Directions Issued by Immigration Judge in Entry Clearance Appeals

SP (addresses allowed appeal) South Africa [2011] UKUT 188 (IAC) (March 17, 2011)

This High Court case was heard on February 15, 2011 at Casa de Campo. The case concerned an issue entry permit and the sections of the Nationality, Immigration and Asylum, 2002.

The facts of the case

The appellant is a South African citizen born on March 21, 2001. His paternal grandparents asked to join them in the United Kingdom for the purposes of settlement. She refused an entry permit for entry clearance officer (hereinafter referred to as ECO) on the basis that they meet all the requirements under paragraph 297 of the Immigration Regulations. In particular, the ECO has refused your request in paragraph 297 (f) which did not accept that the appellant’s mother was unable or unwilling to provide care for their parents. Nor were they pleased that his mother was happy for the appellant to settle in the UK with their grandparents. The ECO refused the request stating that he had not sufficiently serious and compelling circumstances justifying the granting of an entry permit. Article 8 of the appellant’s human rights (right to private and family life under the ECHR) were also considered however, the ECO said that there was no interference with this right.

SP (addresses allowed appeal) South Africa [2011] UKUT 188 (IAC) (March 17, 2011)

This High Court case was heard on February 15, 2011 at Casa de Campo. The case concerned an issue entry permit and the sections of the Nationality, Immigration and Asylum, 2002.

The facts of the case

The appellant is a South African citizen born on March 21, 2001. His paternal grandparents asked to join them in the United Kingdom for the purposes of settlement. She refused an entry permit for entry clearance officer (hereinafter referred to as ECO) on the basis that they meet all the requirements under paragraph 297 of the Immigration Regulations. In particular, the ECO has refused your request in paragraph 297 (f) which did not accept that the appellant’s mother was unable or unwilling to provide care for their parents. Nor were they pleased that his mother was happy for the appellant to settle in the UK with their grandparents. The ECO refused the request stating that he had not sufficiently serious and compelling circumstances justifying the granting of an entry permit. Article 8 of the appellant’s human rights (right to private and family life under the ECHR) were also considered however, the ECO said that there was no interference with this right.

The decision was appealed. The immigration judge in the First Tier Tribunal found the grandfather sponsor to be a credible witness. Concluded that the case had been made, including the requirements of paragraph 297 (f). The appeal is allowed in this instance.

ECO Defendant sought permission to appeal the decision on the basis that the reasoning of the Immigration Judge has not been properly explained and that he had erred in directing the ECO to issue an entry permit. Reference was made to the decision in the case of EA (Ghana) [2005] UKAIT 00,108. It was felt that the issue of addresses may cause difficulties when considering the time elapsed between the filing of the application for entry permit and the hearing will take place, major changes can take place during that time and the applicant’s circumstances may be very different.

If the circumstances had not changed and the Court indicated that the Secretary of State for appeal would be dismissed and the decision of the first immigration judge would remain for the reasons listed below.

Conclusions

Reference was made to Article 87 of the Nationality, Immigration and Asylum Act 2002, which establishes provisions for directions after a successful appeal. This section allows the Tribunal to give a direction to comply with its decision and is a power larger than the provisions contained in paragraph 21 (5) of Schedule 4 of the Immigration and Asylum Act 1999, where management must be “necessary.”

In this case, the circumstances of the appellant had not changed. It was argued that in terms of entry clearance, the instructions may be given only when the immigration judge found that the appellant would be able to continue fulfilling the requirements for the foreseeable future. In particular, the court held that when an officer of the submission is present, he or she should be consulted to see if he or she sees the difficulties caused by management to be issued by the court.

The Court ruled that the Immigration Judge’s direction to be approved and subsequently dismissed the appeal of the ECO.

ECO Defendant sought permission to appeal the decision on the basis that the reasoning of the Immigration Judge has not been properly explained and that he had erred in directing the ECO to issue an entry permit. Reference was made to the decision in the case of EA (Ghana) [2005] UKAIT 00,108. It was felt that the issue of addresses may cause difficulties when considering the time elapsed between the filing of the application for entry permit and the hearing will take place, major changes can take place during that time and the applicant’s circumstances may be very different.

If the circumstances had not changed and the Court indicated that the Secretary of State for appeal would be dismissed and the decision of the first immigration judge would remain for the reasons listed below.

Conclusions

Reference was made to Article 87 of the Nationality, Immigration and Asylum Act 2002, which establishes provisions for directions after a successful appeal. This section allows the Tribunal to give a direction to comply with its decision and is a power larger than the provisions contained in paragraph 21 (5) of Schedule 4 of the Immigration and Asylum Act 1999, where management must be “necessary.”

In this case, the circumstances of the appellant had not changed. It was argued that in terms of entry clearance, the instructions may be given only when the immigration judge found that the appellant would be able to continue fulfilling the requirements for the foreseeable future. In particular, the court held that when an officer of the submission is present, he or she should be consulted to see if he or she sees the difficulties caused by management to be issued by the court.

The Court ruled that the Immigration Judge’s direction to be approved and subsequently dismissed the appeal of the ECO.

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