England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: VA/03799/2006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th March 2008

Lord Justice Richards:

1. The appellant is a young woman resident in Iran whose application for entry clearance to come to the United Kingdom as a visitor was refused in January 2006. Her appeal was dismissed in the AIT by designated Immigration Judge Shaerf but a reconsideration was ordered. The reconsideration was heard by Immigration Judge Cruthers, who found a material error of law in the original decision and then proceeded at once to the second stage of reconsideration, in which, however, he reached the same conclusion and again dismissed the appeal. A further appeal is now brought to this court from the decision of Immigration Judge Cruthers.
2. There was only one real point in the case before the AIT, which was whether the appellant had satisfied the requirement in paragraph 41 of the Immigration Rules that she intended to leave the United Kingdom at the end of her proposed visit. She failed to persuade the first immigration judge of that matter but it was found, on reconsideration, that he had failed to give adequate reasons for his conclusion. The appeal against the second immigration judge's decision is based on an alleged failure by him to respect the findings of fact made by the first immigration judge, contrary to the approach laid down in DK (Serbia) v SSHD [2006] EWCA Civ 1747. In order to explain precisely how the matter is put it is necessary first to examine the reasoning in the two decisions.
3. The first immigration judge recorded that the appellant's mother and brother had both been given indefinite leave to remain in the United Kingdom in 2003. The appellant herself had made an unsuccessful application in August 2003 for entry clearance as a visitor. She had then made an unsuccessful application in 2005 for entry clearance to settle in the United Kingdom with her mother. That was followed within a matter of months by her current application for entry clearance as a visitor. The immigration judge stated correctly that it was for the appellant to establish that the conditions for the grant of entry clearance were met as at the date of the decision refusing the application.
4. The immigration judge had before him a substantial amount of written material including notes of the appellant's interviews and a number of written statements and supporting documents. He also heard oral evidence from the appellant's mother and brother. He found that the mother suffered from anxiety and depression but was capable of coping so long as she had the support of her medication. He had no doubt that the presence of the appellant would help her but he placed the mother's dependency on the appellant at no higher level. He accepted the mother's evidence that she and her husband, who lived in Iran, were divorced and had no contact with each other, and also the appellant's evidence that she had had no contact with her father for almost the past year. He found that the appellant was pursuing part-time studies but had registered to commence a full-time university course in Iran in December 2006 to upgrade her associate degree to a full bachelor's degree. He also found that the appellant had become engaged in May 2006. He accepted that the engagement created "a new and overwhelmingly strong tie to Iran" but said that there was no evidence that at the time of the decision under appeal the appellant was engaged or was imminently to become engaged. A further finding was that the appellant had obtained employment but had no long-term intention of remaining in that employment, as evidenced by her intention to resume full time studies in December 2006.
5. The first immigration judge said that he had given no weight to the fact that the appellant had previously made a claim for settlement which had been unsuccessful. He said that this was for the reasons in AA  &  Ors  (Sectors  Based  Work: general  principles)  (Bangladesh) [2006] UKAIT 00026. That case involved applicants who had obtained work permits under the sectors based scheme but had been refused entry clearance. The relevant passage in the Tribunal's decision is paragraph 32 where it was said to be quite wrong for an Entry Clearance Officer to assume, from the fact that the scheme would offer the applicant an opportunity to make a considerable amount of money during the year of lawful employment, that the applicant would thereafter seek to work unlawfully. That was equivalent to an assumption that anyone who had the opportunity to commit an offence would do so. That was the reasoning which the immigration judge purported to apply so as to give no weight to the appellant's unsuccessful settlement application.
6. Having dealt with that point, the immigration judge continued at paragraph 29:

"I find that, ignoring the settlement application and indeed the previous application for entry clearance as a visitor, the evidence supports my conclusion that the Appellant has not shown sufficient evidence pertaining at the date of decision that she had the intention to return to Iran at the end of the proposed visit. I accept that the position may now be dramatically different following her engagement but there was no evidence that an imminent engagement was a matter pertaining at the date of the decision."

