United Kingdom Asylum and Immigration Tribunal

YZ and LX (effect of section 85(4) – 2002 Act) China [2005] UKAIT 00157

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 1 November 2005

Date Determination notified: 15 November 2005

Before
The Honourable Mr Justice Hodge, OBE, President Mr L V Waumsley (Senior Immigration Judge) Professor A Grubb (Senior Immigration Judge)
Between

YZ and LX	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellants: No appearance For the respondent: Mr A Blundell, Home Office Presenting Officer.
DETERMINATION AND REASONS

Further guidance as to the effect on section 85(4) of the Nationality, Immigration and Asylum Act 2002 in relation to changes of circumstances occurring after the date of the Secretary of State's decision but prior to the date of hearing before an Immigration Judge. Appellants seeking to rely upon a different sub-paragraph within the same paragraph of the Immigration Rules. LS (post-decision evidence; directions; appealability) Gambia [2005] UKIAT 00085 applied

1. The appellants, who are both citizens of the People's Republic of China, have appealed with permission against the determination of an Immigration Judge (Mr W Scobbie), sitting in Glasgow, in which he dismissed their respective appeals on both immigration and human rights grounds against the respondent's decision to refuse their applications for leave to remain in the United Kingdom as dependant relatives of their daughter. By virtue of Article 5(1) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, the appeal now takes effect as a reconsideration pursuant to Article 5(2) of that Order.

Hearing in absence of appellants

2. The appellants did not appear at the hearing before us, either in person or by their representative. We have read a copy of the notice of hearing which was sent to the appellants and their solicitors on 24 August 2005. It complies with the requirements of rule 46(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. No explanation having been furnished by the appellants for their failure to appear before us, we proceeded with the hearing in their absence in accordance with rule 19(1) of those rules.

Background

3. The appellants, who are husband and wife, both arrived in the United Kingdom on 5 August 2003 when they were granted leave to enter as visitors for a period of six months. On 4 February 2004, they applied to the respondent for leave to remain as the dependent parents of their daughter, who was present and settled in the United Kingdom, and is now a British citizen. Their applications were refused by the respondent on 19 February 2004.
4. The appellants then exercised the right to appeal to an Adjudicator against the respondent's decision. This is the appeal which came before Mr W Scobbie on 29 November 2004. In his determination, which was promulgated on 14 December 2004, he dismissed the appeal on both immigration and human rights grounds.

Permission to appeal

5. The appellants then sought permission to appeal to the former Immigration Appeal Tribunal. They applied to do so on a number of grounds. Their application for permission to appeal was determined by a Vice President (Mr P King) on 21 March 2005. He granted permission to appeal on one ground only, which he described in his grant of permission as the "age issue", namely the fact (which is not in dispute between the parties) that at the date of the respondent's decision to refuse the appellants' applications, both appellants were under the age of 65. However, by the date of the hearing before the Adjudicator, the first appellant was over 65.

Issues for reconsideration

6. It is not in dispute between the parties that both appellants satisfied, and still satisfy, all the requirements for leave to remain in the United Kingdom as dependent relatives as set out in paragraph 317 of the Statement of Changes in Immigration Rules (HC 395) as amended, apart from sub-paragraph (i) of that paragraph. The only issue before us is therefore whether the appellants were, or are, also in a position to satisfy the requirements of sub-paragraph (i) at the material date, whatever that date is. It is therefore necessary to set out the relevant part of paragraph 317 as follows:

"317. The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:

(i) is related to a person present and settled in the United Kingdom in one of the following ways:

(a) mother or grandmother who is a widow aged 65 years or over; or

(b) father or grandfather who is a widower aged 65 years or over; or

(c) parents or grandparents travelling together of whom at least one is aged 65 or over; or

(d) a parent or grandparent aged 65 or over who is remarried but cannot look to the spouse or children of the second marriage for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or child of the second marriage who would be admissible as a dependant; or

(e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or

(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom."

