United Kingdom Asylum and Immigration Tribunal

JE (Procedure – Scope of evidence – Guidance) Philippines [2004] UKIAT 00237

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 26 July 2004

Date Determination notified: 19 August 2004

Before
Mr J Barnes (Vice President) Mr P Bompas Mr M J Griffiths
Between

 

JE	APPELLANT
and
Entry Clearance Officer - Manila	RESPONDENT

For the appellant: Ms N Adesemowo of Adesemowo, Solicitors For the respondent: Mr D W Saville, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of the Philippines who was born on 27 July 1986. On 27 March 2002 he made an application for entry clearance for settlement as the child of his mother who has indefinite leave to remain in the United Kingdom and is settled here with her husband, who is not the father of the appellant. On 15 May 2002 that application was refused by the respondent because he was not satisfied that the mother, who was his sponsor, had had sole responsibility for his upbringing or that there were other serious and compelling family or other considerations which would make his exclusion from the United Kingdom undesirable.
2. He appealed against that decision and his appeal was heard on 30 June 2003 by an Adjudicator, Ms J Balloch, who dismissed his appeal on the basis that she was not satisfied that the sponsor had had sole control of his upbringing in accordance with the requirements of the Immigration Rules. She did not go on to make findings under the other relevant sub-section of the rules and for that reason her findings would be unsustainable in any event. But there is a more fundamental error which has been made by the Adjudicator as to the scope of the evidential enquiry which she is required to make in considering such immigration appeals. At paragraph 14 of her determination she says this:

"In determining this appeal I am mindful that I am restricted to taking into account only the facts and information that were before the Entry Clearance Officer at the date of the decision".

3. In that statement she is fundamentally wrong and we wish to state this quite clearly for the guidance of Adjudicators because it is not the first occasion that the Tribunal has recently seen such an error. The true position is set out in MacDonald's Immigration Law and Practice 5^th Edition at paragraph 18.78 in the following terms:

"In order to reach a decision whether or not to allow an appeal under the Immigration and Asylum Act 1999, Schedule 4, paragraph 21, Adjudicators can review any determination of a question of fact on which decision or act was based. This means that as far as questions of fact are concerned Adjudicators are not confined to the evidence which was before the Immigration Authority when they reached their decision or took action but they can consider all the evidence including any further evidence found since the decision was taken. In doing so, Adjudicators and the Tribunal perform a different function from that of the High Court either on judicial review or when dealing with statutory appeals where the Court is confined to the material which the Minister or other body had before them. In immigration appeals the Appellate Authority goes into the facts again and can correct factual errors made by the Immigration Authority and hear of facts which were unknown to the decision maker". [Our emphasis]

4. That paragraph contains further useful guidance but the part which we have set out above makes the point which we are anxious to have made for the benefit of Adjudicators as to the scope of evidence with which they are concerned in immigration appeals.
5. The reference to the Immigration and Asylum Act 1999 is now of course out of date for those decisions taken on or after 1 April 2003 which will be governed by the Nationality Immigration and Asylum Act 2002, but section 85(5) of that Act preserves the distinction to which we have referred above as to the date for consideration of evidence and the scope of that evidence is as we have set out in the passage which we have quoted.
6. For the above reasons, this appeal is allowed to the extent that it is remitted for hearing afresh before an Adjudicator other than Ms J Balloch.

J Barnes

Vice President