YZ and LX (Effect of section 85(4) – 2002 act) China
| Jurisdiction | England & Wales |
| Judgment Date | 15 November 2005 |
| Date | 15 November 2005 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
The Honourable Mr Justice Hodge OBE, President, Mr L V Waumsley, Senior Immigration Judge and Professor A Grubb, Senior Immigration Judge
Representation
The Claimants were unrepresented;
Mr Mark Blundell, Home Office Presenting Officer, for the Secretary of State
Cases referred to:
LS (Post-decision evidencedirectionsappealability) Gambia [2005] UKIAT 00085; [2005] Imm AR 310; [2006] INLR 61
Legislation judicially considered
Immigration Rules HC 395 (as amended), Rules 317(i)(c) and 317(i)(e)
The Nationality, Immigration and Asylum Act 2002, s 85(4)
Appeals immigration interpretation of section 85(4) of the Nationality, Immigration and Asylum Act 2002 immigration leave to enter/remain Rule 317 of the Immigration Rules dependent parents
The Claimants, citizens of the People's Republic of China, made an in-country application for leave to remain as dependent relatives. The Secretary of State for the Home Department accepted that the Claimants were dependent relatives of their daughter, who was present and settled in the United Kingdom, but he refused their application on the ground that they did not satisfy the specific requirements of Rule 317(i)(e) of the Immigration Rules HC 395 (as amended). Before their appeal was heard by the Adjudicator the first Claimant attained the age of sixty-five years, which enabled both Claimants to satisfy Rule 317(i)(c) (parents or grandparents travelling together of whom at least one is aged sixty-five or over). The Adjudicator dismissed their appeal on the ground that, at the date of the Secretary of State's decision, they had failed to qualify under any of the provisions in Rule 317. The Claimants were granted permission to appeal to the Immigration Appeal Tribunal, which took effect as an order for reconsideration by the Asylum and Immigration Tribunal. By virtue of s 85(4) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) the Tribunal was permitted to consider evidence about any matter relevant to the substance of the decision, including evidence which concerned a matter arising after the date of the decision.
Held, substituting a fresh decision allowing the Claimants' appeal against the decision by the Secretary of State:
(1) the correct analysis of the facts was that the Claimants had applied for leave to remain in the United Kingdom as dependent relatives under Rule 317 of the Immigration Rules, and continued to seek leave to remain in that capacity; the fact that, as at the date of decision, their applications fell to be rejected under Rule 317(i)(e), but at a later date fell within the ambit of Rule 317(i)(c), did not change the substance of their application, which remained one for leave to remain as dependent relatives (para 15);
(2) under s 85(4) the Claimants were entitled to rely on the change of circumstances since the date of the decision as constituting a matter which was relevant to the substance of the decision and which had arisen after the date of the decision (LS (post-decision evidence; directions; appealability) Gambia [2005] UKIAT 00085 applied) (para 17).
Determination and Reasons
L V Waumsley, Senior Immigration Judge
[1] The appellants, who are both citizens of the People's Republic of China, have appealed with permission against the determination of an Immigration Judge (Mr W Scobbie), sitting in Glasgow, in which he dismissed their respective appeals on both immigration and human rights grounds against the respondent's decision to refuse their applications for leave to remain in the United Kingdom as dependant relatives of their daughter. By virtue of Article 5(1) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, the appeal now takes effect as a reconsideration pursuant to Article 5(2) of that Order.
Hearing in absence of appellants
[2] The appellants did not appear at the hearing before us, either in person or by their representative. We have read a copy of the notice of hearing which was sent to the appellants and their solicitors on 24 August 2005. It complies with the requirements of rule 46(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. No...
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