Tribunal decisions

The decision

EA (Family visitor, directions, mistake of fact - unfairness) Ghana [2005] UKAIT 00108

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Heard at Field House
Heard on: 19 April 2005

Determination issued:
Prepared : 26 April 2005

1 June 2005
Before:

Ms C Jarvis
Senior Immigration Judge
Mrs W Jordan
Dr T Okitikpi

Between

Appellant

and

Entry Clearance Officer Accra
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

This case is reported for what we say about the exercise of the power to make directions to give effect to a determination, pursuant to the Immigration and Asylum Act 1999 and pursuant to the Nationality, Immigration and Asylum Act 2002 ( as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004); to highlight the procedure to be followed at a reconsideration hearing, including the requirements to be met in order that fresh evidence may be considered at such a hearing, thus widening the ambit of the appeal in this case, to include mistake of fact giving rise to unfairness, and to highlight certain provisions of legislation and rules relating to family visitors, their rights of appeal, and Entry Clearance Officer practice in that regard.

DETERMINATION AND REASONS

1. This is the appeal of the Respondent, against the determination of an Adjudicator (Mr D Zucker) who in a determination issued on 10 October 2003, reached after consideration of the matter without an oral hearing, allowed the Appellant’s appeal against the Respondent's decision made on 21 February 2003 to refuse to grant entry clearance as a family visitor, to visit his uncle, Peter Kofi Nsiah Yeboah (Mr Yeboah).

2. There was no appearance by or on behalf of the Appellant although there was good service of the notice of hearing at the last known address of the Appellant. The Appellant has not instructed any legal representative. We decided to proceed to hear the appeal notwithstanding the absence of the Appellant

3. The Appellant was interviewed in connection with his application on 21 February 2003, and the decision to refuse entry clearance was made on the same date.

4. The Appellant claimed to have been born on 17 January 1980 and to be an undergraduate student at the University of Ghana. He proposed to visit his uncle in the UK for a period of four weeks, after finishing his final year exams in May 2003, and before commencing his military service. An uncle in Ghana was said to be supporting the application financially. He claimed that he had his mother and siblings in Ghana and his father was said to be dead.

5. Although satisfied that the sponsor was lawfully in the UK and that he had a wish for the Appellant to visit, the Respondent was not satisfied that the Appellant had shown on balance that he was able to meet the costs of his proposed trip and his maintenance and accommodation in the UK without working or recourse to public funds. Further, he was not satisfied that the Appellant had shown, in the light of all the circumstances, that he was a genuine family visitor who was seeking entry to the UK only for the period and purpose stated.

6. There was no oral hearing before the Adjudicator, as we have indicated. This was because the Appellant stated on his appeal form that he wished the appeal to be decided without an oral hearing, on the basis of the documentary evidence. On 10 October 2003, copies of the Adjudicator’s determination to allow the appeal and to direct that entry clearance be granted, were sent to the parties and to the named sponsor, Mr Yeboah.

7. The Adjudicator found that the Appellant had shown that his personal circumstances were as stated and that the Appellant had shown evidence that there was £11,000.00 in the account of the relative in Ghana who was to pay for the trip. Considering the letter from the Appellant and the documentary evidence that was before him, he was satisfied that the Appellant had shown on balance that he met all the requirements of paragraph 41 of the Immigration Rules in relation to family visitors. On 1 October 2003 he allowed the appeal and directed that entry clearance be granted forthwith.

The Grounds of Appeal

8. In summary, the grounds of appeal, which were lodged out of time, are three fold. First, that the Appellant had misrepresented himself to the Respondent and to the Adjudicator. This ground was asserted by reason of the fact that Mr Yeboah had, since the issue of the determination, been in contact by telephone, letter and email, with the British High Commission, and, it seems the UK authorities elsewhere, to inform them that he did not know the Appellant, certainly was not related to him as claimed, and had not offered to sponsor him as a family visitor.

