ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE SEIFERT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE SULLIVAN
| SF (Afghanistan) and Anr
|- and -
Entry Clearance Officer
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Jeremy Johnson QC (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
"You state that you will seek to find employment in the UK. However, I note from your application that you have no qualifications or work experience and there is no indication that you speak, write or understand English and in the absence of any evidence that you have conducted any research into job prospects in the area I therefore consider it is highly improbable that you will be able to secure employment in the near future to satisfy me that your arrival will not cause recourse to public funds."
The Entry Clearance Officer referred to Rules 281 and 297(v) of the Immigration Rules. Those Rules require the Entry Clearance Office to be satisfied that the sponsor and the first appellant would be able to maintain themselves and the second appellant without recourse to public funds. In response to that aspect of the refusal notice, the grounds of appeal to the tribunal said:
"It is submitted that indeed there are certain jobs which do not require a high standard of English, for instance the appellant would be able to do jobs such as cleaning and distributing leaflets and filling up shelves in shops."
"63. The third way in which Mr Nicolson put the Appellants' case was that Mr and Mrs Fazli met the maintenance requirements of paragraph 281 and paragraph 297 as Mrs Fazli would be employed when she came to the United Kingdom and would contribute to the maintenance.
64. It was submitted that, consistently with her assertion on paragraph 6.14 of her application form, she is able to work in the United Kingdom. In answer to the question on the application form, 'Do you intend to work in the United Kingdom, she replied 'Yes' and stated 'I have experience in tailoring and am willing to get a job in that field or any other suitable job'.
65. That the first Appellant could and would obtain employment in the United Kingdom is supported by a letter dated 6th May 2008 from Mr Usman Ebrahimi of Haji Isaq and Sons Ltd, 6 South Road, Middlesex. Mr Nicholson submitted that upon her admission to the United Kingdom she will be able to work for that company as a cleaner. Her income (before deduction) will be £88.80 per week. He submitted that in those circumstances the income available to the first and second Appellants is more than adequate to support themselves without recourse to public funds.
66. A letter from Usman Ebrahimi, director of Haji Isaq & Sons Ltd dated 6th May 2008, was produced. This stated that that firm is a worldwide money transferring business located in South Road, Southall, Middlesex. In the letter Mr Ebrahimi stated that he was willing to offer the first Appellant employment in the business as a cleaner if she is allowed to come and work in the United Kingdom. He would require her work in the early morning and evening six days a week to clean the shop before the customers and staff come in. She would be required to work an average of 16 hours per week and her starting salary would be £5.55p per hour. He stated that he was confident that Mrs Fazli would be able to do the job properly as she has experience of cleaning. He stated that he was confident that Mrs Fazli would be able to do the job properly as she has experience of cleaning. He stated that Mrs Fazli speaks Dai, as he does, and therefore there would be no problem in her understanding his instructions.
67. Mr Nicholson submitted that as the quotation from Chapter 9.7 of the Diplomatic Services Procedures in the refusal notice makes clear, the Entry Clearance Officer could have taken account of the availability of funds provided by Gul Faghiri to the first Appellant for a short period during which the Appellant could seek and obtain the kind of work she has now found.
68. Mr Lines submitted that the Entry Clearance Officer did not believe that Mrs Fazli would get a job. The letter confirming the offer of a job was dated 6th May 2008, a year after the application. He submitted that it was supplied by a friend of Mr Fazli who had never met Mrs Fazli. He contended that the job offer was fabricated. Mr Fazli thought that the job had been advertised in the local paper. However he could not name the local paper and there were doubts that the job was advertised.
69. In respect of Mr Nicholson's first and third set of submissions, having considered the whole of the evidence I am satisfied that the first and second Appellants meet the requirements of paragraph 281 and paragraph 297 of the Immigration Rules respectively.
70. I find that the second Appellant satisfies the requirements of paragraph 297 of the Immigration rules and is seeking to enter in circumstances where one parent, Mr Fazli, is present and settled in the United Kingdom and the other, the first Appellant, is being admitted on the same occasion for settlement.
71. I prefer the figures put forward by Nicholson, referred to above. This leaves a potential shortfall of about £47.15 per week in respect of the child dependant. I find will be met by Mrs Fazli's earnings from her job with Haji Isaq & Sons Ltd. I am satisfied that that job is genuine and will be available for Mrs Fazli on her arrival in the United Kingdom. I also find that it was reasonably foreseeable that such a job or another job at a similar salary would be available to her at the date of the decision. She made it clear in her application form that she intended to work and there was no reason why she would not have obtained suitable employment in the United Kingdom."
