The decision

Heard at Field House

AS (Adequate Accomodation_Question of fact) Pakistan [2004] UKIAT 00006
On 19 January 2004


Corrected transcript of decision given at hearing
Signed: 20.01.2004
Issued: 27/01/2004


Mr J Freeman (chairman)
Mrs A J F Cross De Chavannes




Entry Clearance Officer, ISLAMABAD


For the appellant: Mr R Sheikh, RS Advisory Service
For the respondent: Mr M Davidson


This is an appeal from a decision of an adjudicator, Mrs N J Gladstone, sitting at Birmingham on 28 April 2003, in which she dismissed an appeal against refusal of a husband visa on the basis that the accommodation requirement was not met.
2. The accommodation point had been taken by the entry clearance officer in the notice of refusal, though on the basis that there was no evidence of security of tenure. This is no longer in issue. However, the physical adequacy of the accommodation was dealt with in a surveyor’s report by Mr J H Brown FRICS, sent to the entry clearance officer by those representing the appellant.
3. The surveyor described the house in question, which is a fairly small three-bedroomed terrace house. On the ground floor there is what is described as a “through-lounge”, measuring 26’ x 12’, and a kitchen and bathroom. On the first floor, the first bedroom measures 11’3” x 13’4”, the second 11’1” x 7’10”, and the third 11’1” x 8’3”.
4. The adjudicator dealt in some detail with the accommodation requirements at paragraph 18:
In relation to accommodation, the documentary evidence submitted confirms ownership and mortgage payments. I am aware an expert’s report is not required to confirm adequacy of accommodation. As set in Rehman, the adequacy must be assessed in the light of the facts of each individual case. The report from the surveyors is dated 23 April 2002. The children’s ages in that are given as 9, 4½, 2½ and 10 months. These do not accord with the ages over a year on given by the sponsor.
We pause at that point to note that the adjudicator should have dealt with the situation as it was at the date of the decision.
5. The adjudicator went on:
However, I reiterate that regardless of the requirements of the report, there is no evidence in relation to the number of units for the property. In practical terms two adult couples, a ten year old boy and three other children will be sharing a three-bedroomed property. I do not consider that the through-lounge is adequate in relation to sleeping accommodation as it is not self-contained. It has an open tread staircase leading to the first floor. It seems also that there is no hallway, so access to the kitchen and bathroom on the ground floor are through that room. On balance I am not satisfied that there will be adequate accommodation at 62 Chapel Street for the appellant and his sponsor in accordance with the Rules.
6. Leave to appeal was given in general terms. The grounds of appeal were based on the provisions of the Housing Act 1985, to which we shall return, and on the decision in Nighat Sultana (19228) (written by Mrs RN Mannion) of which we have been presented with only a brief summary. There is also the authority referred to by the adjudicator, Rehman (16671), (written by Mr HJE Latter, vice-president) again in summary only; and a further letter faxed by the surveyor dated 4 June 2003 in which he says:
Having regard to the Section of the Housing Act 1985 I consider the accommodation as at the date of inspection to be adequate for the occupant as stated together with the applicant although congested.
The surveyor gives no reference to the section of the Housing Act to which he refers; nor details of any calculations. This falls well below the standards to be expected of any professional expert witness. We have had to do those calculations ourselves, in collaboration with Mr Sheikh and Mr Davidson.
7. The position on the authorities to which we were referred seems to be this. So far as Rehman is concerned, neither the absence of a letter from the local authority indicating the lack of overcrowding, nor on the other hand evidence that there is not going to be any statutory overcrowding, is to be regarded as conclusive in a case of this kind. As the Tribunal said, what the appellate authorities are concerned with is “the adequacy of accommodation, which must be assessed in the light of the facts of each individual case”.
8. So far as the Tribunal in Nighat Sultana may appear to be suggesting that any accommodation which was not statutorily overcrowded, and so did not give rise to any entitlement to public housing, was adequate in terms of the Immigration Rules, we prefer Rehman. Statutory overcrowding, or the lack of it, is certainly a relevant point, and we do accept that the Housing Act may provide some guide to what is adequate and what is not. The relevant provisions are sections 325 and 326. However, we bear in mind that that part of the statute goes on, at section 327, to impose criminal penalties on the occupier of a dwelling who causes or permits it to be overcrowded. So in that context, a high degree of certainty was clearly required. In the immigration context, however, the expression used in the Rules is simply “adequate” accommodation, which we have no doubt was intended as a point to be assessed on the facts of the individual case, first by the entry clearance officer and then by the appellate authorities
9. We shall look at the situation in this case as it was at the date of the decision, and, since the entry clearance officer was not asked to consider this point, base our views on the ages of the children on those given by the surveyor. The two smaller bedrooms in the house in question (second and third) are each of 70 sq ft or more, but less than 90 sq ft, resulting in a capacity in each case of one grown-up person. The only practical solution would have been for each of the couples, the sponsor and appellant and the other couple, to occupy one of those smaller bedrooms, which would not have been adequate, even in statutory terms.
10. There is then a larger bedroom (the first one mentioned), which is of 150 sq ft and would therefore have been adequate for two units (grown-up persons). The smallest child, going on the surveyor’s evidence, was at the date of decision less than a year old, so did not fall to be taken into account at all. On that basis those four small children could all have been put in that bedroom, 11’3” x 13’4” as they would only total 1½ units in all.
11. Mr Sheikh has very realistically conceded that, in practical terms, this would not normally have been regarded as an acceptable solution in this country. The accommodation that he points to as being available for the children, or whichever of them could not be accommodated in the larger bedroom, is in the “through lounge”. That is certainly quite a large room. The adjudicator gives some of its salient features in her paragraph 18, which we have quoted. She says it would not be adequate, as not being self-contained, with an open-tread staircase leading to the first floor, and being in effect the corridor to the kitchen and bathroom. Those are not statutory requirements. However, in our view, they were points which she was entitled to take into account in deciding whether the accommodation as a whole was in fact adequate on the facts of the individual case.
12. The adjudicator’s decision went out before 8 June last year, so there is no question of it having to be shown that she was wrong on some point of law. Nor does the result depend on anything which she was specially better-equipped to judge than us, such as the credibility of witnesses who gave oral evidence. However, the primary decision in the case was for the adjudicator. It is not for us simply to substitute our own view of what might or might not have been adequate. We should only overrule her on the accepted principles relating to any appeal on the facts if she can be shown to be clearly wrong.
13. For the reasons which we have given, which are essentially those of practicality, the mistake which she did make about the date of assessment of the children’s ages does not make any real difference, the essential point being the one we have quoted about the lounge not being self-contained as sleeping accommodation, including its use as a passageway to the kitchen and bathroom. It also has to be said that, even if the lounge were to be taken into account, neither of the smaller bedrooms is really adequate for a couple, either on a statutory, or, in our view, a common-sense basis. In our view, the adjudicator cannot be said to have been clearly wrong in rejecting the adequacy of the accommodation put forward as she did; and it follows that although Mr Sheikh has taken an entirely realistic attitude to the issues on this appeal, it must be dismissed.

John Freeman