Case No: C5/2009/2553 
Neutral Citation Number: [2011] EWCA Civ 758
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE SEIFERT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 9th June 2011

Before:

LORD JUSTICE PILL
LORD JUSTICE TOULSON
and
LORD JUSTICE SULLIVAN
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Between:

	SF (Afghanistan) and Anr	
Appellants	
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Entry Clearance Officer	

Respondent	

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(DAR Transcript of 
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Mr Edward Nicholson (instructed by IAS) appeared on behalf of the Appellants.

Jeremy Johnson QC (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment

Lord Justice Sullivan:

1.	The respondent says that this appeal against the determination dated 21 September 2009 of Designated Immigration Judge Taylor, dismissing on redetermination the appellant's appeal against the decision of the Entry Clearance Officer to refuse to grant entry clearance, must be allowed and that the matter must be remitted to a differently constituted Upper Tribunal.

2.	The appellants contend that there is no need for the matter to be remitted to the Upper Tribunal because there was no material error of law in the original determination of their appeals by Immigration Judge Seifert, who allowed their appeals in a determination dated 20 May 2008.  

3.	The appellants, who are nationals of Afghanistan, are a wife and son of the sponsor, Ahmed Fazli.  Mr Fazli came to the United Kingdom in 1999 and applied for asylum; he was granted exceptional leave to remain in the United Kingdom and in 2006 he was granted indefinite leave to remain.  The appellants applied in April 2007 for entry clearance to join him.  Mr Fazli was unable to work and was in receipt of disability living allowance.  However, the first appellant stated in her application for entry clearance that she would work once she had been admitted to the United Kingdom.  She had experience of tailoring and was willing to get a job in that field or any other suitable job.  It was also said that the appellants would receive support from a Mr Gul Faghiri, Mr Fazli's nephew and a cousin of the second appellant. 

4.	On 18 July 2007 the Entry Clearance Office refused entry clearance because she was not satisfied that the appellants would be able to maintain themselves adequately without recourse to public funds.  The decision notice said in part: 

"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."

5.	In their appeal against the decision of the Entry Clearance Officer the appellants contended that their appeal should be allowed under both the Immigration Rules and under Article 8 of the European Convention on Human Rights.  

6.	After a hearing on 9 May 2008 Immigration Judge Seifert, in a determination dated 20 May 2008, allowed their appeals under the Rules.  For present purposes the relevant parts of her determination are contained in paragraphs 63-71: 

“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.”

7.	The Entry Clearance Officer sought reconsideration.  The grounds for reconsideration included a complaint that the immigration judge should not have had regard to the letter confirming a job offer because it post-dated the decision. Reconsideration was ordered and, following a first stage reconsideration hearing on 22 December 2008, Senior Immigration Judge Storey, in an undated determination, concluded that there had been a material error of law in Immigration Judge Seifert's determination.  Having set out paragraph 71 of that determination, Senior Immigration Judge Storey said in paragraph (vii) of his determination: 

"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."

8.	The relevant provisions in Section 85, as it was in force at the date of the determinations in issue in these proceedings, are subsections (4) and (5).  Section 85 deals with the matters to be considered by the tribunal and subsections (4) and (5) are in these terms: 

"(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.”

9.	In paragraphs (viii) and (ix) the Senior Immigration Judge dealt with the submissions of Mr Nicholson, who has appeared on behalf of the appellant throughout these proceedings: 

“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.”

10.	In the next paragraph the Senior Immigration Judge added the following observations: 

“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 [2005] 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.)”  

11.	Having concluded that Immigration Judge Seifert materially erred in law, the Senior Immigration Judge dismissed the appellant's appeals under the Immigration Rules, but because Senior Immigration Judge Seifert had not dealt with their Article 8 appeals he remitted those appeals for a further reconsideration hearing.  That reconsideration hearing was conducted by Designated Immigration Judge Taylor, who dismissed the appellant's Article 8 appeals in a determination dated 21 September 2009.  

12.	On behalf of the respondent Mr Johnson QC has accepted that there are material errors of law in the Designated Immigration Judge's determination.  In particular the Designated Immigration Judge wrongly found that there was no evidence that Mr Fazli had visited the appellants in Pakistan, and in the light of later authority the Designated Immigration Judge wrongly refused to take account of evidence that the appellants might be maintained by members of their family in the United Kingdom.  Accordingly, it is accepted by the respondent that the appellants' appeals under both Article 8 and the Rules must be remitted for rehearing before a differently constituted Upper Tribunal.  The only issue therefore between the parties is whether Senior Immigration Judge Storey was correct when he concluded that Immigration Judge Seifert had materially erred in law in having regard in paragraph 71 of her determination to the job offer that was made in a letter dated 6 May 2008 and which thus post-dated the refusal of entry clearance in July 2007.  

13.	Mr Johnson accepted that subsection (5) does not rule out evidence which post dates the refusal decision.  However, he submitted that such evidence must concern the circumstances appertaining at the time of the decision to refuse entry clearance and not circumstances which have arisen after that date; thus, for example, evidence in 2008 that an offer of a cleaning job had been made prior to the refusal of entry clearance in July 2007 would have been admissible, while evidence in 2008 of a job offer that was not made until very shortly before the hearing in May 2008 was not admissible.  He referred to the decision of the tribunal presided over by the President, Ouseley J in DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038, in which the tribunal explained that evidence which post-dates refusal decision is not necessarily prohibited; such evidence may cast light on what the position was at that earlier date.  However, in paragraphs 27 and 28 the tribunal said obiter: 

"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."

