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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Entry Clearance Officer, Mumbai v NH (India) [2007] EWCA Civ 1330 (13 December 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/1330.html Cite as: [2007] EWCA Civ 1330 |
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& C5/2007/1097(A) |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[2006] UKAIT 00085
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE RIMER
____________________
ENTRY CLEARANCE OFFICER , MUMBAI |
Appellant |
|
- and - |
||
NH (INDIA) |
Respondent |
____________________
Mr M.S Gill QC and Mr J Patel (instructed by Messrs Aman) for the Respondent
Hearing date: Friday 23 November 2007
____________________
Crown Copyright ©
Lord Justice Sedley :
Background
"Please state, in numbered paragraphs, on a separate sheet attached to this notice and entitled 'Grounds of Appeal' … why you are saying that the judge who made the order you are appealing was wrong."
It then asks the intending appellant to indicate whether "the arguments (known as a 'Skeleton Argument') in support of the 'Grounds of Appeal'" are attached or will follow. It is not too much to ask that counsel, like the rest of the world, should understand and follow these straightforward directions and that solicitors should not lodge documents that do not comply with them.
History
7. The Appellant's maternal grandfather was registered in Kenya as a British subject and a citizen of the United Kingdom and Colonies in 1957. The Appellant's mother, the sponsor, was born in Nairobi on 14th October 1959 and was then a citizen of the United Kingdom and Colonies (CUKCs). The sponsor married the Appellant's father an Indian national in 1975. They have four sons. The oldest born in 1976 now lives in the Seychelles; the second son born in 1978 lives in Muscat; the third son born in 1980 lives in India. The Appellant, their fourth son, was born on 6th May 1985.
8. On 27th July 1998 the Appellant's mother obtained her British overseas citizen passport. In August 2003 the sponsor applied for a British passport. She was registered as a British citizen with full rights on 9th September 2003. Her passport was available in October of that year. She returned to India to support the entry clearance application of the Appellant and her husband, his father. On 5th May 2004, the Appellant and his father, together with the sponsor, were interviewed by the entry clearance officer in Mumbai. Entry clearance was refused for both the Appellant and his father.
9. On 17th May 2004 the sponsor returned to the United Kingdom. A notice of appeal was filed for both the Appellant and his father on 27th May 2004. The appeals were reviewed. The Appellant's father was granted a visa to settle in the United Kingdom as a dependent spouse of the Appellant's mother on 23rd October 2004. The review of the Appellant's appeal changed nothing and his appeal was heard before an Adjudicator in December 2004.
13. Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1st January 1950. They each, when born, became citizens of the United Kingdom and Colonies by birth (CUKCs). Their rights to settle in the UK were restricted by the Commonwealth Immigration Act 1968. The Immigration Act 1971 came into force on 1st January 1973. It introduced the concept of a right of abode. On 14th December 1973 the European Commission on Human Rights decided the East African Asians case. It decided that the Commonwealth Immigration Act 1968 was racially discriminatory. The UK Government entered into a friendly settlement. A Special Quota Voucher Scheme (SQV Scheme) was introduced to benefit citizens of the United Kingdom and Colonies whose rights had been restricted by the 1968 Act. But it could not assist either of the two sponsors since married women who were not heads of households were excluded from the Scheme.
14. The Special Quota Voucher Scheme had been introduced from 1968 to assist both CUKCs and subsequently British Overseas Citizens (BOCs). Each of the two sponsors had qualified as BOCs under the provisions of the British Nationality Act 1981. The SQV Scheme was outside the Immigration Rules. It allowed persons latterly BOCs who had no other citizenship and were under pressure to leave their country of residence and had nowhere else to go to settle in the UK. The numbers entitled to come to the UK were limited by quota rules. From 1975, 5,000 vouchers per year were issued. Waiting lists were always long. By 1987 those applying under the quota were expected to wait more than five years (Macdonald Immigration Law and Practice 1st Edition 1983 pg.248 and 2nd Edition 1987 pg.286).
15. Importantly the SQV Scheme was only available to heads of household and to their dependents. Such heads of household were defined for the purpose of the scheme as "men who have reached their 18th birthday; women over 18 who [are] … single, widowed, divorced [or] married to a man who is incapable of fulfilling the role of head of household for medical reasons, e.g. severely physically or mentally handicapped. (This includes a woman whose marriage may have been not valid in English law but which exists in fact, and a woman who is living in a permanent association with a man)". The scheme was therefore applied in a manner which discriminated between men and women on the grounds of marital status. The scheme was abolished on 5th March 2002. There were approximately 500 applications per year at that stage.
16. Section 12 of the Nationality, Immigration and Asylum Act 2002 amended sections 4 and 14 of the British Nationality Act 1981. The effect was to entitle certain British Overseas Citizens to be registered as British citizens from 30th April 2003. This applied to those who hold no other nationality and who had not renounced any other nationality. The mothers of both the Appellants qualified for British citizenship for the first time as a result of this amendment. They were adversely affected by the "anomaly" referred to in the next paragraph.