7. Immigration Judge Cruthers, at the first stage of reconsideration, found that the first immigration judge had failed to give adequate reasons such that a reader could understand why he reached the conclusion he did. Following that ruling and after some discussion with the legal representatives present as to how he should proceed, the second immigration judge moved at once to the second stage of reconsideration. He cited paragraph 30 of the judgment of Latham LJ in DK (Serbia) to the effect that the reconsideration should be dealt with in one hearing unless good reason is shown to the contrary and he stated that in that light he was satisfied that he should proceed on the evidence available to substitute his own decision for the original decision.
8. Referring to the Tribunal decision in AA he took from it the point that he could not assume that an appellant who had the opportunity to commit an immigration offence would do so, but he said it was by no means clear that a visitor who applied in this country to remain as a student or for example on asylum or human rights grounds would be acting unlawfully even if such an application were ultimately unsuccessful. More importantly, he said he found nothing in AA that precluded him from weighing in the balance the fact that until at least June 2005 the appellant had been pursuing an application to settle in this country with her mother.
9. He then set out factors tending to support the appellant's case on the question of her intention to leave the United Kingdom as at the date of the decision refusing her application for entry clearance as a visitor. First he referred to the first immigration judge's finding about the extent of the mother's dependency upon the appellant. Secondly he referred to the findings as to the appellant's registration for a full-time university course in December 2006, her employment while she continued her part-time studies and her engagement in May 2006. He observed that whilst those factors did help the appellant to some degree they did not provide overwhelming support for her case. He described it as axiomatic that employment and study plans change and, even if the engagement was foreseeable at the date of the decision, engagements are not always followed through with marriage. He also observed that the fact of employment had not held the appellant back from pursuing a settlement application.
10. He stated that the points tending to support the appellant's case were significantly outweighed by the points tending to show that she did not have the requisite intention to leave at the date of the decision. As to the latter points he listed first the first immigration judge's acceptance that the appellant's mother had divorced and lost contact with her husband (the appellant's father), and that the appellant herself had had no contact with him for almost a year; and secondly, the finding that there was no evidence that at the time of the decision the appellant was, or was imminently to become, engaged.
11. The next factor he mentioned was that, as had been accepted by the appellant's legal representative, the appellant's only immediate family members were in this country, leaving aside the father, with whom she had no ongoing contact. From the first immigration judge's decision he extracted the fact that the appellant had six maternal uncles and one maternal aunt in Iran and that she was living with the aunt, but he pointed to the fact that at the settlement interview the appellant's United Kingdom-based aunt had said of her: "my sister and her husband are looking after her but they are getting older and do not want to take care of her any more."
12. He observed next that the settlement application was made on the basis that the appellant wanted to join her mother "who is very ill". As late as December 2005 a nurse writing in support of the visitor application had written that the mother needed constant emotional and practical support and that the son was not always able to provide this as he attended college. Immigration Judge Cruthers said it would be surprising if that situation had radically and irrevocably changed by the time of the decision under appeal in January 2006. In all the circumstances, he said, it would not be surprising if the appellant still wished to settle with her mother and brother in this country. She must be taken to have held that intention until at least June 2005 when the appeal against the refusal of the settlement visa was heard. When asked at the interview relating to her visit application how the interviewing officer could know that she would return to Iran she kept saying that she had applied for settlement and that was why she was now applying for a visit visa.
13. Taken with the other points that tended to undermine the appellant's case the second immigration judge found it significant that the appellant had been pursuing an application to settle in this country and he stated that in his judgment it was "a strong possibility that the appellant still intended an attempt to settle in this country (with her mother and her only sibling) at the date of the decision under appeal." For those reasons he was not satisfied that the appellant had discharged the burden of proof.
14. Mr Jacobs submits that the approach taken by the second immigration judge was contrary to the principles laid down in DK (Serbia), in particular in that the second immigration judge made findings on the primary issue in the appeal which were different from the findings of the first immigration judge and had no bearing on the errors of law identified in the decision of the first immigration judge. It is said that those matters should not therefore have formed the basis of assessment made at the second stage of reconsideration.
15. Mr Jacobs has taken us to various passages in the judgment of Latham LJ in DK (Serbia). I think that the matter can be sufficiently summarised for present purposes by quoting paragraph 25 of that judgment:

"25. Accordingly, as far as the scope of reconsideration is concerned, the Tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision. That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them.

