United Kingdom Asylum and Immigration Tribunal

 


RK ("purpose" of family visit) Bangladesh [2006] UKAIT 00045

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 10 March 2006

Date Determination notified: 24 April 2006

Before
Mr D K Allen, Senior Immigration Judge Mr C P O'Brian Dr T Okitikpi
Between

RK	APPELLANT
and
ENTRY CLEARANCE OFFICER - DHAKA	RESPONDENT

For the Appellant: Ms S Muthusagaran of Turpin, Miller & Higgins, Solicitors For the Respondent: Ms K Lonsdale, Home Office Presenting Officer
DETERMINATION AND REASONS

In order to give rise to an appealable decision, the evidence must show that the purpose of a family visit was to visit a member of the applicant's family, as defined in the Immigration Appeals (Family Visitor) Regulations 2003. It cannot be assumed simply from the fact that a person falling within that definition lives in the United Kingdom that the purpose was to visit them.

1. The appellant is a citizen of Bangladesh. She appealed to an Immigration Judge, Mrs S M Agnew, against the Entry Clearance Officer's decision of 10 January 2005 refusing entry clearance for the purpose of a family visit. In a determination promulgated on 13 September 2005 the Immigration Judge allowed the appeal. Subsequently the Entry Clearance Officer sought and was granted an order for reconsideration of the appeal, on the basis that the appellant did not fall within the requirements of the Immigration Appeals (Family Visitor) Regulations 2003 and therefore did not have a right of appeal.
2. The hearing before us took place on 10 March 2006. Ms S Muthusagaran, of Turpin, Miller & Higgins, Solicitors, appeared on behalf of the appellant, and Ms K Lonsdale appeared on behalf of the Entry Clearance Officer.
3. The appellant, together with her husband, A, applied to come to the United Kingdom for a family visit. In her application form the appellant said that she was going to the United Kingdom in order to visit her nephew's son, L. She was asked whether she had any family or close friends in the United Kingdom and mentioned her sister R. She gave the full address of the person with whom she would be staying as S and gave her address. Her husband gave essentially the same information in his form. He was interviewed, and when asked why he was going to the United Kingdom said he wanted to see his grandson who had a brain tumour and had had surgery. The exact relationship was said to be that the child was his nephew's son. A and the appellant did not have any children.
4. There was a sponsorship declaration from J, who is married to S and they live at the address given by the appellant on her application form. In his sponsorship declaration J states that the appellant and her husband are related to his wife in that A is the real brother of R who is the mother of J's wife. He described the circumstances of the proposed visit being as a consequence of the diagnosis of their son, L, as having a brain tumour. This had led to him being in and out of hospital many times and he was currently receiving chemotherapy and this will be followed by radiotherapy. He refers to his wife's mother as being elderly and suffering from diabetes and being looked after by her daughter-in-law with whom she lives together with a son and their four year old daughter. He states that L had been to Bangladesh four times and each time had a very good relationship with Mr A and the appellant who had never had children of their own. He also said that they needed A and the appellant to help them manage and look after their house and care for their other children as it had been very hard for them and their children over the last few months.
5. The application was refused firstly because the couple were not the grandparents of L but A was his grandmother's brother. Secondly it was considered that their circumstances in Bangladesh were quite modest and thirdly it was unfortunately the case that in the light of his son's illness J had lost his job and was in receipt of public funds.
6. The Immigration Judge, as we have noted above, allowed the appellant's appeal and also allowed the appeal of her husband. There was no challenge by the Entry Clearance Officer to the decision allowing A's appeal. With regard to the appellant, however, it is contended that since she is married to the uncle of S she is not a family member of that family for the purposes of the 2003 Regulations and therefore did not have a right of appeal.
7. At the hearing before us Ms Muthusagaran had put in a helpful bundle which included a family tree and other documents to which we will refer in due course. She referred us to Section 90 of the Nationality, Immigration and Asylum Act 2002 which makes it clear in sub-section 1 that a right of appeal in the case of a person who applies for entry clearance for the purpose of entering the United Kingdom as a visitor only exists if the application was made for the purpose of visiting a member of the applicant's family, and the reference to a member of the applicant's family is to be construed in accordance with regulations, which are the Immigration Appeals (Family Visitor) Regulations 2003.
