AQ (Kenya) v Entry Clearance Officer

An entry clearance appeal under paragraph 297 of the Immigration Rules must be determined by a rational evaluation of the evidence against each requirement. A tribunal cannot infer that a minor is leading an independent life, or lacks serious and compelling family or other considerations, merely because he has survived alone in a refugee camp, has not been visited, or is said to have chosen his accommodation. Findings about a sponsor’s inability to visit must engage with the sponsor’s finances and evidence. A failure to visit does not, without more, disprove financial or emotional dependency where remittances may be necessary to prevent destitution. Where such findings materially underpin the decision, the appeal must be allowed and the case reconsidered.

The appellant, a Somali national aged 15, applied in July 2004 for entry clearance to join his brother, who was present and settled in the United Kingdom. He was living alone in a former refugee camp near Mombasa after the death of his uncle. The Entry Clearance Officer refused the application in December 2004. An immigration judge dismissed the appeal in November 2005. On reconsideration in January 2007, a three-member Asylum and Immigration Tribunal found no error of law. The Court of Appeal considered whether the tribunal’s findings under paragraph 297 of the Immigration Rules were legally sustainable, particularly its conclusions on dependency, independent life, and serious and compelling considerations.

1. The appeal was allowed. The matter was remitted for reconsideration before a differently constituted Asylum and Immigration Tribunal, with listing as soon as reasonably practicable.

2. An appeal against refusal of entry clearance is in effect a rehearing, subject to the evidential limitations in section 85(5) of the Immigration Act 2002. Under paragraph 297 of the Immigration Rules, the appellant bore the burden of establishing, on the balance of probabilities, the applicable requirements, including serious and compelling family or other considerations, being under 18, and not leading an independent life or having formed an independent family unit.

3. The immigration judge’s finding that the sponsor’s explanation for not visiting Kenya was incredible was flawed. The judge needed to make findings about the sponsor’s financial affairs and explain how any financial difficulties could have been overcome. The further conclusion that the appellant was not in a dire situation and was not emotionally or financially dependent on the sponsor depended on that flawed finding and was perverse. The failure to visit did not logically undermine financial dependency where the evidence was that the appellant had no other income and relied on remittances.

4. The conclusions that the appellant had been able to look after himself and had chosen to live in the camp were also dependent on the flawed rejection of his evidence. It was unfair and irrational to require proof that he could not live elsewhere when evidence indicated that he could not work because of his immigration status and depended on remittances. The absence of evidence that he had suffered harm did not cure the errors.

5. The finding that relatives in Somalia could have visited because the appellant had reached Kenya need not be resolved, since it appeared to play no part in the decision and was difficult to reconcile with the conclusion that he should not be expected to return to Somalia. The conclusions on paragraphs 19 and 20 of the immigration judge’s determination stood or fell together, and the AIT erred in upholding them.

• Court of Appeal (Civil Division): allowed the appeal and ordered reconsideration before a differently constituted Asylum and Immigration Tribunal: [2007] EWCA Civ 1279.
• Asylum and Immigration Tribunal: on reconsideration, held that the original immigration judge had made no error of law and declined to disturb the dismissal.
• Immigration Judge: dismissed the appeal against refusal of entry clearance.
• Entry Clearance Officer: refused entry clearance on 20 December 2004.