United Kingdom Asylum and Immigration Tribunal

MB (para 317: in country applications) Bangladesh [2006] UKAIT 00091

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 8 August 2006

Date Determination notified: 08 December 2006

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Batiste

Senior Immigration Judge Warr

Between

MB	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr Alam, instructed by Chakravorti & Co. Solicitors For the Respondent: Mr C Avery, Home Office Presenting Officer

DETERMINATION AND REASONS

Where applications for leave to remain fall to be decided under paragraph 317 of HC 395, the correct approach is the same as that under previous versions of the Immigration Rules. The appellant needs to show that he would meet the substantive requirements of paragraph 317 if he were still in his own country. It is not sufficient to show that he is able to meet the requirements of the Rules whilst he is in the United Kingdom.

1. This is the reconsideration of the appeal of the appellant, a citizen of Bangladesh, against the decision of the respondent on 23 February 2005 refusing to vary her leave to remain in the United Kingdom as the dependent relative of her daughter, the sponsor. The refusal is expressed as being under paragraph 319 with reference to paragraph 317(iii), because the appellant had, in the respondent's view, failed to establish her financial dependency on the sponsor. No matters other than that one were canvassed before the Immigration Judge at the hearing of the appellant's appeal on 6 April 2006. He heard oral evidence and also considered certain documents said to assist in establishing the appellant's case. In his determination he wrote as follows:

"20. It is common ground that the appellant came here as a visitor in 2004 and sought indefinite leave to remain four months after arriving in the UK. At that point she had the benefit of the advice of solicitors and had been with her daughter and son-in-law and enjoying the company of her granddaughters for several months. This, I find, to be of some significance because it means that she was not a frail old lady without legal advice and family support. Furthermore, the son-in-law was at that time alive as he was for a year after the date the application was made, and, indeed, for almost a year after she was notified of the reason for refusal, namely the absence of any documentary evidence of monies sent. Yet I am asked to find it plausible that no reference would be made to the payment books now produced even though they were very likely to be of considerable evidential value if they really were evidence of payments intended for the appellant. I am invited to believe that each of these ten payments was intended for, and were received by the appellant, but I do not find this credible. If the son-in-law wanted to send her money in this way it is much more likely he would select just one person who the appellant knew, if only to avoid confusing an elderly person. It is, I find, highly implausible that he would select people some of whom the appellant did not even recognise. Furthermore, it makes no sense at all that he would on two of the eight dates send monies to two different people intended for the same beneficiary. If this were a satisfactory way of getting money to the appellant there is no explanation as to why there is no record of even a single payment in the three and a half year period between May 1997 and November 2000 during which there is documentary evidence of only one family member having visited Bangladesh (Mr Islam in July 1998, August 1999 and January 2000). It is, I find, highly implausible that in the eleven months for which the son-in-law was alive after the refusal decision he would fail to remember and draw the family's attention to the payment books if they were, indeed, evidence of payments made for the benefit of the appellant. When all this is considered together I find that these payments are not likely to have been intended for the benefit of the appellant and I find the appellant's evidence about this not credible.

21. The appellant does not have to show that she is maintained exclusively by her relatives here and I accept that what may to those of us in the UK be a very small amount of money may to many in Bangladesh be quite a large sum. However, apart from Momtaz Islam, there is not one person who has provided evidence of delivering money to the appellant and although Ms Islam said she has helped maintain the appellant in the last two years, she has provided no corroborative evidence this and, in any event, for almost all of that time the appellant has been in the UK.

22. I accept that the appellant is the widowed mother of one present and settled in the UK and probably could be maintained and accommodated satisfactorily by her daughter with the help of Momtaz Islam. However, I find that she has not demonstrated, on a balance of probability, that she was dependent wholly or mainly on her daughter her whilst she was in Bangladesh."

The Immigration Judge accordingly dismissed the appeal.

