C5/2006/0514
Neutral Citation Number: [2006] EWCA Civ 1758
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. TH/54059/2003, TH/54065/2003, TH/54075/2003]
 
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 24th November 2006
 
B E F O R E:
LORD JUSTICE MUMMERY
LADY JUSTICE SMITH
LORD JUSTICE MAURICE KAY
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JACKSON AMATEI AMARTEIFIO

JONAS AMARKWEI AMARTEIFIO

LEONARD AMARLEI AMARTEIFIO
CLAIMANTS/APPELLANTS
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THE ENTRY CLEARANCE OFFICER, ACCRA
DEFENDANT/RESPONDENT
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MS S NAIK (instructed by Messrs Ranga & Co) appeared on behalf of the Appellants.

MR P PATEL (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  The appellants are appealing against a decision of the Asylum and Immigration Tribunal.  It relates to a matter of immigration law unencumbered with considerations of asylum or human rights.  The three appellants are brothers.  I can refer to them as Jackson, who is now 24, Jonas, who is 22, and Leonard, who is 20.  They are the three youngest children of a Ghanaian family.  Their father, Alexander Amarteifio, to whom I shall refer as “the sponsor”, left Ghana and came to this country in 1989.  He has remained here ever since, apart from occasional visits to Ghana.  He was given indefinite leave to remain in 1997 and became a British citizen in 2001.

2.	When the sponsor left Ghana, his five children and their mother remained in that country.  However, in 1995, the mother left the children in the care of the sponsor’s mother and the mother has not been in contact with her children since that time.  Of the two older children, who are not the subject of these proceedings, one is a young woman who is married and lives in Ghana with her family; the other is a young man who at one stage was in this country as a student, but we do not know where he is now.

3.	As I have said, from 1995 the appellants were in the day-to-day care of their paternal grandmother and, to his credit, the sponsor, who is a decent and hardworking man, maintained his interest in them and made such financial provisions as he was able to do.  In addition, he visited when he could and maintained contact by telephone and so on.  During one of his visits to Ghana in 1999, the appellants applied to the entry clearance officer in Accra for clearance to settle with the sponsor in this country.  That application was made on 23 July 1999.  By that time, the sponsor had married in this country; his wife is of Indonesian extraction but she too now has British nationality.  

4.	The application for entry clearance was refused on 3 August 1999.  The document evidencing that refusal says this: 

“You have applied for a visa with a view to admission to the United Kingdom for settlement as the sons of [the sponsor] but I am not satisfied that you are related as claimed or that your mother is still not living.  Furthermore, I am not satisfied that there are serious and compelling family or other considerations which [would] make your exclusion from the United Kingdom undesirable, or that you will be maintained adequately without recourse to public funds.”

5.	I say at once that the first two matters there referred to, the question of whether the appellants are the sons of the sponsor and the situation as to their mother, are no longer relevant.  There is no dispute about their paternity and their mother ceased to feature in their lives many years ago.

6.	Eventually the appellants appealed to an adjudicator.  Their appeal was out of time, but they succeeded in overcoming that problem.  The appeal was eventually heard in March 2004. 

7.	In order to succeed in their appeal it would have been necessary for the appellants to satisfy the requirements of the Immigration Rules.  They were able to establish all that was required, save in one respect.  Their appeals were dismissed because it was not established that they could and would be maintained adequately by the sponsor without recourse to public funds.  The adjudicator found that the sources of income available to the sponsor and his wife were not such as to leave a sufficient sum for the maintenance of three teenage boys without recourse to public funds.  

8.	The appellants obtained leave to appeal to the Asylum and Immigration Tribunal.  Such appeals lie only on a point of law.  In a determination that was promulgated on 9 December 2005, the Asylum and Immigration Tribunal dismissed the appeals because they found no legal error in the determination of the adjudicator.  An appeal to this court, under the current legislation, lies only on a point of law.

9.	The appeals now are put essentially on three grounds.  First, it is said that the adjudicator failed to have regard to material that was submitted after the hearing but before she had prepared her determination.  Secondly, it is said that she made findings of fact that were so erroneous as to amount to an error of law.  Thirdly, she is criticised for disposing of the three appeals on a collective rather than an individual basis.  

10.	As to the first ground of appeal, it soon becomes obvious that the appellants face insuperable difficulties.  So far as the material is concerned, the focus is on an account with the Abbey National in the name of the sponsor’s wife.  The adjudicator had had before her a copy of the book relating to that account, covering the period from November 2001 until December 2003.  During that time the balance had opened at £4,488 and closed at £6,459.  At one point in early 2003 it had stood at something over £13,000.  None of that was particularly helpful to the adjudicator because it was common ground that she had to assess the position as it had been in August 1999 when the entry clearance officer had made his decision.  

