SZ (Applicable immigration rules) Bangladesh [2007] UKAIT 00037 (30 March 2007) [2007] UKAIT 00037

UKAIT
SZ (Applicable immigration rules) Bangladesh [2007] UKAIT 00037 (30 March 2007)
[2007] UKAIT 00037 · 2007-03-30
[1]SZ (Applicable immigration rules) Bangladesh [2007] UKAIT 00037 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 13 March 2007 Date Determination notified: 30 March 2007 Before Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Grubb Between SZ APPELLANT and ENTRY CLEARANCE OFFICER, DHAKA RESPONDENT For the Appellant: Mr E Fripp instructed by D J Webb & Co, Solicitors For the Respondent: Mr S Walker, Home Office Presenting Officer DETERMINATION AND REASONS There is no general duty on the Tribunal to consider whether a claimant's case if differently presented or if made the subject of a different application might have succeeded on a different basis from that on which the application or claim was made. Although individual claimants cannot be expected to know the Immigration Rules, there can be no complaint if they receive a judgment on the application or claim as they put it. Exceptionally, however, the facts of a case or, in particular, the terms of a notice of decision may require the Tribunal to consider the appeal on a number of alternative bases. The appellant is a citizen of Bangladesh who was born on 25 February 1987. On 9 November 2004, the appellant applied for entry clearance to join the sponsor in the United Kingdom as her adopted child. On 12 April 2005, the respondent refused her application and her subsequent appeal was dismissed by Immigration Judge O'Garro in a determination sent on 6 January 2006. The appellant sought and was granted reconsideration of that decision on 17 February 2006. As a result, the matter now comes before us.[2]The sponsor is the appellant's aunt. The appellant is the youngest of 6 children of the sponsor's brother who lives in Bangladesh. Because of the family's circumstances, the sponsor began looking after the appellant when she was 3 years of age. In 1993, the appellant moved to the United Kingdom. In 1996, she returned to Bangladesh and, with her husband, adopted the appellant under Bangladeshi law on 20 September 1996. The sponsor returned to the UK and the appellant has since that time lived with, and been cared for by, the sponsor's husband (her adoptive father) and his sister. Since the adoption in 1996, the sponsor has visited the appellant in Bangladesh for short periods in 1999 and 2000 and at the time of the application in 2005. At the date of the decision, the sponsor had indefinite leave to remain in the UK and, at the hearing, we were told that she became a British Citizen in 2006. These facts were not in dispute before us.[3]Mr Fripp, who represented the appellant before us, did not take issue with the Immigration Judge's decision in respect of the immigration rules relied on before her. He accepted that in dismissing the appeal the Immigration Judge had correctly applied the relevant adoption rules in HC 395, namely paragraphs 310 (read with 309A) and 316A to the appellant's case. He accepted that the appellant's adoption in Bangladesh could not fall within paragraph 310 because it was not one recognised in UK law and because the sponsor had lived in the UK since 1996 she could not satisfy the definition of a de facto adoption in paragraph 309A. Likewise, he accepted that the appellant could not satisfy the requirements for admission with a view to adoption under paragraph 316A. At the date of decision, the appellant was an adult – she was 18 years of age - and hence could not be adopted in the UK. Mr Fripp also did not challenge the Immigration Judge's decision in respect of Article 8 of the ECHR.[4]Instead, Mr Fripp submitted that the Immigration Judge had erred in law in failing to consider the application of paragraph 297 of HC 395 to the appellant's case. He submitted that the sponsor was the appellant's aunt and hence, potentially, came within paragraph 297(i)(f) which, providing all the other requirements of the paragraph were met, allowed for admission where:
"a relative is present and settled in the United Kingdom…and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care;…"
