Entry Clearance Officer, Accra v W (Ghana) [2004] UKIAT 00005 (22 January 2004) [2004] UKIAT 00005

UKIAT
Entry Clearance Officer, Accra v W (Ghana) [2004] UKIAT 00005 (22 January 2004)
[2004] UKIAT 00005 · 2004-01-22
[1]APPEAL No. [2004] UKIAT 00005 W (Ghana) IMMIGRATION APPEAL TRIBUNAL Date of hearing: 14 October 2003 Date Determination notified: 22 January 2004 Before DR H H STOREY (CHAIRMAN) MR L WAUMSLEY Between ENTRY CLEARANCE OFFICER, ACCRA APPELLANT and RESPONDENT DETERMINATION AND REASONS This case is reported in order to clarify how family visit appeals should be approached where the only purpose shown for the visit is family-related.[2]The appellant, a national of Ghana, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr Michael J H Wilson, dismissing the appeal against the decision of the Entry Clearance Officer, Accra refused entry clearance as a family visitor. There was no appearance from the sponsor or anyone representing the appellant. Mr C Buckley appeared for the respondent.[3]In the absence of any explanation from the sponsor as to why there was no representation at the hearing, we decided to exercise our discretion to proceed with the hearing under Rule 44 (1) of the Immigration and Asylum Appeals (Procedure) Rules 2003.[4]The Entry Clearance Officer had refused to grant entry clearance as a family visitor for 6 weeks for the following reasons: "I acknowledge the importance of family visits in maintaining family ties, therefore I have given your application careful consideration. You wish to visit a relative in the UK. However: You are a young single man who has yet to establish himself in terms of property, assets, career, or family commitments. You are unable to credibly account for how you will spend your time in the UK. Given the expense involved this lack of research in advance of your trip casts doubts on your bona fides a visitor. I am not therefore satisfied that you are genuinely seeking entry for the purpose and for the period as stated by you".[5]This refusal notice came after two short interviews, the first simply confirming answers in the IM2A form. The second and only recorded interview consisted in the following:
"1. Why go? See uncle 2. How long there? 22 years 3. How related? Mother`s brother 4. She visit? No 5. Why note? D/know 6. What do? Visit historical places 7. Where? Beckingham Palace [(sic)] 8. Where else? Madame Tissaw`s (sic)."
[6]In the grounds of appeal the appellant said that he had given some account of how he would spend his time but in any event he had trusted his uncle to ensure his trip was educational and interesting. The appellant`s sponsor stated that he had not disclosed to the appellant the exact details of his visit as it was meant to be a surprise for his nephew designed to make it an interesting and educative visit.[7]The appeal came before the adjudicator under provisions then in force as a paper appeal. He considered that the ECO had a reasonable ground for refusal in all the circumstances of the appellant`s case. He said:
"The appellant had still not advanced anything to say how he proposes to spend his time in the United Kingdom. I find that the appellant has failed to meet the respondent's point and that it remains an outstanding issue. This combined with the fact that the appellant is a young single man who has yet to establish himself in terms of property, assets, career, or family commitments, leads me to the finding that I cannot be satisfied on a balance of probabilities that the appellant is genuinely seeking entry for the purpose and for the period stated by him, and I cannot be satisfied that he intends to leave the United Kingdom at the end of the period of his visit."
