RH (Ghana) v Secretary of State for the Home Department [2007] EWCA Civ 640

Case No C5/2006/1925[2007] EWCA Civ 640
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Thursday, 7 June 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE BUXTON
LORD JUSTICE MOORE-BICK
Between
RHApplicant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Computer-Aided Transcript of the Stenograph Notes 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 Patrick Lewis (instructed by Immigration Advisory Service) appeared for ApplicantMr Robin Tam (instructed by Treasury Solicitor) appeared for Respondent
J U D G M E N T

LORD JUSTICE BUXTON:

This

[1]is an appeal against a determination of the Asylum and Immigration Tribunal entered on 23rd February of last year in respect of an application by Mr H to be permitted to enter this country as a dependant of a person with limited leave to enter - that is his mother, Mrs Mary RH, who was his sponsor.[2]The appellant was born on 5th November 1985. During the process the authorities challenged whether he was the sponsor's child at all, but he was found to be so by every tribunal which considered the matter and that is not now in point. His application for entry clearance was made and rejected in October or November 2003. That rejection was appealed to an adjudicator, Mr Watkins, who allowed the appeal in July 2004. In January 2005 permission was granted to appeal against Mr Watkins' decision and there was a reconsideration hearing in September 2005 when the matter was transferred for hearing at a second-stage hearing in December 2005 when it was concluded that Mr Watkins' decision should be discharged.[3]Quite apart from that somewhat lengthy story, there was a procedural problem which it is necessary to mention. We are told by Mr Lewis on instructions that at the reconsideration hearing in September 2005 the only reason given by the first tribunal for a remittal for a second-stage hearing, with all the facts open, was that Mr Watkins had quoted the wrong immigration rule. He quoted Rule 194 which deals with matrimonial associations, rather than 197, which is the proper rule with regard to dependants.[4]When everybody arrived at the second-stage hearing Mr Bill, who was then representing the applicant, asked what were the grounds upon which the matter had been transferred to a second-stage hearing, and apparently was told that the problem continued to be simply that the wrong immigration rule had been cited. However, it is realistically accepted that the second-stage hearing took place with the understanding of all concerned that it was indeed a rehearing of the entire matter; so Mr Lewis very fairly says that this failure to set out the reasons for the first-hearing decision did not in the event handicap the presentation of his client's case. However, not only was that an unfortunate, to put it at its lowest, failure of administration on the part of the tribunal system, it was also the case that in contravention of the Practice Direction and of the direction of Collins J in R (Wani) v Secretary of State [2005] EWHC 2815 (Admin) the colloquially called "pink form" was not attached to the Asylum and Immigration Tribunal's decision, indeed only came to the attention of Mr Lewis and those instructing him when it appeared in the bundle prepared for this appeal by the court. That will not do. As has been said on a number of occasions, the pink form -- the reasons for the first-stage tribunal ordering a reconsideration -- is an essential part of the structure under the AIT process and must be punctiliously attached to the papers. It was because of concern on that ground that Mrs Gleason, a Senior Immigration Judge, gave permission to appeal to this court. Now we have the pink form it is clear that the first tribunal's reasons for deciding that there had been an error of law on the part of the adjudicator included the fact that he had quoted the wrong immigration rule; but, more particularly, also accepted the submissions of the Secretary of State that the decision of Mr Watkins, the adjudicator, had been inadequately reasoned to the extent of erring in law, and that for that reason it was not open to him to have found, as he did, that the sponsor who gave evidence before him had been a credible witness.[5]The first stage in our consideration, therefore, is whether that was a conclusion that it was open to the first-stage Asylum and Immigration Tribunal to reach. We go back to the matter as it was before Mr Watkins. As I have said, the whole nature of the applicant and his mother's case was heavily contested by the Entry Clearance Officer and by the Secretary of State. Mr Watkins' quotation of the wrong immigration rule may have owed something to the fact that the Entry Clearance Officer himself quoted the wrong rule in his determination. Be that as it may, it is now accepted sensibly that the substance of Mr Watkins's decision did relate to the right rule and that he addressed the right questions. The main question that he had to determine was whether the sponsor had had sole responsibility for her son before she came to the United Kingdom, and therefore it was appropriate for him to join her; that is a clear requirement under the rules. Her case was, effectively, that the husband had disappeared from her life and therefore the life of her son at an early stage. She had been obliged to bring him up. The father had declined to acknowledge paternity of his child, and therefore that she was solely responsible for his upbringing. She gave evidence to the adjudicator to that effect.