KD v The Entry Clearance Officer

A party is entitled to a hearing before a judge who is alert and who appears to be alert. Actual sleep is unnecessary: an objectively supported appearance that the judge did not give the case full attention may render the hearing unfair. Such a concern should preferably be raised during the hearing, but it may succeed on cogent evidence obtained or recorded at the time.

For dependent-relative entry clearance under paragraph 317 of the Immigration Rules, the requirement of living alone in the most exceptional compassionate circumstances may be met where the applicant is imminently to be left without a carer. The Rules should not be read to require the applicant first to be abandoned to the harmful consequences of that situation.

The appellant, an Afghan national with lifelong mental disability, sought entry clearance to join his brother and nephew in the United Kingdom as a dependent relative under paragraph 317 of the Immigration Rules. The Entry Clearance Officer refused the application. An Immigration Judge dismissed the appeal on 8 December 2009, including its Article 8 claim.

A Senior Immigration Judge ordered reconsideration. The appellant alleged that the Immigration Judge had appeared to fall asleep, had made factual errors, and had dealt inadequately with Article 8. On reconsideration, the respondent accepted the relationship, dependency, maintenance and accommodation requirements. The remaining issue was whether the appellant was living alone in the most exceptional compassionate circumstances, given that his current carers were imminently to leave Pakistan for the United States.

1. Appeal allowed. The first-stage determination was set aside because the appellant had not received a fair hearing. A tribunal member must be alert throughout a hearing and must appear to be so. Following Stansbury v Datapulse plc [2004] ICR 523 CA, apparent inattention may itself make a hearing unfair.

   The evidence was cogent: counsel made a contemporaneous note, later gave a detailed account, and the sponsors corroborated it. The judge's factual mistakes did not prove that he had actually slept, but they reduced confidence that the appeal had received the required attention. A complaint should preferably be raised at the hearing so that the problem can be remedied, although it may be difficult to raise it with the tribunal then deciding the case.

2. The factual errors alone were not material errors of law because they did not determine whether the appellant met the requirement of living alone in the most exceptional compassionate circumstances. The Article 8 reasoning was, however, legally inadequate. It addressed family life in Pakistan rather than the alleged family life with relatives in the United Kingdom, and it did not use the structured approach required by Razgar [2004] 2 AC 368.

3. On the merits, all of paragraph 317 was satisfied. Although the appellant was not literally living alone on the date of decision, his sister-in-law and her children were imminently to leave Pakistan for the United States. His age and disability meant that he could not live alone; his sister in Kabul could not reasonably care for him. It would be unduly restrictive to require him to wait until his carers had actually left and he was without care.

4. There was also family life for Article 8 purposes because of the appellant's utter dependence on the United Kingdom sponsors. Refusal would interfere with that family life and, as the decision was contrary to the Immigration Rules, was not in accordance with the law for Article 8(2). The appeal therefore succeeded under the Rules and Article 8.

• Upper Tribunal (Immigration and Asylum Chamber): appeal reconsidered and allowed.
• Senior Immigration Judge: ordered reconsideration on 18 January 2010.
• Immigration Judge: dismissed the appeal against refusal of entry clearance on 8 December 2009.
• Entry Clearance Officer: refused the application on 9 March 2009.