England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Wednesday, 7 April 2004

1. MR JUSTICE COLLINS: This is a claim for judicial review of a decision of the Immigration Appeal Tribunal which was notified on 22nd August 2003. It is a somewhat unusual claim in as much as it is directed to a full determination of the Tribunal by which the Tribunal remitted an appeal to be heard by a different adjudicator. There is authority which establishes that a remittal is not a final determination of an appeal, so that an appeal does not lie to the Court of Appeal and thus the only remedy, if it is said that the decision was erroneous in law, is to come to this court.
2. The claimant is one who seeks entry clearance to come to this country. She is the mother of the sponsor, who is the person with whom she will reside and by whom she will be looked after if she is able to come to this country. When the matter was originally before the entry clearance officer, there was an application by the claimant and one of her sons, the brother of the sponsor. Unfortunately he, whose name was Adnan, has since died and thus is no longer of course to be regarded as an applicant.
3. The sponsor, who is the eldest child of the claimant, arrived in this country in August 1990. She claimed asylum. Initially that claim was rejected, but eventually she was granted refugee status on 6th January 1997 and thus was given indefinite leave to remain in this country.
4. As I say, she had come to this country in August 1990 and she had, although her claim was rejected, been given a temporary leave to remain here and, as a result, she applied in 1994 for, essentially, the balance of her family who had been left in Ethiopia to be able to come here. They consisted of her parents and seven siblings. In due course, before the application was finally considered by the relevant entry clearance officer, a number of the siblings dropped out, no doubt because they had become over 18, but also perhaps because they had disappeared from the family unit and were no longer living with their mother. Their father had unfortunately died in 1995.
5. And so it was that the original decision was made in 1997 and that was that the application should be rejected. The reason for the rejection was largely because the relevant Somali family reunion policy, as it then was, could not apply because the sponsor was not settled in this country.
6. There was in due course an appeal to an adjudicator and that was finally disposed of in January 1998, the adjudicator not really deciding it upon the merits but upon the point that I have indicated, namely that the sponsor was not settled in the United Kingdom. As I have said, she herself obtained refugee status in January 1997 but it was not until 18th December 2001 that the application which gives rise to the present claim was made for entry clearance.
7. The entry clearance officer interviewed both her and her son Adnan, and having interviewed them on the same day, that is 20th March 2002, rejected their claims. She decided that they did not qualify under Rule 317 of the Immigration Rules, HC395. I do not need to go into Rule 317 in any detail. It sets out the requirements to be met by a person seeking indefinite leave to enter as the parent or other dependant relative of a person present and settled in the United Kingdom and, among other things, the applicant has to show that she is a mother who is a widow aged 65 years or over. The significance of that will become apparent in due course.
8. The reason why it is not necessary to go into Rule 317 in any detail is that it is common ground now that the claimant could not qualify under that rule, largely because the sponsor would not be able to maintain her in accordance with the maintenance requirements that are part of Rule 317.
9. The case before the adjudicator, and the case before me, is put on the basis that the claimant would qualify and the adjudicator was correct to find that she did qualify under the family reunion policy which relates to refugees and under Article 8 of the European Convention on Human Rights which has to be taken into account by entry clearance officers.
10. The family reunion policy, so far as relevant, reads under the heading "Eligibility of applicants for family reunion" as follows:

"Only pre-existing families are eligible for family reunion i.e. the spouse and minor children who formed part of the family unit prior to the time the sponsor fled to seek asylum.

We may exceptionally allow other members of the family (e.g. elderly parents) to come to the UK if there are compelling, compassionate circumstances."