9. Second, it is submitted that as the Appellant is not related to the sponsor as claimed, then he has no right of appeal to an Adjudicator as he does not qualify as a family visitor. Therefore, it is submitted, the Adjudicator, unbeknown to him at the time, had no jurisdiction to entertain an appeal.

10. Third, it is submitted that the Adjudicator erred in giving a direction to give effect to his decision in this case. This is because the Adjudicator did not receive oral evidence or submissions at a hearing; rather he decided the appeal in October 2003, without a hearing, in respect of a decision made in February 2003, about a request to visit the UK in May 2003, for four weeks between finishing studies and beginning military service. The Adjudicator had not been in a position to receive any evidence going to any relevant changes in the circumstances of the Appellant or otherwise.

11. The Vice President who, on 28 May 2004, granted permission to appeal, first, in view of the matters set out in the grounds, extended time and granted permission. He then stated that through no fault of the Adjudicator or the Entry Clearance Officer, the Adjudicator did not see a late letter from the so-called sponsor to the effect that he did not know the claimant, whom the writer of the letter describes in extremely disparaging terms.

12. We note that none of the communications from Mr Yeboah was before the Adjudicator at any stage prior to his signing his determination. Copies were lodged for the first time, by the Respondent, with the application for permission to appeal.

Submissions

13. Mr Deller sought initially to rely on all the grounds of appeal. He lodged, with permission, the determination of the Immigration Appeal Tribunal MG(Visit appeal, directions) Jamaica [2004] UKIAT 00140 (10 June 2004). This case was authority for the general proposition that where time has gone by since the date of the relevant decision and the date of the proposed visit, then it would normally be inappropriate for an Adjudicator to give a direction for the grant of entry clearance. This is because it is still necessary for an appellant to provide satisfactory up to date evidence to show on balance, to an Entry Clearance Officer, that nevertheless, all the requirements of the Immigration Rules relating to visitors are still met.

14. As the arguments developed at the hearing, it became clear that by reason of the requirement to first identify a material error of law in the determination of an Adjudicator (now Immigration Judge), it would potentially be difficult for Mr Deller to continue to seek to rely upon the late produced evidence from Mr Yeboah, or the argument that if it were to be found that Mr Yeboah was not the uncle of the Appellant, then the Appellant would, in law, have had no entitlement to an appeal as a family visitor, given that he would not have been seeking to visit his family member at all. Mr Deller was of the view that these grounds of appeal did not avail him so far as the first hurdle of demonstrating that there had been a material error of law was concerned. We return to these matters below.

15. At the hearing, after deliberation, we found that the Adjudicator had materially erred in law, in that the Adjudicator ought not to have given a direction that entry clearance be granted. We proceeded to consider all the grounds of appeal. We admitted fresh evidence, and in the light of all the evidence then before us, and the helpful submissions of Mr Deller; we reconsidered the appeal to the Adjudicator. We concluded that not only should the Adjudicator not have made a direction, but also that the Appellant had not shown that he was related as claimed to Mr Yeboah, that the Appellant was not a family visitor within the meaning of Section 90 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), and that there had been no valid appeal before the Adjudicator. We allowed the Respondent’s appeal in that we substituted a decision to dismiss the Appellant’s appeal to the Adjudicator. We now give our reasons for our decision.

Consideration and Findings

Material Error of Law

16. We remind ourselves that when hearing a case by way of reconsideration, the Tribunal must first decide whether or not the determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted.

17. The appeal before us is, by virtue of the Commencement No.5 and Transitional Provisions Order 2005, to be reconsidered by the Asylum and Immigration Tribunal (AIT) as if it had begun its life as an AIT appeal. It is governed by the provisions of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (the 2004 Act), including provisions that amend the Nationality, Immigration Asylum Act 2002, (the 2002 Act). In particular we refer to Section 103A of the 2002 Act, as inserted by Section 26 of the 2004 Act (unification of appeal system); and the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the 2005 Procedure Rules).

18. Of particular importance are Rules 31 and 32 of the Procedure Rules 2005, which read as follows:

Procedure for reconsideration of appeal
     31. - (1) Where an order for reconsideration has been made, the Tribunal must reconsider an appeal as soon as reasonably practicable after that order has been served on both parties to the appeal.