17. The context of this legislative change is of importance in these cases. The then Home Secretary said in a parliamentary debate on the Nationality, Immigration and Asylum Bill in the House of Commons on 5th November 2002 in relation to the changes made which subsequently enabled the mothers of the two Appellants to obtain British citizenship:
"We are talking here about righting an historical wrong, in terms of what happened back in the late 1960s and early 1980s in regard to British overseas citizens … [who] found themselves in an anomalous situation … I wish to put right that anomaly for British overseas citizens."
"The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the … other dependent relative of a person present and settled in the United Kingdom are that the person:
(i) is related to a person present and settled in the United Kingdom in one of the following ways …
(f) the son… over the age of 18 living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and
(ii) is joining… a person who is present and settled in the United Kingdom… and
(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and
(iv) can, and will, be maintained adequately without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and
(a) can, and will, be maintained adequately and without recourse to public funds and
(v) has no other close relatives in his own country to whom he could turn for financial support …."
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The adjudicator's determination
"In many ways", the adjudicator concluded, "this is an unfortunate result since by a change in immigration rules at a time when he could not take advantage of under-18 status, he has suddenly been deprived of his mother and father, who have expressed an intention to sell the accommodation in which he resides."
4.7 First, it is quite clear that there exists family life between the Appellant on the one hand and the sponsor and her family in the United Kingdom on the other.
4.8 Whether the refusal to grant entry clearance amounts to a breach of the Appellant's Article 8 rights depends on whether it would be reasonable for the sponsor and her husband to re-locate back to India. Had they been resident in the United Kingdom for a much longer period this no doubt would militate against it being reasonable to ask them to return, but to expect people to turn round so shortly after settling in this country is not an attractive proposition either. Furthermore the settlement of the Appellant's parents in this country was in the wake of several other family members' settlement, and to regard it as reasonable for them to return would be tantamount to saying that when 3 members of a family make an application for settlement and only 2 succeed the only way forward for the family to exercise their Article 8 rights is for the 2 successful applicants to give up the success they have had. I do not find it reasonable in those circumstances to require the Appellant's parents to turn around so quickly in order to preserve their family life.
4.9 The result of this finding is that I find that the refusal of the ECO is an interference with the Appellant's Article 8 rights. Whether that places the |State in breach of the obligations to show respect for family life depends on whether it is a proportionate response to the countervailing public interest in maintaining an effective immigration policy. In my view it is not. Although the Appellant is over the age of 18 he is not far beyond it. He is single, and not engaged. His relationship is not one deemed to be one of the less important one but the greatest. In all those circumstances I find that the refusal is a disproportionate response and accordingly I find that the refusal does place the State in breach of its positive obligations under Article 8.
The case before the AIT
"Whether, having regard to article 8 ECHR and the decision in Mahmood, the United Kingdom would breach its human rights obligations in returning him to India."
This formula mistook the situation to the extent that it suggested that what was in issue was return to India rather than entry clearance, but that does not matter. The reference to Mahmood is to the decision of this court [2001] 1 WLR 840 that in pre-Human Rights Act challenges to Home Office refusals of leave to remain the court was in general limited to a supervisory rather than an appellate role. Before us, however, Elisabeth Laing for the Home Secretary has relied on it for a different and narrower proposition.
The AIT's role
"… entitled to allow the appeal under article 8 ECHR and indeed we would have come to the same conclusion."
But their conclusion (§41, 43) that Mr Halai's appeal was allowed and that the ECO be directed to grant him entry clearance seems, with respect, inconsistent with simply upholding the adjudicator's determination as sound in law.
The grounds
(a) The adjudicator erred in finding that refusal of entry clearance would breach art. 8(1).
(b) Alternatively, in applying art. 8(2) the adjudicator made a legally inadequate assessment of proportionality.
(c) Had the AIT found these errors of law to have occurred, as they should have done, the determination which they would have substituted (and indeed purported to substitute) was vitiated by equivalent errors.
The AIT's determination
31. We do not consider on the evidence that either appellant could properly be said to be "living alone in the most exceptional compassionate circumstances". So we agree with the adjudicator in H and for the reasons given consider the judge in V was wrong so to decide. But we have further considered these cases both in the light of the individual circumstances of each appellant and having regard to the legislative background. We have concluded that in both cases the IJs were entitled to allow the appeal under Article 8 ECHR and indeed we would have come to the same conclusion. We are satisfied from the findings before the Adjudicator and the Immigration Judge that in each case the Appellant was wholly or mainly dependent on the sponsors; that each Appellant will be accommodated adequately without recourse to public funds in the UK; that each dependent can and will be maintained adequately without recourse to public funds and neither has close relatives in his own country to whom he could turn for financial support. In other words most of the requirements of Rule 317 are satisfied.
32. We note that each Appellant was only just over the age of 18 when the application for entry clearance was made. The opportunity to make an application prior to the 18th birthday of each appellant was very limited. In each case the application was made with the Appellant's father so both the father and the son could join each Appellant's mother as sponsor. In each case there was and is a strong family life. Each mother had only recently obtained citizenship of the UK with the right to settle and each had only recently settled in the UK.