[6]The objection that is raised now, and effectively the only point upon which complaint is made, concerns a discrepancy in the evidence about the registration of this young man's birth in the year 2001. It was explained by the mother -- and this is not challenged -- that it was not the custom in Ghana necessarily to register a birth at the time of birth. This registration had only taken place when the young man required a passport in order, as he hoped, to leave the country to join his mother.[7]The entry in the registry of births stipulated the father as "The informant" as to the fact of this man's birth and where he was born. Further, when the applicant was interviewed by the Entry Clearance Officer he was asked a series of questions about his mother and his relationship with her. We were shown this document by Mr Tam for the Secretary of State. There are a number of questions in rather summary form, the meaning of which we were not able to understand, nor was Mr Tam able to tell us, but the series of questions which is relied on by the Secretary of State were these:
"Where is your father? I do not know. When last see him? Since childhood." - which is fairly is accepted by the Secretary of State as meaning "not since I was a child"
. And then this question:
"Can you explain how he came to register your birth in 2001? My mother went with my father to get the birth certificate."
Now, that answer was plainly not right, at least in this respect, that it said that the mother had gone with the father to get the birth certificate when her evidence was, and her son's evidence was, that at that time she was already in the UK training as a nurse.[8]The sponsor was of course aware of this discrepancy when she gave her evidence to the adjudicator because that one answer, and the presence of the father's name on the birth certificate, was heavily relied on by the Entry Clearance Officer as demonstrating that the father had indeed played a substantial role in this young man's life; that therefore all the evidence that the mother gave to a contrary effect was not credible; and effectively that the whole case should therefore be rejected.[9]The adjudicator explained the sponsor's evidence, having set out her background, her employment and the fact that she have been paid allowances for her son while undergoing training, and them said this:
"She explained that in Ghana births are not always registered. She had asked her friend to register her son when it became clear that he might need a passport. She could not have been present at the registration because she was then in the United Kingdom and shown in her passport, exhibited at page 14-16 of the appellant's bundle. Her son is a student."
The mother had expanded on that in her statement to the adjudicator in paragraph 7 in these terms:
"The Entry Clearance Officer doubted our credibility on the basis that RH's father's name appears as informant on his birth certificate. There seems to be a misunderstanding in regards to this point. The ECO stated in the explanatory statement that my son told them that his parents went to register his birth together. I was in the UK at that time and it can be seen from my passport that I have not returned to Ghana since 2001. It is therefore not feasible that I would have gone to register my son's birth with his father. Unfortunately it is common practice in Ghana that when a child's birth is registered, the name of the father is entered regardless of whether he is present or not. In fact my friend Rose Adjei, went to register RH's birth."
[10]The adjudicator heard the sponsor give evidence before him. He did not have the benefit of her being cross-examined because the Secretary of State chose not to be represented at that hearing. That of course is a matter for him, but it is, if I may put it in this way, not entirely courteous to a court not to be represented before it and then to complain, as the Secretary of State does in this case, that the adjudicator did not properly expand on matters that no doubt would have been forcefully brought to his attention if anyone had turned up to do it. However, be that as it may, we take the adjudicator's determination as it stands. He said in paragraph 10: "The sponsor mother was a wholly credible witness. I accept that she is present in the United Kingdom on a work permit. I accept that she is employed full-time as a nurse by the National Health Service. I accept that she owns and resides in a two-bedroomed flat of which she is the owner. I accept that she has adequate income to maintain herself and her son in the United Kingdom. I accept the explanation she agave as to the registration of the son's birth. I accept her evidence and that of the documents before me that she has had sole responsibility for the child and that she continues to financially maintain him. I am, therefore, for the reasons I have set out, satisfied that the appellant at the date of decision on a balance of probabilities met the requirements of paragraph 197 of HC395." (That, in relation to the point mentioned earlier that paragraph 197, is indeed the correct paragraph for the adjudicator to have referred to).[11]The adjudicator therefore allowed the appeal and directed an issue of the appropriate entry clearance to enable the appellant to join his mother in the United Kingdom.