DETERMINATION AND REASONS The Appellant's mother, Mrs. Samina Khan, is a national of Pakistan born 2 March 1968. It appears at some point in December 2007 she applied for entry clearance together with her three children, Rao Naeem-ul-Haque Khan, born 3 march 2000 Soha Khan, born 12 February 2005 and this appellant, Moeem-ul-Haque Khan, born 11 March 2006 and all, also, Pakistani nationals. They sought to join their husband and father, respectively. Their applications were refused jointly on 18 December 2007. The Notice of Appeal indicates that these were not served until 2 January, and Notice of Appeal was duly lodged at the High Commission in Islamabad on 23 January 2008. They do not appear to have been forwarded on to the AIT at Loughborough until 28 March 2008. No explanation has been put forward to explain this three-month delay. It is possible this was occasioned by an intent to review them at the Post, but there is certainly no indication this was done.
2. Rather surprisingly, Directions issued on 25 April 2008 advising the Respondent had failed to lodge all relevant documents by 24 March 2008. There is no indication of any earlier Directions actually issuing from the AIT howbeit it is clear the Respondent had the appeal since 23 January. In any case, further Directions issued advising that the matter would be listed for hearing on 3 July 2008 and requiring the Respondent's bundle to be lodged forthwith. As at the date of the preparation of these Determinations, the Respondent has continued to ignore the Directions of the Tribunal. No reason, explanation or excuse has been forthcoming. This is an unacceptable circumstance. It is only because of the abundance of evidence that has been supplied by the Appellants that the appeal can properly proceed. In interpreting that evidence, therefore, I have, where appropriate, relied upon the general principle that where evidence is within the control of one party, and they fail to produce it, not only may that fact be founded upon, but also ambiguities in the evidence may be resolved against their interest.
3. It has been felt appropriate to prepare a single Determination in all four, linked appeals. The circumstance of the appellant mother was considered and addressed in the Refusal, and the children's Refusals refer to that and are identical.
4. The respondents has, of course, failed to produce the Visa Application Forms for the four appellants. They, on the other hand, have produced a Refusal, together with a substantial appellants bundle. I am satisfied on this basis that I can properly evaluate the appeal before me and reach an informed and satisfactory decision. For these purposes, I shall refer to the appellant mother/wife, as Samina Khan as the Appellant" and her children by name as may be necessary.
5. There is some confusion on the basis of the Refusal of Entry Clearance issued to the appellant mother and the children as to the operative paragraphs under which their applications were reviewed. Reference is repeatedly made to Paragraph 143 of the Immigration Rules but this, of course, refers to Refusal of Indefinite Leave to Remain for the representative of the overseas media.
It is to be hoped the ECO actually was referring to paragraph 143-A, etseq, relating to the Fresh Talent: Working in Scotland scheme. Further reference is made in the Refusal to Paragraphs 110-115 and 240-245. Unfortunately, the former five Paragraphs relate to language teachers and assistants entering the UK on approved exchange schemes. It may be thought, if somewhat sardonically, the ECO might be "third time lucky" in referring to. paragraphs 240-245, but these, unfortunately, relate to dependants of investors, innovators, writers and artists. The appellant's application should have been assessed under Paragraphs 143A and 194 of the Rules, and this has been done on the appeal.
6. It should, perhaps, be noted that I assume this was the case. The Appellant's husband, despite his ostensible legal qualification, in preparing the four Notices of Appeal, only managed to photocopy the same Refusal, that of young Soha four times over rather than, properly, copying the respective Refusals in each appeal. However, in the Grounds of Appeal, it is recited the only difference lay in the fact the ECO, when addressing the Appellant wife, stated that she had failed to provide any reasonable evidence that she and her sponsor husband had met, whereas with the children, it was recited that they had failed to provide such evidence that they were related as claimed to the sponsor. The ECO applied the general criteria in such circumstances and concluded the parties did not intend to live with one another as husband and wife (or related as parent and child as noted), that they would be adequately accommodated without recourse to public funds in a properly owned .or occupied exclusively by the sponsor and them and, finally, that they would be able to maintain themselves and any dependents without recourse to public funds.