11.	Whereas in asylum and human rights cases adjudicators, and now immigration judges, are concerned with the position as at the date of the hearing before them, that is not so in relation to pure immigration appeals such as the present one: see DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038.  That decision of the Tribunal, founded on an interpretation of the relevant provisions of the Immigration and Asylum Act 1999, illustrates the difference between immigration appeals on the one hand and asylum and human rights appeals on the other hand.  The wording of the statute requires the focus to be on the date of the decision of the entry clearance officer, although there is an established practice of permitting evidence of subsequent events if they were reasonably foreseeable at the time, and a period of six months has been established as the customary period with that in mind.

12.	What happened in the present case is that, after the conclusion of the hearing before the adjudicator on 24 March 2004, solicitors acting for the appellants faxed some material to the Immigration Appellate Authority for the attention of the adjudicator on 29 March.  It included extracts from the Abbey National book covering a period beginning in March 1997 and, in particular, including the time in 1999 around which the decision of the entry clearance officer had been made.  It showed that whilst the balance had stood at about £6,000 in early 1999, by August 1999 it was only just over £1,000.  

13.	In the letter which accompanied the document the solicitors said that the account showed that in 1999 the sponsor had more than £6,000 and that prior to travelling to Ghana he had withdrawn £5,584 to take to Ghana to help to support the appellants.  It observed that the balance began to rise again following his return.  It seems to me that the evidence that there was a balance of just over £1,000 at the crucial time, which rose to something over £2,000 in the following six months, could never have made a significant difference to the adjudicator’s conclusions.  As it happens, it seems that she did not see that document before she promulgated that determination.  She missed nothing of materiality in that.  

14.	Moreover, as the Asylum and Immigration Tribunal was later to observe: 

“Even if she had, she had no evidence that the documents had been served on the Home Office Presenting Officer and the rules then in force, the Immigration and Asylum Appeals Procedure Rules 2003, provide at rule 48.6 that an adjudicator must not take account of any evidence that has not been made available to all the parties.”

There is no evidence that the material had been provided to the Home Office Presenting Officer.  Accordingly, there is nothing relating to the subsequent submission of that immaterial document that can now give rise to any error of law on the part of the adjudicator or the Asylum and Immigration Tribunal such as to support these appeals.

15.	There is another aspect to this first ground of appeal.  It is in the form of a complaint that there was a procedural irregularity before the adjudicator because the Entry Clearance Officer did not produce the documents that had been produced to him in August 1999.  It is said that if he had, the adjudicator would have had more of the relevant contemporaneous documents.  This is an unsustainable complaint.  The statutory duty of the entry clearance officer was to produce such documents as were referred to in his decision and he had not referred to any.  Moreover, at the hearing before the adjudicator, the Home Office Presenting Officer had sought an adjournment to see if the 1999 documentation could be found.  The solicitor then representing the appellants opposed such an adjournment.  The matter is referred to in the determination of the adjudicator in these two passages: 

“I indicated that it was his responsibility to ensure that in the absence of a full file from the respondent there will be no prejudice to his clients’ appeals, for example if there was evidence missing about maintenance and accommodation at the date of the decision (the solicitor elected to proceed, stating that the balance was still in his favour, in his view, of the appeal succeeding today rather than being adjourned).”  

Then a little later: 

“I refused the adjournment, being of the opinion that the respondent had had sufficient time to prepare and comply with the requirements in relation to the service of documents and that it would prejudice the appellants if their appeal did not proceed without any further undue delay.”

In the light of that, it plainly cannot be said that there was a procedural irregularity of which the appellants can now complain.  Through their solicitor they had the opportunity to place whatever documents were considered to be relevant before the adjudicator.  In fact, a bundle of some 149 pages was produced.  The solicitor opposed an adjournment.  It seems to me that there is no question of any legal error having arisen in relation to that aspect of the case.

