The decision

RM (foreseeable maintenance by pregnant sponsor) Pakistan [2004] UKIAT 00244


Date of Hearing: 8 July 2004
Date Determination notified:
3 September 2004


Dr H H Storey (Vice President)
Mrs G Greenwood
Mr N Kumar, JP

Entry Clearance Officer, Karachi



Representatives: Mr J. Wyatt, Presenting Officer, for the appellant; Mr M. Janjua, legal representative, Janjua & Associates, for the respondent

1. The appellant, Entry Clearance Officer, Karachi, has appealed against the determination of an Adjudicator Mr D.G. Shimmin, allowing the appeal of the respondent (hereafter the claimant), a citizen of Pakistan, against the decision refusing him entry clearance as a spouse.

2. On 23 October 2002 the Entry Clearance Officer refused the claimant's application because he was not satisfied he and his spouse would be able to maintain themselves adequately without recourse to public funds. Given that the sponsor had been residing in Pakistan for eleven months and expecting a child in five months’ time, the ECO did not consider it reasonably likely she would gain employment. Further, he did not consider she had any significant savings and thought that her account had been inflated to facilitate this application. He noted that the claimant had no job available to him in the UK.

3. The claimant appealed against the Entry Clearance Officer’s refusal. In reviewing his decision on 3 May 2003 the ECO decided to maintain his decision. He wrote:-

“The sponsor has submitted evidence of employment but the letter from the employer casts doubt on its security (sic). There is no evidence that the letter of an offer of employment for the appellant in any way matches his skills or any previous experience.”

4. The Adjudicator heard evidence from the sponsor and also admitted into evidence further documents relating to the sponsor’s employment history, savings and a job offer made to the claimant.

5. The Adjudicator found the sponsor’s evidence wholly credible. He was satisfied that at the date of decision she had £2000 in savings and that, very shortly after the date of decision, she had had employment from which she received enough income to maintain the couple adequately. He was also satisfied that the claimant had had (and still had) a viable job offer in the UK.

6. The grounds of appeal to the Tribunal were essentially twofold. Firstly, in respect of the sponsor, it was contended that at the date of decision she did not have employment and that, being heavily pregnant at the time, it was not reasonably foreseeable she would be able to obtain employment “so soon after the decision” – this last phrase we take to be a reference to the post-decision evidence that the sponsor commenced employment within weeks of the date of decision. Secondly, in respect of the claimant it was submitted that at the date of decision there was no evidence he had been offered employment, nor did the offer of employment made post-decision match “any skills or previous experience of the appellant.”

7. Before proceeding to evaluate this case it is worthwhile rehearsing two points. There was no dispute in this case that the claimant met all the other requirements of paragraph 281 of HC 395. The only basis for refusal was that the claimant had not shown that both parties and any dependants could be adequately maintained without recourse to public funds. As regards post-decision evidence, it is settled law that it is only of relevance if it casts light on what was reasonably foreseeable at the date of decision: see e.g. ex parte Kotecha [1982] ImmAR 88; ex parte El Hassanin [1986] ImmAR 502.

8. The grounds of appeal do not challenge either the Adjudicator’s finding that the sponsor did obtain genuine employment in December 2002 or his finding that the sponsor’s savings were genuinely around £2000 (as opposed to being inflated for the purposes of the application). Nor for that matter do the grounds challenge the Adjudicator's finding that the job offer to the claimant was a genuine one. Given the further evidence placed before the Adjudicator and the evident ability of the sponsor through her oral evidence to resolve the doubts raised by the ECO, it is not surprising that those findings are no longer challenged. For our part we are entirely satisfied that on the further evidence before the Adjudicator he was quite entitled to conclude that the sponsor had given true particulars of her employment history and that the job offer to the claimant was a viable one.

9. It remains, however, to consider whether it was reasonably foreseeable at the date of decision that the sponsor and the claimant would become economically active. At this point we would accept the general point implicit in the grounds of appeal that just because (as things turned out in this case) a sponsor becomes employed soon after the date of decision does not necessarily mean this sequence of events was reasonably foreseeable.

10. However, on the evidence before the Adjudicator in this case we consider it was properly open to him to conclude that it was reasonable foreseeable the sponsor would become economically active within six months. For one thing she had worked as a packer and gained a diploma in child care and had done occasional work as a babysitter. For another, in the application form in reply to the questions about the sponsor’s employment, the answer given was that she had no job “at present”: she did not say that she was a housewife; and there was nothing to indicate she did not intend to work upon return to the UK. It is true that she described herself as pregnant and expecting a baby in several months. This prompted the ECO to assess that employment was not reasonably foreseeable at the date of decision. That assessment in our view was quite misplaced, certainly in the generalised form in which it was stated in the refusal decision (“cannot reasonably [be] expected to start employment until at least four months after the birth”). UK employment law and practice fully recognises that maternity and economic activity are not mutually exclusive. It is not wholly uncommon for women to return to work within a matter of weeks of giving birth. We simply do not understand where the ECO plucked the four months figures from; it certainly has no rational basis as a criterion of what is reasonably foreseeable in the case of a sponsor with awareness of the ongoing need for her and her spouse to comply with immigration rules.

11. In this connection the sponsor’s post-decision activity is of some significance. The Adjudicator found the sponsor a straightforward and truthful witness and there is no suggestion in this case that her initiative in finding work within six weeks of the date of decision was self-serving or simply a tactical reaction to the refusal. Thus it was post-decision activity which was rightly seen by the Adjudicator as shedding light on the couple’s intentions as at the date of decision. We should mention at this point that the Adjudicator was quite correct, in the light of the further documentary evidence, to wholly disregard the ECO’s suspicions (as expressed by the ECO in his review decision) about the “security” (sic) of the sponsor’s claimed employment. Furthermore, the Adjudicator, with reference to leading cases, that of Mohd Shabir (01/TH/2897) in particular, was quite entitled to conclude that the level of income earned by the sponsor in her post-decision employment was comfortably in excess of a minimum adequate maintenance figure. Given our earlier observations on reasonable foreseeability, we consider that these figures cast light on the income it was reasonably foreseeable at the date of decision to expect the sponsor to earn, once she became economically active (again).

12. Given the Adjudicator's principal findings, we also see no reason to doubt that the savings she had available to her at the date of decision (some £2,000) were genuinely hers.

13. Having concluded that the Adjudicator did not err in concluding that the sponsor’s reasonably foreseeable income was adequate to maintain the couple, it is not necessary for us to address the objection raised in the grounds to the Adjudicator's finding that the claimant had a viable job offer. However, we would record that even though no job offer was mentioned by the claimant in his application form, the Adjudicator was satisfied, having heard from the sponsor, that a family friend had made known his readiness prior to the date of decision to make a job available to the claimant at his garage. Furthermore, the Adjudicator also accepted that the claimant had had experience selling cars in Pakistan. Accordingly, we see no factual basis for the assertion raised in the grounds of appeal that his skills or previous experience did not “match” the job offer. Certainly it was open to the Adjudicator to find that as the garage was situated in an area with a significant Asian population, the claimant had the ability to do the job offered.

14. For the above reasons the appeal of the Entry Clearance Officer is dismissed.