R Sarah Khatoon (Claimant/Appellant) v The Entry Clearance Officer, Islamabad and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Tomlinson,Lord Justice Briggs |
| Judgment Date | 09 May 2014 |
| Neutral Citation | [2014] EWCA Civ 1327 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 2014 |
| Docket Number | Case No: C4/2013/2019 |
[2014] EWCA Civ 1327
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE WYN WILLIAMS)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Laws
Lord Justice Tomlinson
Lord Justice Briggs
Case No: C4/2013/2019
Mr Benjamin Hawkin (instructed by Lambeth Solicitors) appeared on behalf of the Claimant
Mr Matthew Barnes (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
This is an appeal with permission granted by Moore-Bick LJ on 28 October 2013 against the decision of Wyn Williams J given in judicial review proceedings in the Administrative Court on 26 April 2013 (see [2013] EWHC 972 (Admin)). The judge below declined to quash the decision of the Upper Tribunal (Senior Immigration Judge Storey) of 2 February 2011 by which Judge Storey refused permission to appeal to the Upper Tribunal against the earlier determination of the First-tier Tribunal ("the FTT") (Immigration Judge Gurung-Thapa) which had been promulgated on 16 November 2010. The FTT had dismissed the appellant's appeal against the entry clearance officer's refusal of entry clearance to her on 25 January 2010. Because the subject of the judicial review was the Upper Tribunal's refusal of permission to appeal to itself, the High Court was required to be satisfied that it raised an important point of principle or practice or there was some other compelling reason for the application to be heard. The judge granting judicial review permission (His Honour Judge Rogers on 28 March 2012) had been so satisfied.
The case raises issues as to the construction of paragraph 27 of the Immigration Rules and the application of Article 8 of the European Convention on Human Rights.
The facts are succinctly described in outline by Wyn Williams J in his judgment as follows:
"7. The Claimant was born on 21 December 1991. She is a citizen of Pakistan. Her father is Mohammed Akram; her mother is Zarina Akhtar. The Claimant has 6 brothers.
8. In 2002 or 2003 Mr Akram left Pakistan and came to the United Kingdom. On 20 August 2007 he was granted indefinite leave to remain in the UK as was one of his sons, Mohammad Ali.
9. Some time thereafter the Claimant's mother and the Claimant's three youngest brothers applied to the entry clearance officer for indefinite leave to enter the United Kingdom. The application was refused but an appeal to the Immigration and Asylum Tribunal was successful. As I understand it the Claimant's mother and brothers were notified of their successful appeal by letters dated on or about 5 August 2009.
10. The Claimant did not apply for indefinite leave to enter the United Kingdom at the same time as her mother and brothers. However, she made such an application to the entry clearance officer on or about 27 October 2009."
Then it appears that in November 2009 Mrs Akhtar and the three youngest brothers travelled to the United Kingdom.
As the judge noted at paragraph 16, at the time she made her application for entry clearance the appellant was aged 17 years and 10 months. When the ECO determined the application on or about 25 January 2010 she was 18 years and 1 month. Her application was sent under cover of a letter from herself. She said this:
"The undersigned is one of the dependent children (under 18 years) of Ms Zarina Akhtar; the Appellant whose case has been decided by the Immigration & Asylum Tribunal. My mother Zarina Akhtar and 3 brothers, namely Mr Mohammad Umar, Mr Usman Ghani and Mr Mohammed Bilal have been granted settlement visa as per court decision … the honourable court further stated '1. Other child was the subject of an outstanding application', that is me (copy of the Immigration & Asylum Tribunal Services and copy of Solicitors' letter is enclosed)
It is therefore requested that I may also be granted settlement visa so that I can join my father Mr Mohammed Akram and brother Mohammed Ali in London UK (they have indefinite visas) along with my other family members."
In the application for entry clearance the appellant stated that she was living in Pakistan with her mother and siblings. As the judge noted at paragraph 17, there was it seems nothing to show that the fact that the mother and younger brothers had travelled to the United Kingdom in November 2009, after the applicant's application but before it was decided, was made known to the ECO.
The appellant's application was for indefinite leave and should therefore have been considered under paragraph 297 of the Immigration Rules. In fact the ECO dealt with it under paragraph 301 which relates to applications for limited leave, but the relevant conditions which the appellant had to satisfy were the same. Nothing therefore turns on the mistake.
Paragraph 297 provides so far as relevant:
"297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that:
i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
a) both parents are present and settled in the United Kingdom; …
…
ii) is under the age of 18; and
iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
v) can, and will, be maintained adequately by the parent, parents or relative the child is seeking to join without recourse to public funds; and
vi) hold a valid United Kingdom entry clearance for entry in this capacity."
In light of the first issue in the case I must also set out paragraph 27 of the Rules:
"An application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision, except that an Applicant will not be refused an entry clearance where entry is sought in one of the categories contained in paragraphs 296–316 solely on account of his attaining the age of 18 years between receipt of his application and the date of the decision on it."
The entry clearance officer for his part was not satisfied that the appellant was the daughter of Mr Akram and Mrs Akhtar. That was the principal basis of his refusal of entry clearance. However by the time the case got to the FTT on 28 October 2010 there was DNA evidence which conclusively established that Mr Akram was the appellant's father, so that issue fell away. However the immigration judge did not accept that the appellant would be adequately accommodated (paragraph 20 of her decision) or maintained (paragraph 21) without recourse to public funds. The appeal was therefore dismissed. The immigration judge did not address Article 8 of the Convention. No issue had been raised under Article 8 either in the grounds of appeal to the FTT or by the appellant's solicitor representative at the hearing.
Dealing with the applicant's application to appeal to the Upper Tribunal, SIJ Storey indicated that he had "some reservations about the accommodation assessment issue" but there was "no arguable error in the immigration judge's treatment of the other issues and that being so the appeal could have had no other outcome". The prospective grounds of appeal...
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