    (2) Where the reconsideration is pursuant to an order under section 103A -
(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and

(b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand.
    (3) Subject to paragraph (2), the Tribunal must substitute a fresh decision to allow or dismiss the appeal.

    (4) In carrying out the reconsideration, the Tribunal -
(a) may limit submissions or evidence to one or more specified issues; and

(b) must have regard to any directions given by the immigration judge or court which ordered the reconsideration.
    (5) In this rule, a "material error of law" means an error of law which affected the Tribunal's decision upon the appeal.

Evidence on reconsideration of appeal
     32. - (1) The Tribunal may consider as evidence any note or record made by the Tribunal of any previous hearing at which the appeal was considered.

    (2) If a party wishes to ask the Tribunal to consider evidence which was not submitted on any previous occasion when the appeal was considered, he must file with the Tribunal and serve on the other party written notice to that effect, which must -
(a) indicate the nature of the evidence; and

(b) explain why it was not submitted on any previous occasion.
    (3) A notice under paragraph (2) must be filed and served as soon as practicable after the parties have been served with the order for reconsideration.

    (4) If the Tribunal decides to admit additional evidence, it may give directions as to -
(a) the manner in which; and

(b) the time by which,
the evidence is to be given or filed.

19. We also note that by Rule 62(7), the reconsideration is ‘limited to the grounds on which the IAT granted permission to appeal’. This means that, save where a further issue is identified in the grant itself, consideration of any question of error of law will necessarily be limited to (at most) any alleged errors identified in the grounds of appeal.

20. We have before us all the evidence that was before the Adjudicator, including the Appeal Bundle prepared by the Respondent, and the correspondence from and concerning Mr Yeboah’s complaint, which was lodged with the application for permission to appeal, as well as the case of MG referred to above. We also admitted in evidence, pursuant to Rule 32 of the 2005 Procedure Rules, the Appendices to the application for permission to appeal, in particular the written communications from Mr Yeboah and the extract from the Diplomatic Service Procedures at Appendices 2 ,6,7,8,and 9. We are satisfied that we may consider this evidence pursuant to Section 85(5)(b) of the 2002 Act, as it is relevant and forms part of, and/or informs the circumstances appertaining at the time of the decision to refuse (see also DR (ECO: post-decision evidence) Morocco* [2005] UKIAT 00038).

21. Mr Deller accepted that there was in the grounds of appeal, no cogent assertion of any material error of law on the part of the Adjudicator, save in relation to his giving the direction that entry clearance be granted in order to give effect to his decision to allow the appeal. We remind ourselves that a ‘material error of law’ means an error of law which affected the Tribunal’s decision on the appeal.

22. Plainly, the Adjudicator cannot be criticized in any way for not taking into account evidence which was not before him and the existence of which he was not aware. In this case, the Appellant did not have a United Kingdom based legal representative, and he did not request an oral hearing of his appeal. No notice of any hearing was served upon Mr Yeboah, as the named sponsor, in those circumstances. It was in this way that Mr Yeboah appears to have become aware of the existence of the proceedings, and of the Appellant’s claim that Mr Yeboah was his uncle and his sponsor, only on receipt of a copy of the Adjudicator’s determination which was issued to him on 10 October 2003.

23. The Tribunal understand from Mr Deller that it is now policy and practice for an Entry Clearance Officer to write to or otherwise contact any person named as a sponsor, in order to conduct enquiries intended to show whether or not the individual is indeed a sponsor as stated by an applicant. That policy and practice was not in place at the time of this application and appeal to the Adjudicator. It is in this way that the complaints of Mr Yeboah came to be received by the Respondent and the Home Office. Whilst it may be arguable, given the wide terms of the grant of permission to appeal, that this evidence concerning Mr Yeboah, and the allegation that the Appellant would in fact have had no right of appeal had the Adjudicator decided that he was not related as claimed, can be raised at the initial stage before this Tribunal, in order to demonstrate a material error of law on the part of the Adjudicator, by way of mistake of fact going to unfairness, that was not the way in which Mr Deller argued the case before us. Although as will be seen, we did go on to consider the matter of mistake of fact.

