AQ (Kenya) v Entry Clearance Officer [2007] EWCA Civ 1279

[2007] EWCA Civ 1279Case No C5/2007/1196/AITRF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Asylum and Immigration Tribunal
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/12/2007
Before
LORD JUSTICE HOOPERLORD JUSTICE WILSONLORD JUSTICE RICHARDS
Between
AQ (Kenya)AppellantEntry Clearance OfficerRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Phillip Nathan (instructed by Messrs Hersi & Co) for AppellantMs Eleanor Grey (instructed by Treasury Solicitors) for RespondentHearing Hearing date: 21 November 2007
Judgment
[1]The appellant is a Somali national and at the age of 15 in July 2004 applied for entry clearance to join his sponsor in the United Kingdom. He was at the time of his application living alone in a refugee camp near Mombasa for Somalian Barawanese. The camp was once run by the United Nations.[2]The entry clearance officer refused entry clearance on 20 December 2004 by which time the appellant was nearly 16. In November 2005 the AIT, Mrs Gurung-Thapa IJ, dismissed the appeal. In December 2005 Mr Jordan SIJ ordered re-consideration writing that it was arguable that for a minor the conditions in which the appellant lived were sufficient to satisfy the requirements under the Rules.[3]On 25 January 2007 the AIT consisting of three members and presided over by Senior Immigration Judge Southern decided that Mrs Gurung-Thapa had made no error of law and therefore it was not open to the Tribunal to disturb her decision. Permission to appeal having been refused by the SIJ, permission was granted by the Rt. Hon Sir Henry Brooke.[4]Section 82(2)(b) grants a person in the appellant’s circumstances a right to appeal a refusal of entry clearance (the appellant’s right of appeal initially arose under the previous legislation but this does not affect the argument and it is convenient to refer throughout to the provisions of the 2002 Act).[5]It is not in issue that the AIT when considering an appeal against a refusal of entry clearance conducts what is in effect a re-hearing albeit that there are limitations set out in section 85(5) on the evidence which may be called at the appeal. (See generally Macdonald’s Immigration Law and Practice, sixth edition, paragraph 18.63).[6]Mr Kovats who prepared the skeleton argument has helpfully identified the issues arising on the appeal. In his words with amendments agreed by Miss Grey the first issue is: Were the AIT’s findings;(a) that the appellant had not established that he was not leading an independent life;(b) the appellant had not established that he had not formed an independent family unit and(c) that there were no compelling family or other considerations which made exclusion of the appellant from the United Kingdom undesirable, irrational?”[7]To this question Mr Kovats submits that the answer should be “No”. We start with this issue, the resolution of which requires a close analysis of the decision of Mrs Gurung-Thapa. I should add that we approached the appeal in a way which differs somewhat from the approach adopted by Mr Nathan when he argued the case before the three person AIT.[8]Mr Nathan in his grounds of appeal relied additionally upon the case of Holmes [1975] Imm.A.R.20. In its judgment the three-member AIT on reconsideration said that the IJ could not be criticised for not referring to Holmes “a decision the tribunal made 32 years ago, not being one commonly referred to in this jurisdiction, to which he was not referred.” In the grounds of appeal on which he sought permission from the AIT to appeal to this Court, it was pointed out that Holmes had been cited in the grounds of appeal to the AIT from the decision of the entry clearance officer and it was referred to in the leading text book, Macdonald’s Immigration Law and Practice. Mr Southern wrote in response:
“the grounds are correct to observe that Holmes was mentioned in the grounds of appeal to the immigration judge, if only briefly. But it was not relied on in submissions to the immigration judge or in the skeleton argument submitted by counsel.”
