United Kingdom Asylum and Immigration Tribunal

 


DM (Evidence not relied on before ECO) Zimbabwe [2005] UKAIT 00130

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 6 September 2005

Date Determination notified: 14 September, 2005

Before
Mr G Warr (Senior Immigration Judge) Mr T B Davey Mrs W Jordan
Between

DM	APPELLANT
and
ENTRY CLEARANCE OFFICER – HARARE	RESPONDENT

For the Appellant: No appearance For the Respondent: Mr B Montilla, Home Office Presenting Officer
DETERMINATION AND REASONS

This case deals with cases where evidence emerges after the decision relating to matters which were not put to the Entry Clearance Officer and also covers the need to focus on the intentions of the appellant (rather than the sponsor).

1. The respondent appealed the determination of an Adjudicator (Mr Grant D Birt) who allowed the appeal of a citizen of Zimbabwe from the decision of the Entry Clearance Officer to refuse his application for a family visit visa. By virtue of the Transitional Provisions the grant of permission to appeal takes effect as an order to the Tribunal to reconsider the decision of the Adjudicator.
2. The decision under appeal was taken on 30 December 2003. The appellant wished to visit his mother-in-law in the United Kingdom. The Entry Clearance Officer was satisfied that the appellant would be adequately maintained and accommodated in the United Kingdom by her. In the refusal notice he stated that he recognised the importance of maintaining family ties and furthermore he did not question that the appellant's sponsor might well be a credible witness whose credentials and bona fides are not in doubt. The refusal notice continued that there was no evidence to demonstrate that the appellant and his mother-in-law were related as claimed but this aspect of the refusal was not maintained following receipt of the grounds of appeal. It was stated that there was no evidence to demonstrate that either the appellant's wife or his children would be accompanying the appellant and the Entry Clearance Officer did not "find it credible that your mother-in-law would sponsor you and not her own daughter".
3. The Entry Clearance Officer noted that the appellant was married with four dependent children in Zimbabwe and was currently employed with a modest income and with only a small amount of personal savings. The appellant had not demonstrated, in the view of the Entry Clearance Officer, sufficiently strong family, social or economic ties to satisfy the Entry Clearance Officer that he intended to leave the United Kingdom on completion of his visit.
4. In the notice of appeal the appellant said his wife was staying in Harare because the children were going back to school and she had to look after them.
5. At the hearing before the Adjudicator the sponsor gave evidence and gave the reason for her son-in-law's visit. During the 1990s she had purchased a mini bus for the family and had arranged for it to be shipped to Zimbabwe. In April 2004 when she had visited her family in Zimbabwe she had noted that the engine in the mini bus was worn out and a new one was required. As she knew nothing about engines her son-in-law would assist her in purchasing an engine in the United Kingdom. This could be taken back by way of cargo to Zimbabwe. It was accepted that the appellant had not mentioned any of this to the Entry Clearance Officer when he made his application.
6. The Adjudicator found that the appellant had his wife and children in Harare and had good employment. It was natural that the sponsor would want guidance in relation to the type of engine to be purchased for the mini bus and could not be expected to do it herself. The appellant had sufficient money to make the journey and his mother-in-law would look after him and he would return with the engine. The Adjudicator was satisfied that the appellant was a genuine visitor and allowed the appeal.
7. In the grounds of appeal the Entry Clearance Officer argued that the Adjudicator had erred in law by not properly assessing the appellant's intentions based on the evidence given by the appellant at the date of decision. The Adjudicator could not properly assess the appellant's intentions on the basis of a reason the appellant had not given to the Entry Clearance Officer. Reliance was placed on ECO v Kumar [1978] Imm AR 185.
8. Mr Montilla relied on these grounds. The Adjudicator had erred in finding in the appellant's favour as to his intention solely on the basis of what the sponsor had told him at the hearing. The Adjudicator had not referred to the intentions of the appellant. Reference was made to the letter of invitation from the sponsor dated 27 October 2003 inviting the appellant over for Christmas.
9. Although the appellant himself was not represented, he had filed submissions which were received on 30 August 2005. It was submitted that the Adjudicator had not erred in admitting the evidence from the sponsor. The space provided for on the form of application was not enough to enable the appellant to specify and particularise all the reasons for an intended visit. The Adjudicator had found that the appellant was a genuine visitor from the information supplied by both the appellant and the sponsor. It was proper for the appellant to take the evidence before him in its totality. A copy of these submissions was made available to Mr Montilla at the hearing.
10. At the conclusion of the submissions we reserved our determination.