2. The grounds for reconsideration raise two principal issues. One is that the Immigration Judge erred in his assessment of credibility. That ground does not appear to have found favour with the Senior Immigration Judge who ordered reconsideration, and was not pursued before us. We can see no conceivable basis on which it could be said that the Immigration Judge's conclusions on credibility were not in law open to him. His findings of fact must therefore stand. The other ground is that the Immigration Judge in essence asked himself the wrong question. He dismissed the appeal because he was not satisfied that the appellant was dependent on the sponsor whilst she was in Bangladesh. But, it is said, the relevant Immigration Rule is expressed in the present tense and this is an in-country appeal to which s85(4) of the 2002 Act applies. It is therefore argued that the question the Immigration Judge should have asked himself was not whether the appellant was dependent upon her daughter whilst she was in Bangladesh but whether she is dependent on her daughter at the present time and now that she is in the United Kingdom. Reconsideration was ordered specifically so that the Tribunal could give guidance on the proper interpretation of the Immigration Rules and s85(4) in such circumstances.
3. At the hearing before us Mr Alam expanded on the point in the grounds. He asserted that paragraph 317(iii) is to be treated on its own, and not by comparison with other elements of paragraph 317 or with the rest of the Immigration Rules. He said that each case, and hence each question under the Immigration Rules, demanded an individual decision. He referred us to a number of authorities, including R v IAT ex parte Bastiampillai [1983] 2 ER 844, Lana v SSHD [1997] Imm AR 17, R v SSHD ex parte Bamtefa [1995] Imm AR 610 and in In re Barretto [1994] QB 392. He placed particular emphasis on the last and on the entry under "is" in Stroud's Judicial Dictionary in support of his submission that a requirement in the Immigration Rules that an applicant is dependent on another must necessarily refer to dependence at the time of any relevant decision. As we said at the hearing, we gain little assistance from those authorities. The Immigration Rules are not to be construed as a statute, and in our view every element of the Immigration Rules needs to be construed in context rather than in isolation. Mr Alam also referred to the preceding Immigration Rules, HC 251, and to the Immigration Directorates' Instructions which he cited only in part and was not able to tell us about the content of the missing part. Again, we found little assistance in these materials and it is fair to say that we think it extremely unlikely that the missing part of the IDIs would have assisted us further. Mr Alam further told us, rather to our surprise, that he had not been able to discover any authorities more directly to the point. He submitted that the meaning of paragraph 317(iii) was clear and that the question for the Immigration Judge was whether, at the date of the hearing before him, the appellant was dependent upon her sponsor.
4. Mr Avery cited no authorities but made submissions based on his understanding of the purpose of the Rules. He said that the context was clear: the rule concerned those living abroad who needed help from their United Kingdom relatives, and was not a rule intended to promote choice. If the requirements of paragraph 317(iii) were interpreted in the manner urged by Mr Alam, the Rules would have a differential impact on those who actually were abroad. That could not be right: paragraph 317 deals with both with those abroad and those in the United Kingdom and it cannot be intended that a Rule dealing together with individuals in those two categories should, by the use of the same words, apply so differently to them.
5. In reply, Mr Alam said that he readily accepted that paragraph 317 applies to applications for entry clearance and for leave to remain, but reminded us of s85(4).
6. We do not think it is right to treat a single requirement of paragraph 317 in isolation. The proper meaning of the requirements of the Rules can be understood only by looking at the paragraph as a whole. It is 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 has entered into a second relationship of marriage or civil partnership but cannot look to the spouse, civil partner or children of that second relationship 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 civil partner or child of the second relationship who would be admissible as a dependant; or

(e) 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; and

(ii) is joining or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and

(iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and

(iva) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and

(v) has no other close relatives in his own country to whom he could turn for financial support; and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity."

7. It is absolutely clear that (obviously with the exception of sub-paragraph (vi) as the sub-paragraph itself makes clear) the requirements of paragraph 317 are the same for those seeking leave to enter as for those seeking leave to remain. Mr Alam's argument is that the requirements of sub-paragraph (iii) are, because of the use of the present tense, to be taken as referring to the literal position at the time of any decision: that is to say to the position while the applicant is abroad, if the application is for entry clearance, and to the position whilst the applicant is within the United Kingdom if the application is for leave to remain. We accept Mr Avery's submission that that would make a completely unwarrantable difference in the meaning of the Rule as it applied to applications for leave to enter and applications for leave to remain. Indeed, in most cases, compliance with this part of the Rules would be virtually automatic in cases of applications of leave to remain, because the applicant, who had entered the United Kingdom for some other purpose, would have had to demonstrate access to sufficient funds for maintenance and accommodation, which, if the applicant was indeed dependent on the United Kingdom relative (as required in general by paragraph 317) would be likely to amount to financial dependence on the United Kingdom relative whilst in the United Kingdom.
8. There is, however, a further reason why we cannot accept Mr Alam's submissions on the meaning of paragraph 317(iii). We can see no possible basis for interpreting the word "is" in that sub-paragraph as having a different meaning from "is" in paragraph 317(i). In that sub-paragraph the word introduces all the definitions of relatives who can qualify under paragraph 317. In relation to the fifth and sixth categories, the Rules require that the applicant "is" related as a relative in specified categories "living outside the United Kingdom in the most exceptional compassionate circumstances". If Mr Alam's interpretation of "is" were accepted, no application for leave to remain in that category could ever be successful, because the applicant would not be living outside the United Kingdom. Further, the third category refers to relatives "travelling together". Again, it is difficult to see how that requirement could be met in an application for leave to remain, when the travel is already past.
9. We agree with Mr Alam that, in applying paragraph 317 to applications for leave to remain, the question is not what the position was before the applicant left her home country. But nor is it simply what the applicant's position is now, whilst she is in the United Kingdom. The correct question is what the applicant's position would be if, instead of being in the United Kingdom, she were in her own country. That is the way in which the Rule is applied in equal terms to those who are in the United Kingdom and those who are not. Not only does it appear to us that this reading of paragraph 317(iii) accords with common sense and with its purpose: it is also consistent with authorities on the meaning of previous versions of this rule, including Kaur (4279) and Uppal (11275), both decisions of the Immigration Appeal Tribunal and Pawar, a decision of the Court of Appeal on 29 July 1993.
10. It follows from what we have said that we consider that the Immigration Judge erred in considering solely what was the position in Bangladesh. He should have considered what the position would have been if the appellant had still been in Bangladesh.
11. Section 85(4) adds little to the appellant's advantage. It makes clear that the Tribunal needs to consider evidence post-dating the decision, if any such evidence relevant to the substance of the decision is adduced before it. Section 85(4) does not change the question the Tribunal has to ask itself: it only changes the date at which it has to give the answer, and opens the door to newer evidence.
12. The Immigration Judge found that the appellant had not discharged the burden of proof on her to show financial dependency on the sponsor at any time when she was in Bangladesh. There is accordingly no conceivable evidential basis upon which he could have found that the appellant would have been financially wholly or mainly dependent upon the sponsor if she had still been in Bangladesh. It is therefore inevitable that he would have dismissed the appeal if he had asked himself what we have decided is the correct question. For this reason his error of law was not material.
13. For the foregoing reasons we affirm the Immigration Judge's decision dismissing this appeal.

C M G OCKELTON

DEPUTY PRESIDENT

Date: