SP v Entry Clearance Officer - Pretoria

Section 87(1) of the Nationality, Immigration and Asylum Act 2002 gives the Tribunal a broad power to direct action giving effect to a successful appeal. It is not confined to directions that are necessary, a restriction derived from repealed legislation.

In an entry-clearance appeal, a direction requiring issue should be made only where the judge is satisfied that the applicant will be able to meet every relevant Immigration Rule requirement in the foreseeable future. The judge must consider the practical consequences of a binding direction and any realistic prospect of changed circumstances. Where that assurance exists, a direction may properly secure prompt reunion, particularly for a child or other vulnerable person.

The appellant, a nine-year-old South African child, appealed the refusal of entry clearance to settle in the United Kingdom with her paternal grandparents. The Entry Clearance Officer accepted that all requirements other than paragraph 297(i)(f) of HC 395 were met. The Immigration Judge accepted the grandfather's evidence, found that requirement satisfied, allowed the appeal and directed that entry clearance be issued.

The Entry Clearance Officer appealed only against the direction. The issue was whether, despite the allowed appeal, the Immigration Judge should have left the application for reconsideration rather than directing issue of entry clearance.

1. The Entry Clearance Officer's appeal was dismissed. The Tribunal upheld the Immigration Judge's direction that entry clearance be issued.

2. Section 87(1) of the Nationality, Immigration and Asylum Act 2002 permits a direction for the purpose of giving effect to an allowed appeal. Its language is broader than paragraph 21(5) of Schedule 4 to the Immigration and Asylum Act 1999, which required a direction to be necessary. The earlier and more restrictive approach in Sharif [2002] UKIAT 00953 should therefore no longer be followed.

3. Directions to issue entry clearance require practical caution. Unlike a bare allowance of an appeal, such a direction prevents the Entry Clearance Officer from refusing the application again if the applicant still wishes to travel. A judge should therefore consider whether circumstances may have changed and, where a Presenting Officer attends, may sensibly ask whether any difficulty is foreseen. Absence of a Presenting Officer does not prevent a direction in an appropriate case.

4. The governing safeguard is that a direction should not be made unless the judge is satisfied that the applicant will be able to meet all relevant rule requirements in the foreseeable future. The visit cases, including MG [2004] UKIAT 00140 and EA [2005] UKAIT 00108, illustrated cases where the proposed travel or supporting evidence might have become stale. They did not govern this case.

5. Here, the only disputed rule requirement had been found satisfied, the other requirements were accepted, and there was no realistic indication of a change in circumstances requiring a fresh assessment. The child’s vulnerability and the need for a speedy reunion with her grandparents made the direction proper.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Entry Clearance Officer’s appeal and maintained the direction that entry clearance be issued.
• Immigration Judge: allowed the appellant’s appeal against refusal of entry clearance and directed issue of entry clearance.