[5]Mr Fripp submitted that the facts should have drawn the Immigration Judge's attention to this provision's potential applicability. The Immigration Judge had a duty under s. 86(3) of the Nationality, Immigration and Asylum Act 2002 to allow the appeal if the "decision against which the appeal is brought … was not in accordance with the law (including immigration rules)".[6]At first blush, Mr Fripp's submission is a bold one. It seeks to found an error of law on a failure by the Immigration Judge to consider a paragraph of the Immigration Rules which was not raised before her by the representative (not Mr Fripp) who then appeared for the appellant. That does not necessarily mean that it is doomed to fail.[7]Does an Immigration Judge have a duty to consider whether an appellant meets the requirements of any of the immigration rules even if they are not relied upon by the appellant? That is, in essence, the question posed by Mr Fripp's submissions. Neither Mr Fripp nor Mr Walker, who represented the respondent, drew our attention to any relevant authorities. There are, however, a number of cases which may have some bearing upon the answer to this question.[8]The correct starting point must, in our view, be the appellant's application for entry clearance or leave. It is the basis upon which that is made which must inform the decision-maker (and on appeal the Tribunal) of the appropriate immigration rule or rules which should be considered and applied. This is not to say that the applicant must identify and specify the rules upon which he or she relies. That would often be to expect too much in practice and would be uncalled for on any legal basis. Nevertheless, it is the applicant's duty to set out the factual matrix for their application to enter the UK as a spouse, an adopted child, a dependent relative, a student, a visitor and so on. The decision-maker must then make an assessment of what immigration rule or rules that application engages and respond accordingly. Thus, not only must the correct rule be identified and applied ( CP Dominica [2006] UKAIT 00040 ), but also if an application (as presented) could be considered under alternative parts of a relevant rule it will be the decision-maker's duty to do so (see, IAT v Tohur Ali [1988] Imm AR 237 (CA) and Mohammed Fazor Ali v SSHD [1988] Imm AR 274 (CA)). An example of this might arise in an application by a dependent child under paragraph 297 or a dependent adult relative under paragraph 317. More than one part of the relevant rule might be applicable or become applicable when the decision-maker examines the evidence and determines the facts.[9]Although, the authorities recognise that the decision-maker (including the Tribunal) must consider all the relevant parts of an applicable rule, the duty to consider the applicable rules is not an all-embracing obligation to seek out and find any (or every) potentially applicable rule. In Mohammed Fazor Ali v SSHD Mann LJ pointed out (at p. 282) it was not "any part of an immigration officer's duty to conduct a roving expedition through all the paragraphs to see whether a person before him is eligible under any of them."[10]Without deciding the issue, the Court of Appeal has expressed scepticism as to whether the Tribunal is required to consider the application of immigration rules not directly relied upon by the appellant (see Tohur Ali , especially per Balcombe LJ at p. 247 and Woolf LJ at p. 255).[11]It is important to bear in mind that the Tribunal is not the primary decision-maker in immigration cases. It hears appeals against decisions taken (see, EA Nigeria [2007] UKAIT 00013 , at para [7] clarifying the relevance in appeals of post-decision facts and the application of s.85(4) of the 2002 Act). Consequently, the focus of enquiry by the Tribunal must always be the basis upon which the application was made. It is that application which leads to the decision which is the subject of any appeal before the Tribunal. If an appellant seeks to assert a different basis from that put forward in his application upon which he should have been granted entry clearance or leave under the immigration rules, that is properly a matter for a fresh application or possibly a variation of the existing application. It is not a matter for the Tribunal to consider on an appeal against the decision made on the existing application.[12]Thus, in Uddin v SSHD [1991] Imm AR 134 (CA) it was held that an adjudicator did not err in law when dealing with an appeal against a refusal of leave on the basis of marriage when he failed to consider the application of a rule dealing with co-habitees which might have been applicable when he held the marriage to be invalid. Perhaps echoing the words of Mann LJ, quoted above, McCowan LJ remarked (at p. 144):
"…if one of the appellate authorities … has regard to and applies the rules applicable to the decision which is before him, he need do no more. Indeed he ought not to embark on any roving expedition among the rules to see if there is anything which might be of assistance to one side or another."