16. In my judgment Immigration Judge Cruthers acted in this case in line with the principles laid down in DK (Serbia). He accepted and applied the original immigration judge's findings of fact rather than substituting his own factual findings. The nearest one comes to a departure from the factual findings in the original decision is in relation to the health of the appellant's mother. As to that, the second immigration judge took into account, as a point favourable to the appellant, the first immigration judge's finding that the mother was capable of coping and that her level of dependency on the appellant was no higher than that the presence of the appellant would help her. But he also noted, as a factor pointing against the appellant, the evidence that the mother needed constant emotional practical support which her son was not always able to provide. There is perhaps a slight tension there but in my view no more than that; certainly nothing that would amount to a material incompatibility with the principles in DK (Serbia).
17. Mr Jacobs has put the main focus of his submissions on the fact that the second immigration judge placed weight on the appellant's settlement application whereas the first immigration judge said that for the reasons in AA he had given no weight to that matter. It seems to me that the original immigration judge's reliance on AA was misconceived and that the second immigration judge was plainly right to say that AA did not preclude him from weighing in the balance, in relation to the appellant's intention of the date of her visit application, the fact that the appellant had recently been pursuing an application to settle with her mother in this country. The decision to give weight to that matter involved no error of law. Mr Jacobs did not contend that the settlement application was irrelevant as a matter of law, nor did the immigration judge's decision to give weight to the matter involve the substitution of a different finding of fact. Matters of weight were necessarily for the immigration judge dealing with the reconsideration. Nothing in DK (Serbia) suggests that an immigration judge on a reconsideration is bound by the first immigration judge's view of the weight to be given to particular facts or matters. The first immigration judge did not say that the settlement application was irrelevant but again, even if he had done so, it was in my judgment open to the second immigration judge on the reconsideration to treat the matter as relevant if there was a rational basis for doing so, as plainly there was.
18. It is, moreover, striking that the first immigration judge was not satisfied that the appellant had the requisite intention, even though he had given no weight to the settlement application, and that the only reason his decision was quashed was inadequacy of reasons rather than the irrationality of his conclusion on the factual findings he made. Mr Jacobs is in the difficult position, as it seems to me, of having to contend that, in reaching the same conclusion on essentially the same facts but this time with fuller and clearly adequate and legally permissible reasoning, the second immigration judge erred materially in law. I do not think that such an argument can be sustained.
19. Mr Jacobs advanced a further argument that the second immigration judge erred in failing to give notice to the appellant's representatives at the hearing that he was minded to depart or was considering departing to the extent he ultimately did from the first immigration judge's findings. I can see that, at least in relation to the question of the settlement application, it might have been better for him to indicate that he was minded to give weight to the matter or was considering giving weight to the matter, but I do not think that his failure to do so gave rise to any procedural unfairness capable of vitiating his decision. I cannot see how it could possibly have made any difference to that decision if he had raised the matter expressly with the appellant's representative. If the matters that have been canvassed before us in this court had been canvassed before Immigration Judge Cruthers they would and should have failed for the reasons I have already given. It has not been suggested that there was any other submission that might have been made to Immigration Judge Cruthers, let alone any additional evidence that might have been called. The fact is that the issue had been canvassed fully before the first immigration judge and there was nothing fresh to be said about it; it was simply for the second immigration judge to form a conclusion on it as he did. As to other matters, I would reject the contention that the second immigration judge made any additional findings of fact calling for notice to be given to the appellant's representative at the hearing -- that is to say, notice to the effect that consideration was being given to the making of additional findings.
20. For all those reasons I would dismiss this appeal.