"The third and fourth sentences of this paragraph contained a clear error of law, in that the IJ finds that the shortfall in the sponsor's and appellants' household income will be met by the second appellant's earnings from her job with Haji Isaq & Sons. It must be recalled that at the date of decision this job offer did not exist: it did not exist until May 2008, some 10 months later. To find that the shortfall would be met by the appellant taking a job even an offer for which did not exist at the date of decision amounted to clear failure on the part of the IJ to keep fully in mind that this was an out of country appeal governed by s.85(5) of the 2002 Act."
"(4) On an appeal under section 82(1), 83(2) or 83A(2)] against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10 -
(a) subsection (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse."
"viii. Mr Nicholson has sought to argue that the IJ did not fail to apply the provisions of s.85(5), but he was not able to show why the IJ should be taken to mean anything other than he stated in the above sentences; and, indeed, from the IJ's own account, she based her decision squarely on acceptance of Mr Nicholson's own submission on this matter (see para 69) and his submissions to her contained precisely the same error (see the first two sentences of para 65), namely that of considering the likelihood that the second appellant would get a job as being 'supported by a letter dated 6 May 2008 from Mr Usman Ebrahimi of Haji Isaq and Sons Ltd ' It is fair to say, however, that the respondent's representative at that hearing (Mr Lines) appears to have compounded the error by making submissions concerning whether this job offer should have been considered genuine (see para 68).
ix. Mr Nicholson has contended that this error was not material because in the second part of the paragraph the IJ gives a discrete reason for finding the maintenance requirement met. That it was a separate reason was indicated, he said, by the IJ's use of the word 'also' in the following sentence: 'The difficulty with this contention is twofold. First, the IJ's reference to 'such a job ' makes clear that she has continued to base her assessment on the evidence as to this job. Such wording destroys any confidence that the IJ has properly considered what the factual circumstances were at the date of decision, uninfluenced by later events. Second, the only two reasons given for finding that such a job or another job at a similar salary was reasonably foreseeable were inadequate. To say that 'there was no reason why she should have obtained suitable employment' amounted to a failure to address the respondent's reasons for concluding that she had no reasonably foreseeable employment prospects. The respondent had pointed out that she only spoke Dari. Of course, such a reason was not one which the IJ was necessarily obliged to accept; but equally he was not free to wholly ignore it. It was a reason which had been given and it had to be explained by the IJ why it was it was not considered to be a good reason. Mr Nicholson, both before the IJ and before me has sought to furnish the missing reason implicit he says in the IJ's decision, namely that she could expect to find employment in an Asian community setting where speaking Dari would suffice for her to get by. But the fact of the matter is that the IJ made no mention, expressly or impliedly, of such a reason. Further, to simply relay on the fact that the applicant had stated in her application form that intended to work could not stand on its own as a sufficient reason for finding that this claim was objectively well-founded. Once again, the IJ provides no reasons for why she thought it well-founded; she simply relies on the second appellant's assertion that it was so."
"x. As regards the debate between the parties as to the precise significance of Tribunal case law, DR Morocco and also LS (post-decision evidence; direction; appealability) Gambia  UKAIT 0085, I agree with Mr Nicholson that (1) what has to be decided as regards maintenance in an out-of-country appeal is what at the date of the decision was reasonably foreseeable; and (2) nothing said in these decisions denies the possibility that post-decision evidence relating to circumstances appertaining at the time of the decision can be admissible. But the simple fact in this case was that the job offer was not such a circumstance and, so far as her ability to obtain employment is concerned, the only relevant evidence was what was known at the date of decision: namely that she said her intention was to find work taken together with what was known about her own circumstances (which included the fact that she spoke no English and that in Afghanistan she had experiencing in tailoring, although her financial support was supplied by the sponsor with assistance from Mr Gul Faghiri.)"
"27. We take a different view when it comes to evidence about whether evidence of the coming to pass of an event which had been the subject of disputed predictability or likelihood is admissible. Evidence that it had not happened equally would be inadmissible. The usual issue is whether the particular matter or circumstance is likely at the date of decision; eg obtaining employment. The subsequent obtaining of the predicted job is a matter arising afterwards and evidence about it is excluded. It is akin to evidence being inadmissible to show that an intention has changed. The fact that the new matter or circumstance eg the job may have been predicted or reasonably foreseeable does not avoid it being a matter arising after the event, nor is it a circumstance appertaining at the time of decision.
28. Indeed, the fact that something happened does not logically demonstrate its likelihood anyway, because unlikely events do happen. The value of the occurrence of an event in proving its likelihood of occurrence would have to be demonstrated by something other than that it happened. It is difficult to see, absent unduly complex analysis, how it could be done."
"I also find that it was reasonably foreseeable that such a job or another job at a similar salary would be available to her at the date of the decision. She made it clear in her application form that she intended to work and there was no reason why she would not have obtained suitable employment in the United Kingdom."
The short submission made by Mr Nicholson is that that is an approach which conforms with the limitation imposed by subsection 85(5).
Lord Justice Pill:
Lord Justice Toulson:
Order: Application allowed