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GULHAM SAGRA FOR JUDICIAL REVIEW [2022] ScotCS CSOH_71 (15 September 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSOH_71.html
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[2022] CSOH 71,
[2022] ScotCS CSOH_71
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 71
P383/22
OPINION OF LORD ERICHT
delivered ex tempore
In Petition of
GHULAM SUGHRA
Petitioner
for
Judicial Review
Petitioner: S Winter; Drummond Miller LLP
Respondent: G Maciver; Office of the Advocate General
15 September 2022
The circumstances of the case
[1]
The petitioner, who lives in Pakistan, wishes to visit her daughter and her family in
Glasgow for a period of around 2 months. On 8 March 2022 the respondent's Entry Clearance
Officer ("ECO") refused her application for a visitor visa. The ECO was satisfied that the
petitioner's sponsor was in a position to pay for her maintenance and accommodation whilst
in the UK and took that into account.
[2]
However, the ECO was not satisfied of the petitioner's intention to leave the UK on
completion of the visit. The reasons for this were set out in the decision letter as follows:
"you state you are retired and reside with and are supported by your sons in your
home country, however the documents you have submitted do not demonstrate this.
2
You state that you spend £80 (PKR 18,742.60) per month and are planning on
personal spending £100 (PKR 23,428.30) during your visit, however the documents
you have submitted do not demonstrate that you are able to do this. Which leads me
to doubt your circumstances and therefore the credibility of your application.
I have considered the documents and information you have provided about your
personal and economic circumstances. However, I have noted that you declared
that you have no savings, properties or other income; you intend to travel to the UK
to see your immediate family, leaving behind no dependents. Therefore I am not
satisfied that you have substantial ties outside of the UK to ensure you will leave
at the end of your proposed visit. On balance of probabilities I am therefore not
satisfied that you are genuinely seeking entry as a visitor or will leave the UK after a
limited period. Refused under paragraphs V4.2(a) (c) of the Immigration Rules."
[3]
The paragraphs of the Immigration Rules under which the application was refused
are as follows:
"V4.2. The applicant must satisfy the decision maker that they are a genuine visitor,
which means the applicant:
(a) will leave the UK at the end of their visit; and...
(c) is genuinely seeking entry or stay for a purpose that is permitted under the
Visitor route as set out in Appendix Visitor: Permitted Activities and at V 13.3;"
Submissions for the petitioner
[4]
Counsel for the petitioner submitted that the informed reader was left in real and
substantial doubt as to the relevance of the ECO not being satisfied that the petitioner has
substantial ties in Pakistan or not being satisfied of the petitioner's financial circumstances
or other reasons when the sponsor's credibility/reliability is not challenged. Although the
ECO questions the lack of documentary evidence to support certain aspects, there were no
credibility or reliability issues raised as regards the sponsor's evidence. The sponsor's
statement was part of the documentary evidence. The sponsor's statement demonstrated
that the petitioner was retired, who she resided with and who supported her. The sponsor's
evidence demonstrated that the petitioner would be financially supported. The sponsor's
3
statement indicated that the petitioner had substantial ties outside the UK. In light of that
the ECO still required to explain, albeit briefly, the relevance of the findings when there
was no challenge to the credibility or reliability of the sponsor and the information given by
the sponsor. Fairness requires that adequate reasons be given. The decision is of important
significance to the petitioner as it potentially adversely affects her position in terms of any
future applications to be made, where a previous refusal could be held against her. The
petitioner will be left with the sense that she has not been treated fairly (HLW (China) v
Secretary of State for the Home Department, Ptr [2012] CSOH 159 at paragraphs 42-54 per
Lord Kinclaven).