8. Ms Muthusagaran argued that there was not an equation to be made between family member and sponsor. The term sponsor was generally used very loosely as could be seen from the determination where J was referred to as the sponsor. It could mean the financial sponsor or the person providing accommodation or the family member. It was a question of intention to visit a member of the applicant's family. It could be seen for example from paragraph 4 of the determination in A's case that R was referred to as his sponsor. There was also a reference at paragraph 7 of that determination to the fact that his sister among others lived in the United Kingdom. There was a reference to J being the sponsor, but the sponsor did not have to be the relative. The question was whether on the balance of probabilities the appellant had intended to visit her sister-in-law. It was clear from the family tree that they were a close knit family. The appellant had been proposing to travel with her husband, whose sister was in the United Kingdom. This question had not been raised before the Immigration Judge and nor was it raised in the refusal letter. The appellant had not been represented at the hearing and had not been in a position to recognise this legal issue. In all the circumstances the Immigration Judge could not be criticised for not considering this point.
9. The second facet was whether there was an intention to visit. There was evidence in this regard as could be seen from page 44 of the bundle in the sponsorship declaration. R was referred to there at paragraph 3 and paragraph 5. She was also referred to in the grounds of appeal to the Immigration Judge, to be found at page 52 of the bundle. It was clear from the reference in the appellant's grounds of appeal at page 58 of the bundle that she intended to visit her sister-in-law R and therefore the application was within the rules. She would be unlikely not to choose to visit her sister-in-law as she was unwell and lived near to J and his wife. It was of course the case that R was referred to in the appellant's husband's determination as being his sponsor. There was no requirement for a list of those people who would be visited. At page 16 of the interview A had been asked how long his sister had been in the United Kingdom and he had responded that she went there in what he referred to as the Pakistan period, and her husband was a British citizen. She had gone in 1975. The Entry Clearance Officer had therefore been made aware of R and there was no doubt expressed as to the relationship. It was therefore only natural, based on the evidence at the time, that they were going to visit R as well as J and his wife.
10. If that were not clear then it was clear from the sponsor's witness statement which post-dated the Immigration Judge's determination. As to why the Tribunal should admit that, it had not been in issue before the Immigration Judge so there had been no need for it to be submitted. Also the appellant had been unrepresented and not in a position to recognise it as an issue and not in a position to provide it. Further, no submissions had been sent in by the Home Office and the point had never been raised so there had been a failure to assist the court. Further, the statement and supporting documents helped to clarify the issue now.
11. Ms Lonsdale opposed these documents being put in, and after consideration we concluded that it would not be proper for them to go in at this stage and that they could only be considered if there were an error of law in the Immigration Judge's determination.
12. In her submissions, Ms Lonsdale argued that there was an issue of jurisdiction. It had been clear to the Entry Clearance Officer who it was that the appellant proposed to visit and by whom she was to be sponsored. On the basis of what had been said to the Entry Clearance Officer and what was before the Immigration Judge the issue of jurisdiction arose. If the Immigration Judge had no jurisdiction then the Tribunal should not look at any further evidence. There had been nothing from the sister-in-law, R, before the Entry Clearance Officer. There had been a sponsorship declaration from J and the only mention of R was in the application form when the appellant was asked whether she had family or close friends in the United Kingdom. It was clear from the papers that the intention was to visit the nephew and that issue was properly dealt with in the determination which had not concerned itself with issues relating to the appellant's sister-in-law. The grounds had proceeded on that basis and the appeal should also.
13. It was also not the correct forum today to introduce a new sponsor. It was too late to introduce the sister-in-law now. It was also clear from the determination who the sponsor was to be. R was not the sponsor and was not to be considered as the sponsor. In the husband's determination the wrong wording had been used in paragraph 4 in describing his sister as the sponsor. It was clear on reading the determination that the Immigration Judge was aware who the sponsor was to be and the purpose of the visit was to see his nephew's son.
14. After an adjournment we communicated to the representatives our conclusion that there was a material error of law in the determination in that the Immigration Judge did not have jurisdiction to consider the appeal of the appellant since she did not come within the family visit regulations. We stated that we would provide full reasoning for this conclusion in a written determination which we now do.
15. It is, we think, common ground that the appellant cannot succeed if the family visit is to the proposed sponsor, as he described himself in the sponsorship declaration, and his wife in order to visit their child. The appellant is married to the husband of J's wife's mother's brother. A, the appellant's husband, is therefore proposing to visit his wife's uncle.
16. There is a definition of "member of the applicant's family" set out at paragraph 2 of the Immigration Appeals (Family Visitor) Regulations 2003. This has to be any of the following persons.