Lord Justice Longmore:

21. I agree.

Lord Justice Buxton:

22. I entirely agree with everything that my Lord has said. I would simply add two footnotes.
23. The first is that Immigration Judge Cruthers was faced with a somewhat unusual task in this case. The relevant basis upon which the matter had been remitted was, by the ruling of the Senior Immigration Judge who dealt with reconsideration, that:

"As the grounds accompanying the application contend, the Designated Immigration Judge may have erred in law in failing to give sufficient reasons for his decision to dismiss the appeal, given the positive findings he made, or appears to have made, elsewhere in the determination."

24. It might have been thought that the appropriate course, would have been to remit the matter to the original immigration judge, but that is not what happened. Immigration Judge Cruthers was therefore faced with the need to deal with those reasons for remission in the context, but only in the context, of the findings already made by his predecessor. It does not seem to me that the guidance given in DK (Serbia) that my Lord has referred to fits very happily into that exercise, because what the second immigration judge was in fact required to do, and what Immigration Judge Cruthers did do, was to produce a reasoned judgment on the basis of the evidence that had been before his predecessor. Like my Lord I cannot agree that that required him to follow in every respect the decisions as to weight made by his predecessor, for the simple reason that those decisions were part of the reasoning of the first determination which had been the subject of criticism by the Senior Immigration Judge, criticism to the extent that the reasoning of the first judge was held to represent an error of law. In those circumstances it seems to me that Immigration Judge Cruthers (having raised the matter, it should be noted, with the representatives) was entirely justified in proceeding as he did, and did not stray in any way from the guidance given by this court in DK (Serbia).
25. The second point that I would make relates to the status of the previous application for settlement which my Lord has described already. Immigration Judge Shaerf's reason, as I understand it, for giving no weight to that previous application by this lady, as set out in paragraph 29, is that he accepted a submission by the advocate then appearing for NG, not Mr Jacobs who appears before us today, that he should follow the observations of the Tribunal in AA, where it is indeed the case that in paragraph 32 of that determination the Tribunal stated that it was wrong to assume that given the opportunity a person would act unlawfully. Immigration Judge Shaerf appears to have been persuaded to take from that the fact that in no circumstances or case should it be assumed that a person making such an application as this one would thereafter act unlawfully. One only needs to pause to see that that assumption is impossible. If it were to be followed through in every case, there would be no case in which somebody who made such an application in the absence of actual positive evidence of unlawful intention could ever be refused. The correct context of what was said by Mr Ockleton, Deputy President, in AA is to be found in the sector - based scheme which he was dealing with. He said it was wrong for an entry clearance officer to assume from the mere fact that somebody under that scheme could come to this country and be employed for a year, that they might thereafter act unlawfully by trying to stay on. That of course is not this case. In this case there was a previous application, as Immigration Judge Cruthers pointed out, only five months before the application with which he was concerned, in which the appellant had made it absolutely clear that her then intention or wish was to settle in this country with her sponsoring mother. It was wholly unreal for Immigration Judge Shaerf to say or think that he was obliged to put that fact out of his mind, but that is what he did.
26. When Immigration Judge Cruthers came to the matter he was entirely justified in reverting to that point. It is not correct to say, however, as Mr Jacobs at one stage said, that he decided the case on that point and that point alone. As my Lord has indicated by quoting paragraph 28 of his determination; it was but one a factor that he took into account. I go so far as to say, and I have to say this with all due respect to the first immigration judge and to those who made submissions to him, that it would really be absurd to decide this case by simply putting on blinkers in the context of that first application.
27. I make those observations only because I hope that Mr Ockleton's, if I may say so with great respect absolutely apposite, observation in the particular context in which he made it will not in future be used as if it was a general rule that every adjudicator has got to apply in every case.
28. However, for the reasons that my Lord has given, which are the reasons of the court, this appeal has to be dismissed.

Order: Appeal dismissed