Poorly drafted visit visa application form causes Immigration Judge wrongly to deny applicant right of appeal
2 October 2011
Is X’s brother-in-law a member of X’s family? The answer matters because, by the Immigration Appeals (Family Visitor) Regulations 2003, only those who applied for a visa to visit one of their "family members” will be allowed to appeal to the First Tier Tribunal if their applications are refused. The Regulations contain a list of qualifying relationships.
The scope of the Immigration Appeals (Family Visitor) Regulations 2003 was the subject, among other things, of the Upper Tribunal’s recent determination in Ajakaiye v Entry Clearance Officer (Abuja) [2011] UKUT 00375 (IAC). The Tribunal noted that the regulations distinguish as follows between two different kinds of in-laws: an applicant’s partner or spouse’s sister or brother is not the applicant’s family member, but the applicant’s brother or sister’s partner or spouse is.
In the case considered by the Tribunal the Appellant Ajakaiye had applied to the Entry Clearance Officer (ECO) in Nigeria for a visa to visit his "brother in law and their kids”. Not being satisfied that the applicant really intended just to visit the UK the ECO had refused the Appellant’s application on the basis that the Appellant had not met the requirements of paragraph 41 of the Immigration Rules.
The Appellant appealed against the decision to the ECO.
When the Appellant’s appeal came before an Immigration Judge in the First Tier Tribunal there was no appearance on the Entry Clearance Officer’s behalf and the Sponsor – the Appellant’s brother-in-law – appeared in person. Despite the ECO having taken no point as to whether or not the Appellant had a right of appeal against the decision the judge decided that because the Appellant had said he was visiting her brother-in-law there was in fact no right of appeal.
The Upper Tribunal said that this approach was wrong:
"An Immigration Judge has to have jurisdiction in order to entertain an appeal and receive evidence in the case. If the notice of appeal has been accepted and no objection is taken by the respondent, there is no need for the Immigration Judge to embark on an inquiry into his or her own jurisdiction.”
The Tribunal went on to examine the relationship between the Appellant and the Sponsor. It turned out that he was married to the Appellant’s sister, and that he and his wife had two sons. This was important because the Appellant had said he was coming to visit his "brother in law and their kids”. So the Appellant was entitled to a right of appeal, since this kind of brother-in-law, the husband of a person’s sister, is among those specified in the regulations.
Furthermore, as the Tribunal pointed out, the Sponsor’s children are the Appellant’s nephews. As would be expected the regulations include nephews and nieces as members of a visa applicant’s family. So in fact there was a right of appeal against the ECO’s refusal for this reason as well.
This led the Tribunal to express its concern about the wording of the questions on the visa application form which had been completed by the Appellant. It pointed out that:
"Question 8.4 of this form reads:
"8.4 Please name the relative you will stay with and provide exact details of your relationship with them … "
Question 8.4 is inadequate, because it is possible to visit person A, who comes within the 2003 Regulations, but stay with person B, who does not. For example, it is possible for an applicant to wish to visit his or her sister but due to problems with accommodation, intend to stay with a family friend or indeed a hotel. Thus, if such an applicant were to state, in response to question 8.4, that he or she intended to stay with person B, he or she has answered the question but not provided the information which establishes whether there was a right of appeal.
The Tribunal’s insight is striking, and one can’t help wondering how many applications for visas have been refused with no right of appeal because this question caused the applicant to identify the wrong person (a person not listed as a family member in the regulations) when in fact he or she was hoping to visit a family member who did fall within the list.
The Tribunal went on to say:
"In our view, the forms should require applicants to state which relative(s) they are intending to visit (and not merely stay with) and to provide precise details of their relationship with those relative(s), with some examples, so that applicants understand that it will not be enough to state that they intend to visit a brother-in-law or a sister-in-law or a cousin or uncle or aunt, but that it is necessary for them to identify the individuals (if any) through whom they are related to the relatives they intend to visit and to explain how they and the person they intend to visit are each related to those individuals.”
Having identified the Immigration Judge’s error the Tribunal went on to determine the appeal itself, and to allow it.
The traffic through the UK’s ports comprising people visiting relatives who live here is immense. As this case shows, even an application as apparently straightforward as this can, if carried out without appropriate professional assistance, lead to the frustration of the applicant’s legal rights.