Tribunal decisions

The decision

GB (Family visitor – “half brother” included) Ethiopia [2007] UKAIT 00063

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Heard at Field House

On 19 March 2007

Prepared 19 March 2007

Before

SENIOR IMMIGRATION JUDGE DRABU
SENIOR IMMIGRATION JUDGE McGEACHY

Between

Appellant
and

ENTRY CLEARNACE OFFICER, ADDIS ABABA

Respondent

Representation:

For the Appellant: The Sponsor
For the Respondent: Mr G Saunders, Home Office Presenting Officer

In the Immigration Appeals (Family Visitor) Regulations 2003 the terms “brother” and “sister” includes half brothers and half sisters – those who share one parent.

DETERMINATION AND REASONS

1. The appellant is a citizen of Ethiopia. She applied for entry clearance to enable her to come to Britain as a family visitor on 22 June 2006. Her application was refused and her appeal was heard by Immigration Judge Horvath on 4 December 2006 and dismissed.

2. An order for reconsideration was made by Senior Immigration Judge Southern on 17 January 2007.

3. The appellant had applied to visit the sponsor, AG. He and she share the same mother. AG having been born to their mother’s first husband while the appellant was the child of their mother’s second husband. As they share a parent they are half brother and half sister. They are not stepbrother and sister as stepsiblings are the children of a person whom of their parents has married but who has had children with another husband and wife – they therefore are not blood relatives.

4. At the beginning of the hearing before the Immigration Judge the Presenting Officer raised a preliminary issue which was that the appellant did not qualify for a right of appeal under the Immigration Appeals (Family Visitor) Regulations 2003. These are set out at paragraph 13 of the Immigration Judge’s determination and read as follows:-

“1. These Regulations…shall come into force on 1st April 2003.

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 –

(a) the applicant’s spouse, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or first cousin;

(b) the father, mother, brother or sister of the applicant’s spouse;

(c) the spouse of the applicant’s son or daughter;

(d) the applicant’s stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister; or

(e) a person with whom the applicant has lived as a member of an unmarried couple for at least two of the three years before the day on which his application for entry clearance was made.’

(2) In these Regulations, ‘first cousin’ means, in relation to a person, the son or daughter of his uncle or aunt.”

5. The Presenting Officer argued that as the appellant was the sponsor’s half sister she would not have a right of appeal as there was no reference in the Regulations to half siblings.

6. The Immigration Judge accepted that that was the case stating that as the Family Regulations made no mention of half sister or half brother it was probable that the intention of Parliament was to exclude them. She therefore found that the appellant had no “qualifying relative” living in Britain. She therefore concluded that there was no right of appeal open to the appellant. However, she went on to consider the merits of the appeal.

7. We find that there is an error of law in the decision of the Immigration Judge that the appellant did not have a right of appeal as a family visitor. We consider that it would be an absurd anomaly if stepsiblings would have a right of appeal as family visitors but half siblings would not, given that stepsiblings have a less close relationship – they do not have a blood relationship – with each other. In order to make sense of the Regulations we therefore consider that where the Regulations refer to brother or sister they should include half brothers and half sisters. In any event, we note that the Concise Oxford Dictionary defines a brother as: “son of same parents or (also half-~)same parent as another person”. Therefore the fact that the sponsor and the appellant share a Mother means that the sponsor is the appellant’s brother. We therefore find that the Immigration Judge made an error of law in finding that the appellant did not have a right of appeal.

8. Secondly we found that there was an error of law in the approach of the Immigration Judge to the facts of this case. She made clear errors of fact, which are such as to amount to errors of law when she transposed facts relating to the appellant’s mother to the appellant.

9. Having found that there were material errors of law in the determination, we told both the sponsor who was representing the appellant and Mr Saunders that we wished to proceed to determine the appeal. They both accepted that we should do so.

10. We asked the sponsor a number of questions about his sister’s work and family in Ethiopia and about sums which have been deposited in her bank account which he said had been used to buy land there. He told us that he had a brother in Ethiopia but that apart from him his sister had three half brothers outside Ethiopia. He said that his sister lived with his mother in Ethiopia and took care of their mother, that she played a role in the local church and that she had recently set up her own business. Moreover she had used the money in her bank account to buy land in Addis Ababa which had gone up in value. He produced photographs of him, his brother in Ethiopia and the appellant during a visit which he had made in 2003 to Ethiopia. These photographs showed him, his brother and the appellant in a hotel and in the surroundings of the hotel in a tourist area in Ethiopia – the pictures showed a family group in prosperous surroundings.

11. Mr Saunders questioned the sponsor about sums of money paid into the bank account, a copy of which we were able to hand to Mr Saunders whose file was incomplete. The sponsor explained the various sums of money which had been used from the bank account to buy the property which his sister now owns and confirmed that sums of money had been given to her by her mother as well as sums of money given to her by her half brothers who are living abroad.

12. The sponsor emphasised that he and his family were Christians and that his sister was only coming for a short visit. He said that his Mother had visited from Ethiopia and in fact was widely travelled and had always returned. He had sponsored various other members of his family who had come on visits and returned.

13. Mr Saunders, in his summing up asked us to find that the Regulations did not include half brothers or sisters – had they wished to do so they would have said so. He asked us to determine the appeal but that should we allow the appeal that we would not make any directions.

14. We have considered the evidence of the sponsor together with the documentary evidence which was on the file. We consider that the sponsor was a truthful witness and we accept therefore that his sister lives in Ethiopia looking after her mother and that she has a job there and indeed has recently set up her own business. We accept also that she has purchased property there. We accept, moreover, that members of the family have come to Britain as visitors and returned.

15. We conclude that therefore she would come for the short family visit which was originally envisaged and that she would then return to Ethiopia.

16. We have set out our above reasoning as to why we consider that she did have a right of appeal under the Family Visit Regulations.

17. We, for the reasons set out above, having found that the Immigration Judge made material errors of law in the determination substitute for her decision dismissing this appeal our own decision that this appeal is allowed. We make no direction.

Decision

19 This visit visa appeal is allowed.

Signed Date

Senior Immigration Judge McGeachy