ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE WYN WILLIAMS)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE BRIGGS
|THE QUEEN ON THE APPLICATION OF SARAH KHATOON||Claimant/Appellant|
|(1) THE ENTRY CLEARANCE OFFICER, ISLAMABAD|
|(2) THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)||Defendants/Respondents|
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Mr Matthew Barnes (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
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"7. The Claimant was born on 21 December 1991. She is a citizen of Pakistan. Her father is Mohammed Akram; her mother is Zarina Akhtar. The Claimant has 6 brothers.
8. In 2002 or 2003 Mr Akram left Pakistan and came to the United Kingdom. On 20 August 2007 he was granted indefinite leave to remain in the UK as was one of his sons, Mohammad Ali.
9. Some time thereafter the Claimant's mother and the Claimant's three youngest brothers applied to the entry clearance officer for indefinite leave to enter the United Kingdom. The application was refused but an appeal to the Immigration and Asylum Tribunal was successful. As I understand it the Claimant's mother and brothers were notified of their successful appeal by letters dated on or about 5 August 2009.
10. The Claimant did not apply for indefinite leave to enter the United Kingdom at the same time as her mother and brothers. However, she made such an application to the entry clearance officer on or about 27 October 2009."
Then it appears that in November 2009 Mrs Akhtar and the three youngest brothers travelled to the United Kingdom.
"The undersigned is one of the dependent children (under 18 years) of Ms Zarina Akhtar; the Appellant whose case has been decided by the Immigration & Asylum Tribunal. My mother Zarina Akhtar and 3 brothers, namely Mr Mohammad Umar, Mr Usman Ghani and Mr Mohammed Bilal have been granted settlement visa as per court decision ... the honourable court further stated '1. Other child was the subject of an outstanding application', that is me (copy of the Immigration & Asylum Tribunal Services and copy of Solicitors' letter is enclosed)
It is therefore requested that I may also be granted settlement visa so that I can join my father Mr Mohammed Akram and brother Mohammed Ali in London UK (they have indefinite visas) along with my other family members."
"297. The requirements to be met by a person seeking indefinite leave to enter 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:
i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
a) both parents are present and settled in the United Kingdom; ...
ii) is under the age of 18; and
iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
v) can, and will, be maintained adequately by the parent, parents or relative the child is seeking to join without recourse to public funds; and
vi) hold a valid United Kingdom entry clearance for entry in this capacity."
"An application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision, except that an Applicant will not be refused an entry clearance where entry is sought in one of the categories contained in paragraphs 296-316 solely on account of his attaining the age of 18 years between receipt of his application and the date of the decision on it."
"The grounds contend that the IJ approached matters relating to Article 8 (issue (v)) 'with a negative mind' and that she failed to take into account all relevant circumstances. It is true that the IJ did not address Article 8 at all, but, in addition to the fact that neither the grounds of appeal nor the Appellant's representatives at the hearing had raised Article 8, the evidence before the IJ did no more than establish that the Appellant did not lead an independent life because the Appellant was still living with her aunt. It was not a case therefore where the Appellant had no existing family life support. In relation to the failure of the Appellant to show that there would be adequate maintenance, the Strasbourg Court has made clear in its judgments that it is proportionate for a State to require would-be entrants to meet maintenance requirements. Hence, on the evidence before the IJ the Appellant's Article 8 grounds had no real prospect of success.
As regards the allegation that the IJ approached matters with a negative mind, there is nothing to indicate that the IJ did other than consider the evidence as a whole with an open mind. The Appellant dislikes the outcome, understandably, but that does not establish bias or lack of objectivity."
"Mr Ahmed [then counsel for the appellant] submits that paragraph 27, properly interpreted, compels an entry clearance officer (and the Tribunal on appeal) to treat a person who was under the age of 18 at the time of an application (but who attains the age of 18 before a decision is made) as if he/she had remained under the age of 18 at the time of the decision."
"Mr Barnes disagrees. He submits that paragraph 27, properly interpreted, simply means that if all other requirements of the relevant Immigration Rules are met i.e. in the context of this case the requirements of paragraph 297, entry clearance is not to be refused in respect of a person who was under 18 at the date he/she made his/her application but who has attained the age of 18 prior to a decision being made."
"• An entry clearance officer must take Human Rights' considerations into account when reaching a decision.
• UK Ministers believe that the Immigration Rules are compatible with the Human Rights Act. Any proper decision to refuse entry clearance should not be in breach of an individual's rights."
"The reality is that the information available to the Tribunal about the Claimant's links to her immediate family was limited and sketchy. Such information as was put before the Tribunal was never presented with a view to demonstrating a claim under Article 8. In summary, all that the Tribunal knew was that the Claimant was a young adult who had lived with her mother while the mother and some of her siblings were in Pakistan and who was to some degree financially dependent upon her father who had lived in the United Kingdom for many years. There was a paucity of evidence as to the extent of the Claimant's financial dependence upon her father - certainly a paucity of documentary evidence relating to such a dependency - and IJ Gurung-Thapa reached a conclusion on the evidence available (which has not been challenged) that the Claimant had not proved that she would be adequately maintained without recourse to public funds should she be permitted to enter the UK with indefinite leave to remain. To repeat, the Claimant was living with an aunt in Islamabad and she was receiving some financial support from her father."