EK v Secretary of State for the Home Department

An adjudicator commits an error of law where a vital issue is not identified and the reasons for its resolution are not explained. Once such an error is found, the Asylum and Immigration Tribunal may conduct a fresh reconsideration without first determining every further ground of challenge.

In an entry-clearance appeal, the relevant circumstances are those at the date of the decision. Later evidence is admissible only where it relates to matters then obtaining. An adult applicant living with relatives who form a household and do not treat her harshly was not, on these facts, living alone for rule 317(i)(f) of the Immigration Rules. Her history did not establish the most exceptional compassionate circumstances required by that rule.

EK appealed against the dismissal by the Asylum and Immigration Tribunal of her appeal from the refusal of entry clearance to settle in the United Kingdom as the dependent adult daughter of a person settled here.

An adjudicator had allowed her appeal. The Secretary of State obtained permission to appeal, and the Tribunal found that the adjudicator had failed to decide whether EK was living alone. On a fresh reconsideration, it rejected evidence of harsh treatment by the relatives with whom she lived and held that she was neither living alone nor in the most exceptional compassionate circumstances.

The Court of Appeal considered whether the adjudicator’s failure was an error of law, whether the Tribunal could reconsider the case afresh, and whether the Tribunal had applied the proper decision-date test under rule 317(i)(f) of the Immigration Rules.

1. Appeal dismissed unanimously. Brooke LJ held that the Tribunal was entitled to identify an error of law in the adjudicator’s determination. A decision-maker must identify the issues vital to the conclusion and explain how they were resolved. The adjudicator gave no intelligible reasons for concluding that EK was living alone in the crowded household she had described. This applied the approach in R Iran v Secretary of State for the Home Department [2005] EWCA Civ 9882 and English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605.

2. Once that error had been found, the Tribunal was entitled to reconsider the evidence afresh. It was not required to determine each remaining ground of appeal formally before doing so, particularly where another ground raised an unresolved conflict between EK’s interview evidence and her father’s evidence.

3. The appeal was governed by the circumstances at the date of the entry-clearance decision. Under section 85(5)(b) of the Nationality, Immigration and Asylum Act 2002 and rule 51(6) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, later events could be considered only if they appertained at that date. The Tribunal had wrongly referred to EK’s up-to-date position, but that error was immaterial.

4. On the Tribunal’s findings, EK lived with her father’s two sisters, who were not treating her harshly. Although the accommodation was overcrowded, she paid rent from funds supplied by her father and could not be regarded as living alone. Lady Justice Arden agreed in the result but left open the full meaning of “living alone”.

5. Further, even if EK had been living alone, there was no evidence capable of showing the most exceptional compassionate circumstances required by rule 317(i)(f) of the Immigration Rules at the decision date. Her later evidence was inadmissible, without prejudice to a fresh entry-clearance application based on current circumstances.

• Court of Appeal (Civil Division): dismissed EK’s appeal from the Asylum and Immigration Tribunal.

• Asylum and Immigration Tribunal: on reconsideration, dismissed the appeal against the refusal of entry clearance: [AIT No. IM/05792/2004].

• Immigration Appeal Tribunal: on 23 September 2004 granted the Secretary of State permission to appeal from the adjudicator’s decision.

• Adjudicator: on 2 June 2004 allowed EK’s appeal from the entry clearance officer’s refusal of 7 November 2003.