Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/28507/2012
VA/28512/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17 June 2013
24th June 2013

Before

UPPER TRIBUNAL JUDGE LATTER

Between

Husnara Begum
Amran Ali Rahi
Appellants
and

ENTRY CLEARANCE OFFICER, DHAKA
Respondent

Representation:

For the Appellants: Mr M Kalam of Kalam, Solicitors
For the Respondent: Ms M Tanner, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is an appeal by the appellants against a decision of the First-tier Tribunal issued on 22 February 2013 dismissing their appeals against the respondent’s decisions dated 17 July 2012 refusing them entry clearance as family visitors.

Background

2. The appellants are citizens of Bangladesh. The first appellant was born on 9 October 1978 and the second appellant is her dependent son, born on 23 November 2008. On 26 June 2012 they applied for entry clearance as family visitors to visit the first appellant’s brother and his wife, the sponsor, in the UK. In her application form the first appellant said that she was supported by her husband, she did not receive income from any sources, including friends or family but in answer to the question whether she had savings, property or other income she referred to family land. She said that all the costs of the trip would be met by her sponsor.

3. On 3 July 2012 the first appellant was interviewed and on 10 July 2012 there was a field visit to her home address, which was found to be correct. Her spouse was said to be at his business address during the investigation. The field report continues: “the financial condition of the family is not good enough. The neighbours have confirmed the family relationship of the applicants.”

4. The respondent was not satisfied that the appellants were able to meet the requirements of the rules. He commented that the exact nature of the relationship of the appellants to the sponsor had not been clarified. According to the application, the visit would be for ten to twelve weeks. There was no satisfactory documentation that the appellants were related as claimed or satisfactory evidence of how they supported themselves in Bangladesh. They had declared no employment or income and had not demonstrated any other income from friends or family. There were no credible bank statements or evidence of any savings on which they could draw to support themselves. As they had not shown that they had any employable skills, experience or qualification, their current and future prospects in Bangladesh appeared extremely modest and uncertain.

5. In these circumstances the respondent was not satisfied that a genuine visit was intended for the purpose and period claimed. There was also limited evidence about the financial circumstances of their sponsor in the UK and the respondent was not satisfied that the cost of maintaining and accommodating them for a twelve week visit would be proportionate to the sponsor’s circumstances. On review the decision was maintained.

The Hearing before the First-tier Tribunal

6. At the hearing before the First-tier Tribunal the judge heard evidence from the sponsor who confirmed that the appellants were her cousin and nephew respectively. The first appellant had an extended family, including her husband and intended to return to Bangladesh. The sponsor resided in a four bedroom property and that would provide adequate accommodation for the appellants. Her husband confirmed that the first appellant was his sister and the second appellant his nephew and that a genuine visit was intended.

7. A report was produced in evidence from Southampton City Council about the accommodation available at the sponsor’s property. It is described as a house consisting of four bedrooms, one living room, one bathroom and one kitchen. At the time of the inspection on 30 May 2012 it was occupied by three adults and one child, including the sponsor. The report says that the property would become overcrowded if the applicants were to reside there, as there were would not be sufficient bedrooms available. The judge referred to that report in his decision and found that the appellants had failed to show there would be adequate accommodation.

8. The judge noted that the appellants did not have an adverse immigration history but commented that there was no reliable evidence to show the source of the husband’s income and its level. Therefore, although he was satisfied that the sponsor would have adequate means to provide for the maintenance of the appellants for the duration of their visit, he was not satisfied they could meet the accommodation requirements of the rules or in the light of the lack of evidence about their financial circumstances that they simply intended to visit the UK for a limited period or to leave at the end of that visit.

The Grounds

9. In the grounds it is argued that the judge failed to consider the letter from Southampton City Council as a whole. It said that no bedroom should be occupied by more than two people but under the Housing Act 1985, a four bedroomed house permitted occupation by nine and a half people before it was statutorily overcrowded. Secondly, it is argued that the appellants had no adverse immigration history and the judge had wrongly inferred from their economic circumstances that they would not return. Permission to appeal was granted by the First-tier Tribunal on 29 April 2013.

The Error of Law

10. At the hearing before me Ms Tanner conceded that the judge had erred in law. Assuming it to be the case that there were three adults and a child at the property and two adults shared a bedroom, there would still be one spare bedroom. The issue of accommodation did need further scrutiny. She also pointed out that the decision did not refer to the field visit to the appellants’ village which appeared to confirm that the address was genuine and that the first appellant’s husband had a business address and was in employment. I am satisfied that this concession is correctly made and that the judge erred in law as set out in the grounds and as conceded by Ms Tanner. The error is capable of affecting the outcome of the appeal and in these circumstances the decision should be set aside. Both representatives agreed that I should proceed to re-make the decision.