14.	Although Mr Nicholson submitted that those passages were wrong, in reality the issue to the parties is a very narrow one on the facts of this case.  That is because Mr Johnson does not argue for a bright-line exclusion of any subsequent job offer in any circumstances whatsoever.  He accepts that there may be circumstances in which such an offer may shed light on the circumstances which appertained at the date of the refusal of entry clearance.  For his part Mr Nicholson accepts that Immigration Judge Seifert was entitled to consider only the circumstances appertaining in July 2007 when entry clearance was refused.  He submits, however, that that was what the Immigration Judge had done.  The question for both the Entry Clearance Officer and Immigration Judge Seifert was the likelihood or otherwise in July 2007 of the first appellant being able to obtain employment in the United Kingdom if her application for entry clearance was granted.  That likelihood was a "circumstance appertaining at the time the decision to refuse".

15.	The Immigration Judge, Mr Nicholson submitted, had been entitled to take the view that the subsequent job offer in May 2008 had cast light on the appellant's ability to obtain employment in the United Kingdom in July 2007. This submission is in substance the same argument that was put to and rejected by the Senior Immigration Judge in paragraphs (viii) and (ix) of his determination (see para. 9 above).  

16.	For my part, I too reject the submission essentially for the same reasons as those given by the Senior Immigration Judge.  Paragraph 71 of Immigration Judge Seifert's determination must of course be read as a whole.  Mr Nicholson accepts that the first conclusion in that paragraph, that the potential shortfall in funds will be met by the first appellant's earnings in her job at Haji Isaq & Sons Ltd, that job being both genuine and available for the first appellant on her arrival in the United Kingdom, does undoubtedly take account of a circumstance, that is to say the May 2008 job offer, which did not pertain at the time of the refusal in July 2007.  Thus Mr Nicholson fairly acknowledges that there was an error in the first part of paragraph 71 of Immigration Judge Seifert's determination.  However, he submits that that error was not material because paragraph 71 contained a second freestanding conclusion: 

"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).

17.	I agree with the Senior Immigration Judge that it is not possible to be satisfied that this conclusion is a freestanding conclusion based only on circumstances at the time of refusal in July 2007, rather than at least in part a conclusion that is based on circumstances as they existed in May 2008, for two principal reasons.  Firstly, the reference to "such a job … at a similar salary"; and, secondly, the absence of any other reason given by Immigration Judge Seifert for her conclusion that it was reasonably foreseeable in July 2007 that the first appellant, who spoke no English and had made no enquiries about the availability of jobs, would be able to obtain employment, and in  particular employment at a similar salary, in the United Kingdom.  Mr Nicholson accepted, in response to a question from Toulson LJ, that the only evidence in support of the proposition that the appellant would be able to obtain a job at a similar salary was the job offer that had been made in May 2008.  As the Senior Immigration Judge said, the mere fact that the first appellant had said in her first application that she intended to work and that there were jobs in England which she would be able to do could not rationally have been enough to satisfy an immigration judge that it was "reasonably foreseeable" that the first appellant would be able to find employment at any particular salary level.  Reading the paragraph as a whole, and bearing in mind the discussion of the job offer in the earlier paragraphs in the determination, one is driven to the conclusion that if not the sole, then at the very least a principal reason for Immigration Judge Seifert's second conclusion was the weight that she gave to the circumstances as they existed in May 2008, namely the fact that there had then been a particular job offer.

18.	As I said, the point is a very short one, but for these reasons I am satisfied that there was a material error of law of Immigration Judge Seifert's determination.  Although the point was not argued before Senior Immigration Judge Storey, before this court Mr Nicholson advanced a new submission that the error of law was not material in the light of the subsequent decision in Mahad v Entry Clearance Officer [2010] 1 WLR 48.  That is because Immigration Judge Seifert heard evidence from family members, in particular Mr Faghiri, who had said they would be prepared to support the first appellant.  She found the evidence of those family members to be credible.  The submission is that, since the shortfall of £47.15 a week was so modest, there was no basis on which, applying Mahad, it could have been concluded the shortfall would not have been made up by support from the first appellant's family.  

19.	The difficulty with that submission is that, given the state of the authorities at the time, it was common ground before Immigration Judge Seifert that third party support was not permitted either in respect of a spouse or a child dependent (see paragraph 51 of her determination).  Thus it is unsurprising that there was no challenge to the evidence from the family as to the third party support that might be given; the matter was simply not regarded as being relevant.  As I have said, the matter was not raised before Senior Immigration Judge Storey.  It was not suggested that, even if there was an error of law in taking into account the May 2008 job offer, that error was not material for this further reason.  In these circumstances it seems to me that it would not merely be inappropriate, it would be most unfair to the respondent to allow the appellants to raise this point now and to effectively invite this court to turn itself into a fact-finding tribunal.  It would be particularly inappropriate in the circumstances of this case given the lengthy lapse of time between the refusal of entry clearance in July 2007 and our hearing of this appeal nearly four years later in June 2011.

20.	In my judgment, therefore, the proper course, because there were material errors of law in Designated Immigration Judge Taylor's determination, is to allow this appeal and to remit the matter to a differently constituted Upper Tribunal.  By way of postscript I would simply add that, as from 23 May 2011, Section 85 of the 2002 Act has been amended by Section 19 of the UK Borders Act 2007, but those amendments are not relevant for the purpose of determining these appeals which fall to be considered under the provisions as they were in force at the time of the determinations to which I have referred.

Lord Justice Pill: 

21.	I agree.

Lord Justice Toulson: 

22.	I also agree.  

Order:  Application allowed