TM (Jamaica) & Anor v Secretary of State for the Home Department

An adjudicator does not err in law merely because findings could have been fuller. The determination must be read as a whole. A finding that no full-time carer is available is not inconsistent with a finding that relatives can provide support. Appellate bodies may assess only the evidence actually adduced, and an inadequately particularised allegation cannot be elevated on appeal. Procedural use of an adjudicator’s record does not necessarily create unfairness where it adds nothing material and the parties had an opportunity to take their own notes. Where a child fails one mandatory requirement of rule 297, it is unnecessary to determine another requirement.

Two Jamaican sisters appealed against refusal of entry clearance to join their mother in the United Kingdom. Their applications were refused under rule 297 of HC395. An adjudicator dismissed the appeals, finding that the mother lacked sole responsibility, that the evidence did not establish serious and compelling considerations, and that maintenance without recourse to public funds was not shown. He also rejected the Article 8 claim.

The Immigration Appeal Tribunal dismissed the further appeals. It rejected complaints about the treatment of the younger sister’s alleged sexual activity, an alleged contradiction concerning care in Jamaica, and procedural unfairness arising from reference to the adjudicator’s record. The central issue before the Court of Appeal was whether those matters disclosed an error of law.

1. Appeal dismissed. The tribunal was entitled to conclude that the adjudicator had made no error of law in dealing with the younger sister’s sexual activity. The evidence was vague and insufficiently particularised. Read as a whole, the adjudicator had implicitly accepted that sexual activity at her age was undesirable, but had not found a risk of sexual abuse sufficient to satisfy rule 297(i)(f) or Article 8.
2. The adjudicator’s findings were adequate although they could have been fuller. On an appeal limited to legal error, the determination must be examined as a whole. The tribunal correctly understood the evidential limitations and the adjudicator was entitled to conclude that exclusion was proportionate to immigration control under Article 8(2), applying Edore v Secretary of State for the Home Department [2003] EWCA Civ 716.
3. No material mistake of fact was established. The tribunal’s observation that the evidence had not been elaborated or particularised meant that it lacked the detail expected if the matter were central, not that no oral evidence had been given. Even if there had been a factual mistake, it would not have amounted to an error of law.
4. The tribunal acted fairly in referring to the adjudicator’s record of proceedings without prior notice. The extract did not materially add to the sponsor’s written evidence or advance the appeal. The parties had been represented before the adjudicator and had the opportunity to take their own notes.
5. The apparently different findings about care in Jamaica concerned different matters. The absence of an adult able to act as a full-time carer was compatible with the existence of relatives able to provide support. Since the appellants failed to satisfy rule 297(i), it was unnecessary to determine the separate ground concerning rule 297(v). The appeal was dismissed.

1. Court of Appeal (Civil Division): appeal from the Immigration Appeal Tribunal dismissed.
2. Immigration Appeal Tribunal: appeals dismissed on 21 July 2006.
3. Adjudicator: appeals dismissed on 3 February 2005.
4. Entry Clearance Officer: applications for entry clearance refused on 27 April 2004.