[8]We can only allow this appeal if satisfied that the adjudicator's conclusions were unsustainable. Before stating our conclusions about this, it is salient to set out the framework in which family visit appeals arise.[9]This appeal is one of the first crop of "paper" family visit appeals to come before the Tribunal for a (non-paper) hearing following the abolition of the fees for family visitor appeals.[10]Largely because of the fee system, there have been a limited number of cases in which we have had to consider relevant issues. However, in deciding this appeal we have had regard to several family visit cases in particular Mohammad Ashrif (01/TH/3465), Ramsew (01/TH/2505), Rattan Kaur [2002] UKIAT 05692 and Ogunkola [2002] UKIAT 02238 .[11]The relevant provisions of para 41 read:[12]The requirements to be met by a person seeking leave to enter the United Kingdom as a visitor are that he:(i) is genuinely seeking entry as a visitor for a limited period as stated by him, not exceeding 6 months; and(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him; and(iii) does not intend to take employment in the United Kingdom; and(iv) does not intend to produce good or provide services within the United Kingdom, including the selling of goods or services direct to members of the public; and(v) does not intend to study at a maintained school; and(vi) will maintain and accommodate himself and any dependants adequately out of resources available to him without recourse to public funds or taking employment; or will, with any dependants, be maintained and accommodated adequately by relatives or friends; and(vii) can meet the cost of the return or onward journey".[13]In the context of a family visit, these have to be read in conjunction with s. 60 of the Immigration and Asylum Act 1999 and with the Immigration Appeals (Family Visitor)(No 2) Regulations 2000 which at regulation 2 state:
"For the purposes of section 60(10) of the Act a "family visitor" is a person who applies for entry clearance to enter the United Kingdom as a visitor, in order to visit - (a) his 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 his spouse; c) the spouse of his son or daughter; (d) his stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister; or (e) a person with whom he lived as a member of an unmarried couple for at least two of the three years before the date on which his application for entry clearance was made"
(emphasis added) "[14]We shall come back to the relevance of the words in regulation 2 which we have italicised. What is plain otherwise from these provisions is that paragraph 41(i) and 41(ii) of HC 395 are two separate requirements. They are not interchangeable. That accords with common sense. One can think of a person who intends to leave at the end of his visit but does not have a genuine purpose for his visit. Equally, however, it accords with common sense to accept that there is some degree of overlapping: if a person genuinely intends a visit for a limited period, that entails that he will have an intention to leave at the end of that period. For that reason it is not in every case an error of law for an adjudicator to automatically equate failure to meet one requirement with failure to meet the other.[15]How do these observations impact on the adjudicator's determination in this case. We have two difficulties with it.[16]One is that he purported for no apparent reason to dismiss the appeal on an additional ground to that relied upon by the Entry Clearance Officer. He dismissed it under paragraphs 41(i) and 41(ii). The latter, however, had refused it under paragraph 41(i) only.[17]Although it is generally undesirable for an adjudicator to find against an appellant on grounds not raised by an ECO, it may sometimes be a proper step if the facts as found simply do not support an essential requirement under the Immigration Rules. In this case too little is said by the adjudicator to establish whether she did err in refusing the appeal under paragraph 41(ii) notwithstanding that the ECO only refused under paragraph 41(i). However, it is clear that in this case his reliance on paragraph 41(ii) was not based on any reasons over and above those he relied upon in dismissing the appeal on paragraph 41(i) grounds. That means that if his reliance on paragraph 41(i) was sound, then the appeal was properly dismissed. If, however, such reliance was unsound, then there are no separate reasons identifiable in this case for sustaining a refusal under paragraph 41(ii) either.[18]The other difficulty, however is more serious. Plainly the adjudicator, like the ECO, placed considerable reliance on the failure of the appellant to account for how he would spend his time in the UK. As Mr Buckley conceded, it cannot easily be understood why a person applying as a family visitor should have to establish anything more than that he has the purpose of visiting a family member. In this regard the family visitor is in a slightly different position from persons whose visit intentions are less specific. In regard to the latter, what account they give of how they intend to spend their time is directly relevant to consideration of the underlying purpose of the proposed visit. For the family visitor, however, all that is strictly required is to have the purpose of a family visit.[19]To similar effect was the view taken by the Tribunal in the case of Ahsrif chaired by Mr Barnes: "14. As to the point taken that there is no specific reason for making the trip at that particular time, although it is a reason for refusal frequently given by Entry Clearance Officers, it seems to me to have little weight provided that the claimed family relationship is shown to exist. The whole point of family visits is that the existence of the family ties will normally furnish the reason for the visit, since it is hardly surprising that members of the family separated by many thousands of miles may from time to time wish to see each other".