11. It is that policy, as I say, coupled with Article 8, which it is submitted justified the adjudicator deciding in the claimant's favour. And it is to be noted that the entry clearance officer does not directly deal with the family reunion policy or Article 8.
12. There were a number of factual discrepancies between the evidence given by Adnan and that given by the claimant, both of whom were interviewed by the entry clearance officer. The claimant has indicated, and indeed there was before the entry clearance officer a statement from her which stated that Adnan had mental problems and that he had the mind of a child. Thus the entry clearance officer was aware, and indeed she indicates in her reasons that she was aware, of the concerns that there were about Adnan.
13. It is unnecessary for me to read in full the reasons given by the entry clearance officer. A summary of the main points are that the claimant had stated that her husband had died in Dire Dawa six or seven years earlier (in fact it seems that it was in 1995), and that this conflicted with a statement from Wilson & Co, the sponsor's representatives, who in a letter of 18th September 2001 stated that the claimant had been divorced from her husband and that he lived in Somalia. That discrepancy, indeed, exists.
14. There is an explanation given in a statement which was before the adjudicator from the solicitor who had conduct of the matter in Wilson & Co. in which he says that the only explanation he can give is that a clerk in his office was responsible for the drafting of that letter, that he must have obtained the manner in which he should write from a precedent and must have used the precedent which contained information which was not material to the present case.
15. That explanation is, I am bound to say, not an easy one to follow, but the point is made, and this is perhaps a fair point, that the instructions had always been that the father had died and, indeed, it is a matter which had been referred to in the earlier application in connection with which Wilson & Co. had also been acting on behalf of the claimant. Be that as it may, that discrepancy was obviously something which the entry clearance officer was entitled to take into account.
16. The claimant had also stated that the sponsor had been furnishing her with US$150 every two months and had been for nine years. There was a letter produced, presumably to support the assertion that there was support being provided, which showed that $100 had been paid on a monthly basis between January 1999 and May 2001. There was a conflict there.
17. There was an issue about the claimant's age and this is of some significance. The entry clearance officer, in her reasons, says that the claimant stated that she was 70. That does not seem to be correct; certainly it is not borne out by anything contained in the interviews. What in fact was said about her age was this:

"29. How old are you?

I am old enough.

30. Why does VAF [Visa Application Form] say you were born in 1944 which makes you 58?

Maybe the man invent from his head when he was writing.

31. Why on your previous application does it say you born 1944?

No answer."

18. The answer "I am old enough" may seem when looked at, as it were, in the abstract, a somewhat strange one, but in the context of the application that was being made it is a very understandable one, because, as I have already said, a widowed mother will not be able to gain admission under Rule 317 unless she is over 65, and so the answer "I am old enough" becomes of obvious significance in that context, particularly as it would be surprising, to say the least, if the claimant was not aware, or had not been made aware, of the relevant conditions for entry. And thus her answer that the man must have made up 1944 and her silence when taxed with her previous application which contained the same date of birth is of considerable significance, and is not a matter which can easily be explained away. I will come to what the adjudicator said about it in a moment.
19. The entry clearance officer then went on to deal with maintenance and whether that would be possible. I do not need to read that paragraph because, as I have said, that is not now in issue. She then went on:

"I then interviewed the sponsor's brother Adnan ... I noted that in the sponsor's witness statement she stated he had the mind of a child, his mother also indicated that he had a mental problem and did not want him interviewed. I wished to speak to him myself and if he couldn't be interviewed I would stop. But what I found was a lucid, competent and above all, a truthful applicant. [Adnan] stated that he last saw the sponsor in 1991 in Djibouti. He stated that he last saw his siblings a month before his interview in Djibouti where he was living. [Adnan] stated that his father and mother supported him in Djibouti. When it was put to him that his father had died he replied, "yes, in 1994 in Djibouti". [Adnan] was clear in his statement when he said that his father supported him, he was probably briefed to say that he had died. I have my doubts after Wilson and Co.'s statement that he was alive and living in Somalia. [Adnan] stated that he had never lived in Dire Dawa [where the family were supposed to be living] He stated that the family lived in three rooms, they did not pay rent because it belonged to them."

20. The entry clearance officer then went into some details, Adnan having been asked about how one travelled from Djibouti to Addis Ababa and also about where he had lived in Djibouti, was able to give some clear and detailed answers about the geography of Djibouti and various buildings in Djibouti which made it more than probable that he had spent some time there at some stage. It did not, of course, establish that he had lived there in the circumstances he had described, but it was quite clear that he had indeed been there and probably for more than a very short visit. She concluded:

"In view of the facts above, I was not satisfied that the appellants can and will be maintained and accommodated adequately without recourse to public funds in accommodation, which the sponsor owns or occupies exclusively."

21. As to that there is no issue. She goes on:

"I was not satisfied that the appellants were living outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on the sponsor settled in the United Kingdom. I was not satisfied that the appellants have no close relatives in their own country to which they could turn."