During the course of argument, Mr Nathan accepted that Holmes did not materially assist him in the presentation of the appeal.[9]Mrs Gurung-Thapa started her determination and reasons by saying that both parties agreed “that the relevant issues are paragraph 297(i)(f)(iii)”. Paragraph 297 of the Immigration Rules set out the requirements for, amongst others, a child seeking indefinite leave to enter the United Kingdom as the relative of a person present and settled in the United Kingdom. So far as material in this case, paragraph 297 required the appellant first to show that he was seeking leave to join a relative present and settled in the United Kingdom. There was no dispute about this. Secondly, he has to show that “there are serious and compelling family or other considerations which make exclusion of the child undesirable”. Thirdly he has to show that he was under 18. Mrs Gurung-Thapa accepted that he was aged 15 at the time of the application. Fourthly he must show “that he is not leading an independent life… and has not formed an independent family unit”.[10]The onus of proof is on the appellant, the burden being to prove his case on the balance of probabilities.[11]Mrs Gurung-Thapa had before her the account given by the ECO of the appellant’s interview and the ECO’s conclusions. She also heard oral evidence from the sponsor, the appellant’s brother Mr Abubakar Mohamad Quadar and from another brother, Mahmud Kader.[12]Mrs Gurung-Thapa in paragraph 3 wrote:
“The ECO took into account the following facts. The appellant at interview stated that both his parents are alive and well in Somalia. They live with five of his siblings in Barawe and that they earn a living by selling Islamic headgear. He last saw his brother in 1998 or 1999 and stated that he was young at that time and cannot remember exactly when he last saw the sponsor or when exactly he went to the UK. He has not seen the sponsor since that time. The appellant has never formed an exclusive part of the sponsor’s family unit. The sponsor has not visited the appellant in Kenya and he has no evidence of contact between themselves. For the past two years the appellant claimed to have resided by himself. On the balance of probabilities the ECO is satisfied that the sponsor and the appellant have formed separate family units since his departure from Somalia in 1998-1999 and that the appellant’s current residency and living condition show that he has forged an independent life for himself, separate not only from his sponsor but from his parents as well. The appellant states that he resides in a former refugee camp in Mombasa and claimed the dwelling he lives in does not have electricity, sanitation or running water. Whilst the ECO accepts that these conditions are not in themselves satisfactory he would note that the appellant has chosen to live there. The appellant stated that his uncle brought him to Kenya in December 2001 in order for him to receive tuition in English language in Kenya. He also stated that the uncle died in March 2002 only a few months after he arrived in Kenya and that since that time he has resided by himself in Mombassa. The appellant claimed to have been unable to arrange passage to Somalia because he does not have the financial resources and because the main road into Somalia is waterlogged. The ECO did not find these reasons to be persuasive or credible. The appellant stated that his parents are not happy with the circumstances that he is in. The ECO considers that any responsible parent would take steps to either forward the required cash to the appellant or arrange for the sponsor to do the same. There is more than one road between Somalia and Kenya and there are any number of boats which make regular forays from Somalia to Mombasa and back.”
[13]Mrs Gurung-Thapa summarised the evidence of the sponsor and his brother in the following way: “6. On the day of the hearing I heard oral evidence from the sponsor Mr Abubakar Mohamad Qadar. He adopted his witness statement, in that statement he mentions he arrived in the UK in August 1998 and after a successful asylum claim he was granted refugee status. He asserts that they are affiliated to one of the most persecuted clans in Somalia namely the minority clan Barawa. His brother Mahmud Khader came to the UK and is also recognised as a refugee. His family members were separated due to the prevalent civil war in Somalia and he lost contact with his family in 1998. His brother, albeit separately, managed to come to the UK but the rest were not able to do so. 7. He states that the appellant was taken by his uncle to Kenya in 2001 because of the war in Somalia. They do not know the exact whereabouts of their parents in Somalia at the moment because they are internally displaced. Even if the appellant knew their whereabouts he would not be able to reach safely there. Roads are too far perilous in Somalia and there are militias from various majority clans building military check points throughout all the roads in Somalia. As mentioned by his brother at his interview that there are too many problems and there are thieves. His brother is young and inexperienced and the ECO should not have expected him to answer those questions competently. His brother was 12 when he left Somalia and he will not be able to explain what is going on there. His brother now lives in a third country without any adult relative to look after him and without any valid immigration status. He is still a minor and needs to be looked after. 