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: 0A/18794/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th July 2008

Lord Justice Toulson:

1. These two renewed applications for permission to appeal come before me on a restricted basis, following directions made by Maurice Kay LJ on 2 May 2008. Each of them involves a renewed application for permission to appeal against a decision of the AIT dismissing an appeal against a refusal to issue a family permit for the appellant's entry into the UK.
2. In his order of 2 May, Maurice Kay LJ directed that the applications for permission to appeal would be adjourned on notice but that the hearing of those applications should at this stage be limited to the challenge to the findings of fact regarding dependency and same household.
3. This morning I have heard full and clearly presented argument by Mr Jafferji on behalf of the appellants and short submissions in response by Mr Palmer on behalf of the respondent.
4. I take first the case of RN because that was the first argued. This is a renewed application against a decision of Immigration Judge Peart given on a reconsideration of the appeal.
5. The background in brief is that the appellants are four Indian nationals, the children of the sponsor, who is a Portuguese national working in the UK. Until October 2001 the sponsor lived in India with the appellants and the lady who is his wife and their mother. There he used to work as a fisherman. Since October 2001 the sponsor has been working in the UK pursuant to his right of free movement as a Portuguese national. After his arrival here the appellants and their mother applied for EEA family permits so that they could join him. The applications were all refused. On the appeal the immigration judge allowed the appellants' mother's appeal but dismissed their appeal. In briefest outline, he found that they were not credible in their claim to be dependents of the sponsor and indeed that they had conspired with their mother to mislead the ECO and the tribunal. He found that they were able to support themselves and that the family carried on a fishing business. He found that any money which had been sent to India by the sponsor was irregular and amounted to not more than six sums of £100 during the whole of 2003 to 2004.
6. Mr Jafferji submits that the judge's approach in making his adverse findings of credibility was flawed in two major respects. First, he attached far too much adverse significance to the unsatisfactory answers given by the appellants' mother when she had been originally interviewed. Mr Jafferji said that the interview record should have been approached with the utmost caution for a number of reasons: the lady in question is uneducated; she was inexperienced in dealing with such matters; she had a language problem; she was nervous; she was unrepresented; she had no opportunity to comment on the interview record for a very long time; and he reminded me of the observations of this court in the case of R (Dirshe) v SSHD [2005] EWCA Civ 421 on this topic. He accepted that the interview was plainly riddled with inconsistencies but said that only the slightest weight should be given to these matters. In particular he drew attention to the fact that her answers about her own date of marriage were initially thought to be unsatisfactory and indeed she had originally been disbelieved in claiming to be married to the sponsor. Subsequently it was established that she was indeed married but this showed the dangers of placing too much attention on what she had said in interview.
7. The immigration judge did recognise that she had been nervous but did not accept the suggestion that she had been pressurised. I have been taken in detail to the questions recorded in the interviews which led to the immigration judge making the comments that he did. The position was that she had given the date of her own marriage accurately as it turned out. She was inaccurate about her age at the date of her marriage -- she said that she was 16 or 17; in fact she was 13 -- but she had said that she had no idea of the ages of any of her children; this appeared to the immigration judge to be surprising. Perhaps more significantly, she declared herself quite unable to answer any questions about who the sponsor used to work with, and the point was made by the respondent in argument this morning that even if she was hopeless about dates the judge was perfectly entitled to draw adverse conclusions from her inability to give any information at all about which members of the family, or who else, her husband used to work with.
8. Having read the answers to the interview questions and read the way in which it was dealt with by the immigration judge, I do not consider that the appellant has any real prospect of persuading the court that there was an error of law by the immigration judge in his approach. The complaint here is that too much weight was attached to the shortcomings of the answers given by the appellant mother. Weight is a matter for the tribunal determining the facts. The Tribunal was entitled to draw the conclusions that it did.
9. The other major criticism is that the judge paid too much attention to a field trip report of the ECO. In this regard it is pointed out that the report was brief; it recorded neighbours as saying that the family sold fish to traders and only brought enough fish for their own daily use to the house, but without a full record of the interviews conducted by the ECO and knowledge of the source of these statements the sponsor was at an unfair disadvantage in dealing with them. This ought to have been recognised by the immigration judge, who should, in the circumstances, have attached little weight to that evidence.
10. I see the force of the points made about the disadvantages which the sponsor faced in meeting evidence of that kind but this was by no means the only plank on which the immigration judge rested his conclusions. Not only was the account given -- more particularly, gaps in the account -- by the appellant's mother, a source of legitimate adverse comment, but so too were the comments of the appellant at his interview, about which adverse comment was made. For example he said that he did not do labouring work because his father would not let him, but was unable to advance any explanation why he should not be allowed to do it. His mother on the other hand had said that he had in the past gone to work in a factory and that if he came to England he would work in a factory. These were unsatisfactory features.
11. Again the essential criticism here is that the judge has attached too much weight to a particular piece of evidence. One has to look at the entire picture and ask whether there is any real prospect of this court being persuaded that there was in truth an error of law by the judge in reaching his conclusions. I am not persuaded that there is. It is common ground between the parties that the only factual findings in relation to which I have to consider any threshold question about the arguability of a challenge today relate to the issue of dependency and, for reasons briefly given, I am not persuaded that there is any real prospect of a successful challenge against his finding that the appellants had not established dependency on the sponsor.
12. I turn to the case of RB. In this case the Tribunal found that the appellant had not established that he was a dependent of his father, the sponsor, or that he was resident in the sponsor's household, and those findings are challenged. In relation to the dependence point the Tribunal said at paragraph 4:

"In our view there is no real reason for supposing that the claim that the appellant has not worked is true. We are therefore not persuaded on a balance of probabilities that any money he does receive from the United Kingdom is necessary for his support."

