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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Acan, R (on the application of) v Immigration Appeal Tribunal [2004] EWHC 297 (Admin) (12 February 2004) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2004/297.html Cite as: [2004] EWHC 297 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF ACAN | (CLAIMANT) | |
-v- | ||
IMMIGRATION APPEAL TRIBUNAL | (DEFENDANT) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS L GIOVANNETTI (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
"Your application for refugee status in the United Kingdom has been carefully considered but I have to tell you that it has been refused. It has been decided however, that although you do not qualify for refugee status it would be right because of the particular circumstances of your case to give you exceptional leave to remain in the United Kingdom until 28th January 2004.
You should, however, fully understand that if during your stay in the United Kingdom you take part in any activities involving, for example, the support or encouragement of violence, or conspiracy to cause violence, whether in the United Kingdom or abroad, the Secretary of State may curtail your stay or deport you.
EMPLOYMENT
You do not need the permission of the Department of Employment or the Home Office before taking a job. The Employment Service can help you find a job or train for work - any job centre or employment office will be able to help you and you can apply for a place on a government-sponsored training scheme if you meet the normal conditions for these schemes. You are free to set up in business or any professional activity within the general regulations that apply to that business or profession.
If you want to live or work in the Isle of Man or one of the Channel Islands you must first pass the Island's immigration authorities.
HEALTH, SOCIAL SERVICES AND EDUCATION
You are free to use the National Health Service and the social services and other help provided by local authorities as you need them. You will be able to get social security benefits (including income support) if you meet the ordinary conditions. If you want to study for a degree or other approved course you can apply for a grant from your local education authority; you will be charged only home students' fees for any further or higher education courses you take.
If you need any of these services, take this letter with you and show it if there is any question about your entitlement to the service."
The letter continued by giving details of organisations which could assist, then:
"FAMILY REUNION
This grant of exceptional leave to enter does not entitle your spouse or children under 18 to join you. An application for them to do so cannot normally be considered until 4 years from the date of this letter. The normal requirements of the Immigration Rules regarding support and accommodation of relatives would have to be satisfied. An application for family reunion may be granted at an earlier point if there are compelling compassionate circumstances."
Ground 1
Ground 2
Ground 3
Ground 4
Grounds 5 and 6
"Those not having that right [the right of abode] may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are settled there (and not exempt under this Act from the provisions relating to leave to enter or remain)."
Section 1(4) provides:
"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provisions for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
"(1) Except as otherwise provided by or under this Act, where a person is not a British citizen -
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely -
(i) a condition restricting his employment or occupation in the United Kingdom;
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and
(iii) a condition requiring him to register with the police.
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admissions of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of the Act, account may be taken of citizenship or nationality)."
"The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:
(i) is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:
(a) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement; or
(b) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the children's upbringing..."
[This sub-subparagraph has been referred to as a "preferred parent provision"]
(c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
(ii) is under the age of 18; and
(iii)is not leading an independent life, is unmarried, and has not formed an independent family unit; and
(iv)can and will be accommodated adequately without recourse to public funds, in accommodation which the parent or parents own or occupy exclusively; and
(iva)can, and will, be maintained adequately by the parents or parents without recourse to public funds; and
(v) where an application is made for limited leave to remain with a view to settlement has limited leave to enter or remain in the United Kingdom; and
(vi)if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity or, if seeking leave to remain, was admitted with a valid United Kingdom entry clearance for entry in this capacity."
"25. After paragraph 309 and immediately below the heading 'Adopted Children', insert:
'309A For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if:
(a) at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in sub-paragraph (b(i) and must have cared for the child for at least a period of time equal to the second period material in that sub-paragraph; and
(b) during their time abroad, the adoptive parent or parents have:
(i) lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and
(ii)have assumed the role of the child's parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.'"
Ground 1
(i) had it been necessary to determine the issue I would have been compelled to find that the sponsor did not fall within the definition of their parent in the Rules. I would have had to accept Miss Giovannetti's argument that there was here an informal adoption. As such, it did not meet the very specific requirements in the Rules already referred to in relation to adoptions. Therefore, despite the use of the word "includes" in rule 6, I would have found that this rule was not apt to encompass the two relevant claimants;
(ii) however, I have no doubt, as Miss Giovannetti concedes, that for the purpose of family life these two claimants, on the facts, form part of the sponsor's family unit. Their situation is therefore squarely within the scope of Article 8.
