NA (Bangladesh) & Ors v Secretary of State for the Home Department

For entry under Rule 297(i)(e), sole responsibility requires assessment of who directs and controls the child’s upbringing. Where a natural parent remains in the same country and nearby, the tribunal must normally consider that parent’s involvement and give adequate reasons. Financial assistance from other family members does not necessarily prevent the sponsoring parent from having sole responsibility, although the issue is fact-sensitive. After finding an error of law, a tribunal may reconsider issues affected by that error. Procedural fairness may require a late point to be considered where an earlier legal misapprehension prevented proper argument and there is a real prospect of success.

Three Bangladeshi sisters, aged between 13 and 16, sought entry clearance to join their father, who was settled in the United Kingdom. Their mother remained in Bangladesh. A first tribunal allowed the appeals under the Immigration Rules and under Article 8. On reconsideration, the Asylum and Immigration Tribunal found errors of law in the failure to consider the mother’s role and in the finding that the father and brothers shared sole responsibility, and affirmed the refusal of entry clearance. The sisters appealed. The central issues were whether the mother’s involvement had been properly assessed, whether family financial contributions affected the father’s sole responsibility, and whether those points should be remitted.

Appeal allowed and remitted to a differently constituted tribunal. Lord Justice Pill gave the leading judgment, with Lord Justice Wall agreeing and adding observations on procedural fairness.

1. Under Rule 297(i)(e) of the Immigration Rules, where a natural parent continues to live in the same country as the children and is not a great distance away, the tribunal must normally consider whether that parent has a part in their responsibility. Failure to consider and give reasons for the relevant evidence was an error of law. The authorities on sole responsibility included Sloley v Entry Clearance Officer Kingston Jamaica [1973] ImmAR 54, Cenir v Entry Clearance Officer [2003] EWCA Civ 572, Nmaju v IAT [2001] INLR 26 and Emmanuel v Secretary of State for the Home Department [1972] ImmAR 69.
2. The finding that the father and three brothers had sole responsibility was also legally unexplained. Rule 297(v) made family earnings relevant to adequate maintenance, but it did not determine the separate question of sole responsibility. It was arguable that a father could retain sole responsibility while receiving financial assistance from other family members. That issue required factual reconsideration.
3. The Freeman tribunal was entitled to consider both the mother issue and the brother issue because they were affected by the errors of law. The approach in DK Serbia EWCA Civ 1747 supported the distinction between reconsideration and a rehearing, but unaffected findings ordinarily need not be revisited.
4. The court could entertain the brother point despite its late emergence. The discretion described in Robinson [1998] QB 929 had to be exercised carefully because of the public interest in finality. Here, the earlier tribunal had proceeded on a plain legal misapprehension, procedural steps had prevented proper argument, and both points had a real prospect of success.
5. Lord Justice Wall considered that it was unfair to decide the appeal on an unargued point which the appellants had no opportunity to rebut. Fairness and justice required reconsideration of both issues before a freshly constituted tribunal.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the appeal against the Secretary of State’s refusal to a differently constituted tribunal.
• Asylum and Immigration Tribunal: On reconsideration, the Freeman tribunal found material errors of law and affirmed the refusal of entry clearance.
• Earlier tribunal decision: The Khan tribunal had allowed the appeals under the Immigration Rules and Article 8 before reconsideration was directed.