Directions issued by Immigration Judge in Entry Clearance appeals
SP (allowed appeal directions) South Africa [2011] UKUT 188 (IAC) (17 March 2011)
This Upper Tribunal case was heard on 15th February 2011 at Field House. The case concerned an entry clearance matter and sections of the Nationality, Immigration and Asylum Act 2002.
Facts of the case
The appellant is a South African national born on 21st March 2001. Her paternal grandparents applied for her to join them in the United Kingdom for the purposes of settlement. She was refused entry clearance by the entry clearance officer (herein after referred to as the ECO) on the basis that she did not satisfy all of the requirements under paragraph 297 of the Immigration Rules. In particular, the ECO refused her application on paragraph 297(f) in that they did not accept that the appellant's mother was incapable of or unwilling to provide her with parental care. Nor were they satisfied that her mother was happy for the appellant to settle in the UK with her grandparents. The ECO rejected the application stating that there were not sufficiently serious and compelling circumstances that warranted granting her entry clearance. The appellant's article 8 rights (right to a private and family life under the ECHR) were also considered however, the ECO held that there was not interference with this right.
SP (allowed appeal directions) South Africa [2011] UKUT 188 (IAC) (17 March 2011)
This Upper Tribunal case was heard on 15th February 2011 at Field House. The case concerned an entry clearance matter and sections of the Nationality, Immigration and Asylum Act 2002.
Facts of the case
The appellant is a South African national born on 21st March 2001. Her paternal grandparents applied for her to join them in the United Kingdom for the purposes of settlement. She was refused entry clearance by the entry clearance officer (herein after referred to as the ECO) on the basis that she did not satisfy all of the requirements under paragraph 297 of the Immigration Rules. In particular, the ECO refused her application on paragraph 297(f) in that they did not accept that the appellant's mother was incapable of or unwilling to provide her with parental care. Nor were they satisfied that her mother was happy for the appellant to settle in the UK with her grandparents. The ECO rejected the application stating that there were not sufficiently serious and compelling circumstances that warranted granting her entry clearance. The appellant's article 8 rights (right to a private and family life under the ECHR) were also considered however, the ECO held that there was not interference with this right.
The decision was appealed against. The Immigration Judge at the First Tier Tribunal found the sponsor grandfather to be a credible witness. He concluded that the case had been made out, including the requirements under paragraph 297(f). The appeal was allowed at this instance.
The respondent ECO applied for permission to appeal against the decision on the basis that the Immigration Judge's reasoning had not been properly explained and that he had erred by directing the ECO to issue entry clearance. Reference was made to the decision in the case of EA (Ghana) [2005] UKAIT 00108. It was considered that the issuing of such directions could pose difficulties when considering the time passed between the making of the entry clearance application and the hearing taking place; significant changes may take place during that time and the circumstances of the applicant could be much different.
In the case, the circumstances had not changed and the Tribunal indicated that the Secretary of State's appeal would be dismissed and that the initial Immigration Judge's decision would be maintained for the reasons as outlined below.
Conclusions
Reference was made to Section 87 of the Nationality, Immigration and Asylum Act 2002 which makes provisions in respect of directions after a successful appeal. This section permits the Tribunal to give a direction for the purpose of giving effect to its decision and is a broader power than the provisions contained within paragraph 21 (5) of Schedule 4 of the Immigration and Asylum Act 1999 where the direction needs to be 'necessary'.
In this case, the circumstances of the appellant had not changed. It was held that in entry clearance matters, directions could be given only where the Immigration Judge was satisfied that the appellant would be able to continue meeting the requirements in the foreseeable future. In particular, the tribunal held that, where a presenting officer is present, he or she should be consulted to see if he or she sees any difficulties arising from the direction to be issued by the Judge.
The Tribunal decided that the Immigration Judge's direction be endorsed and subsequently dismissed the ECO's appeal.
The respondent ECO applied for permission to appeal against the decision on the basis that the Immigration Judge's reasoning had not been properly explained and that he had erred by directing the ECO to issue entry clearance. Reference was made to the decision in the case of EA (Ghana) [2005] UKAIT 00108. It was considered that the issuing of such directions could pose difficulties when considering the time passed between the making of the entry clearance application and the hearing taking place; significant changes may take place during that time and the circumstances of the applicant could be much different.
In the case, the circumstances had not changed and the Tribunal indicated that the Secretary of State's appeal would be dismissed and that the initial Immigration Judge's decision would be maintained for the reasons as outlined below.
Conclusions
Reference was made to Section 87 of the Nationality, Immigration and Asylum Act 2002 which makes provisions in respect of directions after a successful appeal. This section permits the Tribunal to give a direction for the purpose of giving effect to its decision and is a broader power than the provisions contained within paragraph 21 (5) of Schedule 4 of the Immigration and Asylum Act 1999 where the direction needs to be 'necessary'.
In this case, the circumstances of the appellant had not changed. It was held that in entry clearance matters, directions could be given only where the Immigration Judge was satisfied that the appellant would be able to continue meeting the requirements in the foreseeable future. In particular, the tribunal held that, where a presenting officer is present, he or she should be consulted to see if he or she sees any difficulties arising from the direction to be issued by the Judge.
The Tribunal decided that the Immigration Judge's direction be endorsed and subsequently dismissed the ECO's appeal.
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