24. There remains the challenge by way of submission that the Adjudicator materially erred in law in giving a direction that entry clearance be granted forthwith. The appeal to the Adjudicator in the case before us was lodged on 18 March 2003, and was brought pursuant to the provisions of Section 59 of the Immigration and Asylum Act 1999 (the 1999 Act), as limited by section 60, (5) (a), which removes the entitlement to appeal against refusal of entry clearance as a visitor unless the Appellant is a family visitor. The appeal was determined on 1 October 2003 and issued on 10 October 2003.

25. By Schedule 4, Paragraph 21(5) (a) to the 1999 Act, if an appeal is allowed, an Adjudicator must give such directions for giving effect to the determination as he thinks are required.

26. Where there was then an appeal to the Immigration Appeal Tribunal, by Paragraph 22(2) the Tribunal could affirm the determination or make any other determination which the Adjudicator could have made. Where a direction was made, there was no requirement to comply with it so long as an appeal could be duly brought against the determination, and, if duly brought, whilst the appeal is pending (22(4)).

27. By Paragraph 22(5), if the Tribunal affirm the adjudicator’s determination, allowing the appeal, they may alter or add to his directions…or replace them with their own directions…

28. Section 87(1) of the 2002 Act permits an adjudicator to give a direction for the purpose of giving effect to his decision, and by sub-paragraph (2), a person responsible for making an immigration decision shall act in accordance with any such direction. Sub-paragraph (4) of section 87 makes clear that such a direction shall be treated as part of the determination of the appeal for the purposes of section 101 ( now section 103).

29. In the light of the above provisions, the Tribunal is satisfied that a direction, whether made pursuant to both Paragraphs 21 and 22 of Schedule 4 to the 1999 Act (repealed from 1 April 2003), or section 87 of the 2002 Act, forms part of the decision of the Adjudicator upon the appeal. As such, the Tribunal finds that the direction given by the Adjudicator in his determination issued on 10 October 2003 forms part of his decision upon the appeal, and that it is open to this Tribunal to reconsider the matter by virtue of Section 103A of the 2002 Act, and to make whatever decision the Adjudicator could have made under the provisions of the 2002 Act.

30. We find that the Adjudicator did fall into a material error of law in reaching his decision that any direction was required in order to give effect to the determination. We find that he erred in forming the view that a direction was required or necessary or appropriate. The Adjudicator failed to take into account relevant factors, including the fact that the Respondent had seen and heard the Appellant, where he had not had the benefit of so doing. Further, and importantly, the Adjudicator had not taken into consideration the fact that he had not had the opportunity to hear from, or receive any up to date documentary evidence from the sponsor, who had played no part at all in the appeal proceedings. He had given no weight to these factors. In addition, the Appellant had proposed to travel to the UK for a short visit of four weeks, in May 2003, between the end of his undergraduate final examinations and the commencement of his military service. That window of opportunity had long gone by the time the Adjudicator considered and decided the appeal in October 2003.

31. Evidence as to the Appellant’s circumstances at that stage, was missing. In addition, the Adjudicator did not have before him any up to date evidence going to the issue of maintenance and accommodation. Nor could it be said that he had evidence to show that as at the date of the Adjudicator’s decision, all the requirements of the relevant immigration rule were met. It is for all these reasons that we conclude that the Adjudicator fell into irrationality in deciding that any direction was either necessary or required, or appropriate, whether under the 1999 Act, or the 2002 Act, in order to give effect to his decision to allow the appeal (see the case of MG which provides guidance as to factors which are relevant when considering whether or not a direction should be made).

32. We further observe that in addition to the statutory requirement under section 87 of the 2002 Act that an Entry Clearance officer comply with an adjudicator’s direction unless the determination is subject to further appeal; the DSP provide guidance to an ECO, including steps to be followed when an appeal is allowed.

