M & Anor v Secretary of State for the Home Department [2003] EWCA Civ 263

Case No C1/2002/1991[2003] EWCA Civ 263
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Tuesday, 4 February 2003
Strand
London, WC2
B E F O R E:
THE VICE CHANCELLOR
LADY JUSTICE HALE
LORD JUSTICE DYSON
M
AND
A
Applicants/Appellants
v
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents
(Computer-Aided Transcript of the Stenograph Notes of
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)
MR D GORDON appeared on behalf of the APPELLANTS
MS J RICHARDS appeared on behalf of the RESPONDENTS
J U D G M E N T
(As Approved)
Crown copyright©
Between
M & AnorAppellantSecretary of State for the Home DepartmentRespondent
[1]THE VICE CHANCELLOR: Dyson LJ will give the first judgment.

LORD JUSTICE DYSON: Rule 297 of the Immigration Rules (HC 395) identifies the requirements that have to be satisfied by a person seeking indefinite leave to enter the UK as the child of a parent, parents or a relative who is present in the UK. So far as material to the present appeal, it provides as follows:

"The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he: (i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances: (a) both parents are present and settled in the United Kingdom... (f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for 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... (ii) is under the age of 18; (iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; (iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative of the child is seeking to join, own or occupy exclusively; (v) can, and will, be maintained adequately by the parent, parents or relative the child is seeking to join, without recourse to public funds."
[3]This appeal raises the question as to the proper interpretation of paragraph 297(iv). Are the factors relevant to the adequacy of the accommodation by the parent limited to its physical features (the narrow interpretation), or do they also include wider considerations, and in particular, whether the parent poses a risk to the child (the wider interpretation). There is apparently no authority on this issue. That is why the Immigration Appeal Tribunal gave permission to appeal. The facts of this case raise the issue in a stark form. That is because it is not in dispute that the accommodation occupied by the parents is itself physically adequate to accommodate the appellants. It is large enough, in a suitable condition and is adequate in all other physical respects. But leave to enter was refused by the entry clearance officer because of her serious concerns for the welfare of the appellants if they were to live with their parents. It is for that reason alone that she concluded that the appellants would not be adequately accommodated by their parents.[4]The facts.[5]The appellants are M and A. Their natural parents are S and K. M was born on 12 April 1984, and A on 16 May 1985. The parents are both British citizens. The appellants have never lived with their parents. They were born in India where they have been cared for by their maternal grandparents since birth. The appellants have visited their parents in the UK three times, each time accompanied by their grandparents. An application for leave to enter for settlement purposes was made by the appellants in 1990. This was refused in 1992. A further application was made in 1999. This was refused on 7 April 2000. On 14 April 2000, the third application was made. This was refused by the entry clearance officer in New Delhi on 15 March 2001. The refusal was purportedly made under Rule 297(i)(f) of HC 395. The entry clearance officer subsequently noticed, or was advised, that Rule 297(i)(f) was not apt, since this was not a single parent or single relative case. She wrote to the appellants inviting them to file further grounds of appeal if they wished to do so in relation to Rule 297(iv). She then reviewed her decision and on 28 June 2001 informed the appellants that she was maintaining her refusal, but based it on Rule 297(iv) rather than 297(i)(f). In a detailed explanatory statement, she explained the reasons for her refusal of the application. She referred to the fact that one of the parents' other children had died in what was said to be "suspicious circumstances" in 1978 at the age of 5 months.[6]At paragraph 2(c) of her explanatory statement she said:
"Redbridge Social Services report of 7 August 2000 confirms that the appellants' three siblings were taken into care and subsequently adopted. It states interalia that the appellant's father is a 'Schedule 1 Offender, due to physically assaulting his children.' The letter continues: 'In August 1983 warrant... was obtained and both R and N were removed from the home. Medical examinations revealed injuries to both children, which were non accidental. The children reported that the bruises were caused by a broom used as a punishment for not eating. N had puncture marks on her body she said were caused by the mother prodding her with a knife. S was subsequently removed from her parents.' It also outlines the circumstances in which R died following what was believed to be non accidental injuries. R aged 5 months has suffered a fractured leg, fractured rib and fractured skull. The injuries were incurred at different times. Further no medical treatment has been sought for the injuries."
[7]At paragraph three of her explanatory statement, the entry clearance officer explained:
"I then considered the facts of this application. In normal circumstances the appellants may qualify for entry clearance to join their parents, who are both settled in the UK and are British citizens. However this appellants' circumstances are exceptional. To grant entry clearance to them would expose two vulnerable minors to a serious risk of harm and potential violence at the hand of the natural parents. The children have been well educated in India and living in comfortable economic circumstances here. The appellants have been raised since their birth by their grandparents in India. There are no substantial ties with the natural parents in the UK. The welfare of the appellants is of paramount importance. I consider that the natural parents pose a considerable risk to the appellants, and these circumstances are exceptional, serious and compelling. The fact remains that although the appellants are now 17 and almost 16 years of age, they are still vulnerable minors, and therefore potentially at great risk. The appellants' vulnerability is heightened by the fact that they would lack a safe network of trusted relatives and friends to whom they could confide as new arrivals in a strange country. Redbridge Social Services have stated that a full police and social services investigation would be launched should the children travel to the UK. This confirms social services' concerns as to the suitability of the sponsors as parents remain undiminished. I accordingly refused the application on 15 March 2001 and under paragraph 297(i)(f) of HC 395; as I was not satisfied on the balance of probabilities that suitable arrangements had been made for care of the appellants or that there was serious and compelling family or other considerations which made their exclusion undesirable. On the contrary, I considered that there were very serious considerations, which might make to desirable to exclude the appellants from the UK."
