Amarteifio & Ors v Entry Clearance Officer, Accra

In a pure immigration appeal, the relevant date is ordinarily the date of the entry clearance officer’s decision, not the hearing date. Later evidence may be admitted under the established practice for reasonably foreseeable subsequent events. Evidence not served on all parties cannot be relied on under rule 48.6. A point not fairly and squarely advanced below cannot ordinarily be recast as an error of law on appeal. The mistake-of-fact jurisdiction requires an objectively verifiable existing fact, absence of responsibility by the appellant, and materiality; it does not assist where the case was presented differently below. The obvious-point principle in Robinson is confined to asylum and human-rights cases. Where no basis for differentiating between conjoined appeals was advanced, their collective dismissal was lawful.

Three brothers appealed refusal of their applications for entry clearance to join their father in the United Kingdom. The applications were made in 1999. The Immigration Rules’ requirements were otherwise satisfied, but the adjudicator dismissed the appeals because adequate maintenance without recourse to public funds had not been established.

The Asylum and Immigration Tribunal dismissed the appeals on 9 December 2005, finding no error of law. Before the Court of Appeal, the appellants relied on post-hearing financial evidence, challenged the maintenance findings, and argued that the adjudicator should have considered the brothers individually. The central issue was whether any of those matters disclosed an error of law.

The appeals were dismissed unanimously. Maurice Kay LJ gave the judgment, with Mummery LJ and Smith LJ agreeing.

1. In a pure immigration appeal, the statutory focus is the position at the date of the entry clearance officer’s decision. The position at the hearing date, applicable in asylum and human-rights appeals, does not govern. Subsequent events may be considered where they were reasonably foreseeable at the decision date, with six months being the customary period. The later bank evidence could not materially affect the assessment and, under rule 48.6 of the Immigration and Asylum Appeals Procedure Rules 2003, could not be considered because it had not been shown to have been served on all parties.
2. The complaint that the entry clearance officer had failed to produce the 1999 documents was unsustainable. The officer was required to produce documents referred to in the decision, and none had been referred to. The appellants’ solicitor had opposed an adjournment and had elected to proceed with the available bundle. There was therefore no procedural irregularity amounting to legal error.
3. The maintenance challenge failed because the detailed arithmetic later advanced in the Court of Appeal had not been fairly and squarely put to the adjudicator or the Tribunal. It is not an error of law to fail to consider a point that was not properly raised, as illustrated by Miftari [2005] EWCA Civ 481. The mistake-of-fact principle in E and R [2004] EWCA Civ 49, [2004] QB 1044, requires an existing, established and objectively verifiable fact, lack of responsibility by the appellant, and materiality. The appellants and their advisers were responsible for the way the case had been presented, so the principle did not assist.
4. The principle in Robinson [1998] QB 929, concerning points which a tribunal should address because they are obvious, is confined to asylum and human-rights cases. It did not apply to this pure immigration appeal, and the proposed point was not obvious in any event.
5. The adjudicator was entitled to dismiss the three appeals on the only basis advanced. No basis had been suggested for allowing one or two appeals if the available resources could not maintain all three appellants. Under sections 86(3) and 86(5) of the 2002 Act, the relevant power was to allow or dismiss each appeal. The collective disposal disclosed no error of law. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division) On 24 November 2006, the court dismissed the appeals, holding that neither the adjudicator nor the Asylum and Immigration Tribunal had erred in law: [2006] EWCA Civ 1758.
• Asylum and Immigration Tribunal In a determination promulgated on 9 December 2005, the Tribunal dismissed the appeals and found no legal error in the adjudicator’s decision.
• Adjudicator The appeals, heard in March 2004, were dismissed because adequate maintenance without recourse to public funds had not been established.