33. We are supported in our view that this case is exceptional in relation to the ages of the Appellants by two factors. First the SQV Scheme adopted an upper age of 25 rather than 18 for family reunion. Children up to the age of 25 so long as they were dependent, as the Appellants are, could be admitted as part of the family under the scheme even though they were over 18. This SQV Scheme policy was of course withdrawn well before the mothers in this case were able to secure their rights to enter the UK. But it informs our thinking when considering the application of article 8 in the particular circumstances of these cases and the Respondent's past policies in comparable situations. Further the September 1998 Home Office IDI deals with cases of re-applicants who can show in the light of DNA evidence that they have been previously wrongly refused. There an upper age of 25 was adopted rather than 18. This provides an example of how an apparent absolute cut-off age is not always mandatory where the Respondent accepts that an error of judgement or fact has been made.
34. Each of the Appellants' mothers had been a British overseas citizen since birth. As they were females and not head of a household they could never have applied to settle in the UK under the Special Quota Voucher Scheme. The foundation of any entitlement to come to the UK had been prevented by racially discriminatory earlier legislation. The SQVS which sought to deal with that position was itself discriminatory on gender grounds against the mother of each of the Appellants. There was an historic discrimination.
35. The first occasion from which either of the Appellants' mothers could acquire British citizenship, giving them the right to apply for their dependents to settle with them, was on and after 1st April 2003 subsequent to the passing of Section 12 Nationality, Immigration and Asylum Act 2002. We accept the Appellants' arguments that part of the reason behind the passing of Section 12 of the Act was to "right an historical wrong".
36. These facts as taken together constitute in our judgement truly exceptional circumstances as required in Huang. The SQVS could not avail either mother. The previous legislation as a whole had been discriminatory in excluding those with the Appellants mothers' background from the possibility of citizenship of the UK.
37. In each case the fathers of the two Appellants were able to exercise their right to join their wives, the Appellants' sponsors, and settle in the UK. The Appellants, otherwise wholly dependent and still in education, would have had an absolute right to come to the UK had they been under 18 on the date of application. We regard this history and context as of the utmost relevance. We agree with the Appellants' representatives that the assessment of what is necessary in a democratic society in Article 8 terms should involve a consideration of all the circumstances including the previous history of any previous wrongful act and an understanding of how the convention rights have to be enforced. We accept the submission that "in Strasbourg cases the Courts have looked at the history of development of legislation in assessing what is the right thing to do in the modern context when acknowledgements of past wrongful treatment are made". We also agree that there is no question in this case of attempting to enforce rights retrospectively.
38. Further we are not here dealing with family relationships which have been created after entry. The relationship in both cases is of longstanding since the birth of each Appellant. If each Appellant had been under the age of 18 then each claim would have been allowed.
39. We accept that the time taken for each Appellant's mother to make application for registration as British citizens and to apply for their families to come to the UK was reasonable. Both Appellants were only just over the age of 18 and were fully dependent and living alone when the applications were made.
40. We accordingly regard these two cases as one among the very small number of cases which are truly exceptional. We consider that the decisions of the entry clearance officer in each case breached Article 8 ECHR. Both the Adjudicator in H and the immigration judge in V allowed the appeals under Article 8. The immigration judge in V need not have made that finding given her conclusion under Rule 317. But the findings she made under that Rule do contribute towards the conclusion that the Appellant V's case is truly exceptional. We accordingly conclude that decisions that the appeal in respect of human rights in each case should be allowed must stand. The decision that provisions of Rule 317 are met in the case of V was wrong and is quashed. For the avoidance of doubt we conclude for the reasons given
41. The appeal of H is allowed on Human Rights grounds.
42. The appeal of V is allowed on Human Rights grounds.
43. In the particular circumstances of these two cases we exercise the power given by Section 87 (1) Nationality, Immigration and Asylum Act 2002 and direct that entry clearance be granted for each of these Appellants.
Art. 8(1): family life
"The Court reiterates in this regard that a child born of a marital union is ipso jure part of that relationship; hence from the moment of the child's birth and by the very fact of it, there exists between him and his parents a bond amounting to family life which subsequent events cannot break save in exceptional circumstances."
Proportionality and exceptionality
Proportionality: the adjudicator's decision
"What matters is not that courts and tribunals should adopt a set formula for determining proportionality, but that they should have proper and visible regard to relevant principles in making a structured decision case by case."
Proportionality: the AIT's decision
Conclusion
Lord Justice Rimer:
Lord Justice Pill:
"The foundation of any entitlement to come to the UK had been prevented by racially discriminatory earlier legislation. The SQVS which sought to deal with that position was itself discriminatory on gender grounds against the [sponsor]. There was an historic discrimination. Eventually, as from 1 April 2003, the sponsor became entitled to enter the United Kingdom and to apply for her dependents to settle with her. That was achieved by Section 12 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") a reason for which was to "right an historical wrong"."