SB v The Entry Clearance Officer, Islamabad

On 27 March 2006, the Entry Clearance Officer (ECO) in Islamabad refused the appellant’s application for entry clearance as a visitor to the UK under paragraph 41 of Statement of Changes in Immigration Rules, HC 395. The appellant appealed. In a determination promulgated on 10 October 2007, Immigration Judge DA Radcliffe held that there was “no valid appeal” before him as the appellant was seeking entry clearance to visit his brother-in-law and that, he concluded, was not a relationship falling within the Immigration Appeals (Family Visitor) Regulations 2003 (SI 2003/518) as amended which gave rise to a right of appeal to the Tribunal under s.90(1) of the Nationality, Immigration and Asylum Act 2002. The judge did not, therefore, consider the merits of the case. The Appellant sought reconsideration of that decision.

The appellant’s grounds assert that the judge was wrong to conclude that the Tribunal had no jurisdiction to deal with his appeal because, as the sponsor is his brother-in-law, the 2003 Regulations do apply.

The matter was listed for hearing on 9 April 2008. In a letter dated 1 April 2008 sent to the Tribunal, the sponsor indicated that he could not attend the hearing as he would be in Pakistan due to a family bereavement but requesting that the appeal be allowed. In these circumstances we saw no reason why we should not proceed to hear the appeal in the absence of the Appellant under rule 19(2)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) as amended.

Before we turn to deal with the jurisdictional argument, we must first address a procedural issue. No order for reconsideration has been made. It could not be. In fact, the judge’s decision is not subject to the reconsideration process set out in s.103A of the 2002 Act which applies only in respect of the Tribunal’s “decision on the appeal”. This is because, by virtue of s.103A(7)(a), a decision that the Tribunal lacks jurisdiction to hear an appeal falls within the statutory exclusion from that provision as “a procedural, ancillary or preliminary decision” (s.103A(7)(a)). Ordinarily, therefore, the appellant’s remedy would seem to be restricted to judicial review. However, we do not consider that this reflects the legal position in family visit appeals such as the present.

Once properly instituted an appeal remains pending until finally determined, withdrawn or abandoned: s.104(2), 2002 Act. If the appellant’s grounds are made out, the judge wrongly declined jurisdiction and, in truth, the appellant’s appeal was properly instituted and remains outstanding before the Tribunal. The fact that a notice has been issued under Rule 9 of the 2005 Procedure Rules (or, as in this case, there is a determination stating) that the appeal is invalid is of no effect where in fact there is clearly a valid appeal before the Tribunal. Such a notice or determination does not “determine” the appeal for the purposes of s.104(2). The Tribunal is entitled, indeed required, when made aware of its error to deal with the appeal in a proper way.

The situation in this case is directly analogous to the situation where the Tribunal erroneously decides that a notice of appeal is out of time. In EA (Timeous appeal treated as late) Ghana [2006] UKAIT 00036 the Tribunal reasoned as follows (at [4]-[6]):

“4.

The position is, however, rather different in relation to a decision that an appeal was lodged out of time. …. By s104(1) of the 2002 Act his appeal is pending before the Tribunal during the period beginning when it is instituted and ending when it is finally determined, withdrawn or abandoned. There can be no doubt that the service of an in-time notice of appeal institutes an appeal for these purposes.

5.

There may be cases in which the facts are not clear, so that the question whether the appeal was in time needs a judicial answer. But if it is clear that the appeal was in time a wrong decision that it was out of time does not “determine” the appeal, which therefore remains pending. Because no permission is needed to pursue an in-time appeal, in a clear case a decision purporting to refuse to allow it to proceed is formally of no effect – although, of course, unless it is queried, the appeal is unlikely ever to be determined.

6.

If a member of the Tribunal is persuaded that a notice of appeal to the Tribunal which has been treated out of time was in fact clearly given in time, he should ignore the decision that it was out of time and give parties notice that despite the Tribunal’s previous indication there is an appeal pending before it which will proceed to determination.”

The same approach was applied by the Tribunal in ST (s92(4)(a): meaning of “has made”) Turkey [2007] UKAIT 00085 at [2]–[3] where an Immigration Judge had wrongly concluded that he had no jurisdiction to hear an appeal. That reasoning, with which we agree, applies equally in this case. The question is, therefore, does the claimed relationship between the appellant and sponsor fall within the 2003 Regulations?

So far as relevant, reg 2(1) provides as follows:

“2(1) For the purposes of section 90(1) of the Nationality, Immigration and Asylum Act 2002, a ‘member of the applicant’s family’ is any of the following persons –

….

(b)

the … brother or sister of the applicant’s spouse; ….”

