Tribunal decisions

The decision

SZ (Pocket money from sponsor- fact-specific) Iran [2005] UKIAT 00032

IMMIGRATION APPEAL TRIBUNAL

Date heard: 24 January 2005
Date notified:2 February 2005

Before

DR H H STOREY (VICE PRESIDENT)
MRS W JORDAN
MR P ROGERS JP

Between

ENTRY CLEARANCE OFFICER, TEHRAN

Appellant

And

Respondent

DETERMINATION AND REASONS

1. The appellant, the Entry Clearance Officer, Tehran, has appealed with leave of the Tribunal against a determination of Adjudicator, Mrs Kamini Roopnarine-Dawes, notified on 8 June 2004 allowing the appeal of the respondent, a national of Iran, against the decision to refuse to grant entry clearance as a family visitor. Ms T Lewsey, Home Office Presenting Officer, appeared for the appellant. There was no appearance from the sponsor or anyone representing the respondent. To avoid confusion the respondent is hereafter referred to as the “claimant”.

2. The Adjudicator allowed the appeal because she was satisfied on the further evidence before her, which included credible oral testimony from the sponsor, that the sponsor’s financial circumstances were sound and that the claimant’s socio-economic situation viewed overall did not demonstrate an incentive to return.

3. The grounds of appeal challenged this conclusion on the strength of the fact that the claimant’s sponsor had said in oral evidence that she intended to give the claimant £100 a week while she was here as pocket money. By reference to the case of Gomez [2002] UKIAT 06231, the grounds contended that the Adjudicator had misinterpreted case law and failed to apply the definition of “employment” given at para 41 of HC395.

4. When it was clear that the sponsor was neither in attendance nor any representative, we caused a phone call to be made to her. We felt it right to take that step because from the file we could see she had previously taken a very active interest in the appeal process. We were told she was unaware that a notice of hearing had been sent for today and understood that her husband had instructed solicitors in relation to any appeal hearing. In the event we did not find it necessary to adjourn, since there was no challenge as to the credibility of the sponsor (as found by the Adjudicator) and the legal issue was in our view a relatively simple one. This constitutes our reason for deciding to exercise our discretion to proceed to hear the appeal in the absence of one of the parties.

5. We were not persuaded that the grounds of appeal in this case are made out. It is clear that the Adjudicator had before her the case of Gomez. That turned largely on its own facts. If there is any principle to be extracted from this case, it is that whether or not a sum to be paid to a visitor by a sponsor constitutes remuneration or pocket money is a matter of fact to be decided in each case.

6. We see nothing to suggest that the Adjudicator failed to consider whether the £100 sum mentioned by the sponsor in this case was remuneration rather than pocket money. At para 16 she stated:

“The fact that as an older sister she chooses to give her younger sister pocket money whilst she is here should not be viewed as payment but rather in the culture of an extended family such as the appellant’s as a demonstration of affection and I so find as a fact. The sponsor confirmed at the hearing that she would give this sum to her sister whether or not she helped to look after her father in law. It seems to me an inappropriate strain on the ordinary meaning of the word to say that the appellant will be employed by the sponsor”.

7. From the above it is perfectly clear that the Adjudicator considered whether the proposed £100 payment would amount to remuneration in the course of employment. She gave perfectly proper reasons for concluding that it would not. On the evidence before the Adjudicator the findings she made were ones entirely open to her.

8. Para 41 lists among the requirements to be met by a person seeking leave to enter the United Kingdom as a visitor that he:

“(iii) does not intend to take employment in the United Kingdom”.

9. A further requirement is that he:

(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:…”(emphasis added).

10. We would confirm the proposition set out earlier. Whether or not a sum to be paid to a visitor by a sponsor constitutes remuneration or pocket money as a form of maintenance is a matter of fact to be decided in each case. What is meant by any reference to “pocket money” will likewise be a matter to be examined in each case. The fact that the sum in question is greater or lesser than the sum of £80 (as in Gomez) or £100 (as in this case) tells the decision-taker little in itself. For a person from an affluent background visiting a millionaire sponsor, a much larger amount might still constitute “pocket money”. Equally, for a person from a penurious background visiting a sponsor of meagre means, even a much smaller sum may indicate that something other than “pocket money” is in contemplation. But in this particular case, the sum proposed was quite consistent with the evidence accepted by the Adjudicator that the financial means of both the sponsor and the claimant`s father were healthy and that nothing other than pocket money was contemplated.

11. Had we been a first instance tribunal we may not necessarily have taken the same view. We would certainly have seen it as necessary to do more than this Adjudicator did when it came to giving proper reasons for finding a witness credible: she simply stated she found her credible. But we cannot interfere in this decision unless satisfied it is legally flawed. It is not.

12. For the above reasons the appeal of the Secretary of State is dismissed and the determination of the Adjudicator stands.

DR H H STOREY
VICE-PRESIDENT