16.	The second ground of appeal is in the form of an attack on the adjudicator’s findings of fact on the issue of maintenance.  She summarised the sponsor’s oral evidence in paragraph 20 of her determination as follows: 

“The sponsor stated that at the time of the appellants’ application for entry clearance he had three jobs: one with Barnet Council, one at C. B. Baggs Group Ltd. and also one as a security guard in Fenwicks store at Brent Cross.  The sponsor stated that from all three he earned in total about £700 per month.  Also in 1999 his wife…had worked at Edgware Hospital.  In the appellants’ bundle there appear copies of payslips in respect of both the sponsor and the sponsor’s wife for the relevant period.  The payslips for the sponsor’s wife appear to show that she earned between £140 and £158 or so each fortnight in July, 1999, increasing to just over £200 per fortnight in October.  These documents, combined with the oral evidence of the sponsor indicate [that] there was a total net income into the household of between £1000 and £1,100 net per month at the time of the applications.”

Later in her determination she said this at paragraph 48: 

“Where I do have difficulty is with the sponsor’s ability to maintain the three appellants adequately without recourse to public funds.  On his own evidence, his own net income just covered the rent on the property, give or take £10 or so.  The income of the sponsor’s wife at the time at its highest appeared to be about £100 per week.  Thus, the family of five would have to be fed and clothed from that sum, with little more than £20 per week being available for the maintenance of each family member once the family lived together in the United Kingdom.  I find that it would be impossible for the sponsor to maintain the appellants adequately on such a small sum.”

17.	Ms Naik submits that that finding was erroneous to the point of being wrong in law.  She refers to payslips that were in the bundle before the adjudicator.  In round figures she says that they disclose a net monthly income in relation to the sponsor’s three jobs of about £1,500 which, when aggregated with that of his wife, produces a net total of about £1,900, well above the amount found by the adjudicator and with enough slack to provide for the maintenance of the three appellants.

18.	There are problems with Ms Naik’s approach.  One is that the payslips did not cover the crucial time.  The ones concerning Fenwicks covered the period before and after the sponsor went to Ghana.  The ones from C. B. Baggs terminate in March 1999.  In this regard, Mr Patel points out that at a preliminary hearing before the adjudicator the sponsor had referred to having lost one of his jobs following a period of absence, by inference in relation to his time in Ghana in 1999.  The payslips in relation to Barnet Council cover the period February to March 2000.  The short point is that the payslips as a whole were not the clearest evidence of the position in and immediately after August 1999.

19.	The second problem is more fundamental.  The calculation which Ms Naik has carried out for the hearing before this court was not presented in that way to the adjudicator or to the Asylum and Immigration Tribunal.  If it had been before the adjudicator in that form, the adjudicator would undoubtedly have said so.  

20.	Ms Naik became involved after the decision of the adjudicator.  It was she who drafted the grounds of appeal to the Asylum and Immigration Tribunal.  They ran to some five pages.  One page is devoted to grounds subsumed under the heading “Challenge to Substantive Decision on Maintenance”.  The points made under that heading were, first, that the adjudicator had failed to take proper account of money that had been sent by the sponsor on a regular basis to Ghana.  Nothing now turns on that.  Secondly: 

“In any event the adjudicator erred in failing to properly consider the documentary evidence before her in addition to the sponsor’s recollection of his earnings 5 years previously in oral evidence.” 

21.	Thirdly, there was set out in detail some reference to the payslips followed by this passage: 

“… the household income was around £1000 or £1100 per month.  After rent this left £300 or £400 per month which averages £75 per person in a five person household per month.  The adjudicator gives no proper reasons as to why she considers £20 per person per week to be inadequate to cover food and clothing for 2 adults and 3 children, particularly given the sponsor and his wife’s ability to accumulate significant savings …”

On this basis it was suggested that the adjudicator had not been entitled to conclude that it was impossible for the sponsors to maintain the appellants adequately.  It is to be observed that in the second of the three sub-grounds of appeal there is a broad reference to a failure properly to consider the documentary evidence but it is not further particularised.  In the third of the sub-grounds, the point being made seems to accept the computation of the adjudicator but criticised it for an inadequacy of reasons.  

22.	In the course of the hearing Ms Naik was able to produce the skeleton argument which she had deployed before the Asylum and Immigration Tribunal.  Suffice it to say that it said neither more nor less than her grounds had said.  We can see from the determination of the tribunal what Ms Naik’s oral submissions had been on this subject.  Having made submissions about what is now the first ground of appeal to this court, her submission turned to this second ground, summarised by the tribunal in these words: 

“The adjudicator erred in finding that the appellants could not be maintained for £25 per week as she gave no reason for such a finding and the fact that the sponsor had savings should have been taken into account.”

As I have already related in connection with the first ground, the actual savings balance in August 1999 was of little potential consequence to the matter the adjudicator had had to decide.