Further Evidence

11. I heard oral evidence from the sponsor who adopted her witness statement of 31 January 2013. This confirms that she is the maternal cousin of the first appellant and the second appellant is her nephew. Her husband is the first appellant’s brother. The appellants live in Alongkary in district Sylhet in Bangladesh. She says that the first appellant fully intends to return to Bangladesh as her husband lives there, as do her extended family and childhood friends. She is responsible for looking after her family and needs to remain in close proximity to them in case of family emergencies. The sponsor accepts that she has a responsibility to make sure the appellants return to Bangladesh before their visas expire. She says she has credible standing in her society and she cannot go against the law of this land. She gives details about her employment. She confirms that if the appellants come to stay, the property would not be overcrowded.

12. When cross-examined she confirmed that at the date of decision their property was occupied by her and her husband, his mother and father and her younger brother. There was a spare bedroom. Since then her brother has left to live with an older sister nearby. The first appellant’s husband had land and a small farm with a business in Bangladesh although she did not know what it was. Both the appellants were healthy. The first appellant would return as the second appellant would have to go to school and she also had to look after her husband’s parents and, although her husband would be able to do that for a short period, that could not be a long-term arrangement. Ms Tanner did not wish to ask the sponsor's husband any questions about his witness statement and he did not give oral evidence.

Submissions

13. Ms Tanner relied on the reasons given in the respondent’s decision and emphasised the fact that the appellants had still provided very little evidence to confirm their family circumstances and this must cast a doubt on their intentions.

14. Mr Kalam submitted that evidence had been submitted of land ownership but he accepted that there were no bank statements, other proof of income or related tax documents. However, the field report confirmed that the address was genuine and that the first appellant’s husband was in business even if a modest one. All the costs of the visit were being met by the sponsor and her husband. In the light of the fact that there was a husband and his parents remaining in Bangladesh and the child was 4 and would need to return for education, the likelihood was that the first appellant and the sponsor were right to say that a visit was intended only for the period declared in the application. He referred to the authorities set out in the grounds of appeal that an adverse finding on an appellant’s intentions must be based on evidence not on doubts and suspicion. The lack of an economic incentive to return to the country of origin was not in itself determinative of an application.

Assessment of the Issues

15. The appellants have to meet the requirements of para 41 of HC 395 before they can be granted entry clearance as visitors. The onus is on them to show that they can meet these requirements on a balance of probabilities.

16. The First-tier Tribunal accepted that the sponsor and her husband had adequate means to provide for the maintenance and support of the appellants for the duration of their visit. There is no issue now about the relationship of the appellants to each other. There was concern about the accommodation but I accept that this is a four bedroom house. I also accept the sponsor’s evidence that at the date of decision three of the bedrooms were in use, one by herself and her husband, another by her husband’s parents and a third by her younger brother then aged 15/16. There was therefore one spare bedroom which was available for use by the first appellant and her young son. The requirements of the rules as to accommodation were therefore met and I am satisfied that adequate accommodation was available for the proposed visit.

17. This leaves the issue of whether the appellants intended to make a visit for the period claimed and to leave at the end of the proposed visit. The primary issue of concern arises from the fact that there is virtually no evidence of the family circumstances of the appellant. The first appellant made it clear in her application form that she had no income and was supported by her husband although she did refer to family land. I accept the evidence that the first appellant is married as she claims to her husband and that he runs a small business which is the main source income for the family. A field visit confirmed their address although the officer commented on the financial condition of the family. I also accept that there is some family land. The position appears to be that the family are getting by but their economic situation is not such they could afford the trip from their own resources.

18. However, so far as this visit is concerned all the expenses are being met by the first appellant’s brother and the sponsor in this country. I also accept the sponsor’s evidence that the first appellant will return to her husband in Bangladesh not only to continue family life and to look after him but also to continue looking after parents and other relatives who live nearby. The second appellant is only 4 and will need to start school soon. Whilst the first appellant may not have an economic motive for returning to Bangladesh, I am satisfied that there is a strong family motive to rejoin her husband and extended family.

19. I also take into account when considering intentions the fact that the sponsor has made it clear that she regards it as her responsibility to do her best to make sure that the appellants adhere to the conditions of their leave to enter. Neither appellant has any adverse immigration history. I also remind myself that poor economic circumstances do not by themselves justify the refusal of an application for a family visit: see in particular Ogunkola [2002] UKIAT 02238. Looking at the evidence as a whole I am satisfied that the appellants are able to meet the requirements of the rules for a family visit and that the appeal should be allowed accordingly.

Decision

20. The First-tier Tribunal erred in law. I set aside the decision and re-make it allowing the appeal of both appellants.

TO THE RESPONDENT
FEE AWARD

In the light of my decision allowing the appeals I now consider whether to make an award for the remittal of the fee. Taking into account the Presidential Guidance Notes, I am satisfied that the whole of the fees paid in respect of both appeals should be remitted.

Signed Dated: 21 June 2013

Upper Tribunal Judge Latter