This could not be clearer. The brother or sister of the appellant’s spouse is his brother- or sister-in-law. In other words an appellant who intends to visit his spouse’s sibling in the UK has a right of appeal under s.90(1) of the 2002 Act read with the 2003 Regulations. But it is worth noting that reg 2(1)(b) does not include all relationships where the sponsor is the brother- or sister-in-law of the applicant/appellant. That relationship will also exist where the appellant’s brother or sister is married to the sponsor in the UK. This is also a relationship of brother- or sister-in-law, but the wording of regulation 2(1)(b) – no other part of reg 2(1) being relevant - does not apply. It may be that it is not specifically covered because such a provision would generally be redundant as usually the appellant will not only be visiting his brother- or sister-in-law (the sponsor) but also his own sister or brother (the sponsor’s spouse) and those latter sibling relationships are, in any event, covered by reg 2(1)(a) of the 2003 Regulations.

The evidence relevant to the claimed relationship between the appellant and sponsor is somewhat sketchy in this case. The ECO has, unhelpfully, failed to file with the Tribunal the appellant’s application form or interview record where there might have been some useful information. The ECO and the judge refer only to the sponsor as being the appellant’s “brother-in-law” but do not provide any inkling of the basis for this familial connection. The sponsor, however, does. In the Declaration of Sponsorship dated 20 April 2007 he states in the section dealing with the details of the appellant “RELATIONSHIP: B in Law (Real Sister’s Husband)”. Further in his supporting letter to the Tribunal he refers to the appellant by name and then immediately adds in brackets “Real sister’s husband”. How is this to be understood? The writer is the sponsor and it seems to us that the way in which it is written supports the view that he is referring to the appellant and means, in effect, that ‘the appellant is my sister’s husband’. It would be an odd phraseology to use if, instead, the sponsor was referring to himself and meant ‘I am his sister’s husband’. That seems to us to be the only possible alternative interpretation of the sponsor’s words and we reject it. If that were the visit which the appellant intends, it is curious, to say the least, that in none of the documents before us does he mention that he is coming to see his own sister in the UK who lives with the sponsor. It is clear to us that the appellant is coming to visit his wife’s brother (his brother-in-law) which is a relationship falling within reg 2(1)(b) of the 2003 Regulations. The judge was wrong to conclude that there was no valid appeal before him and, for the reasons we have already given, the effect is that the appeal remains pending before the Tribunal.

We now proceed to determine the appeal.

The applicable Immigration Rule is paragraph 41 of HC 395 which, so far as relevant, provides as follows:

“The requirements to be met by a person seeking leave to enter the United Kingdom as a visitor are that he:

(i)

is genuinely seeking entry as a visitor for a limited period as stated by him, not exceeding 6 months; and

(ii)

intends to leave the United kingdom at the end of the period of the visit as stated by him; and

(iii)

does not intend to take employment in the United Kingdom; and

….

(vi)

will maintain and accommodate himself and any dependants adequately out of resources available to him without recourse to public funds or taking employment; or will, with any dependants, be maintained and accommodated adequately by relatives or friends; ….”

The ECO’s reasons for refusing the Appellant entry clearance are set out in the Notice dated 27 March 2006 as follows:

“I have taken careful consideration of all of the evidence you have placed before me and I am not satisfied that your application meets all the requirements of paragraph 41 of HC 395.

•

You are seeking entry clearance to visit your brother-in-law. I note that you were previously issued a visa in April 2006 and you stayed in the UK for 5 months, although your application form at that time clearly stated that you intended an 8 week visit, same as this application. When asked at interview what you did during these 5 months of your previous visit, you were unable to provide a credible explanation or name the famous places you claimed to have visited. Based on your answers at interview, I am lead to doubt that purpose of your previous travel and it follows, therefore, that I am lead to doubt both the purpose and claimed duration of this trip. 41 (i) (ii) (iii)

•

I note that you previously stayed in the UK for 5 months, that you have only recently returned to Pakistan and that you are applying once more to visit the UK for a further 2 months. I do not consider this pattern of migration to be commensurate with someone who claims to run their own business that requires their presence here. This also leads me to doubt the purpose and period of your visit is as you have stated. 41 (i) (ii) (iii)

•

You have stated that you will take only £300 for your 2 month visit and that expenses will be met by your sponsor. You have, however, not produced any evidence of his personal and financial circumstances that would allow him to so do, nor have you provided a recent sponsorship declaration from your sponsor offering to meet your costs. Without such evidence I am not satisfied that you will be adequately maintained and accommodated as claimed. 41 (v)

•

You have failed to provide any evidence of your own personal circumstances in Pakistan. Whilst I accept that this is not an explicit requirement of the Immigration Rules to provide such evidence, full knowledge of your circumstances is an important consideration when assessing your application for a visit visa. While I note that you were previously issued a visa in April 2006, no evidence has been presented to support that you continue to be in receipt of regular income, or that you have the funds that you claim for this visit. In the absence of such evidence you have not satisfied me, on the balance of probability, that you are genuinely seeking entry as a visitor for a limited period as stated by you or that you will comply with the conditions of your entry clearance. 41 (i) (ii) (iii)

.…

I therefore refuse your application.”