23.	Thus, at no stage did Ms Naik put before the Tribunal the case based on the arithmetic which she has assembled for today’s hearing.  Unsurprisingly, the Tribunal came to this conclusion: 

“15. There is no error in the adjudicator’s finding that the appellants and the sponsor and his wife could not adequately be maintained on either £310 or £410 per month.  The tenancy agreement was in respect of rent only.  In addition the sponsor would have to pay for fuel, water charges, council tax, food, clothing and travel expenses.  There does not appear to have been before the adjudicator any breakdown of the sponsor’s living expenses and it is, of course, for the appellants to prove that the maintenance is adequate.  

“16. The adjudicator did not have before her details of any savings at the time of the decision.  In ou[r] view it was not foreseeable that a couple with a maximum of £410 a month after rent who say they were sending £105 of that to the appellants, could save £4,486 from that sum between the date of the decision 3.8.1999 and 30.11.2001, the first date given in the extract of the bank book.  It would mean savings of about £160 a month leaving the sponsor and his wife either £245 or £145 a month to cover all their living expenses.  It does not appear that any evidence was given about how these savings were accumulated.”

24.	On the material that properly fell for consideration and the arguments that were presented to the Tribunal through the grounds of appeal, the skeleton argument and oral submissions, I can find no error of law in the conclusion of the Tribunal.  It is not an error of law for an adjudicator or the Tribunal to fail to consider a point that was not put fairly and squarely before it.  If authority were needed for that proposition, it is to be found in the case of Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481.  

25.	The laconic wording of the grounds of appeal in relation to the documentary evidence and the skeleton argument which replicated it did nothing to alert the Tribunal to this arithmetical exercise.  Indeed, the following paragraphs in both the grounds of appeal and the skeleton argument appear to accept the adjudicator’s calculations and concentrate on an assertion of inadequate reasoning.  Ms Naik attempts to represent this history as a mistake of fact amounting to an error of law.  In that regard she seeks to rely on               E and R v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044.  In giving the judgments of the court on that occasion Carnwath LJ said at paragraph 66: 

“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result.  Asylum law is undoubtedly such an area.  Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board Case [[1999] 2 AC 330].  First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter.  Secondly, the factual evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable.  Thirdly, the appellant (or his advisors) must not have been responsible for the mistake.  Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

26.	In my judgment, the attempt to rely on that principle fails in this case.  If there was a mistake it was one for which the appellants, the sponsor and the then legal advisers cannot escape responsibility.  The case was not presented to the adjudicator or the Tribunal in the way in which it is now presented to us.  For my part, I doubt whether the way in which Ms Naik seeks to put the case before us falls within the principle in E and R in any event.  It seems to me that if there was to be an attack on the adjudicator’s findings on the basis that she had wrongly ignored the payslips, that is more of a perversity argument than an E and R argument.  Ultimately, however, for the reasons I have given, it is neither.  

27.	Nor can it be said that the appellants can avail themselves of the principle illustrated by R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 in relation to points which ought to be dealt with by a Tribunal because they are obvious.  That principle is confined to asylum and human rights cases, where the courts are concerned to ensure that this country is not in breach of its international obligations.  It does not arise in a pure immigration case such as this.  In any event, the point sought to be made cannot be said to have been obvious at all, having regard to the way in which the case was put before the adjudicator and the Tribunal.

28.	I can deal with the third ground of appeal more briefly.  Ms Naik rightly observes that the adjudicator was considering three appeals, necessitating three decisions.  However, it was never suggested to the adjudicator that if the available money could not stretch to the maintenance of three children she should differentiate between them and allow the appeals of one or two of them.  The fact that the point was not taken before the adjudicator was sufficient to persuade the Tribunal that the failure to differentiate did not amount to a legal error.  I agree.  Upon what basis, I ask rhetorically, was the adjudicator supposed to differentiate when no basis had been advanced?  As Mr Patel points out, the power of the adjudicator under section 86(3) and 86(5) of the 2002 Act was either to dismiss or to allow each appeal.  She did so on the only basis that had been canvassed before her.  

29.	It follows from all that I have said that I would dismiss this appeal.  I regret that, for a number of reasons, the case has taken seven years to get here.  As it happens, the appellants are all now adults and they will not have another opportunity to make the kind of application that was made seven years ago.  

30.	However, the hard fact is that their appeals were properly considered by the adjudicator, neither she nor the Tribunal fell into legal error. 

31.	LORD JUSTICE MUMMERY:  I agree.

32.	LADY JUSTICE SMITH:  I agree.

Order: Appeal dismissed.