33. At paragraph 27.11 ii the DSP state that where no direction is made by an adjudicator, the ECO should interview the appellant to ascertain whether he or she still wishes to travel, the category of entry clearance required and whether there has been any change of circumstances. This should generally not be a detailed interview. The entry clearance SHOULD (emphasis as in the DSP) be issued unless there has been a significant and material change of circumstances since the refusal decision, of which the Adjudicator would be unaware, or a material deception has come to light of which the adjudicator would have been unaware.

34. It is not to be assumed that an ECO would not follow the DSP guidance, the content of which should be borne in mind by Immigration Judges when consideration is being given to whether or not to make a direction. The existence of the DSP is a further factor that reinforces this Tribunal in our view that it was not necessary, required or appropriate, for the Adjudicator to have made a direction in this particular case.

35. The Tribunal having found that there is force in Mr Deller’s submission that it was a material error of law on the part of the Adjudicator to have made any direction at all, we must now go on to consider the appeal and substitute a fresh decision, as is stated at Rule 31(3) of the Procedure Rules 2005.

Consideration of Fresh Evidence

36. In so doing, we are satisfied that we may consider not only the matter of the direction to give effect to the determination, but also the fresh evidence going to the Appellant’s claimed relationship with Mr Yeboah. This is because we are satisfied that evidence from Mr Yeboah complies with the requirements laid down by the court in E and R v SSHD[2004] QB 1044 , and in Antonio Cabo Verde v SSHD [2004] EWCA Civ 1726.

37. In the case of E and R the court held that a mistake of fact giving rise to unfairness was a separate head of challenge in an appeal on a point of law in a statutory context where the parties share an interest in cooperating to achieve the correct result. Asylum law was undoubtedly such an area according to the court and we see no reason why immigration law would not also be such an area. Here, the evidence of Mr Yeboah goes to assist in establishing the existence of a mistake of fact giving rise to unfairness.

38. The requirements are first that there has been a mistake of fact giving rise to unfairness, namely a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Second, it must be shown that the fact or evidence is ‘established’ in the sense that it is uncontentious and objectively verifiable. Thirdly, the party appealing must not be responsible for the mistake. Fourthly, it must be shown that the mistake played a material (not necessarily decisive) part in the tribunal’s reasoning. Whilst the judgments of the court in these two cases were not specifically referred to before the Tribunal at the hearing, the judgments are of course binding upon the Tribunal, and we follow them accordingly.

39. In this appeal, the assertion, if proved, that the Appellant is not related as claimed to the sponsor, would undermine not only the credibility of his claim to be a family visitor, but would also go against the Adjudicator’s jurisdiction. There is only an appeal against the refusal of entry clearance as a visitor where the proposed visit is as a family member. (See e.g. Section 90 of the 2002 Act which provides for a right of appeal under Section 82(1) as a visitor, only if the application was made for the purpose of visiting a member of the applicant’s family, and e.g. the previous appeal regime under Part IV of the 1999 Act (above), and The Immigration Appeals (Family Visitor) Regulations 2003 and their predecessors).

40. We have before us a copy of an email communication from Mr Yeboah, dated 15 October 2003 to the ECO at the UK High Commission in Accra, in which he expresses his shock at receiving a copy of the determination of the Adjudicator, stating that he knew nothing of the proceedings until then, that he is not the sponsor of the Appellant and indeed does not even know him. He confirms that he has not given his address, or any letter, or any copy of his passport to the Appellant, and that there has been an abuse by the Appellant. He states that he is not to be held responsible for the Appellant or his behaviour, and that the Appellant should not be granted any visa to visit him.

41. Mr Yeboah also wrote to the Home Office Implementation Section in Leeds, on 19 October 2003 and to the ECO in Accra, on 28 October 2003, in similar terms to those set out in the email communication. It appears that Mr Yeboah made a telephone call to the Appellate Authority at that time, also to express similar concerns.