(a) that the combined effect of the delay in dealing with the application and the four-year requirement in the letter totalled nine and a half years;
(b) that as children, or de facto children of the sponsor, this period, if permitted to run its full course, would seriously interfere with or show lack of respect for any meaningful opportunity of resumption of family life between claimants and sponsor. Nine and a half years is, after all, on any view equivalent to the major part of a childhood;
(c) that in the light of (a) and (b) the decision of the entry clearance officer on behalf of the Secretary of State was disproportionate, in that the delay to that date had already interfered with family life to a degree which was wholly out of proportion to the requirements of immigration control;
(d) that the argument on proportionality would be strengthened by the basis upon which exceptional leave was granted, namely that after four years the sponsor would, in the usual course of events, qualify for settlement and for consideration of family reunion.
"34. There will be interference to the family life arising from the decision as the ECO as the family life will be prevented from developing. Such decision by the ECO however is legitimate as it is in accordance with the Immigration Rules.
35. The issue that follows thereon is whether such interference will be proportionate to the proper interests of the state in maintaining effective immigration control. Article 8 does not impose upon a state a general obligation to respect a person's choice of country of residence. In considering the facts of this case and undertaking the balancing act required, I note that the sponsor had left her children in Uganda in 1994. Whilst I accept that the sponsor made an application for entry for them in 2000, some 6 years had elapsed prior to that application and the children's formative years have been spent in Uganda with their extended family. There was no evidence before me as to why the sponsor could not now return to reside in Kampala or some other part of Uganda with the appellants. I accept that return to Gulu for the sponsor, on her evidence, may be difficult but I am not persuaded that it would not be in the best interests of the children to remain in Uganda where they could complete their education. The sponsor has developed valuable skills in the UK and these would assist her on return to Kampala (or some other part of Uganda)."
She then went on to refer to the case of Attafuah.
"Notwithstanding the matters raised in the grounds of appeal and in the subsequent letter from the claimant's representative of 25 March 2003, the Home Office Minister, in the letter of 27 February 2003, stated expressly that the 1998 White Paper never intended to offer a guarantee of settlement to those granted exceptional leave, even though it was accepted that a four-year grant of exceptional leave would usually have led to grant of settlement. The claimant has been granted four years exceptional leave to remain in the UK until 28 January 2004 and her request to upgrade this to indefinite leave to remain has been refused. Paragraph 301 of HC 395 which relates to the 'requirements for limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with the view to settlement' does not apply as exceptional leave to remain is not limited leave with a view to settlement. The Adjudicator was therefore properly entitled to dismiss the appeal against the refusal of the application under paragraph 320(1) as entry is being sought for a purpose not covered by the Immigration Rules.
Given this conclusion in relation to ground 1, there is nothing of arguable substance in grounds 2 and 3. With regard to ground 4 and the challenge to the Adjudicator's conclusions as to proportionality, there is no arguable error in the Adjudicator's assessment. The Adjudicator effectively concluded that there was no valid reason why the sponsor could not now return to Uganda, even though she may not wish to do so, and that conclusion was properly open to her on the evidence. The adjudicator was entitled to rely on Attafuah, and the new judgment of the Court of Appeal in Shala does not undermine the validity of the Adjudicator's assessment on the facts of the appeal."
"... without making any formal recommendation to the Secretary of State I would ask the Secretary of State to review the application again as I find on the evidence that was before me at the hearing that at the time of the application in 1990 there had been an intention for the appellants to live together permanently but they had received incorrect legal advice."
I endorse those observations. They are all the more pertinent since the four years provided for in the Secretary of State's letter have elapsed. A reconsideration by the Secretary of State is no doubt therefore imminent, and I hope urgent, in accordance with the terms of his letter and policy. It may be that he will wish to take into account the adjudicator's remarks and my findings.