22. The sponsor herself had made a number of statements in relation to her own claim for asylum and also the previous and the present claims for entry clearance on behalf of her mother, Adnan and, earlier, others of her brothers and sisters. In her statement for the purpose of claiming asylum she had explained how she had indulged in some political activities and that the first time that she had been picked up by security forces was in 1985 and she had been interrogated, tortured and beaten. She continued her activities until the war started in Somalia and in the course of that war, in May 1988, her home town Hargeisa had been bombarded and there had been considerable fighting and the result was that her family had fled to a refugee camp in Ethiopia in July 1988. They had stayed there until June 1989. She was then smuggled into Djibouti by an uncle. She stayed there for some four months or so in hiding in various houses. Eventually a Djibouti passport was obtained for her and it was arranged that she should be able to enter this country and she arrived here in August of 1990.
23. In a statement dated 12th December 1997, signed by her and co-signed by an interpreter, she stated the following. She confirmed that her father died in 1995. She said that her mother and eight siblings continued with their appeal. And so far as her mother was concerned she had considerable difficulty in keeping in contact with her and it was not possible to speak by telephone. There was then in my bundle some pages missing and then we come to paragraph 5 which is the important paragraph for these purposes where she says this:

"Prior to the war I lived in Hargeisa with my family. I married in December 1990 and before that I lived with my parents. My father was a trader. He lived in the city. We are a City family living in one house. I am the eldest child.

6. It is remarkable and extreme good fortune that all my siblings have survived the war in Somalia -- although 4 are now missing in Ethiopia. Many cousins, aunts and uncles have been killed.

My family have been in Diredawa since 1990, they live in a shanty town outside the town."

24. Then she describes that her mother has two of the children with her and two step-children. Those are the only active appellants. Apparently the others had lost touch with their mother. So that is what she there said.
25. When it came to the hearing before the adjudicator she produced two statements, both of which she relied on as being accurate and as constituting part of her evidence. Material parts of the first one gave information of the various siblings and indicated that all, save Adnan and two step-siblings who were being looked after by an uncle in Ethiopia, were missing. She says in paragraph 3:

"3. In May 1988 my home town of Hargeisa was destroyed by an aerial bombardment. My whole family were forced to flee to the Harshin refugee camp in Ethiopia. We reached Ethiopia in July 1988. We all lived together there until 1989. I then managed to flee to Djibouti and eventually arrived in the UK on 1st August 1990.

4. I married [my present husband] in 1990. We are currently separated. He is living in the UK."

26. She described how their family initially remained together in Harshin, that is the refugee camp, that her father died in April 1995 and the family was forced to separate in order to survive thereafter. That is not entirely in accordance with the statement of 1997 that I have already read.
27. Finally, I should mention the second statement in which she dealt with the error in the Wilson & Co.'s letter. She said that she had been sending money since 1990. She had sent some through Western Union, but that was expensive. She gave Western Union £100 but they charged £14 out of that. She said that Adnan had said things in interview that were different because he was mentally ill and was confused. Indeed there was a statement from a psychiatrist, who had not seen Adnan, but who confirmed that it sounded as if (and indeed there was a medical report produced from Ethiopia which confirmed this) that he was suffering from some form of schizophrenia and this might have meant that he appeared to be entirely lucid but in fact he was capable of a degree of fantasising and error.
28. It is apparent that there was a degree of confusion in the accounts that had been given and discrepancies between the various accounts and that the entry clearance officer was entitled to be sceptical about the reality of the appellant's case. However, it is right to say that the entry clearance officer did not, as she should have done, consider Article 8 and the family and refugee reunion. Equally the entry clearance officer did not, and in my view should have, put to the mother the discrepancies that had come from the son's evidence so that she was able to comment on them, if she had any explanation for or answer to them. So it is plain that the adjudicator thought little of the entry clearance officer's approach and indeed he castigates her in a number of passages in his adjudication.
29. It is again unnecessary for me to quote from the adjudication in any detail or at any length. He refers to the various points that the entry clearance officer had relied on as discrepancies and he then goes on to indicate that there were in his view explanations for them and that he accepted the evidence given by the sponsor in so far as that evidence dealt with and disputed the entry clearance officer's findings.
30. He recognises that the entry clearance officer saw the two applicants (that is the claimant and Adnan) and that he, the adjudicator, had not. That was something which obviously is material because the decision maker does have some advantage in having interviewed and thus having been able to form a view of the reliability of the individual in question. But it is important that that should not be taken too far. It clearly is an advantage. It is clearly entitled to be given some weight, but it is too easy and it is not always reliable to say that because an entry clearance officer, or indeed any decision maker, has seen and heard the individual therefore the view that has been taken in relation to credibility is one that cannot be or should not be overturned by an appellate body who has not seen or heard the individual in question. However, as I say, it is obviously entitled to be given some weight and there is no reason to believe that the adjudicator did not have that in mind.
31. So far as the age is concerned the adjudicator in paragraph 22 says this:

"I have doubts about the interview apart from that because the questions and answers do not seem to follow. If someone says "I am old enough" and then it is put to her in a way that it appears that the date on the visa application form is wrong it is difficult to know how she should react to that. One wonders whether the Entry Clearance Officer is trying to elicit the truth or simply trip someone up."

32. I have already dealt with that in what I have said earlier and it seems to me that the adjudicator is manifestly in error in approaching it in that way. There is a perfectly good explanation for what happened, and it is an explanation which suggests that the claimant was not being entirely truthful.
33. There was evidence before the adjudicator from a witness who had met the claimant in Ethiopia and who had seen the conditions in which she was living. She described how unpleasant and difficult those conditions were. Indeed the claimant herself had said that she was living in one room. She was really unable to live anywhere else because she could not afford anything but cheap food which was nearby and she said that she was worried that she would lose her house if it was discovered that she received money from abroad because she would be charged more rent. If she was receiving $150 every two months, an amount which, in the context of this country, is very small and inadequate, but an amount which in the context of the conditions in Ethiopia is far more adequate, it is a little surprising that she was indeed living in conditions which were that bad.
34. The adjudicator quite clearly took the view that the entry clearance officer had gone about her task in a way in which the adjudicator thoroughly disapproved. But that of course does not of itself mean that her decision at the end was incorrect.
35. The adjudicator in considering Article 8 cited Mahmood and indicated that in his view it clearly would be an insurmountable obstacle to family life being able to be continued in Somalia or indeed in Ethiopia because so far as Somalia was concerned the sponsor was a refugee and so far as Ethiopia was concerned in any event she had a young family here and she could hardly be expected to go and live with her mother in Ethiopia. That is no doubt all correct, but it is to an extent beside the point. This is a case where it is said that there is an obligation upon the United Kingdom to grant entry clearance in order that family life may exist and may not be interfered with. The family life in question is the family life which is said to exist between the sponsor and the claimant. The sponsor's account, taken at its highest, is that the family, of which she was a member, were living together in Hargeisa up until 1988. Thereafter the family had to escape to a refugee camp where they again stayed together. She then decided that it was necessary for her to escape and to seek asylum in the United Kingdom. She did that by leaving her family, going to Djibouti and after about a year managing to get to the United Kingdom.
36. At some stage, according to the evidence that she gave to the adjudicator, she got married. The adjudicator records what she said about that and it was in these terms:

"In oral evidence the sponsor said that she had been married for the first time in a forced marriage to a man from the armed services who took the family out of Somalia. They did not live together and she had no children by him. With the help of her father the couple were subsequently divorced."

Quite how that fitted in and what was the motive for the forced marriage is not entirely clear. Mr Toal informed me that it was his recollection that what had been said was that the marriage had been forced because the army officer in question had been able to get the family out of Somalia and into Ethiopia. That may be the case, but again it is somewhat curious that it has not been referred to in any of her statements and came to light for the first time, it seems, when she gave evidence before the adjudicator.

37. But the precise circumstances are of course of some importance because the suggestion is that there was at the time she left her family in Ethiopia in order to come to seek asylum and now a continuing family life, and that it is that family life that is being interfered with by the failure to grant the entry clearance. It is also material for the purposes of the refugee family reunion policy, because there must have been a family unit prior to the sponsor fleeing to seek asylum, and members of that family unit, for example elderly parents, might be permitted to come if, and only if, there were compelling and compassionate circumstances.
38. I am bound to say that it seems to me that even taking the claim at its highest it is not easy to see that there was a family life which was capable of being interfered with within the meaning of Article 8 of the European Convention. The adjudicator stated in paragraph 50:

"Now whatever else may be said about the interviews and the evidence of the sponsor, there is no suggestion other than they did indeed form a single family unit. Furthermore that unit was separated only by the need of the sponsor to seek international protection and her need was recognised by the grant of refugee status in this country."