[20]Even if a family visitor were to spend every minute of his visit in the company of a family member, the visit would not necessarily be any the less valid. However, we are not saying that there is anything wrong with an ECO, as part of his inquiry into whether a person intends a family visit, asking questions about how a person will spend his time, including questions about what tourist attractions he plans to visit. It may be for example that in some cases - as a result of such inquiry - that a person appears so concerned about the non-family aspects of the visit that it is not credible there what is intended is a family visit. Such inquiry may yield evidence going to the overall picture. However, what is valid in the context of an inquiry in order to establish a person's intention is not necessarily valid as a reason for refusing a family visit application, certainly not when it concerns matters which are extraneous to the family visit purpose.[21]The ECO`s reasons asked a mere eight questions, all relatively straightforward. Only two were related to family reasons and three were concerned with what historical places the appellant planned to visit (we must assume with some trepidation that by Beckingham Palace the appellant had in mind Buckingham palace rather than a certain celebrity couple`s recent abode). Given that his questions did not disclose any concern on his part about the genuine nature of the appellant`s relationship with his uncle or about the financial arrangements, we do not consider that he was entitled to give lack of advance planning as a reason for refusal of a family visit application. It was not a factor relevant to the genuineness of that type of application. The adjudicator's reliance on the same reason was also erroneous.[22]What about the only other reason given by the adjudicator for refusing the appeal? That reason was that the appellant was a single man who had yet to establish himself in terms of property, assets, career, or family commitments. The Vice President in granting leave expressed concern that this appeared, wrongly, to treat the mere fact of youth, i.e. an age factor, as a negative consideration. If that is what the ECO or adjudicator had done, we would share this concern. Plainly the family visit rules are not confined by rules or regulations to persons of a certain age: they are not age-discriminatory. However, it is sufficiently clear in our view that the ECO and the adjudicator were concerned, not about the mere fact of the appellant`s age/youth, but about the fact that he was single, lacked family commitments and had yet to establish himself in terms of property, assets or career. We see nothing wrong on its own with the adjudicator viewing this composite set of factors as counting against the appellant.[23]We have to bear in mind, however, that the adjudicator saw refusal of the appeal as justified by(1) factors indicative of lack of incentive to return taken together with(2) the lack of advance planning. Keeping the latter out of the equation (for reasons already given), it remains for us to consider whether on the evidence relating to incentive to return the appellant had shown on the balance of probabilities that only a genuine visit for the period as stated by him was intended. In this connection we think the Vice President granting permission to appeal was right to observe that no doubts were raised by the ECO or adjudicator as to the the appellant`s evidence that he came from a settled family background in his own country. We note that the appellant had provided evidence of continuing education there. The Ghana Institute of Journalism had written confirming that he was a student at this Institute who had planned a short visit during the Institute's long vacation. Against this background and bearing in mind what we have already said in relation to the appellant`s youtha and single status, we do not think that the evidence relating to (1) was sufficient to justify dismissal of the appeal.[24]Considering the evidence in the round, we think that the appellant had provided sufficient evidence to show that only a genuine visit for family purposes was intended. Given the lack of challenge by the ECO to important aspects of his background in Ghana, taken together with the ECO`s lack of concerns about the financial arrangements for the trip, we have concluded that this adjudicator should have allowed the appeal. Accordingly we allow the appellant`s appeal to us.[25]We would note that we did consider whether we should treat failure of the sponsor to appear at the hearing as a factor significantly weakening the appellant`s case. However, bearing in mind that as a result of legislative changes this appeal has "changed its spots" as it has progressed - from being a paper appeal to being one before the Tribunal at a hearing, we concluded that we had to make allowance for possible confusion on the part of the sponsor.[26]Whilst accordingly his absence did not lead us to dismiss the appeal, we do think that before any entry clearance was granted to the appellant in consequence of our decision, the sponsor should be expected to reconfirm to the ECO his commitment to hosting the trip in full accordance with the Immigration Rules.[27]For the above reasons this appeal is allowed. DR H H STOREY VICE-PRESIDENT