8. His brother is dependent on him financially as well as emotionally. His brother is not working and there is nobody else to provide him with financial support. He has been sending him regular remittances of at least $100 a month as his brother has no other source of income. He sends the financial help through money transferring agencies to be collected by Mr Ade Abu Munye a friend of his late uncle. As his brother has no ID he is not able to collect the money. He also sends money though a few times through friends/acquaintances who are travelling to Nairobi. He is in regular contact with his brother and telephones him using telephone cards as they are not very expensive. 9. The sponsor asserts that the ECO is wrong by asserting that his brother is living in Kenya out of choice and suggesting that he should go to Somalia and join their parents. The sponsor states that he can maintain and accommodate the appellant as he is in full time employment and has a stable job. It should be noted that the ECO has accepted the maintenance and accommodation issue. 10. The sponsor in oral evidence stated that he phones his brother once a month two or three times sometimes more. He talks about life and advice of how they live. His brother needs more advice, financial and they do this on behalf of their parents. 11. In cross examination the sponsor confirmed that he came to the UK in 1998 and he has had no contact with his parents since then. He went to Kenya in January 2001 to get married and his brother was not there. His brother went to Kenya in December 2001. When asked why he has not been able to visit Kenya since then he replied every time he tries to go he cannot because of paying his rent and holidays are short. Mr Munye only collects the funds for his brother. When asked if his brother has been living alone since March 2002 why no application was made until July 2004. The sponsor replied he tried once to make an application but not legally with the British High Commission in Kenya because of financial difficulties. He was the only person working when his brother came over in November 2001. At that time he wanted to make the application but no money. He believes his brother started working in 2003 or 2004. 12. To my questions the sponsor confirmed that he has been sending money $100 monthly. When asked as to what his actual problem was in not calling the appellant the sponsor replied every month he needs money. He did not know how to apply for him and so on. When it was put to him that his brother in interview stated that he went to Kenya where he was called by his uncle for education the sponsor replied that is wrong. His brother does not know what he is talking about. He went because of killing and looting in Barawa. They used to live together. He does not know why the appellant was chosen to go to Kenya as he used to live with his family at the time he went to Kenya. He believes his brother lives in a Barawanese camp but he does not know the name and it is in Mombasa. His brother goes out of the camp and speaks to him on the telephone. When asked how his brother has been able to look after himself since the death of his uncle he replied he is staying at a camp and people at the camp provide food. The money he wends is used by his brother for food and whatever he needs at the time. 13. I then heard evidence from Mahmud Khader. In oral evidence he stated that he left Somalia in 1995. He has had no contact with his family since then. He has not been able to visit his brother although he would have liked to because he needs a passport. He is a refugee. In Kenya they make life difficult on arrival. At airport they make things difficult for Somalians saying bogus passport. He started working in 2003. When asked why it took so long for the application to be made in July 2004 if his brother was living on his own since March 2002 the witness replied he did not have any employment and only after he got employment he started the process. 14. The witness stated that he contacts the appellant twice a month. His brother lives in an area like a camp and they call him outside the camp where there is a call box. The camp was run by the UN before but now it is people just residing there. There is nobody helping his brother. When asked if he knows how his brother has survived looking after himself since the death of his uncle in March 2002 the witness replied he phoned him and advised him when sending money. They tell him how to use the money and how to survive with it”.