[13]Applying this approach, we have considerable doubt whether some earlier IAT decisions which suggest that – even in the absence of a specific application – the Tribunal should consider the application of the rules concerning fiancé(e)s where, on appeal from a refusal under the marriage rules, it is decided that the marriage is for some reason invalid (see, e.g. Mohammed Ach-Charki v SSHD [1991] Imm AR 162). We are not persuaded that an application based upon an existing marriage can also be seen as one based upon prospective marriage, and so require an immigration judge to consider the case on that basis. It seems to us that the proper approach to such cases is that the appeal should be dismissed and the appellant should make a fresh application as a fiancé(e).[14]It follows that in the generality of cases it will be obvious from the application which immigration rule (or rules) must be considered. The nature of the application, the statements within it and the boxes ticked will indicate that the appellant is seeking entry clearance or leave, for example on the basis of marriage, as a family visitor, a dependent relative or as a student. (This will be particularly so for in-country applications where a specific prescribed form must be used depending upon the basis for the application: see the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2006 (SI 2006/1421).) As a result, the Tribunal's scope of enquiry will be circumscribed and focussed upon a clearly applicable rule (or rules).[15]It must always be borne in mind that the Tribunal is concerned with an appeal against a particular decision and that the grounds will have been set out in the notice of appeal. Whatever may have been the position under earlier Procedure Rules, the 2005 Procedure Rules envisage that, albeit subject to amendment, those grounds define the ambit of the appeal (rule 14). That feature of appeals before the Tribunal may itself be sufficient to delimit the immigration judge's task.[16]However, there will occasionally be situations where the basis of the application, or the scope of the decision, or the grounds themselves, do require the Tribunal to consider more than the self-evidently applicable rule. Where there is an obvious link or connection between another rule and the primary way in which the application or grounds are put it may be the obligation of the Tribunal to consider and apply another rule subject always to the requirements of fairness. In particular, if there is reason to suppose that the appellant may want to challenge the decision on grounds other than those set out in the notice of appeal, there may in certain circumstances be an obligation to consider whether the grounds of appeal should be amended.[17]In this appeal, the appellant's primary case was that she was the adopted child of the sponsor. Her application also clearly raised the fact that she was the niece of the sponsor and dependent upon her. In substance, though not form, her application could, and we would say should, have been understood as also asserting a claim under paragraph 297 as a dependent child. Although it was not put in this way before us, it seems clear from the "Notice of Immigration Decision" that the ECO thought so also. Having considered the adoption aspects of the application, he states:
"I have also considered your application to join [the sponsor] in the UK under other paragraphs of the Immigration Rules, but as the niece of the sponsor you do not qualify. I am not satisfied that there are any serious and compelling family or other considerations which make your exclusion undesirable."
[18]The ECO makes no explicit mention of paragraph 297 but we are in no doubt from the words used it was paragraph 297(i)(f) that he had in mind. The grounds of appeal appear to have been drafted with professional help but though copious are far from clear. It appears to us, however, that the passage that reads as follows is referable only to the ECO's decision under para 297:
"7. The ECO failed to consider properly serious and other compelling considerations which make the appellant's exclusion undesirable."
[19]For that reason, the Immigration Judge should have considered paragraph 297 despite the fact that it was not raised by the appellant's then representative at the hearing because of her duty to consider "any matter raised as a ground of appeal" under s. 86(2)(a) of the 2002 Act. In failing to do so, the Immigration Judge erred in law. However, we do not consider that her error was material as, on the evidence, the appellant was bound to fail under paragraph 297.[20]Mr Fripp put forward a number of factors which, he submitted, taken together satisfied the requirement in paragraph 297(i)(f). His submissions, in effect, rely upon the fact of the adoption and the continued separation as amounting to the "serious and compelling circumstances" making the appellant's exclusion from the UK undesirable. He reminded us that the appellant has been cared for by the sponsor since she was 3 years old and even after the sponsor came to the UK in 1993 when the appellant was 6 years old she remained responsible. The sponsor has taken the critical decisions in the sponsor's life albeit largely from the UK. She has supported the appellant financially and kept in contact by telephone and visits. Mr Fripp submitted that, although the appellant was now an adult, the parental role continued and it was undesirable that she should be separated from her mother in the UK.[21]We accept the role that the sponsor has played since the appellant was 3 years old. It remains the fact, however, that since 1993 (some 12 years before the date of decision) the sponsor has not lived with the appellant who has been in the UK. Since the adoption in 1996, the sponsor has visited, so far as we can tell, on only 3 occasions including at the time of the making the application to join the sponsor in the UK. The appellant is (and was at the date of decision) an adult. Although her claim cannot fail under paragraph 297(ii) solely on that basis (paragraph 27), that does not make it irrelevant in applying the words of paragraph 297(i)(f). At the date of decision, she was, in fact, no longer a child. She lives, and has lived for the last 10 years, with her adoptive father and his sister. It has not been suggested that this has created any problems for the appellant apart from the fact that she is not with her other adoptive parent, the sponsor, in the UK. This is not a case where the appellant's admission is necessary to unite her with her only responsible parent. It is not suggested that the sponsor has "sole responsibility" for the appellant – no reliance is placed upon that basis for admission in paragraph 297(i)(e). If she came to the UK she would still be separated from one of her adoptive parents – indeed the one she has lived with since 1996. In our judgment, given the family situation and living arrangements of the appellant with her other adoptive parent and absent any evidence of any hardship beyond the separation from the sponsor, the evidence before the Immigration Judge came nowhere near satisfying the requirement in paragraph 297(i)(f) that there are "serious and compelling family or other considerations which make exclusion of the child undesirable". Decision[22]Although, for the reasons we have given, the Immigration Judge was wrong not to consider the application of paragraph 297, that error of law was not material to her decision. The decision to dismiss the appeal under the Immigration Rules and Article 8 of the ECHR stands. A GRUBB SENIOR IMMIGRATION JUDGE Date:

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