Upper Tribunal (Immigration and asylum chamber), 2013-12-23, OA/08022/2012 & Ors.
| Appeal Number | OA/08022/2012 & Ors. |
| Hearing Date | 05 December 2013 |
| Published date | 11 January 2023 |
| Date | 23 December 2013 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: OA/08022/2012
OA/08019/2012
OA/08016/2012
IAC-AH-sar-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/08022/2012
OA/08019/2012
OA/08016/2012
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 5 December 2013 |
On 23 December 2013 |
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Before
UPPER TRIBUNAL JUDGE PINKERTON
Between
MISS KHADRA AHMED SHARIIF JIBRIIL (FIRST appellant)
MISS IFRAH YUSUF ELMI (SECOND appellant)
MASTER MOHAMED ABUBAKAR MOHAMED (THIRD appellant)
(ANONYMITY directions NOT MADE)
Appellants
and
Entry Clearance Officer (NAIROBI)
Respondent
Representation:
For the Appellants: Ms V Laughton of Counsel
For the Respondent: Mr S Whitwell, Home Office Presenting Officer
DETERMINATION AND REASONS
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The three appellants are all citizens of Somalia. The first appellant was born on 26 June 1993, the second on 1 July 1994 and the third on 17 December 1994. All three appellants applied to join their sponsor who is their claimed adopted mother and has limited leave to remain in the United Kingdom (“UK”) as a refugee. The appellants made their applications at the same time as their claimed adopted father and his and the sponsor’s five children. The appellants were refused entry clearance and they appealed those decisions.
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The sponsor is Fadumo Sharif-Ali Shariif-Hassan (“The sponsor”) who is a Somali national recognised as a refugee in the UK. The sponsor is married to Mr Ahmed Shariif Jibriil (“Mr Jibriil”). The appeals of the three (current) appellants were heard by First-tier Tribunal Judge Molloy together with the appeals of Mr Jibriil and Abdullahi Ahmed Shariif Jibriil (“Abdullahi”). On the day of the hearing before Judge Molloy the respondent withdrew the decision in respect of Abdullahi because DNA evidence appeared to show that he is the biological child of both the sponsor and Mr Jibriil. The appeal of Mr Jibriil was allowed by Judge Molloy. He found that the marriage between Mr Jibriil and the sponsor is subsisting and that they intend to live together permanently in the capacity of spouses. There is no challenge to that part of Judge Molloy’s decision.
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Four other children who were living in Ethiopia, namely Raqiya, Kariima, Abdirahman, and Asia, applied for entry clearance on 20 February 2012 and their applications were granted. It was accepted by the Entry Clearance Officer that they are the biological children of Mr Jibriil and the sponsor and entitled to entry clearance. They entered the UK on 25 June 2012.
The Challenge to Judge Molloy’s Decision
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In respect of the dismissal of the three appellants’ appeals it is said that the judge’s reasoning in respect of Article 8 is flawed. His reasoning is contained at paragraphs 239-261 of the determination. The witness evidence given was not challenged by the respondent. The judge accepted that the sponsor gave credible, straightforward and forthright evidence supported, albeit second hand, by the other female adult witnesses to the effect that the sponsor travelled to Ethiopia from the UK once to find her family members. She was unsuccessful on that occasion but was successful in doing this upon another occasion, pre decision. It was accepted also that she made a further visit to Ethiopia post decision.
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The determination as it relates to these three appellants was premised on the differing dates of decision of the respondent. The appellants and other family members to whom I have referred above all made their applications on the same day which was 20 February 2012. However, the first appellant’s application was refused on 13 March 2012 and the second and third appellants’ applications were refused on 10 April 2012.
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At paragraph 240 of the determination the judge expressed that he was satisfied upon the totality of the evidence that the appellants each have an established family life which is deserving of respect. In the following paragraphs he found that the appellants came to live with the sponsor and Mr Jibriil in Somalia during the 1990s and have been part of that couple’s family thereafter. As other members of the family were born they became members of the family life of those children also.
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The judge then found that because the dates of decisions in respect of the appellants occurred prior to the grants of entry clearance to four of the sponsor’s biological children and before he allowed the appeal of Mr Jibriil there was no interference in the rights of the appellants to the enjoyment of their respective family lives. Because of that and as he saw it by reason of the lack of evidence from in particular the first appellant (see paragraph 254, for example) he did not go on to consider the other matters set out in Razgar v Secretary of State for the Home Department [2004] UKHL 27. The judge was not persuaded that there would be any interference in the rights of the appellants to the enjoyment of their respective family lives but even if there was interference he did not find that the interference would have consequences of such gravity as potentially to engage the operation of Article 8 itself. (As per paragraphs 245 and 246 of the determination – and the reasoning for coming to that conclusion in paragraphs 260 and 261).
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Permission to appeal the decision of Judge Molloy was granted on the basis that to look at the date of each decision may not be to interpret the ECHR purposefully and it was therefore arguable that the judge erred.
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The respondent filed a Rule 24 response to the grounds of appeal which are wholly unparticularised save in one respect. It appeared to the respondent that the judge did not consider the sponsor’s Article 8 rights. Otherwise the respondent submitted that the judge directed himself appropriately.
My Findings on the Error of Law Challenge
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Although by Section 85A of the Nationality, Immigration and Asylum Act 2002 the Tribunal may only consider facts appertaining at the date of decision, and under AS (Somalia) [2009] UKHL 32 this applies to Article 8 grounds in respect of appeals against decisions to refuse entry clearance as well as grounds relating to the Immigration Rules, this does not mean that the Tribunal cannot look at the evidence that comes into existence after the date of the decision or even events that occur after the date of decision provided that they are relevant to circumstances appertaining at the date of decision.
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The sponsor’s spouse, five biological children and three de facto adopted children, all made their applications at the same time. For whatever reason the decisions were made at different times by the respondent. As it happens the three appellants received their decisions first but what is relevant is the fact that at the date of their decision Mr Jibriil and his biological children had applications pending under the Immigration Rules, they all met the requirements of those Rules and they were therefore entitled to entry under those Rules. It was clearly their intention to come to the UK if entry clearance was granted as is evidenced by the fact that the children who were granted entry clearance did indeed come to the UK after their grant.
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The decision by the respondent and the judge’s decision in respect of Mr Jibriil, although postdating the decisions in respect of the appellants, reflected the factual matrix in existence at the time all the applications were made. The circumstances as at the date of all the applications were exactly the same as those appertaining at the various dates of decision.
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I agree with the submission of Ms Laughton that the state of a person’s mind at a particular time, including their intentions, is as much a “fact” as any other more tangible state. A judge is therefore obliged to consider a person’s intentions relative to the material date of an entry clearance decision. That much is confirmed by DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038 which confirmed that Tribunals could consider evidence that postdates the date of decision if that cast light upon the party’s “intention” at the date of decision:
“25. This case provides an example of the distinction within subsection (5). There was an issue about whether at the time of the decision the couple intended to live together as man and wife. In the language of the statute, did the circumstances appertaining at the date of decision include that intention. Evidence that those were then the circumstances can be provided by subsequent actions which cast light upon what the position then was. This is not the same as evidence which shows that the position has subsequently changed and that there now is an intention which previously was lacking. Evidence about a subsequent change in intention is clearly excluded”.
I find that the judge was obliged to consider whether it was the intention of the other applicants to enter the UK if granted entry clearance, having regard to the fact they were entitled to such entry. Four of the children subsequent to their grant of entry clearance entered the UK. The relevant facts at the date of decision were therefore that Mr Jibriil and...
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