Dr (Eco: Post-Decision Evidence)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 09 February 2005 |
| Neutral Citation | [2005] UKIAT 38 |
| Court | Immigration Appeals Tribunal |
| Date | 09 February 2005 |
[2005] UKIAT 38
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr D K Allen (Vice President)
Mr R A McKee
For the Appellant: Mr N Klear of Simmons Solicitors
For the Respondent: Ms L Saunders, Home Office Presenting Officer
DR (ECO: post-decision evidence) Morocco*
This appeal raises a short, but important, issue as to the effect of section 85(4) and (5) of the Nationality, Immigration and Asylum Act 2002 on the evidence which can be admitted on an appeal from the decision of an Entry Clearance Officer. It is an appeal against the determination of an Adjudicator, Mr P M S Mitchell, promulgated on 23 March 2004, whereby he dismissed the Appellant's appeal against the Entry Clearance Officer's decision to refuse him entry clearance for settlement as the spouse of the sponsor under paragraph 281 of the Immigration Rules. The Entry Clearance Officer's decision was made on 1 May 2003; he was not satisfied that the Appellant and his wife intended to live together as husband and wife.
The Adjudicator said of section 85:
“7. I can only take into account facts in existence at the date of the Respondent's decision, or which were then in reasonable contemplation.
8. By virtue of Section 85(4) and (5) of the Nationality, Immigration and Asylum Act 2002, I am constrained from taking into account facts arising after the Respondent's Decision. This is a specific exclusion for all immigration decisions as defined in section 82(1) of the same Act. It seems that Parliaments has expressly stopped the previously accepted practise of allowing adjudicators to consider matters that arose within a short period of the time of decision and could have been in reasonable contemplation of the decision maker. This constraint applies to all human rights issues, except for those under Article 3.”
Taking the evidence before the Entry Clearance Officer, the Adjudicator said that the Entry Clearance Officer had analysed it soundly, and had properly concluded that the evidence of the relationship and continuing devotion was very limited. He continued:
“19. The lack of contact from the time that they met until the time they married is most surprising. It is an almost inevitable conclusion that the marriage was not a real one and that there were other motives for the marriage and the application before the ECO.
22. Having considered all the evidence that was available to the ECO I agree with his assessment that at the time of the decision that there was no evidence that the marriage was genuine and subsisting at the appropriate standard. I am satisfied having seen the wedding photographs that they did go through a genuine marriage ceremony though.”
The Adjudicator did, however, consider evidence which had not been and could not have been before the Entry Clearance Officer. This consisted of a constant stream of subsequent communication, evidenced by telephone bills. He said that he could not take it into account:
“18. None of it was foreseeable at the time of the decision. If I could I would be satisfied that there was evidence of a continuing and subsisting relationship between the appellant and his wife.”
The grounds of appeal drafted by the IAS and the basis upon which permission was granted related to the effect of section 85 of the 2002 Act on this type of evidence.
Mr Klear, who appeared for the Appellant before us, seemed unwilling to pursue the argument along those lines and Ms Saunders was, for a brief while, content that she could agree that seeming concession. The Tribunal did not feel that the issue was so open and short, and pressed Ms Saunders on a number of points.
Before we deal with the ground of appeal as drafted by the IAS and which, pace Mr Klear is not obviously a lost cause, we should briefly refer to his argument, as best we understood it. We do so even though he did not have permission to argue it but, in a way which we could not follow, he said that they were related to section 85.
The Adjudicator was correct to ignore the evidence of the communications but had erred in upholding the Entry Clearance Officer's decision when the Entry Clearance Officer had mistakenly said that the sponsor had not been granted entry clearance as the wife of her then husband. This error infected the Adjudicator's conclusions.
We reject that. The mistake was put right before the Adjudicator. Nothing in his decision perpetuates it. He would have been wrong to allow the appeal and remit it on that sole basis.
It was also said that the Adjudicator was wrong to support the Entry Clearance Officer's inference that there was no intention to live together based on their lack of contact, because coming from a Muslim country, they could not have lived together before marriage. There is nothing in this point either. It was not prior co-habitation but the minimal prior contact despite the opportunities, and the minimal knowledge of his new wife which troubled the Entry Clearance Officer and Adjudicator. Besides, gross generalisations about life in Morocco, drawing solely from an advocate's say so is about as unpersuasive as can be imagined.
We now turn to the real issue in this appeal. First, the statutory provisions. Section 85(4) and (5) of the 2002 Act provide:
“(4) On an appeal under section 82( 1) or 83(2) against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10-
(a) subsection (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.”
This appeal was brought under the 2002 Act.
It is also relevant to look at the provisions in section 77(3) and (4) of the Immigration and Asylum Act 1999. This provided:
“(3) In considering-
(a) any ground mentioned in section 69, or
(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).
(4) In considering any other ground, the appellate authority may take into account only evidence-
(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or
(b) which relates to relevant facts as at that date.”
Ms Saunders pointed out correctly that this was not the predecessor provision so far as entry clearance decisions were concerned. But that point does not take her very far. It was the predecessor language used by Parliament in drawing the distinction, where it applied, between certain appeals or grounds of appeal where the...
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