DR (ECO: post-decision evidence)  Morocco*  [2005] UKIAT 00038

								
					
IMMIGRATION APPEAL TRIBUNAL

Date:  10 January 2005
Date Determination notified:
	09/02/2005

Before:

The Honourable Mr Justice Ouseley (President)
Mr D K Allen (Vice President)
Mr R A McKee

Between:

APPELLANT

and

Entry Clearance Officer, Casablanca
	RESPONDENT

Appearances:	
For the Appellant:	Mr N Klear of Simmons Solicitors 
For the Respondent:	Ms L Saunders, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	This appeal raises a short, but important, issue as to the effect of section 85(4) and (5) of the Nationality, Immigration and Asylum Act 2002 on the evidence which can be admitted on an appeal from the decision of an Entry Clearance Officer.  It is an appeal against the determination of an Adjudicator, Mr P M S Mitchell, promulgated on 23 March 2004, whereby he dismissed the Appellant’s appeal against the Entry Clearance Officer’s decision to refuse him entry clearance for settlement as the spouse of the sponsor under paragraph 281 of the Immigration Rules.  The Entry Clearance Officer’s decision was made on 1 May 2003;  he was not satisfied that the Appellant and his wife intended to live together as husband and wife.
2.	
The Adjudicator said of section 85:

“7.	I can only take into account facts in existence at the date of the Respondent’s decision, or which were then in reasonable contemplation. 

8.	By virtue of Section 85(4) and (5) of the Nationality, Immigration and Asylum Act 2002, I am constrained from taking into account facts arising after the Respondent’s Decision.  This is a specific exclusion for all immigration decisions as defined in section 82(1) of the same Act.  It seems that Parliaments has expressly stopped the previously accepted practise of allowing adjudicators to consider matters that arose within a short period of the time of decision and could have been in reasonable contemplation of the decision maker.  This constraint applies to all human rights issues, except for those under Article 3.”

3.	Taking the evidence before the Entry Clearance Officer, the Adjudicator said that the Entry Clearance Officer had analysed it soundly, and had properly concluded that the evidence of the relationship and continuing devotion was very limited.  He continued:

“19.	The lack of contact from the time that they met until the time they married is most surprising.  It is an almost inevitable conclusion that the marriage was not a real one and that there were other motives for the marriage and the application before the ECO.

22.	Having considered all the evidence that was available to the ECO I agree with his assessment that at the time of the decision that there was no evidence that the marriage was genuine and subsisting at the appropriate standard.  I am satisfied having seen the wedding photographs that they did go through a genuine marriage ceremony though.”

4.	The Adjudicator did, however, consider evidence which had not been and could not have been before the Entry Clearance Officer.  This consisted of a constant stream of subsequent communication, evidenced by telephone bills.  He said that he could not take it into account:

“18.	None of it was foreseeable at the time of the decision.  If I could I would be satisfied that there was evidence of a continuing and subsisting relationship between the appellant and his wife.”

5.	The grounds of appeal drafted by the IAS and the basis upon which permission was granted related to the effect of section 85 of the 2002 Act on this type of evidence.

6.	Mr Klear, who appeared for the Appellant before us, seemed unwilling to pursue the argument along those lines and Ms Saunders was, for a brief while, content that she could agree that seeming concession.  The Tribunal did not feel that the issue was so open and short, and pressed Ms Saunders on a number of points.

7.	Before we deal with the ground of appeal as drafted by the IAS and which, pace Mr Klear is not obviously a lost cause, we should briefly refer to his argument, as best we understood it.  We do so even though he did not have permission to argue it but, in a way which we could not follow, he said that they were related to section 85.

8.	The Adjudicator was correct to ignore the evidence of the communications but had erred in upholding the Entry Clearance Officer’s decision when the Entry Clearance Officer had mistakenly said that the sponsor had not been granted entry clearance as the wife of her then husband.  This error infected the Adjudicator’s conclusions.

9.	We reject that.  The mistake was put right before the Adjudicator.  Nothing in his decision perpetuates it.  He would have been wrong to allow the appeal and remit it on that sole basis.