Findings in the Light of all the Evidence Including Fresh Evidence

42. We are satisfied that there has been a mistake as to an existing fact: the relationship between the claimed sponsor and the Appellant. This fact is objectively verifiable from the evidence before us, and has not been the subject of any challenge on the part of the Appellant who has had the opportunity to make any such challenge and has not done so. The mistake has not been the responsibility of the party appealing and it was clearly material to the Adjudicator’s reasoning.

43. In the light of the evidence now available, in particular the letters and email from Mr Yeboah, the authenticity and content of which is unchallenged before us; and bearing in mind that the Appellant has not played any part in this second appeal since the Respondent’s notice of appeal was lodged; the Tribunal is not satisfied that the Appellant is related as claimed to Mr Yeboah. Mr Yeboah has denied that he is related to the Appellant. We find that Mr Yeboah’s evidence that his personal details have been misused, without his knowledge or consent, by the Appellant, who has not challenged Mr Yeboah’s evidence, shows on balance that the Appellant is not related as claimed or at all to Mr Yeboah.

44. It follows, we find, that a genuine visit was not intended, and also that this was not a family visit. In turn that leads to the finding that there was no valid family visit appeal, so that the Adjudicator had no jurisdiction to consider the appeal. We find that the Adjudicator erred in law by proceeding on a mistaken view of the facts, falling within the principles set out in E and R. We would therefore substitute a decision to dismiss the appeal to the Adjudicator.

The Position Absent the Evidence from Mr Yeboah

45. For completeness it is useful to mention what the position would be had the evidence of Mr Yeboah not existed, and the appeal had been launched solely on the basis that the Adjudicator materially erred in law in making a direction.

46. It is to be recalled that we have found that the Adjudicator fell into a material error of law in making a direction, for all the reasons that we give above (see paragraphs 24-34, and in particular 30-34).

47. The Tribunal takes the view that its powers are now governed by the provisions of the 2002 Act as amended by the 2004 Act, and therefore, the Tribunal must consider and apply the powers set out in sections 85-87 of the 2002 Act. These sections do not contain the power to alter, add to, or replace, directions, as was given to the IAT under paragraph 22 (5) of the 1999 Act. However, what the Tribunal may do, in such circumstances, is to consider an appeal, substitute a fresh decision to allow or dismiss an appeal, and, if allowing an appeal, the Tribunal may give a direction for the purpose of giving effect to the decision, as is stated at section 87(1) of the 2002 Act.

48. In the circumstances of this particular case, had there been no operative effective challenge to the substantive body of the determination of the Adjudicator, or to the determination to allow the appeal on its merits, whilst the Tribunal may not have reached the same decision as the Adjudicator in this case, it would not have been open to the Tribunal to interfere with the Adjudicator’s decision on that basis. Therefore, the Tribunal would have allowed the Respondent’s appeal, but only on the limited basis that, for all the reasons given at paragraphs 24 - 34 above, it would have been neither necessary, required, nor appropriate to give a direction for the purpose of giving effect to the decision.

49. It would follow, that in allowing the Respondent’s appeal in part, the determination by the Adjudicator to allow the Appellant’s appeal against refusal of entry clearance as a visitor would not have been changed by the fresh decision of this Tribunal, save in that there would no longer exist any direction for the grant of entry clearance to the Appellant.

50. In the circumstances of cases such as this, it appears to the Tribunal that where a right of appeal is not available, or is unsuccessful, for whatever reason, Entry Clearance Officers and Immigration Officers may look to and apply the provisions of the Immigration Rules. In particular Rule 321, which deals with circumstances in which a person in possession of entry clearance may be refused leave to enter the UK, and 321A, which deals with grounds on which leave to enter or remain which is in force is to be cancelled at port or while the holder is outside the UK. It appears to the Tribunal that within these Rules, are the remedies needed to deal with situations similar to some of those presented in this appeal.

Decision

51. The original Tribunal made a material error of law. The following decision is accordingly substituted: the appeal by the Appellant against the decision of the Respondent made on 21 February 2003, to refuse entry clearance as a family visitor is dismissed.

Catriona Jarvis
Senior Immigration Judge

Date: 26 April 2005