IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATIONS TRIBUNAL
[AIT No. IM/02568/2005]
B e f o r e :
LORD JUSTICE WALL
|NA (Bangladesh) & ORS||CLAIMANT/APPLICANT|
|- v -|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||DEFENDANT/RESPONDENT|
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MR A SHARLAND (instructed by the Treasury) appeared on behalf of the Respondent.
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"The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents, or a relative present and settled or being admitted for settlement, in the United Kingdom are that he:
is seeking leave [to enter to join] … a parent, parents or a relative in one of the following circumstances:
i) e) one parent is present and settled in the United Kingdom… and has had sole responsibility for the child's upbringing;
ii) is under the age of eighteen;
iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and
v) can, and will, be maintained adequately by the parent, parents or relative the child [was admitted] to join without recourse to public funds."
"Mr [K] the father of the appellants, sponsor in this matter was called to give oral testimony. He adopted his written witness statement dated 30 March 2005. Mr [K] stated that he had applied for his daughters to come to the United Kingdom because there is no one to care for them in Bangladesh. He did not sponsor his daughters when he invited his sons to join him in 2003 because he could not afford to maintain all of them. His sons are now working and in a position, willing and able to support their sisters in the United Kingdom. At that time he did not have sufficient income to support six children. The sponsor stated that his daughters lived with his mother who is 64 or 65 years of age. He wants to bring the daughters over because there is no one there to look after them. His mother is too old to care for his young daughters. His ex-wife, the appellants' mother lives with her father and has not cared for the children since their childhood. She has mental health problems. The sponsor stated that he has been making frequent trips to Bangladesh and the most recent was from January to May 2005. There are no other relatives who can look after his daughters. The sponsor stated that two of his sons are in full-time employment and evidence is enclosed in the bundle. He stated that the family income is in the sum of £800 per week including his own benefits. Bringing his three daughters to the United Kingdom will cost the family in the region of £70 to £80 extra per week. There is a sufficient income between the family to support the appellants without recourse to public funds. The sponsor stated that he did not work himself because he has some sort of skin disorder. He is looking for suitable employment and hopes to restart work soon."
"He has regularly sent money to his grandmother and his sisters in Bangladesh. The monies are sent through their father."
"I accept the sponsor's evidence that the three appellants are living with his elderly mother. I accept also that there is no other close relative to whom those three young appellants could turn to. I also accept that at the first appellant's age she would not be sent to school because they live in a remote village and it is not safe to do so. I further accept the evidence that there is sufficient income in the sum of £800 per week in the sponsor's family."
"I accept that the sponsor, the appellants' father and the three brothers have the sole responsibility for these three young appellants living in Bangladesh. There have been a number of family trips to Bangladesh in order for them to be with the appellants and to maintain and look after them … I however accept the evidence of the father and the brother that they have the sole responsibility and they make all the important decisions in these appellants' lives."
Paragraph 28 :
"On the balance of probabilities I am satisfied that there is sufficient maintenance for the three appellants in the United Kingdom and that their sole responsibility is on their father and the three brothers who are now in the United Kingdom."
"The appellants have applied to join their father in the UK. The applicable rule is 297 of HC395 as correctly stated by the ECO and not 317 as incorrectly stated in the grounds. Accordingly, ground 2 is without merit as it is legally incorrect.
"It is arguable that the ECO's reasons for refusing the application, which are listed in paragraphs 15 and 16 of the determination, were not addressed by the Immigration Judge".
"It might have been open to the judge in this case to decide the question of sole responsibility in the appellants' favour by accepting the sponsor's evidence as he did; but only after resolving the issues raised by the village visit report, and the mother's attendance at the British High Commission in 2001 to support her sons' visa applications, which suggested that, if she did suffer from mental health problems, they might not have taken her away from these appellants when they were very small, as claimed. Unfortunately the judge did not even try to do this, and that was clearly a material error of law."
"In the first instance, in relation to the identification of any error or errors of law, that should normally be restricted to those grounds upon which the immigration judge ordered reconsideration, and any point which properly falls within the category of an obvious or manifest point of convention jurisprudence as described in Robinson  QB 929."
Paragraph 22 :
"As far as what has been called the second stage of reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. Most important is that any body asked to reconsider a decision on the grounds of an identified error of law would approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law and need not be revisited. It is not a rehearing; Parliament chose not to use that concept, presumably for good reasons, and the fact that the reconsideration may be carried out by a differently constituted tribunal or a different Immigration Judge does not affect the general principle of the 2004 Act, which is that the process of reconsideration is carried out by the same body as made the original decision. The right approach in my view to the directions which should be considered by the Immigration Judge ordering reconsideration, or the tribunal carrying out the reconsideration, is to assume notionally that the reconsideration will be or is being carried out by the original decision maker."
"There was another proposed ground for review, on which the reconsideration was not granted, because the Home Office mistakenly referred to the wrong rule; but if they had mentioned paragraph 297 rather than paragraph 317, as they did, it would have been apparent that the judge's finding that the father and brothers had shared joint responsibility for the appellants was not one on which he could have allowed the appeal: see paragraph 297(e) below."
"This leads us to take the view that this appeal could not in any event (besides the problems about sole responsibility having to be borne by the receiving parent alone … and the judge not having resolved the factual issues on that question … be properly decided on this issue in the appellants' favour even on the basis of paragraph 297(e) and there is no purpose to be served by directing a full consideration on its merits."
"… on the grounds of probability this sponsor and his sons have had sole responsibility for the three appellants".
Of course that may have been referring to 297(v) but we do not know.
Order: Appeal allowed.