11. We note that this is not a case in which any record of interview is supplied with the papers. There are some manuscript notes on the back of the application form. There is no record of any questions and answers between the Entry Clearance Officer and the appellant. In the invitation letter dated 27 October 2003 the sponsor states that she had not seen the appellant for a very long time and she would like him to come for the Christmas holidays. She would send him the money for the ticket. It is the sponsor's case that his last visit was in 1986 although his passport covering that period had been stolen. As we have mentioned, the Entry Clearance Officer had originally had doubts about the relationship but that aspect of the refusal was withdrawn. Indeed it was expressly conceded throughout that the credibility of the sponsor was not in issue.
12. The question of the wife and children not accompanying the appellant was explained by the fact that the children needed to attend school. The objection taken by the Entry Clearance Officer to the fact that neither the appellant's wife nor his children would be accompanying him to the United Kingdom sits uneasily with the objection taken that he had not sufficiently strong family ties to ensure his return.
13. The Adjudicator was plainly impressed by the evidence of the sponsor. Indeed, as we have said, her credibility and bona fides were not in issue. The sponsor had visited the family in Zimbabwe in April 2004 and had noted that the mini bus engine needed replacing. The appellant was to visit her over the Christmas holidays and return with the engine. The objection in a nutshell is that the business of purchasing the engine was not mentioned at interview. The appellant was going to see his mother-in-law over the Christmas holidays.
14. In ground 1 of the grounds of appeal the Adjudicator is criticised for not properly assessing the appellant's intentions "based on the evidence given by the appellant at the date of decision". As we have pointed out, there is no record of any interview with the appellant. Certainly there is no suggestion that he lied at any time. It was said that the Adjudicator could not properly assess the appellant's intentions on the basis of a reason the appellant had not given to the Entry Clearance Officer and reliance is placed on the case of Kumar which we have cited above. In that case a distinction was drawn between an unreported case (Mangat Singh TH/7840/76 (941)) where an Adjudicator had erred because he had focused on the question of the sponsor's intentions. The sponsor's intention had been to ensure that the appellant would leave and that the appellant would comply. In the case of Abdul Sattar TH/9837/76 (1107), on the other hand, the appeal had been properly allowed upon the evidence of the intentions of the appellant after weighing up relevant matters. In the case of Kumar the Adjudicator had found that the appellant's intentions gave rise to concern and he had resolved that concern in the appellant's favour because he had accepted the undertakings given by the sponsor.
15. We find that this appeal is a different type of case from the case of Kumar. The Adjudicator clearly had in mind the intentions of the appellant. He noted that the appellant had his wife and children in Harare and was in good employment. He took into account the fact that the sponsor would want guidance in relation to the type of engine to be purchased for the mini bus and could not be expected to do this herself. He added "the appellant has sufficient money to make the journey, his mother-in-law would look after him and he would return with the engine". We do not read Kumar as supporting the proposition that an immigration judge cannot independently assess the question of an appellant's intention on the basis of material furnished after the decision where that material relates to the appellant's intention at the date of decision: see DR[2005] UKIAT 00038. Clearly where evidence emerges after the decision going to the appellant's intentions there may be credibility issues. The immigration judge will no doubt wish to investigate why the matter was not mentioned before. He will, moreover, not have the advantage of an Entry Clearance Officer who will normally have interviewed the appellant and who will arguably be better placed to take into account local circumstances. However, the bald proposition that it is not open to a judge to take into account such evidence is not made good on the arguments addressed to us.
16. The Adjudicator gave sufficient reasons for his conclusion that he was satisfied that the appellant was a genuine visitor. We do not consider that the Adjudicator fell into the trap of focusing solely on the question of the intentions of the sponsor.
17. The Adjudicator felt that had the appellant been more open with the respondent the Entry Clearance Officer would have allowed the application himself. We are not sure that any criticism can be levelled at the appellant in this matter. There is no evidence of any questions put to him at interview or his answers. He was going to England to see his mother-in-law for Christmas and it would hardly be surprising if he returned to Zimbabwe without a present for the family from his mother-in-law, generous, practical and unusual though that present might be. The appellant had nothing to conceal in this case. The purpose of the visit was clear and transparent. It was perfectly open to the Adjudicator to find that the appellant was a genuine visitor who would return to Zimbabwe with the mini bus engine.
18. The Adjudicator's determination contains no material error of law and we order that the Adjudicator's determination shall stand.

G Warr

Senior Immigration Judge

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