7. Brief reasons were given for this. It was stated that no adequate evidence had been supplied to establish the relationships. Neither had satisfactory evidence been adduced regarding the adequacy of the accommodation or that the rent for it was current. Finally, it was noted that the sponsor's bank statement showed recent large deposits which were inconsistent with the history of the account, and the ECO could thus not be satisfied it was an accurate reflection of his financial circumstance. For these reasons, therefore, the applications were refused.
8. The appellants have responded to these conclusions in lengthy Grounds of Appeal. With regard to the first points, it was asserted that the couple's marriage certificate, translated and certified, has been submitted to establish their relationship and, further, that the original Government birth certificates of the children and the registration certificates issued by the National Database and Registration Authority had been submitted together with the passports of the children and Appellant.
9. With regard to accommodation, a lease agreement for the sponsor's flat had been submitted with the visa applications together with his letter. The flat was fully furnished, two bedrooms , sitting room kitchen and toiled which would be sufficient for the couple and their young children. It was further noted that bank statements, utility bills and mobile phone bills had been submitted to confirm the residence of the sponsor on the premises. With the appeal, a formal lease extension was submitted together with a letter from the landlord authorising the occupancy.
10.With regard to the bank account, it was noted that the sponsor's father had sent 1,600 and 1,520 to him as a gift to meet any added expenses in preparing for the arrival of the family in the UK.
A letter from the sponsor's father, Dr. Ehsan-ul-Haque Khan was submitted with the appeal together with a letter from a Mr. M Upadhyay confirming his two contributions of 250 in settlement of an outstanding debt to the sponsor at the end of November 2007.
11.As the Respondent has evidently willfully refused to comply with the Directions of this Tribunal, twice issued, I am prepared to accept that all of the documents stated were properly before the ECO. On the basis of the very unsatisfactory Refusal that has been drafted, it would appear no attention whatsoever was paid to the documents submitted! This is as wholly unsustainable and deeply unfortunate as the Respondent's subsequent failure to comply with the process of this Tribunal. Indeed, I have rarely seen so poorly formulated and considered a decision. On the basis these documents were submitted, as I accept they have been, at the time of application as they have with the appeal, the failure of the ECO evidently even to consider them, and the wholly , unsustainable "conclusions" that have been drawn from them, most seriously calls into question his or her suitability to be acting in this capacity at all. It is, for example, inexplicable the ECO would "conclude" insufficient evidence of relationship had been shown between the children and their sponsor father in light of the three sets of official documentation-birth certificates, family registration form and passports-submitted. This is a most important and significant exercise of the public authority, and on the basis of the Refusals before me, one can only regret the dereliction not only of the Entry Clearance Officer, but, as it must appear, his or her immediate superiors and supervisors in permitting and tacitly endorsing, such a travesty.
12.I have had the opportunity to read and consider the evidence submitted, something the ECO evidently could not be bothered to do, and I am satisfied on the balance of probabilities each and every of the reservations put forward by him or her are without foundation. I accept that the explanation for the deposits was received after the decision-and this is what the appellant process is for-but the sums involved were not unusual given the salary of the sponsor. There is certainly nothing out of the ordinary, and in light of all the other supporting evidence, quite insufficient Grounds to conclude the sponsor was not financially able to support his family in the UK.
13.It is very much to be regretted that as the result of the inadequate, slip-shod approach of the ECO to these applications, the Appellants have been obliged to remain a further seven months apart from the sponsor husband and father. This is particularly significant given that his current leave to remain expires in May 2009.
14.Having heard the evidence of the sponsor and read and considered the documentary evidence before me, I am satisfied on the balance of probabilities, the Appellant wife meets the requirements of Paragraph 194 and the children, now, those of Paragraph 197 of the Immigration Rules. All these circumstances have pertained as of the date of decision, such as it was.
Accordingly, the Refusals are set aside, and the appeals allowed in each case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.