7. It is not in dispute between the parties that, as at the date of decision, both appellants were under the age of 65, albeit in the first appellant's case by less than two weeks. Likewise, it is not in dispute that, at the date of the hearing before the Adjudicator, the first appellant was over 65. The issue before us is therefore whether the appellants are entitled to succeed on the basis that, although they were unable to satisfy the requirements of paragraph 317 at the date of decision, nevertheless they were able to do so at the date of the hearing. This is an issue which falls to be considered in light of the provisions of Sections 85(4) and (5) of the Nationality, Immigration and Asylum Act 2002 as amended which read as follows:

"85(4) On an appeal under Section 82(1) or 83(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of 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) sub-section (4) shall not apply, and

(b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse."

8. The applications made by the appellants for leave to remain were both in-country applications, after they had been granted leave to enter as visitors, not entry clearance applications. They therefore fall within the ambit of Section 85(4), not Section 85(5).

Respondent's submissions

9. In the absence of the appellants or their representative, the only submissions before us were those advanced by Mr Blundell on the respondent's behalf. He argued that, on the only issue on which permission to appeal to the former Immigration Appeal Tribunal had been granted, the Adjudicator's decision was entirely right. At paragraph 20 of his determination, the Adjudicator had noted that the first appellant was under the age of 65 at the date of the respondent's decision, albeit by less than two weeks. It had been argued on the appellant's behalf before the Adjudicator that he should "look at the first appellant's appeal as if it involved a person who is, at the material time (i.e. the hearing) over 65". The Adjudicator concluded in response to that submission:

"I did not accept this line of argument. The rule is absolutely clear. The appellant is either 65 or not 65 at the date the decision was taken. This is not an issue which might or might not happen after the decision is taken. It is inevitable that the appellant would be 65 shortly after the decision was taken. The fact that he was makes absolutely no difference to the decision and is not something which I am required to take into account. I regarded this matter as quite straightforward. Neither appellant was 65 when the application was made or the decision taken. Accordingly, paragraph 317(i)(c) is not complied with and the only possible sub-paragraph of paragraph 317(i) which could apply in this case is (e)".