Submissions for the respondent
[5]
Counsel for the respondent submitted that the essence of the dispute was that the
Secretary of State relied upon one part of the sponsor's statement regarding maintenance
in the UK, but not the other part regarding circumstances in Pakistan. The question for
the court was whether that approach was legitimate and adequately reasoned. It should
be assumed that the decision maker had taken the whole of the evidence into consideration
of reasoning. The respondent placed reliance on the absence of documents to demonstrate
residence with and support by sons in Pakistan, and on the absence of documents to
demonstrate means. The sponsor's statement had been accepted insofar as it bears upon
matters connected to the sponsor; whereas for other matters, the petitioner's failure to
adduce direct documentary evidence is considered more important. The respondent was
not satisfied of ties to Pakistan, because there was insufficient documentary evidence to
prove residence and maintenance links to Pakistan. The petitioner cannot be in any doubt as
4
to why her application failed. The sponsor's statemen t was good enough for matters which
are directly the business of the sponsor; for matters which are other people's direct business,
the absence of direct material was more significant. The reason for its failure is not
complicated or difficult to understand. The test in Wordie Property Co Ltd v Secretary of State
for Scotland 1948 SLT 345 was met. It was the applicant's responsibility to provide sufficient
Analysis and decision
[6]
The question for me in this case is whether the decision of the ECO
"leave[s] the informed reader and the court in no real and substantial doubt as
to what the reasons for it were and what were the material considerations which
were taken into account in reaching it" (Wordie Property Co Ltd v Secretary of State
for Scotland 1948 SLT 345 at 348).
[7]
The ECO decided that he was not satisfied that the petitioner was a genuine visitor,
which means that the petitioner (a) will leave the UK at the end of the visit and (c) is
genuinely seeking entry or stay for a purpose that is permitted under the visitor route
(paragraph V4.2(a) and (c)).
[8]
The nub of the dispute between the parties was the following passage in the decision:
"You state that you are retired and are supported by your sons in your home country,
however the documents you have submitted do not demonstrate this".
[9]
The difficulty with that passage is that there was a document submitted by the
petitioner which contained evidence of these matters, namely the statutory declaration by
the sponsor. The sponsor is someone who could be expected to have knowledge of these
matters as she was a family member of the petitioner, being the mother-in-law of the
petitioner's son.
5
[10]
The statutory declaration by the sponsor stated:
"The applicant's family ties in Pakistan
10
[The petitioner's] husband passed away, and she lives with her sons in their
family home. The applicant has three sons and a daughter from the wedlock.
Tariq Masood [ie the sponsor's son-in-law] is the oldest and Sharoz Masood is the
youngest son. Sidra Masood is the applicant's daughter. The applicant's family ties
are stronger in Pakistan than in the UK .....
14
The applicant lives in her husband's ancestral village and knows everyone
living there, which is the distinguished feature of the closely connected rural
community.....The applicant depends on her sons for financial support...
15
The applicant lives a simple life in a village, and being part of a larger family,
her needs are modest, unlike our living needs in the UK"
[11]
The ECO does not explain why he has rejected the evidence in the statutory
declaration as to the applicant's family ties in Pakistan. That leaves us in real and
substantial doubt as to the reason why the ECO has come to the decision which he did.
[12]
Is the reason simply that he has not taken into account the evidence in the statutory
declaration as to family ties to Pakistan? That is one possible interpretation of the passage
set out above. If so, it may be that that might found a challenge to his decision on the
ground that he failed to take into account a material factor. I take no view as to whether
such a challenge might succeed: the point is that as the petitioner does not know whether
that is the reason, she cannot bring such a challenge.
[13]
Is the reason that he has taken that evidence into account, but has not expressly
mentioned it? If so, in what way did he take it into account and why did he reject it?
[14]
Is the reason that the ECO took that evidence into account but found that it was
outweighed by the lack of any other documentary evidence?
[15]
Is the reason that the ECO has taken the view that there are discrepancies between
the evidence in the declaration and the Entry Clearance Application Form in respect of
6
spending £80 a month and £100 a month during the visit? If so why has the ECO resolved
the discrepancies against the sponsor?
[16]
Is the reason that the ECO has accepted the evidence of the sponsor in part, and
found it to be credible and reliable in respect of payment by the sponsor for her maintenance
and accommodation in the UK but not credible and reliable in relation to the family ties in
Pakistan?
[17]
We simply do know what the reason for rejecting the sponsor's evidence was, and it
is inappropriate for the court to speculate as to whether it was one of the reasons suggested
above, or indeed some other reason.
[18]
The petitioner is entitled to a clear statement of the reasons for rejection of the
evidence. The evidence goes to the central issue which had to be decided by the ECO, which
was whether the petitioner's life and family ties in Pakistan were such that the petitioner
would leave the UK at the end of the visit. Without a clear statement of the reasons, the
petitioner is unable to properly assess whether she has any potential remedies against the
substance of the decision.
Order
[19]
I shall uphold the petitioner's second plea-in-law quoad the decision of 8 March 2022
and repel the respondent's pleas-in-law and grant reduction of the Entry Clearance Office
decision of 8 March 2022.