39. Even if that is correct the fact is that some 14 years passed between the time that she arrived in this country and now when the claim is being considered, or, if one wants to put it back to the time when the entry clearance application was made, it would be 11 years. True it is that an application for entry clearance was made very shortly after she arrived here and obtained the right to remain at least for a period. She became a refugee in January 1997. Her original claim was dismissed in January 1998. It was not for just under four years that she made the next application. It is a very long time overall to be apart to be able to suggest that the family life continues. Of course one recognises that there is a bond and will remain a bond between a child and a parent, but we are talking here of a grown-up child who has married (albeit now separated) and has a family of her own and the elderly parent would not normally, unless perhaps living with and being part of that new family, be regarded as being in a family unit with the child. And so Mr Toal submits that it is indeed merely the reawakening, as it were, of the unit that existed when the parent becomes aged and infirm and therefore it is not really the creation of any new unit, it is merely a recognition that the existing unit was perhaps dormant but is now being brought to life again. I am far from persuaded that that is a correct way of looking at it.
40. However, the one thing that is clear is that the precise circumstances, in which the sponsor came to leave and what were the arrangements and what was the family unit, if any, at that time is of vital importance in considering the asylum reunion policy and in considering whether Article 8 is or is not breached.
41. The adjudicator's view was that, bearing in mind the flawed decision-making process by the entry clearance officer and the evidence that he had heard, the balance rendered it very much more likely than not that the appellants were living in compelling and compassionate circumstances. This brought them firmly within the provisions of the instructions to immigration officers.
42. When the matter came before the Tribunal the Tribunal went through the evidence and the adjudicator's views and decided that they could not be supported. They set out the rival contentions and their conclusions thus:

"18. He [counsel for the appellant, Mr Toal] pointed out that in his determination, the adjudicator had found that the Entry Clearance Officer had conducted her interviews in an unfair way. She had not invited the son to explain the inconsistencies in his answers, and did not ask the mother to comment on those answers. The Entry Clearance Officer's unfairness in the way in which she conducted the interviews undermined the weight to be attached to her conclusions. It is therefore open to the adjudicator to substitute his own fair findings of fact ...

19. He submitted that the adjudicator had had the benefit of hearing oral evidence from both the sponsor and the second witness [named]. He was persuaded by that evidence. That was a conclusion which was properly open to him."

