AA (Third Party Maintenance) Bangladesh

JurisdictionEngland & Wales
Judgment Date21 April 2005
Date21 April 2005
CourtAsylum and Immigration Tribunal

Asylum and Immigration Tribunal

The Honourable Mr Justice Hodge (President), Mr H J E Latter (Senior Immigration Judge) and Professor A Grubb (Senior Immigration Judge)

AA (3rd Party MaintenanceR297(V)) Bangladesh

Representation:

Mr A Azahr for the Claimant;

Mr M Blundell, Home Office Presenting Officer, for the ECO.

Cases referred to in the judgment:

R v Secretary of State for the Home Department ex parte Ali [2000] Imm AR 134; [2000] INLR 89

Legislation judicially considered:

Immigration Rules HC 395 (as amended), Rule 297(v)

Immigration entry of a child to join a settled parent Rule 297(v) of the Immigration Rules maintenance by third parties

The Claimant, a citizen of Bangladesh, applied for entry clearance under Rule 297 of the Immigration Rules HC 395 (as amended) in order to join his father who was settled in the United Kingdom. The Entry Clearance Officer (ECO) refused his application as he concluded that the Claimant had failed to establish that the sponsor was his father. In addition, the ECO was not satisfied that the Claimant had met the maintenance requirement in Rule 297(v). The Claimant's appeal was allowed by an Adjudicator, who concluded that the DNA evidence showed that the sponsor was the Claimant's father. Evidence was also presented before the Adjudicator showing that two of the Claimant's cousins would provide him with financial support as the Claimant's father was currently living on benefits. The Adjudicator found that the requirements of Rule 297 had been met. On appeal by the ECO, the Claimant relied on the decision of Collins J in R v Secretary of State for the Home Department ex parte Arman Ali [2000] INLR 89 that, where a child sought to join a parent under the Immigration Rules, the maintenance requirement did not rule out long term maintenance by third parties.

Held, dismissing the Claimant's appeal against the decision of the ECO:

(1) the Adjudicator analysed the DNA report appropriately, giving reasons, and his conclusions were open to him on the facts: in this regard there was no material error of law (para 16);

(2) the relevant sub-paragraph of the Immigration Rules that applied at the time of the decision in Arman Ali (then Rule 297(iv)) had been replaced by three other sub-paragraphs in October 2000: the relevant sub-paragraph (now para 297(v)) required applicants to be maintained adequately by the parent, parents or relative they were seeking to join, without recourse to public funds; the use of the definite article limited the class of person who could provide the maintenance: third party maintenance could not satisfy the later version of the Rule and Arman Ali could not be relied upon for a proper interpretation of Rule 297(v) (paras 28 and 30);

(3) there was no evidence that the Claimant's sponsor, his father, was able to maintain the Claimant without recourse to public funds: the Adjudicator had made a material error of law (paras 23, 30 and 34).

Determination and Reasons

The Hon. Mr Justice Hodge, President

[1] In a determination promulgated on 21 October 2003, the Adjudicator Mr D.C. Gerrey, allowed the appeal of the claimant and directed that entry clearance be granted to the claimant to enable him to join his father, a person settled in the United Kingdom. The Entry Clearance Officer applied for permission to appeal under the terms of the Nationality, Immigration and Asylum Act 2002. The Immigration Appeal Tribunal acting by Mr J. Freeman, Vice President, granted permission to appeal.

[2] The Asylum and Immigration (Treatment of Claimants etc.) Act 2004 established the Asylum and Immigration Tribunal. By article 5 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement no. 5 and Transitional Provisions) Order 2005 (SI 2005/230), it is provided that any appeal which immediately before the commencement of the 2004 Act is pending before the Immigration Appeal Tribunal shall, after commencement of that Act, be dealt with by the Asylum and Immigration Tribunal as if it had originally decided the appeal and it was reconsidering its decision. The commencement date of the 2004 Act and the Transitional Provisions Order was 4 April 2005. This case was heard on 12 April 2005 and is therefore a reconsideration case.

[3] The Asylum and Immigration Tribunal (Procedure) Rules 2005 provide at Rule 62(7) that a reconsideration shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal. In accordance with paragraph 14.8 of the Practice Directions of the President of the AIT issued on 4 April 2005, we must consider whether the Adjudicator made a material error of law.

The Adjournment Application

[4] Counsel for the claimant applied for an adjournment. The basis for the application was that the claimant had very recently changed solicitors. The reasons for this are not known. Counsel himself had only been instructed on Friday 8 April 2005 so preparation time had been short. There had been no opportunity to consider the skeleton argument from the Entry Clearance Officer's side. Counsel for the Entry Clearance Officer accepted there had been late filing of the skeleton on his side and did not oppose the adjournment.

[5] We refused the adjournment application. Permission to appeal had been granted on 5 January 2004. The case had come on for hearing before the IAT on 20 July 2004. It was adjourned at the claimant's request. A further hearing for 15 September 2004 was vacated and the case transferred for hearing before another panel. The matter came before the IAT again on 11...

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