In effect, therefore, the ECO did not accept that the Appellant was a genuine visitor or that he had the available funds to be adequately maintained and accommodated in the UK.

For the hearing, the Appellant submitted a bundle of documents including bank statements of the sponsor and copies of the sponsor’s tax return for the years ending April 2005 and 2006, a certificate setting out details of the Appellant’s children, and three documents relating to the Appellant’s property holdings and business in Pakistan. In addition, the Appellant submitted a set of grounds of appeal which in some detail deal with the issues taken against the Appellant in the notice of decision. Further, the Appellant submitted a declaration of sponsorship by his sponsor and a supporting letter from his sponsor.

In the sponsorship declaration, the sponsor states that his annual earnings are £20,000 and that he has £6,000 in savings at the Abbey National Bank. The declaration states that he will bear the costs of the Appellant travelling to the United Kingdom and returning to Pakistan and will maintain and accommodate him at his own cost in the United Kingdom. Attached to the declaration are three statements relating to the sponsor’s account held at the Abbey Bank. The earliest of these deals with the period between 22 November 2006 and 22 December 2006 and shows a balance of £7,773.35. We note that prior to this, the statements state that a balance of £5077.30 was brought forward. The other two statements relate to similar periods between January and February 2007 and February and March 2007 showing respectively closing balances of £4,198.15 and £5,219.47 respectively. The sponsorship declaration also states that the sponsor in addition to his own home owns an additional property in Hounslow. The sponsor’s tax return relating to the year ending April 2006 shows that the sponsor received £12,288 by way of income from property. The tax return does not indicate that the sponsor was in employment or received any other income, for example, from a business.

Turning to the other documentation, there is a translation of a document said to be issued by the “Government of Pakistan” and headed “Certificate of Children below eighteen years” which shows that the Appellant and his wife have three children aged, at the time of the ECO’s decision, 17, 12 and 1 respectively. There are in addition two documents relating to the Appellant’s property holdings in Pakistan. The first is from the “Office of the Tehsildar” and is dated 19 April 2007. It states that the Appellant owns agricultural property which produces an annual income of 2,50,000 Pakistani rupees. In addition, he is the owner of a residential house valued at 32,00,000Rupees and, finally, he owns five shops which are rented out at a monthly income for each shop of 1,600 rupees. In addition, there is a translation of a Land Registry document indicating that the total land owned by the Appellant is 74.08 kanals. This document seems to refer to his total holdings so as to cover his agricultural land, his residential house as well as his commercial property. We note that the document issued by the Office of the Tehsildar seems to suggest that the Appellant owns agricultural property of that area. Clearly there is a difference here which is unexplained in the material before us. Finally, there is an affidavit from a Mr Arif who states that he is the elder brother of the Appellant. In his affidavit, Mr Arif attests that the Appellant owns commercial property and agricultural land and that he will take full responsibility for its maintenance during the Appellant’s absence. He also states that he will look after the Appellant’s family members during his visit to the UK. He states that the Appellant wished to come to the UK for the purpose of a family visit to see his blood relations and friends for two months. There is one final document we should refer to enclosed in the bundle which appears to be a bank statement from the Allied Bank Limited showing a balance of 105,044.75 as at 21 April 2007 and in the Appellant’s name. As this account covers the period of January to April 2007 it relates to the Appellant’s financial circumstances after the ECO’s decision and is not a matter that we can have regard to in deciding this appeal.

At the hearing, Miss Powell who appeared for the Respondent indicated that she had nothing to add to the papers that were before us. We take this to mean that she relied upon the ECO’s reasons for refusing entry clearance but, of course, she did not challenge the documentation that the Appellant put before us and which, so far as we can tell, was not before the ECO. Likewise, Miss Powell made no submissions in relation to the detailed grounds of appeal prepared by the Appellant.

As regards the ECO’s first reason for not accepting that the Appellant was a genuine visitor, the Appellant explains that he stayed for about four months because he was invited whilst here to visit a number of his family members but because they were busy he went on Sundays and so remained longer than the eight week visit that he initially intended. That explanation is also repeated by the sponsor in his letter dated 20 April 2007 to explain the Appellant’s stay in the United Kingdom for four months on his last visit. The Appellant also explains that he told the Entry Clearance Officer some famous places he had visited in the UK but that the main purpose of his visit was to see family rather than be a tourist. He also points out that he is not an educated man.