[14]In her conclusions Mrs Gurung-Thapa said: “18. I take note of the fact that the appellant has been living in Kenya since December 2001. The appellant was asked in interview why he went to Kenya and his response was because there are lots of problems in Somalia. He came with his uncle and he managed to arrange transport for him (Q14). When the appellant was asked why he went to Kenya when his other siblings did not his response was that he wanted to learn in Kenya – English mainly and his uncle made arrangements for the transport (Q23). I note from the appellant’s application form that he has older siblings and the youngest of his siblings was born in 1991 and indicated that they are living in Somalia. For whatever reason the appellant has gone to live in Kenya the fact remains that he is living there and has done so since December 2001. I also note the appellant was the one who had the last contact with his parents as the sponsor and his brother last had contact with their parents in 1998 and 1995 respectively. I find the appellant would be in a better position to know the situation of his parents. The appellant in the interview clearly stated that his family members are living in Barawe and that they earn a living by selling Islamic headgear. The appellant by that time was 12 years old and it is reasonable to conclude that he would have been aware of where his parents were living and how they were earning a living. I do not suggest that the appellant should return to Somalia given the situation for his minority clan and in support of this Mr O’Callaghan submitted the Tribunal case of MN (Town Tunnis regarded as Bravanese) Somalia CG[2004] UKIAT 0022. However, what I find is that the appellant has been living on his own since the death of his uncle in March 2002 and yet no attempts were made by his family members in the UK or in Somalia to go and see the appellant. I note the appellant was able to go to Kenya in December 2001 it seems without any problems and therefore it is reasonable to conclude that his parents or his older siblings in Somalia would have been able to go and see the appellant. The sponsor stated that he couldn’t go to see the appellant because of his financial situation. I do not find this credible. The appellant and the sponsor relies on the evidence that the appellant is a minor and that the appellant lives in Kenya in a dire situation and is dependent on him emotionally and financially. If this is the case I find it is reasonable to conclude that the sponsor would have been able to visit the appellant since the death of the uncle.19. The sponsor’s evidence is that he sends $100 monthly and yet the only documentary evidence he has produced is a letter from M Hasan of AB telecom who states that he confirms from February 2002 until now Mr Abubakar Qadar has been sending money to his brother through Mr Ade Abu Munye just 100 bill (sic) who lives in Mombasa. I note there are no remittance receipts or statements from people the sponsor asserts who have taken money on his behalf. I note the appellant in his interview took telephone cards to show that contact is made between him and the sponsor. The ECO asserts that the telephone cards do not prove contact as they do not prove who has phoned whom, when the calls were made or how long the calls lasted. Even if it is accepted that the sponsor sends money on a regular basis and that he contacts the appellant on a regular basis what I have to deal with is are there serious or compelling family or other considerations which make exclusions of the child undesirable. From the totality of the evidence I find that the appellant has been able to live on his own since March 2002 and the evidence is that he has been able to look after himself since that period. The appellant is living in a camp which do not have electricity, sanitation or running water and the ECO accepts that the conditions are not in themselves satisfactory, but I note the appellant has chosen to live in that camp. No evidence was presented to show why he would not be able to live elsewhere in Kenya. From the facts of the appellant’s case I do not find that there are serious and compelling family or other considerations which makes the appellant’s exclusion undesirable.20. Even if I am wrong in this regard the other issue the appellant has to satisfy is the fact that he is not leading an independent life, is unmarried, and has not formed an independent family unit. I take note of the fact that the sponsor left Somalia in 1998 and his brother left Somalia even before that which was in 1995. The sponsor and his brother have not seen the appellant since that period. It would appear to be the case that the appellant and the sponsor have formed separate family units since the sponsor’s departure from Somalia. The appellant has been able to live in Kenya since December 2001 and living on his own since March 2002. From the evidence and on the balance of probabilities I am not satisfied that the appellant is not leading an independent life and has not formed an independent family unit”.[15]For these reasons she dismissed the appeal.