SF (Afghanistan) and Anor v Entry Clearance Officer

On an out-of-country appeal against refusal of entry clearance, section 85(5) of the 2002 Act confines the tribunal to circumstances appertaining at the date of decision. Later evidence is not automatically excluded, but it is admissible only insofar as it illuminates circumstances existing then. A job offer made after refusal is a new circumstance and cannot establish that employment, particularly at a particular salary, was reasonably foreseeable earlier. A tribunal’s reasons must be read as a whole. A purportedly separate conclusion may be materially infected by reliance on later evidence. A bare intention to work and generic job possibilities do not suffice. A new family-support argument requiring fact-finding may be refused where it was not raised below and would be unfair to the respondent.

The appellants, an Afghan wife and son, applied for entry clearance to join the settled sponsor in the United Kingdom. The Entry Clearance Officer refused the applications because the maintenance requirements in the Immigration Rules were not satisfied.

Immigration Judge Seifert allowed the appeals under paragraphs 281 and 297, relying partly on a job offer made after the refusal decision. Senior Immigration Judge Storey found a material error of law under section 85(5) of the 2002 Act. The Rules appeals were dismissed and the Article 8 appeals were remitted. Designated Immigration Judge Taylor later dismissed the Article 8 appeals, but further material errors were conceded. The central issue before the Court of Appeal was whether the later job offer had materially affected the earlier decision.

Appeal allowed. Lord Justice Sullivan gave the judgment, and Lord Justices Pill and Toulson agreed. The matter was remitted to a differently constituted Upper Tribunal.

1. Section 85(5) of the 2002 Act restricted the tribunal to circumstances appertaining at the date of the refusal. Evidence obtained later was not subject to an absolute exclusion where it shed light on circumstances existing at the relevant date. A new event arising after refusal was not itself an earlier circumstance. The court considered DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038, including observations expressly described there as obiter, but the narrow issue did not require determination of their wider correctness.
2. Immigration Judge Seifert’s first conclusion, that a maintenance shortfall would be met by earnings from the May 2008 job, plainly relied on a circumstance that did not exist in July 2007. Her later conclusion about reasonably foreseeable employment could not be treated as freestanding. The references to that job or a similar salary, together with the absence of independent reasons, showed that the later offer had materially influenced the conclusion.
3. The mere assertion that the appellant intended to work, coupled with generic examples of possible jobs, could not rationally establish reasonably foreseeable employment at a particular salary, especially where she spoke no English and had made no enquiries about available work.
4. The appellants could not rely for the first time in the Court of Appeal on a submission based on Mahad v Entry Clearance Officer [2010] 1 WLR 48 concerning family support. The point had not been raised below, the evidence had not been tested because third-party support was treated as irrelevant, and deciding it would unfairly require the Court of Appeal to undertake fact-finding.
5. The amendments made by section 19 of the UK Borders Act 2007 to section 85 were irrelevant because these appeals had to be determined under the provisions in force at the relevant time.

1. Court of Appeal (Civil Division): Allowed the appeal and remitted the Rules and Article 8 appeals to a differently constituted Upper Tribunal: [2011] EWCA Civ 758.
2. Designated Immigration Judge Taylor: Determination dated 21 September 2009 dismissed the appellants’ Article 8 appeals. Material errors were accepted on further appeal.
3. Senior Immigration Judge Storey: Found a material error of law in Immigration Judge Seifert’s determination, dismissed the appeals under the Immigration Rules, and remitted the Article 8 appeals.
4. Immigration Judge Seifert: Determination dated 20 May 2008 allowed the appeals under the Immigration Rules.
5. Entry Clearance Officer: Refused entry clearance on 18 July 2007 for failure to establish adequate maintenance without recourse to public funds.