43. Mr Toal had submitted that there was no proper basis for interfering with the adjudicator's findings because they were not shown to be clearly wrong. He argued that the adjudicator had been perfectly entitled to conclude that, notwithstanding the ECO's views, the son had not in fact been lucid in interview. I shall just digress a moment to deal with the evidence of the son.
44. It is clear from the interview record that there were inconsistencies in the account that he had given. But the really important aspect was that he had said, and clearly said, that he was able to recognise certain features in Djibouti and this showed and must have shown that he had been there. It did not of course show when he had been there, and he had given clear evidence about having lived in Djibouti with his siblings, although he had not said that his mother had lived there, and that he had seen the sponsor there last at some time. That of course would not have been impossible because we know that the sponsor had indeed been there, although not at the time when Adnan said he had been there.
45. The only answer that was able to be given by Mr Toal as to an explanation when Adnan could have been in Djibouti was that he had perhaps been there for some time when he had disappeared for a while from the family home in Dire Dawa. Anyway, it was perfectly plain that there were unsatisfactory elements there.
46. The Tribunal then referred to the submissions made by the presenting officer which were that the entry clearance officer was entitled to arrive at her assessment that the son was lucid when she interviewed him. If there was any procedural unfairness that should not attract compensation in the form of grant of entry clearance to which the mother would not otherwise be entitled. The Tribunal said that they accepted the submissions made by Mr Saunders. The entry clearance officer had had the advantage of seeing the mother and Adnan and had come to the conclusion that the son was at least at that time lucid, competent and truthful and could provide accurate replies in relation to Djibouti, although the Tribunal got it wrong in saying that he had said that he and his mother were living together in Djibouti.
47. The Tribunal then said that the adjudicator had not taken those factors properly into account and furthermore had failed to explain why he considered that it would be disproportionate for the respondents to be refused entry clearance to come to the UK in order to establish family life with the sponsor here, despite the fact that the sponsor was a middle-aged married woman, albeit now separated from her husband, with a family of her own and by her own account it was at least 12 or 13 years since she and the respondents had last enjoyed any sort of family life together.
48. If it was merely a question of the adjudicator's findings of fact it may be that the Tribunal should not have considered it right to allow the appeal because the issue clearly was whether the claimant was entitled to enter based on Article 8 or the refugee reunion policy and that depended, as I have said, or whether there was a family unit when she left and a family life to be interfered with here.
49. In my judgment the evidence as to that was very unsatisfactory and the adjudicator was indeed wrong to take the view that he did without considering in far greater depth and analysing the true position as to the existence of any family unit and a family life in all the circumstances. Had he done that, and had he done that without his judgment being clouded by his views about the inadequacies of the entry clearance officer's determination, it may well be that he would have come to a different conclusion. There were, as I have indicated, some very serious discrepancies in the accounts given from time to time by the sponsor and there were the discrepancies arising from the interviews. True it is that the matters referred to by the sponsor were not specifically drawn to the adjudicator's or indeed the Tribunal's attention as far as one can see, although they were there and were apparent if the various statements had been looked at and considered in the course of the hearings.
50. The question I have to ask myself is whether it has been established that the Tribunal erred in law in overturning the adjudicator's decision and in remitting the matter for reconsideration by another adjudicator. I bear in mind of course the submissions made and the need to respect findings of fact made by adjudicators unless the Tribunal is satisfied that they were wrong.
51. It seems to me that this Tribunal was quite entitled in the circumstances to be so satisfied, and more importantly to be satisfied that the adjudicator had not properly considered all the necessary matters before deciding that Article 8 and the reunion policy required that an entry clearance be granted. It is just possible that on a very favourable view of the evidence given and a decision which is wholly in favour of the claimant's and sponsor's account that an entry clearance might be granted, but it must be borne in mind that Parliament has set out in the policy and in the Rules the requirements which it feels are necessary in order to entitle there to be entry into this country.
52. An immigration policy is something which can be established under Article 8.2 as a defence to a breach which otherwise might exist by interference. The standards to be adopted are those set down by Parliament and by the policy in question.
53. So far as the Rules are concerned the threshold is that set out in 317 and is a high one, but that is what Parliament has decided and it will be unusual, in my judgment, for a person who does not qualify under that to be able to say that Article 8 has been breached. That is unless there is a lesser hurdle that that person may have to overcome and that lesser hurdle may exist in the form of the refugee policy. The hurdle there is not as high as that in Rule 317, because the compassionate circumstances do not have to be exceptional. Nonetheless, those circumstances do have to exist and furthermore there has to have been the family unit when the sponsor sought asylum. And delay is, as it seems to me, clearly a material factor because what is anticipated is that if there is a family unit it is that family unit that will or should be retained and that would normally happen by an application so soon as refugee status had been achieved because the refugee would want to bring his or her family to live with him or her in this country. It is not, on the face of it, normally appropriate to wait for a number of years and then rely upon the family policy. I am not saying it cannot be done, but it seems to me that it is a factor which the authorities are entitled to take into account. Again, that policy is a reflection of what the Secretary of State considers to be appropriate. It seems to me that there is little scope for Article 8 beyond either the Rules or the policy unless of course there are special circumstances in any given case.
54. In those circumstances it seems to me that this is a decision by the Tribunal which does not show any error of law and this claim is therefore dismissed.
55. MR TOAL: My Lord, may I have leave to appeal against that decision?
56. MR JUSTICE COLLINS: No, you may not. You will have to try the Court of Appeal if you want leave. It seems to me that this is a matter which depends largely on its own facts.
57. MR TOAL: And, my Lord, may I also ask for a detailed assessment of the claimant's costs.
58. MR JUSTICE COLLINS: Yes, of course, you can certainly have that.
59. MR TOAL: Thank you.