In paragraph 6 they said:

"So far as we are concerned the position is first that the appellant has not established that he has no source of income of his own, and secondly that he has not established that any money sent him from the United Kingdom to India is money which is the sponsor's. For those reasons he fails to establish dependency."

13. In reaching those conclusions the Tribunal attached weight to a previous determination by an adjudicator that the appellant had carried on a fishing business. In particular an inspector, on visiting his home, found that there was a large net and a very large barrel with bits of fish stuck to the inside of it. The appellant's explanation had been that he used to dry fish in a barrel which he had bought from the market and that the net was new, a present to the sponsor which he had never used, but the inspector had noted that the barrel was too large to be consistent with domestic use in a small household.
14. The appellant had presented oral evidence from the sponsor, his wife and one of his daughters, and documentary evidence including a field trip account of an investigation made on the appellant's behalf when an advocate went to the appellant's village and asked questions from a number of his neighbours. Their evidence was all to the effect that the appellant did not work. The Tribunal noted the contrast between the appellant's claim that he had never worked, supported by the field trip account by the advocate instructed on his behalf, with the findings in the previous adjudicator's determination and observed follows:

"We cannot ignore that finding, a judicial decision, based on evidence available at the time. We do not ignore the evidence of the field trip but, in our judgment, the starting point must be the findings of fact made by the previous Adjudicator. The subsequent mere denial of them, rather than any explanation of the facts which are the subject of that finding, is a matter which goes very strongly to the weight of the field trip. That is to say that the field trip, while simply adding statements supporting the appellant's case, doesn't assist in explaining the evidence which the adjudicator analysed."

They then continued with the passage which I have already quoted starting "In our view there is no real reason…".

15. Mr Jafferji criticises that approach on two grounds. First, he submits that what may have happened in the past was of complete irrelevance. All that the Tribunal should properly have been concerned about at this stage was whether, at the moment of the application, the appellant was dependent on the sponsor in the sense that he was receiving money from the sponsor, on which he lived. Mr Jafferji did not shrink from acknowledging that the logic of this submission was that somebody who was not dependent on the sponsor, but self-reliant, could make himself a dependent and so potentially eligible for a family permit by ceasing to be self-reliant and obtaining money from the sponsor on which he lived.
16. That is not in accordance with the approach to dependency adopted by this court in KG & AK (Sri Lanka) v SSHD [2008] EWCA Civ 713 at paragraph 75, where Buxton LJ, quoting the case of Jia v Migrationsverket Case C-01/05, treated dependency as meaning that the family members:

"need the material support of [the Union citizen] or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join [the Union citizen]"

17. Mr Palmer and Mr Jafferji both appeared as counsel in that case. They have differing recollections about whether there was an issue before this court as to the proper approach to dependency. I have to say I regard it as unrealistic to suppose that this court would interpret dependency in the sense that it would enable a person with perfectly good means of livelihood voluntarily not to use that means of livelihood but to obtain money from the sponsor and then claim dependency.
18. But there is a further attack which Mr Jafferji makes on the Tribunal's approach. He says that far too much attention was paid to the previous adjudicator's finding, which related to a time some years earlier, and that insufficient attention paid to the field trip investigator's report. However, as Mr Palmer noted, it was not the appellant's case that there had been changes since the Adjudicator's findings, for example that the fishing industry had declined and that he was no longer able to support himself in that way. The appellant's case remained that he never had worked. The Tribunal was entitled to make the comment it did that there was no engagement with the evidence which had led to the previous adjudication.
19. The Tribunal did consider the investigator's field report. It set it alongside the previous adjudicator's findings and considered what conclusions it should draw. I cannot see any arguable basis for saying that there was an error of law in their approach.
20. The Tribunal also found that the appellant was not dependent on the sponsor because the sponsor's own means were such as not to enable him to be able to provide any significant financial support to the appellant. There was an examination of the sponsor's income, which consisted of a carer's allowance for looking after his disabled wife. It is suggested that the sponsor could have been supporting the appellant out of capital but the evidence before the Tribunal was not that there had been any depletion of his capital. His capital was modest and had remained substantially at the same level. Some money apparently was given to the sponsor by other members of the family which was then funnelled to the appellant on the sponsor's own lease. The Tribunal concluded that, if that were the case, it did not make him, the appellant, dependant on the sponsor. I cannot see that there is an error of law in the Tribunal coming to that conclusion.
21. Accordingly in this case too I am not persuaded that there is any real prospect of success in the challenge to the rejection of dependency.
22. Finally there is the issue about residence. The facts in brief were that the sponsor left India in 1987. He went to Portugal for two years and ever since then has been in the UK, so the appellant had not lived in the sponsor's household in any true sense of the word for approximately 20 years. The Tribunal dealt with this aspect of the matter very briefly and perhaps not unsurprisingly so on those facts. They said:

"In any event we do not think that it would be right to describe this appellant as a member of his father's household. The position here is simply that the appellant lives in his father's house and had not lived in the same household for a very long time indeed and for that reason we would not describe him as members of the same household for the purposes of the Directive."

Again I cannot see any real prospect of this court being persuaded that discloses any error of law.

23. For those reasons I refuse permission to appeal against the challenges in relation to dependency in the case of RN and in relation to dependency and residence in the case of RB.

Order: Applications refused