[16]I say at the outset that it is not an easy determination to follow because there is an absence of many of the findings of fact which I would have expected in a determination of this kind. I set out what I believe to be the findings of fact which Mrs Gurung-Thapa made or which I have assumed that she must have made given the absence of a particular adverse finding of fact against the appellant and his brothers. I have italicised various findings which are the subject of criticism by Mr Nathan. i) The appellant was aged 15 at the time of the application. ii) He was residing alone in a refugee camp in Mombasa in a one roomed hut without electricity, sanitation or running water (conditions which the ECO described as “not in themselves satisfactory”). iii) The camp used to be run by the UN but now it is run by the people residing there. iv) The appellant was brought by his uncle to Kenya from Barawe, Somalia in December 2001 and the uncle died in March 2002. v) His parents and five of his siblings either live in Barawe, Somalia, earning a living by selling Islamic headgear or lived and so earned their living in 2001 (some passages in the determination suggest the former whereas other passages suggest the latter). vi) The youngest sibling was born in 1991 (the appellant having been born in 1989). vii) The family are members of one of the most persecuted tribes in Somalia, namely the minority clan Barawa (this was the evidence of the sponsor and it was not the subject of an adverse finding). viii) He left Somalia because of the problems there and to learn English (he gave his desire to learn English as an explanation to the ECO as to why the siblings did not come also). ix) He has had no direct contact with his family in Somalia since leaving (although he may have received news, see paragraph v. above). x) He has not visited his family in Somalia and given that he is a member of the Barawa clan, he could not be expected to do so (in this respect Mrs Gurung-Thapa disagreed with the ECO, who made an adverse credibility finding against the appellant in the light of the reasons he gave for not having visited his family). xi) No “attempt” has been made by his family in Somalia to visit him. It is reasonable to conclude that his parents and/or his older siblings could have visited him in Kenya (because the appellant was able to go to Kenya in 2001). xii) The sponsor arrived in England in 1998 and was granted refugee status in 2002 (presumably on the basis that he was a member of the clan Barawa). He became a British subject and obtained a passport on 2 March 2004 (although he had visited Kenya in January 2001 to get married). He has had no contacts with his family in Somalia. xiii) The sponsor has not visited the appellant in Kenya. xiv) No “attempt” has been made by him to visit Kenya. The sponsor’s explanation that he could not visit the appellant in Kenya because of his financial position in England is not credible. xv) The sponsor’s claim that the appellant is in a dire situation in Kenya and is dependent on the sponsor emotionally and financially is not credible because if it were “the sponsor would have been able to visit the appellant [in the two years] since the death of the uncle in 2002.” xvi) Mahmud Khader left Somalia in 1995 and arrived in the UK in 2001. At the time of the hearing before Mrs Gurung-Thapa he had been granted refugee status and had started working in 2003 (when he was first legally entitled to do so, it seems). No “attempt” was made by him to visit the appellant in Kenya. No adverse finding of fact was made against Mahmud’s evidence that he could not have visited the appellant in Kenya because, being a refugee, he did not have a passport.[17]Mrs Gurung-Thapa was very suspicious of the evidence of the regular telephone calls between the sponsor and Mahmud and of the regular financial monthly $100 remittances because of the absence of corroboration in the form of remittance receipts or from people who have taken money on behalf of the sponsor. In her view the evidence in the form of M Hasan of AB Telecom (referred to in paragraph 19) was not, so it appears, sufficient.[18]But she went on to deal with the case on the assumption that she accepted the evidence and Miss Grey invited us to approach the finding on that basis. I shall do so pointing out only that I am a little surprised that she had difficulty in accepting that the fact of the telephone calls and the remittances had been proved to the relevant standard.[19]I return to the italicised sub-paragraphs, starting with xi): It is reasonable to conclude that his parents and/or his older siblings could have visited him in Kenya (because the appellant was able to go to Kenya in 2001). Mr Nathan challenges this finding. As Miss Grey pointed out, this was not challenged before the AIT on reconsideration. If it had been the country guidance cases might have helped about the ease of movement to Kenya for members of this clan and the ease of returning to Somalia from Kenya. She refers us to the reasons given by the ECO. As Wilson LJ pointed out in the course of argument, it is difficult to see how this conclusion is consistent with the IJ’s conclusion:
“I do not suggest that the Appellant should return to Somalia.”