10. Mr Blundell submitted that the Adjudicator was entirely right in so concluding. The first appellant was not 65 at the date of decision. There was no arguable basis for allowing the appeal on the grounds that he would have attained that age within about two weeks. The Adjudicator's decision should therefore be upheld.
11. We invited Mr Blundell to address us in relation to the reported determination of this Tribunal in LS (post-decision evidence; directions; appealability) Gambia [2005] UKIAT 00085. Mr Blundell accepted that the fact that the first appellant had attained the age of 65 between the date of decision and the date of the hearing before the Adjudicator was a "matter arising after the date of the decision". However, he argued that it was not a matter that was "relevant to the substance of the decision". In his submission, the substance of the decision was that the appellants had both applied for leave to remain in the United Kingdom under paragraph 317(i)(e), i.e. on the basis that they were parents under the age of 65 living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom. They had not applied under paragraph 317(i)(c), i.e. as parents travelling together of whom at least one is aged 65 or over.
12. He argued that it was not open to an appellant who had applied for leave to remain under the Immigration Rules on one basis, and who had failed to satisfy the requirements for leave to remain on that basis as at the date of decision, to switch his reliance to another category on hearing of his appeal merely because by that time he happened to satisfy the requirements of another part of the Immigration Rules. He submitted that the "substance" of the respondent's decision remained the fact that the original application had failed to satisfy the requirements of the Immigration Rules relating to the application actually made by him as at the date of decision, and still failed to do so at the date of hearing. The fact that, by the date of the hearing, the appellant happened to be able to satisfy the requirements of another part of the Immigration Rules, albeit in the case of the appellants before us one contained in the same paragraph, indeed the same sub-paragraph, of the Immigration Rules was immaterial. It was not a "matter" which was "relevant to the substance of the decision", i.e. the respondent's decision to refuse the application as originally formulated by him.
13. Mr Blundell argued that Section 85(4) of the 2002 Act was intended to cover the situation where an appellant, whose application had failed at the date of decision because, for example, he could not satisfy the maintenance or accommodation requirements for leave to remain at that date, was able to show that the position had changed by the date of hearing, and that he was then able to satisfy the same requirement. The distinction which he sought to draw was between, on the one hand, a case in which, at the date of the hearing, an appellant was able to satisfy the requirements for leave to remain under precisely the same provisions in the Immigration Rules on which he had based his application originally (when Section 85(4) could properly be prayed in aid), and, on the other hand, a case in which, at the date of the hearing, an appellant was seeking to rely on a different part of the Immigration Rules which he was then able to satisfy, even though he had not been able to do so at the date of decision (when Section 85(4) was not applicable).
14. We acknowledge the ingenious nature of the argument advanced by Mr Blundell on the respondent's behalf. However, we are not persuaded by it. Mr Blundell is seeking to introduce a distinction for which we see no justification, either in the wording of Section 85(4), or in the Immigration Rules themselves.
15. The appellants applied for leave to remain in the United Kingdom as dependent relatives under paragraph 317 of the Immigration Rules. They still seek leave to remain as dependent relatives under the same paragraph. The fact that, as at the date of decision, their applications fell to be rejected under paragraph 317(i)(e), but now fall within the ambit of paragraph 317(i)(c) of the same paragraph, does not change the substance of their application, which remains one for leave to remain as dependent relatives.
16. The appellants' reliance on paragraph 317(i)(c), because the first appellant is now over 65, rather than paragraph 317(i)(e), does not constitute an attempt by an appellant who has applied, and failed, under one category in the Immigration Rules, e.g. as a student, to succeed on appeal under an entirely different category, e.g. as a spouse, merely because by the latter date he happens to be able to satisfy the requirements for leave to remain on an entirely different basis. That is not an issue which is before us, and is therefore not one on which we consider it appropriate to express an opinion in the absence of full argument on both sides.
17. The central fact in the case of the appeals before us is that the appellants applied for leave to remain as dependent relatives. They were refused on that basis. By the date of the hearing by the Adjudicator, the circumstances of the first appellant had changed, albeit only as a consequence of the inevitable effect of the passage of time upon his age, and the appellants were then able to satisfy the requirements for leave to remain on the same basis as that on which they had applied originally, namely as dependent relatives. Under Section 85(4), they are entitled to rely upon that change as constituting a "matter" which was "relevant to the substance of the decision" and which had arisen "after the date of the decision".
18. We are therefore satisfied that the Adjudicator made a material error of law in failing to give proper effect to the provisions of Section 85(4). In consequence, it now falls to us to substitute our own decision based on the undisputed facts of the appeals before us.
19. Mr Blundell did not seek to argue that the appellants were not able to satisfy all the requirements of paragraph 317 by reference to paragraph 317(i)(c) as at the date of the hearing before the Adjudicator, or at the date of the hearing before us. He was plainly right to do so. In the circumstances, both appellants are entitled to succeed.

Reporting

20. It is intended that this decision should be reported for what we say in relation to the effect of Section 85(4) of the Nationality, Immigration and Asylum Act 2002 in the circumstances of the appeal before us. In that regard, we are aware that this decision may have wider implications which go well beyond the scope of the individual appeals before us. However, the provisions of Section 85(4) are clear in their intention, and it falls to us to give effect to that intention. It is not for us to have regard to, still less to pass comment upon, the merits or otherwise of the statutory change effected by Parliament when enacting Section 85(4). That is a matter for Parliament alone.

Decision

21. The original Tribunal made a material error of law. The following decision is accordingly substituted:

The appeals of both appellants in respect of the Immigration Rules are allowed.

L V Waumsley

Senior Immigration Judge