Case No: C5/2007/0458 
Neutral Citation Number: [2007] EWCA Civ 531
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No.  IM/14050/2005]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 16th May 2007
Before:

LORD JUSTICE MAURICE KAY

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Between:

	FS (Somalia)	
Appellant	
	- and -		
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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MR A FOULANDVAND (instructed by MAAS) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Maurice Kay:
1.	This is a renewed application for permission to appeal.  Permission was refused on the papers by Sir Henry Brooke on 23 March.  There has been some confusion in the course of the proceedings as to precisely who the applicant is.  The background should make that clear.  The background is that MH, as I shall call her, is a citizen of Somalia born on 7 August 1988.  She came to this country with her aunt and they both claimed asylum.  In due course they were granted asylum and they remain here with leave pursuant to that status.  MH’s parents and siblings then applied to the entry clearance officer in Addis Ababa for permission to enter this country in view of the family relationship.  The entry clearance officer refused the application.  In doing so he stated this:
“You have applied for entry clearance with a view to settlement as the dependent relative of your daughter [MH], who is settled in the United Kingdom.  However, your daughter is a minor and she is dependent on others to maintain and accommodate her in the United Kingdom.  As there are no provisions under the family reunion policy for relatives of a minor child to come to the United Kingdom for settlement, your application has been considered under the relevant Immigration Rules.  You are under the age of 65 and the Secretary of State is not satisfied that you are of necessity mainly or wholly dependent on your daughter for financial support and that you are living alone in the most exceptional and compassionate circumstances.  Furthermore, your daughter has no income of her own and the Secretary of State is therefore not satisfied that you will be maintained adequately, together with any dependants, without further recourse to public funds in accommodation which your daughter occupies exclusively.  
The Secretary of State has considered the merits of your case on an exceptional basis outside the Immigration Rules also, but he is not satisfied that the facts of the case are sufficiently compelling and compassionate to justify the exercise of discretion in your favour.”
2.	That decision was then appealed to an Immigration Judge and on 12 September 2005 he allowed the appeal.  In allowing it he stated that he had taken into consideration the Secretary of State’s Family Reunion Policy.  The Immigration Judge added that:
“Although the refusal notice asserts the Secretary of State considered the claims outside the immigration rules which would invoke the Family Reunion Policy I infer the respondent cannot have done so otherwise the refusal notice would not have been framed as it is.”
3.	He then criticised the Secretary of State by observing that no explanation had been given for refusing Family Reunion.  He observed that MH was still a minor at that time with refugee status and concluded:
“In the absence of any explanatory statement from the respondent giving his reasons for refusing the application and taking into account the respondent’s refusal to reconsider the application under the Family Reunion Policy I conclude the circumstances to be ‘truly exceptional’ as contemplated in Huang.”
4.	It seems from that that the concern of the Immigration Judge was that he believed that the entry clearance officer had not considered the Family Reunion Policy and he felt that, applying Article 8 of the ECHR, this was a truly exceptional case in the language then used by the Court of Appeal in Huang because of (1) the absence of an explanatory statement from the entry clearance officer and (2) a perceived refusal to consider the Family Reunion Policy.  
5.	The Secretary of State applied for reconsideration of that decision.  Before the final reconsideration hearing, which took place on 29 September 2006, an application was made on behalf of the applicant for oral evidence of two witnesses, namely the applicant and her aunt, to be received on the reconsideration.  That procedural application was refused in a letter dated 14 September 2006 which stated:
“If so requested the Tribunal will, at the hearing, look at the additional evidence submitted and consider whether it should be admitted.  Leave to call oral evidence is NOT granted.”
6.	The reconsideration hearing then took place on 29 September.  In it the Tribunal with a Senior Immigration Judge presiding, concluded first that it was:
“… beyond argument that the Immigration Judge was wrong when he allowed the appeal with reference to the Home Office Family Reunion Policy”.
Secondly, that there was nothing in the evidence: 
“… that could possibly have supported a finding that there were compelling compassionate circumstances”.  
Thirdly, that there was no point in referring the matter to the Secretary of State.  Fourthly, that whilst Article 8 was engaged the Immigration Judge’s approach to proportionality had been flawed and that upon a proper application of the proportionality test:
“We see nothing in the evidence […] to support a conclusion that exclusion is disproportionate to the proper purpose of enforcing immigration control on the facts of this case.”
Finally the Tribunal stated:
“If he had applied the law properly to the material before him and his findings, he would have had to dismiss this appeal.”
7.	In seeking to appeal against that decision the applicant and the family have had the able assistance of Mr Foulandvand who, whilst not having a right of audience in this court, has been allowed to make oral submissions today.  He is from the Migrant Advisory and Advocacy Service.  He submits that the AIT went about the reconsideration in an erroneous way.  In particular he is concerned that it did not hear oral evidence.  What he is seeking to establish is that, in view of the fact that the Immigration Judge who first heard the appeal found truly exceptional circumstances, it was wrong and inappropriate for the Tribunal on the reconsideration to go behind that conclusion without hearing oral evidence.  