In my view we do not need to resolve the issue because the finding (so it appears to me) plays no part in the decision.[20]I turn to xiv): The sponsor’s explanation that he could not visit the appellant in Kenya because of his financial position in England is not credible. This finding was challenged in the grounds of appeal seeking reconsideration (paragraph 27) and is challenged by Mr Nathan. He points out that the IJ gave no reasons and had not dealt with the evidence of the sponsor that he could not afford to visit the appellant. His financial commitments included maintaining his brother until he was entitled to work and remitting at least $100 per month. As Mr O’Callaghan pointed out in the grounds, he had to save sufficient money to satisfy the “maintenance” requirements of the application, which were accepted by the ECO. Miss Grey submits that the IJ was entitled to conclude that the sponsor would have overcome any financial difficulties to visit the appellant and that the IJ was making an unchallengeable value judgment. It may be right that she would have been entitled to reach the conclusion but she would have to have explained what were her findings on the financial affairs of the sponsor and how any financial difficulties might in practice be overcome. In my view the IJ’s conclusion in this respect is flawed.[21]I turn to xv): The sponsor’s claim that the appellant is in a dire situation in Kenya and is dependent on the sponsor emotionally and financially is not credible because if it were “the sponsor would have been able to visit the appellant [in the two years] since the death of the uncle in 2002.” This important finding depends upon the flawed finding in xiv). If, as the sponsor claimed, the appellant was in a dire situation and dependent on the sponsor emotionally, then, unless the sponsor had ample spare funds, it would be an entirely sensible decision to remit money to the appellant and take all steps to get him to the UK as quickly as possible. Nor do I understand how the failure to visit undermines the claim that the appellant was dependent on the sponsor financially. There was no suggestion that the appellant had other financial resources upon which he could rely to stay alive. The sponsor in his statement said that the appellant had no other source of income and was not working. Without this help he would be destitute. According to Mahmud Khader the appellant was unemployable because of his immigration status. To dismiss this evidence in this way is, in my view, perverse.[22]I return to the conclusions in paragraphs 19 and 20. Miss Grey rightly accepted that paragraphs 19 and 20 on the facts of this case stand or fall together. If the IJ was in error in paragraph 19, so was she in paragraph 20, albeit that she starts paragraph 20 by saying “Even if I am wrong ...”.[23]Mrs Gurung-Thapa held in paragraph 19 that there are no serious or compelling family or other considerations which makes the exclusion undesirable. She gave as her reasons:
“he has been able to look after himself since”
March 2002 (when his uncle died) and:
“He has chosen to live in that camp. No evidence was presented to show why he would not be able to live elsewhere in Kenya.”
[24]These two findings are, in my view, dependent upon the perverse finding that he was not (as claimed) in a dire situation and was not emotionally and financially dependent on the sponsor. Miss Grey submits that the appellant should have called evidence that he could not live elsewhere in Kenya. But evidence was called that he could not work because of his immigration status and was entirely dependent on the remittances. It seems to me to be an unrealistic counsel of perfection to say that the appellant (to whom it was not suggested by the ECO that he could live elsewhere) should have somehow put in evidence that he could not live elsewhere. To say that the appellant had “chosen” to live in the camp was in my view unfair and irrational.[25]Miss Grey submits that there was no evidence that the appellant had come to any harm, a point made by the AIT on reconsideration in paragraph 16. That is right but I do not see how it saves the decision which, as I say, is seriously flawed to the extent of being perverse. She also asks us to look at the decision “as a whole” and reminds us of the conclusion of the AIT that there was no error of law. I disagree with that conclusion for the reasons which I have given, whilst accepting that the AIT did not have the benefit of the close analysis of the decision which we have had.[26]For all these reasons I would allow the appeal.[27]At the conclusion of the hearing we announced that the appeal would be allowed and an order made for reconsideration before a differently constituted AIT. We invited the AIT to list the reconsideration as soon as reasonably practicable. Lord Justice Wilson[28]I agree. Lord Justice Richards[29]I also agree.