As regards the second reason relied upon by the ECO, the Appellant says that he returned to Pakistan after his first visit on 2 October 2006 and that he wanted to visit the UK in May 2007 to accommodate his obligations on his agricultural land – he says that he is a farmer – so it would be a very suitable time for him to visit during the months of May, June and July 2007.

As regards the third reason for the refusal relating to maintenance and accommodation, the Appellant says that he has now submitted documents relating to his brother-in-law (the sponsor’s) financial situation in the United Kingdom.

Finally, in relation to the concluding reason for refusing the Appellant’s application, the Appellant points out that he has presented documents relating to his property holdings in Pakistan and in respect of his family who live there.

The burden of proof in this appeal is upon the Appellant to satisfy us on a balance of probabilities that he met the requirements of paragraph 41 of HC 395 at the date of the ECO’s decision, namely 27 March 2006. In reaching our decision we are entitled to take into account evidence relating to the circumstances appertaining at that date even though the evidence was not before the Entry Clearance Officer and even if it post dates his decision.

As we have indicated already, Miss Powell did not challenge the genuineness or contents of the documentation before us. We accept that the Appellant is an agricultural farmer who owns commercial property in Pakistan and that his earnings are as reflected in the document from the Office of the Tehsildar dated 17 April 2007. We accept that the Appellant is married and has three children all, at the relevant date, under the age of eighteen. We accept the evidence from the sponsor that he is a businessman who owns two properties in Hounslow. It is not clear to us from the documentation how the sponsor comes to the figure of £20,000 as being his earnings. We have no relevant documentation relating to the sponsor’s bank accounts at the date of decision – they all relate to a period some nine to twelve months later. However, his tax return for the year ended 5 April 2006 (a period ending one week after the decision in the appeal) shows that he did earn £12,288 from property rents in the 2005-2006 tax year. The Appellant, of course, has his own income as recorded in the documentation and, as the ECO points out in his decision, the Appellant will bring £300 of his own money with him for the two month visit.

Looking at this evidence in the round, we are satisfied on a balance of probabilities that for a short visit of this nature the Appellant has available to him through his own funds and those of his sponsor sufficient to maintain himself in the United Kingdom without recourse to public funds. Although the refusal decision refers to the issue of accommodation, no specific point is made in relation to that. In our view it is clear from the sponsorship declaration – which has also not been challenged before us – that the sponsor has available accommodation for the Appellant.

For these reasons, we are satisfied that the Appellant met the requirement in paragraph 41 (vi) of HC 395 at the date of decision.

In relation to the other issues raised in the notice of decision by the ECO, in our view the points made by the ECO are fully and satisfactorily met by the Appellant in his detailed grounds of appeal and by the documentation before us. His evidence is not challenged and there is no basis upon which we could rationally reject it. The Appellant has explained – and we see no reason not to accept that explanation –why he remained in the UK on his last visit beyond the initially intended eight weeks for some five months. He did so because of the way that he was invited by various members of his family to visit them on weekends which extended the period that he intended initially to stay in the UK. It remains the fact that the Appellant nevertheless left the UK and returned to Pakistan prior to the end of his six months leave to enter. The Entry Clearance Officer has not provided a copy of the Appellant’s interview and therefore we are not in a position to know in any detail what it is that the Appellant said when asked what he had done on his previous visit. The Appellant’s explanation given in his grounds of appeal is that he named some famous places but the purpose of his visit was to see family and not be a tourist. In addition, the Appellant has explained why it is that he wished to return to the United Kingdom for a family visit in May 2007 and also that his brother will take care of his businesses and his family whilst he is away. We accept this explanation. Finally, the Appellant has provided documentary evidence which again is not challenged, and which we accept, that shows that he has roots in Pakistan: he has a wife and three children, a home, agricultural land and commercial properties that he rents out. There is also the fact that on his last visit to the UK the Appellant returned to Pakistan prior to the end of his leave to enter.

Looking at all these matters in the round, we are satisfied that the Appellant is genuinely seeking entry as a visitor to see his family and that he intends to leave the United Kingdom at the end of the visit and that it is not his intention to undertake employment in the United Kingdom. Thus we are satisfied that the Appellant meets the requirements in paragraph 41 (i), (ii) and (iii) of HC 395.

No issue has been taken on any other requirement in paragraph 41 of HC 395, therefore, for these reasons we are satisfied that at the date of decision the Appellant met the requirements of paragraph 41 of HC 395.

The appeal is allowed.