10.	It was also said that the Adjudicator was wrong to support the Entry Clearance Officer’s inference that there was no intention to live together based on their lack of contact, because coming from a Muslim country, they could not have lived together before marriage.  There is nothing in this point either.  It was not prior co-habitation but the minimal prior contact despite the opportunities, and the minimal knowledge of his new wife which troubled the Entry Clearance Officer and Adjudicator.  Besides, gross generalisations about life in Morocco, drawing solely from an advocate’s say so is about as unpersuasive as can be imagined.

11.	We now turn to the real issue in this appeal.  First, the statutory provisions.  Section 85(4) and (5) of the 2002 Act provide:

“(4)	On an appeal under section 82(1) or 83(2) against a decision an adjudicator may consider evidence about any matter which he 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.”

This appeal was brought under the 2002 Act.

12.	It is also relevant to look at the provisions in section 77(3) and (4) of the Immigration and Asylum Act 1999.  This provided:

“(3)	In considering-
(a)	any ground mentioned in section 69, or
(b)	any question relating to the appellant’s rights under Article 3 of the Human Rights Convention
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).
(4)	In considering any other ground, the appellate authority may take into account only evidence-
(a)	which was available to the Secretary of State at the time when the decision appealed against was taken;  or
(b)	which relates to relevant facts as at that date.”

13.	Ms Saunders pointed out correctly that this was not the predecessor provision so far as entry clearance decisions were concerned.  But that point does not take her very far.  It was the predecessor language used by Parliament in drawing the distinction, where it applied, between certain appeals or grounds of appeal where the Adjudicator could look at evidence or events (however described) post-dating the Executive’s decision and where he could not.  So it applied to appeals against refusals of leave to enter or remain on non-asylum or human rights grounds.

14.	We note in passing that it was the interpretation of section 77(4) and the apparent non-application of it to non-Article 3 ECHR cases which led to the decision in SK [2002] UKIAT 05613.  This is reflected in section 85(4).  The Adjudicator who referred to an appeal under the 1999 Act and to the limit on non-Article 3 grounds appears to have overlooked that decision.  But it is an irrelevant error.

15.	The position so far as evidence of post-decision events in entry clearance cases before the 2002 Act was set out in Kotecha [1982] Imm AR 88.  This held that because the jurisdiction when exercised by the Administrative Court was a review jurisdiction, the Court was limited to an examination of the lawfulness of the decision on the material before the Entry Clearance Officer, or as the law developed, which showed what the position or state of affairs was at that date.  The earlier statutory provision of section 19(2) and (4) of the Immigration Act 1971, which enabled the Adjudicator and Tribunal to review the determination of any question of fact upon which the decision was based, had to be applied in the light of Kotecha.  

16.	This was the approach adopted by the Tribunal.  One issue, which arose particularly in primary purpose marriage cases, was whether evidence of what was called “intervening devotion” between the date of the Entry Clearance Officer decision and the appeal could be admitted.  It became the practice to admit such evidence where it could be said to illuminate what the actual state of affairs had been at the time of the Entry Clearance Officer’s decision – casting “a flood of light” on the true position.  The cases so holding are not very explicit as to the reasoning but an example is Patel [1986] Imm AR 440.

17.	The Tribunal also developed the practice of permitting evidence of post-Entry Clearance Officer decision events if they were reasonably foreseeable at that time, and a period of six months came to be used as the limit of reasonable foreseeability, probably because that was the period during which entry could be gained following the grant of clearance.

18.	Ms Saunders referred us to a 1992 Tribunal decision, ECO (Islamabad v Yousaf TH/19930/90, in which the question of maintenance without recourse to public funds was at issue.  It said:

“In an ‘on entry’ case the criterion is whether the requirements will be met on the admission of the applicant and not whether they are met at the date of decision – as a general rule at a date not later than 6 months after the decision, that being the normal period of validity of an entry clearance.”