(a) the applicant's spouse, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or first cousin;

(b) the father, mother, brother or sister of the applicant's spouse;

(c) the spouse of the applicant's son or daughter;

(d) the applicant's stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister; or

(e) a person with whom the applicant has lived as a member of an unmarried couple for at least two of the three years before the day on which his application for entry clearance was made.

17. The purpose of the visit on the part of the appellant was, as we have set out above, to see L, whom she described as her nephew's son. L is in fact the son of the appellant's husband's sister's daughter. It is clear therefore that he does not come within the definition of "member of the applicant's family" as set out in Regulation 2, and it is also the case that L's parents, J and S do not come within that definition.
18. It is however argued on the appellant's behalf by Ms Muthusagaran that the wording of the legislation and as a consequence the regulations, is such as to permit this case to fall within the regulations since, it is contended, the appellant should properly be construed as having made an application for entry clearance for the purpose of visiting a member of her family, that being her sister-in-law R. If that contention is made out then the claim could in theory succeed since R, being the sister of the appellant's husband, falls within the appropriate definition at Regulation 2(1)(b). As we have seen, Section 90 of the Act only permits an appeal if the application was made for the purpose of visiting a member of the applicant's family.
19. However, we can find no indication that any such purpose with regard to R was ever expressed by or on behalf of the appellant. As we have seen, she described the purpose of the visit as being to visit her nephew's son L, and clearly that, particularly as fleshed out in the sponsorship declaration, could be seen as embracing an intention to visit L's parents as well. It is clear for example from paragraphs 6 and 7 of the United Kingdom that J and his wife wished the appellant and her husband to come to the United Kingdom because of the good relationship they had with L and also his twin O and also to assist them in looking after the children given the very difficult time that J and S had been experiencing. The only mention of R in the application form is under the section where the appellant was asked whether she had any family or close friends in the United Kingdom and therefore she quite properly named R. There is no suggestion in the sponsorship declaration of any intention to visit R. There is mention of her as living with her son, daughter-in-law and their four year old daughter and being elderly and suffering from diabetes and being looked after by her daughter-in-law. There is no suggestion in A's interview of any intention to visit R. The purpose for going to the United Kingdom was said to be to visit his grandson who had a brain tumour and had had surgery.
20. We do not think that the legislation can properly be interpreted in the manner contended for in this case. It is specifically stated at Section 90(1) that the application has to be made for the purpose of visiting a member of the applicant's family. The fact that a person might incidentally visit a member of their family as defined in the Family Visitor Regulations while in the United Kingdom cannot, to our mind, be equated with the proposed purpose of the visit. In this regard we have not ignored the most recent statement of J, which is dated 3 March 2006. In that, at paragraph 7, it is said that it was always intended that the appellant and her husband would visit his mother-in-law R as well as him and his wife and children and it was inconceivable that such a visit would take place without not visiting R. That is not, however, something that was made clear on the application form or in the sponsorship declaration or at interview. As we have stated above, we do not consider that Section 90(1) of the 2002 Act can be interpreted in the way which it is argued for in this case. The fact that there is a relative in the United Kingdom who comes within the Family Visitor Regulations does not automatically mean that the purpose of the visit was to visit that person. In this case there was an absence of any indication in the relevant documentation or in the interview that the purpose of the visit was to visit R. We are prepared to accept that someone can have a purpose to visit more than one person, and that there can sometimes be more than one sponsor, but the evidence does not support the contention that R fulfilled either role.
21. Accordingly, we have concluded that the Immigration Judge materially erred in allowing this appeal. She did not have jurisdiction to consider it, since the persons whom the appellant proposed to visit were not members of her family within the definition in the Immigration Appeals (Family Visitor) Regulations 2003. The Immigration Judge therefore materially erred in law in assuming jurisdiction in a case where she did not have jurisdiction. We declare that the decision against which the appellant purported to appeal was not a decision carrying a right of appeal under the 2002 Act, that the Immigration Judge accordingly had no jurisdiction, and that the determination can have no effect.

Signed Date

D K Allen

Senior Immigration Judge