[12]The Secretary of State complained, and at the first-stage hearing the Asylum and Immigration Tribunal accepted, that that passage in paragraph 10 either was inadequately reasoned, or it was not open to the adjudicator to come to that conclusion. This complaint, repeated before us this morning, really comes down to this, that there was a discrepancy on the one hand between the mother's evidence as to the form of the registration of his birth, and the answer, answer 30, that the applicant himself had given that it was the father who had gone to get the birth certificate. As we know, it could not have been also the mother because she was not in the country at the time. It is said that it was not open to the adjudicator simply to say that he believed the mother and accepted her account of the mode of registration and why there had been a mistake: he should have gone on and explained why he therefore did not accept, and did not find himself deterred by, the answer given by the applicant.[13]When we asked what it was that he should have said in order to meet that requirement, Mr Tam of course had to say that he did not know because he did not know, as he put it, what was in the adjudicator's mind with regard to the boy's answer to question 30. But what was in the adjudicator's mind in this case was that he wholly believed the mother, and therefore wholly believed what was the important part of her evidence that the father had had nothing to do with this child for a long period of time, and certainly had played no part in the registration of his birth. Why the child gave the answer that he did to question 30 is a matter of speculation. Had the adjudicator addressed that point he no doubt would be criticised for speculating.[14]There is, however, a more fundamental reason why the approach of the AIT was mistaken. We were shown very familiar authority in the shape of Flannery v Halifax [2000] 1 WLR 377, and English v Emery Reimbold [2002] 1 WLR 2409, which were said to demonstrate that in addressing this question it was not enough for the adjudicator to say to believe the mother, he must go on and say why he did not accept or did not rely on the answer given by the boy. Had they both given evidence to him there might possibly be something in that, but it is not required of a tribunal of fact, particularly one that has heard witnesses, to say more than that it fully accepts the evidence of the one witness. This court did not intend, in either Flannery or English v Emery Reimbold to go further than that, and more particularly it was careful to emphasise in English v EmeryReimbold that the reasoning necessary to be set out by a tribunal of fact depends very largely upon the nature of the dispute before it. That is conspicuously the case in Flannery, which was a case about two competing expert witnesses, where the parties were entitled to some indication of why one has been preferred to the other. In this case it is absolutely clear why the adjudicator decided the matter that he did. He decided it simply and crudely because he believed what the mother told him. The issue before him was whether she had sole responsibility for the child, and his series of reasons for believing what she said about that could, in my view, not possibly be offset by one answer given by the applicant, part of which is accepted on all sides to be mistaken and the other part of which, on the mother's evidence, is plainly wrong.[15]I therefore cannot accept, I fear, that the Asylum and Immigration Tribunal was justified at the first stage in finding that Mr Watkins had made an error of law. I would go further and say this, that when appeal tribunals are considering the determination of an adjudicator who has heard witnesses and who has seen all the papers, they should be extremely careful before translating what may be their view that they would have found the facts differently from what the adjudicator found into a conclusion that the adjudicator has erred in law in what he has found. Provided it is clear what the basis of the conclusion is -- and here it manifestly is clear -- it is not open to an appellate tribunal to go behind the determination of the tribunal of fact.[16]The upshot of this case is, therefore, is that the Asylum and Immigration Tribunal at the first hearing erred in law in concluding that Mr Watkins in turn himself had erred in law in his inclusion. Since they were wrong in that, that determination must be quashed. It was therefore not open to the Asylum and Immigration Tribunal to go on to the second-stage hearing, in which they themselves took the decision again, in the course of it disbelieving the mother's evidence. We therefore allow this appeal, quash the determination of the Asylum and Immigration Tribunal and reinstate the order made by Mr Watkins, I am sorry to see as long ago as 2004.

LORD JUSTICE MOORE-BICK: I agree.

[18]MR LEWIS: My Lord I am grateful. My Lord, I would ask for costs, please, in this matter.[19]MR TAM: We cannot resist that.

LORD JUSTICE BUXTON: The appeal is allowed with costs. There is no need to retain anonymity; it may be reported in the name of the mother.

[21]MR TAM: My Lord, there is just one small matter on the transcript when it comes to be revised. At the beginning of your Lordship's judgment you referred to the matter being remitted to the second-stage hearing. Technically it should be a transfer, and I know that the tribunal is keen to make sure the proper terminology is used.

LORD JUSTICE BUXTON: Always use proper terminology. I will try to remember to correct that.

Cited in 1 later judgment