19.	This illustrated, she said, the historic rationale for the Tribunal’s acceptance that an Adjudicator could look at post-decision evidence of what had then been reasonably foreseeable.  Yet the justification for that had been removed by the Immigration (Leave to Enter and Remain) Order 2000 SI No 1161 where the entry clearance decision operated as the grant of leave to enter.

20.	This practice reflected an argument accepted by Glidewell J in R v IAT ex parte Kwok on Tong [1981] Imm AR 214 and referred to in Kotecha, to the effect that where a relevant requirement of the Immigration Rules was that a future event or condition be “likely”, evidence about what subsequently happened was admissible because it showed what was “likely” at the date of decision.

21.	Ms Saunders submitted that the purpose of the change in the 2002 Act was to eliminate evidence of post-decision events, where they were reasonably foreseeable at that date.  In effect, she saw that as also covering subsequent material which illuminated the position as at that date.

Conclusions

22.	First, the provisions of section 85(5) include both the disapplication of subsection (4) and the positive requirement only to consider the “circumstances appertaining” at the date of refusal.  The disapplication of subsection (4) excludes “evidence which concerns a matter arising” after that, (rather than the whole of subsection (4) as a literal interpretation might require).  There is thus a contrast between “circumstances appertaining” at the date of decision and “a matter arising” after that date.  (Pedantry would suggest “circumstances obtaining at” whereas “circumstances appertain to”.)

23.	Second, the 2002 Act does not simply exclude evidence about everything which may have happened after the date of decision, which it could have done.  We do not consider that that is the effect of considering “only the circumstances [then] appertaining”.  Subsection (4) contains a distinction between “evidence” and “a matter arising”.  What is excluded is not “evidence arising” after the relevant date.

24.	Third, the purpose of that language is to achieve a different and markedly more restrictive result than that yielded by section 77(4) of the 1999 Act, which refers to the inclusion of evidence “which relates to relevant facts as at that date”.  This latter phrase was clearly broad enough to cover evidence of subsequent events which confirmed what was predicted or foreseen at the date of decision, such as obtaining the predicted job or student place, or accommodation.  It was broad enough to cover subsequent events which illuminate the facts as at that date.

25.	This case provides an example of the distinction within subsection (5).  There was an issue about whether at the time of the decision, the couple intended to live together as man and wife.  In the language of the statute, did the circumstances appertaining at the date of decision include that intention.  Evidence that those were then the circumstances can be provided by subsequent actions which cast light upon what the position then was.  This is not the same as evidence which shows that the position has subsequently changed and that there now is an intention which previously was lacking.  Evidence about a subsequent change in intention is clearly excluded.

26.	Such evidence comes within the positive language of section 85(5)(b).  It is not excluded by (5)(a) because the existence of the relevant intention as at the date of decision is not “a matter arising” after that date.  The evidence of telephone communications and letters after that date is not “evidence which concerns a matter arising after the date of the decision”;  it is evidence which concerns a matter arising at the date of decision.  This illustrates the distinction contained in subsection (4) and hence in (5) between “evidence” and the “matter arising” which it evidences.  There is no simple exclusion of evidence arising after the relevant date.  If it had been intended to exclude all evidence about anything which happened after the relevant date, it would have be simple enough to say so.

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.

29.	Applying those considerations to the instant case, the Adjudicator dealt unnecessarily with whether the degree of communication was foreseeable.  His conclusion that it was not does not affect the application of section 85(5) as we see;  it is simply irrelevant as a means of admitting or excluding evidence.  However, he does conclude that it shows “a continuing and subsisting relationship”.  We think that he means by that that the later evidence satisfied him that as at the date of the Entry Clearance Officer’s decision, the couple did indeed genuinely intend to live together as husband and wife, rather than that they first only intended to do so after being refused entry clearance.

30.	Accordingly, taking the view of the law which we do, and differing from the Adjudicator’s approach, but taking his view of the now admissible evidence, the Appellant satisfies the Rules.
31.	
This appeal is allowed under the Immigration Rules;  we direct that entry clearance be granted.  The human rights appeal does not therefore arise.  It is starred for what we say about section 85.

MR JUSTICE OUSELEY
PRESIDENT