the record of proceedings before the Adjudicator. This extract was not included in the Adjudicator’s determination. The contents of the record of proceedings were not raised at the hearing by the tribunal; nor was the Adjudicator’s record of the proceedings before him supplied to the parties either during or subsequent to that hearing.

Miss Laughton also makes the point that neither of the legal representatives who appeared before the Adjudicator appeared before the tribunal. She submits that if the tribunal had wished to refer to the record of proceedings, that record should have been supplied to the parties or at the very least read out during the hearing so that the parties were given the opportunity to comment upon it. She submits that it is clear that had this record been read out it would have strengthened the submissions made on behalf of the appellants in relation to the complaint that the Adjudicator had failed to consider relevant evidence, namely evidence relating to the sexual activity of the second appellant.

In my judgment there is no substance in this complaint. It is accepted on behalf of the respondent that the tribunal did not give notice to the parties that it might refer to the Adjudicator’s record of proceedings, but in my judgment no unfairness resulted to the appellants from the way in which the tribunal dealt with this matter. The Adjudicator said at paragraph 9 of his determination that:

“At the hearing I heard evidence from the sponsor and submissions on behalf of the parties. A full note can be found in the record of proceedings. Paragraphs 10 & 13 below are a summary of the main points.”

In any event, the appellants were represented by counsel before the Adjudicator and had the opportunity to take their own note of the proceedings before him. Further, it is difficult to see how this complaint adds anything to the appellants’ case. First of all, the questions and answers recorded at paragraph 7 of the tribunal’s determination do not add materially to paragraph 11 of the sponsor’s statement of 12 January 2005. Secondly, it is difficult to see how the material contained in the extract of the proceedings quoted by the tribunal adds anything to the first ground of appeal.

I turn to the second ground of appeal, which is that the tribunal erred in law by engaging in what Miss Laughton characterises as speculation. This involves a comparison of paragraphs 17 and 24 of the determination. The submission is that whether the appellants have adequate care and supervision in Jamaica was highly relevant to whether the exclusion of the children was undesirable and/or would constitute a breach of Article 8 of the Convention. That, as it seems to me, is an unexceptionable point. In the grounds of appeal to the tribunal it was asserted that the Adjudicator made contradictory findings of fact on this point in paragraph 17 and 24 of his determination. In paragraph 17 he had said:

“ … I do find that here is no adult family member who is able to supervise or care for the two girls in Jamaica”.

At paragraph 24 he said that there are:

“… other family members … available in Jamaica to assist them and give them support”.

Miss Laughton submits that these two findings are, on the face of it, contradictory of each other. The tribunal dealt with this point in paragraph 6 of its determination:

“It is essential to read the whole determination and thus put the passages relied upon into their proper context. When we undertake that task we are left in no doubt that in paragraph 17 of the Adjudicator’s determination the Adjudicator was dealing with the sole issue of whether there was any full time carer available to supervise the appellants. He found that there was not. That is not inconsistent, in any way whatsoever, with what the Adjudicator then said in paragraph 24 of his determination. The reference in paragraph 17 to there being ‘no adult family member who is able to supervise and care for the two girls’ is, in our judgment, referring specifically to whether or not there is any such person to act as their full time carer. That was the very issue being addressed by the Adjudicator in paragraph 17 of his determination. Then, in paragraph 24 of his determination, he went on to consider whether absent a full-time carer, the girls nonetheless had a framework of support from other family members about whom evidence had been given.”

In my judgment that interpretation of what the Adjudicator had said in the two paragraphs in question is plainly correct. I cannot improve upon that exposition. It seems to me that there is no question of speculation on the part of the tribunal here. The tribunal were simply interpreting two paragraphs in the Adjudicator’s determination which were dealing with different topics. The fact that they were dealing with different topics is the reason why slightly different terminology was used. I cannot accept the submissions from Miss Laughton on this point.

It follows that the appeals in relation to paragraph 297(i) must be dismissed. It must also follow, and this is accepted by Miss Laughton, that since the remaining ground of appeal relates to rule 297(v), it is unnecessary to deal with that further ground. That is because a person seeking indefinite leave to enter as a dependent child must satisfy all of the subparagraphs of paragraph 297. Since the appellants have failed to satisfy 297(i), it must follow that the appeal is dismissed and that no consideration of the remaining ground is necessary.

I would therefore dismiss this appeal.

LADY JUSTICE HALLETT: I agree.

SIR PETER GIBSON: I also agree.