8.	In my view, that complaint is wholly unjustified.  The legislation and regulations provide for the Tribunal to receive evidence on a reconsideration but inevitably the Rules require that there be filed with the Tribunal notice which indicates the nature of the evidence and explains why it has not been submitted previously (see rule 32(1)).
9.	The only written material which can be described as evidence which was before the Tribunal and is now before this court is in the form of two witness statements that were made before the original hearing before the Immigration Judge.  One is from MH herself.  The other is from her aunt.  They are brief.  They explain the family relationships and the circumstances in which MH and her aunt left Somalia and came to this country.  Essentially what is set out in those statements was accepted factually by the Immigration Judge and that factual acceptance has not been resiled from by the Asylum and Immigration Tribunal on the reconsideration.  
10.	Accordingly, it seems to me that the submission that the Tribunal ought to have received oral evidence or ought to have adjourned so as to do so is misconceived.  The Tribunal had no notice of any evidence which might have made a difference to the facts as already established.  It is suggested that the evidence goes to whether the circumstances are “truly exceptional”.  The conclusion that the circumstances were so exceptional on the part of the Immigration Judge is a conclusion of law rather than a finding of fact.  
11.	The Tribunal on the reconsideration identified a number of errors in the approach of the Immigration Judge.  In my view the Tribunal was correct when identifying both errors.  To take the matter in stages: the parents and siblings could not succeed by reference to the Immigration Rules.  Rules 319 and 317 read together would require, among other things, establishment not only of “the most exceptional and compassionate circumstances”, but also that the parents are “mainly dependent financially on relatives settled in the United Kingdom”.  Quite simply, they are not so financially dependent.  MH is supported by public funds in this country as, so I understand it, is her aunt and it is beyond dispute that those seeking entry cannot bring themselves within the Immigration Rules.
12.	What then about the Family Reunion Policy?  It provides that parents of minor children are:
“Not entitled to family reunification unless there are compelling compassionate circumstances.”
13.	I have already referred to what the entry clearance officer said about compassionate circumstances.  He considered that, looked at outside the Immigration Rules, the facts of the case “are not sufficiently compelling and compassionate”.  That has been amply considered by the AIT on the reconsideration.  It concluded:
“We see nothing that could possibly have supported a finding that there were ‘compelling compassionate circumstances’.  There was no proper basis on which an immigration judge could have concluded, as he appears to have done, that the appellants should be admitted under the Home Office Family Reunion Policy.”
14.	In my judgment that is undoubtedly correct.  If failure by reference to the Immigration Rules and the Family Reunion Policy was inevitable, as I believe it to have been, the final question as a matter of law is whether there is any greater prospect of success by reference to Article 8 of the ECHR.  The Tribunal was rightly critical of the approach of the Immigration Judge to Article 8.  Accordingly, it proceeded to carry out the necessary exercise itself.  That was the appropriate procedure.  It was entitled to do so on the undisputed evidence and without reference to any further evidence, no additional evidence having been produced in writing.  The Tribunal concluded that whilst Article 8 was engaged, it was proportionate to refuse the application.  It said:
“We have to decide if the refusal is proportionate to the proper purpose of enforcing proper immigration control [...] Interference is always potentially justified for the proper purpose of enforcing immigration control but it is not right in every case.  The Immigration Judge should have carried out a balancing exercise [...]. 
When the Immigration Judge heard the appeal the daughter was close to her majority.  (In fact she has since achieved it).  There is no reason to find that at the date of the decision she was not receiving good emotional guidance and support from her aunt in the United Kingdom […] We see nothing in the evidence before the Immigration Judge to support a conclusion that exclusion is disproportionate to the proper purpose of enforcing immigration control in the facts of this case.  
We have no hesitation in concluding that the Immigration Judge was wrong for the reasons given.  If he had applied the law properly to the material before him and his findings such as they are he would have had to dismiss this appeal.”
15.	Standing back and considering the essence of what was there concluded, it was that the case was doomed to fail under the Immigration Rules and the Family Reunion Policy and that when considered by reference to Article 8 there was only one possible outcome, namely that it was proportionate to refuse entry for the purpose of enforcing immigration control.  I am bound to say that I find no arguable legal error in that conclusion.  
16.	Reference has been made to a number of authorities.  However, on close scrutiny in my view they do not assist the application.  The one that was produced following the adjournment that I allowed earlier this morning was MS (Somalia), which is part of a group of cases known as DK (Serbia) [2006] EWCA Civ 1747.  Far from assisting this application, in my view in paragraph 71 it shows why the application is misconceived, because it raised the same difficulty of an assertion of a failure to receive further oral evidence when such evidence had not been reduced to written form and submitted in advance.  There was no tangible fresh evidence for the Tribunal to consider in that case and there is no tangible fresh evidence in the present case either at the time of the reconsideration hearing or today.  
17.	In all these circumstances I have concluded that the Immigration Judge did indeed approach this case in a wholly erroneous manner as described by the Tribunal and that the determination of the Tribunal is not arguably afflicted by any legal error.  In those circumstances there is no real prospect of an appeal succeeding nor is there any other compelling reason for granting permission.  
18.	Notwithstanding the personal sympathy that I have with MH and her family, this application must be refused.

Order:  Application refused.