[8]Having reviewed her decision, she said at paragraph 4:
"In view of the serious concerns for the children's welfare I am not satisfied that the appellants will be maintained and accommodated adequately should they be admitted to the United Kingdom."
[9]A little later she said:
"I have also considered the provisions of Article 8 of the ECHR. I do not consider that the refusal interferes with the appellants' right to respect for family life Article 8. The appellants lived away from their parents all their lives, with few visits from their parents. They have been raised by their grandparents in India. The refusal does not interfere with family life."
[10]The appellants appealed to the adjudicator. On 12 November 2001, Mrs Grant dismissed the appeal. The appeal was directed to the decision of 15 March 2001 and Rule 297(i)(f) rather than the later decision under Rule 297(iv). At paragraph 44 of her determination, the adjudicator said:
"Applying the relevant law to the established facts I find that the appellants (who appear to be totally unaware of the circumstances surrounding their siblings' removal from the Sponsors' care and the reasons for their own upbringing in India), have failed to surmount the burden of proof on a balance of probabilities of establishing in accordance with paragraph 297 (i)(f) that suitable arrangements have been made for their care. No evidence has been adduced before me that the Sponsors can now take care of these children on their own. All the evidence is that on the previous visits the children have remained in the care of their grandparents while staying with the Sponsors. The evidence that would have assisted the appellants and the sponsors would have been a full social services report by Redbridge Social Services to the effect that the sponsors can now be trusted with the care and welfare of the appellants in the absence of the grandparents and yet that evidence is notable by its absence."
[11]The appellants applied to the Immigration Appeal Tribunal for leave to appeal. The principal ground of appeal was that the adjudicator had erred in considering the application on Rule 297(i)(f) rather than 297(iv). They also sought to challenge the findings of fact as regards the ability of the parents to take care of them. A point was made that there was no evidence that the social services department of the local authority had any misgivings about the parents. In giving leave to appeal, Professor D B Casson (acting Vice President) said:
"The circumstances of the application are unusual. In view of the change in the basis for the refusal made in the Explanatory Statement, I take the view that the matter merits further consideration and that paragraph 18(7)(b) of the Immigration and Asylum Appeals (Procedure) Rules 2000 is engaged."
[12]In a decision promulgated on 28 May 2002, the Immigration Appeal Tribunal dismissed the appeal. The determination included the following:
"It is common ground that there is no other provision under the Rules capable of addressing the non-material welfare of children joining both parents in this country. The first question we have to decide is whether "adequate accommodation" under 297(iv) includes anything other than the physical nature of the premises. Mr Kodagoda did not shrink from arguing that the Immigration Rules are in no way concerned with the non-material welfare of children called, which he said was the exclusive concern of the local authority after their arrival in this country. While no doubt in the ordinary case there will be no non-material welfare concerns in the case of children who have been growing up overseas, we do not think the rule can be read as making them irrelevant where there is any reason to think they may exist. "
Adequate" is just as capable of referring to non-material concerns about the household in which the children may be living, as to material concerns as to the premises in which it is based. If there is any real cause for concern, it may not be easy for the welfare procedures to be put into action as soon as the children arrive; and it must be the duty of Her Majesty's Government under Article 8 of the Human Rights Convention not to allow them to be put into a position where their personal integrity may be threatened in the first place. 6. It follows that we think the basis for refusal being maintained at the time the case came before the adjudicator did include the non-material welfare of the children; on the facts of this case, it included nothing else. While issue (a) under 297(i)(f) was not relevant, since, to put it shortly, it is a basis for admission, rather than exclusion, issue (b) [suitable arrangements for care] is quite general enough in its terms to include whatever are the non-material considerations under paragraph 297(iv). Mr Kodagoda was quite unable to suggest what difference it might have made to the adjudicator's decision on the merits of the case she dealt with, if she had done so under that sub-paragraph, rather than under paragraph 297 (i)(f). We do not think there is any basis for requiring her to reconsider the case under paragraph 297(iv), as he invited us to do. 7. Leave was not given on the merits of the case; and Mr Kodagoda's only point on these was the lack of up-to-date information about the parents and their fitness. This was for the appellant's solicitors to put before the entry clearance officer and the adjudicator, and not for them to ferret out for themselves. In any case, it seems from a letter dated 19 April 2002 from the local authority concerned that they would not be willing, or regard themselves as able to provide any meaningful report. Although both appellants were 16, or nearly, by the date of the decision, and it might have been possible for the adjudicator to take a different view of their safety living with their parents, we cannot say she was not entitled to reach the one she did."[13]In granting permission to appeal to this court, the Immigration Appeal Tribunal said:
"there is an arguable point of law as to whether "adequate accommodation" in 297(iv) of the Immigration rules includes non-material concerns, and on this only leave is given."
[14]Submissions.[15]On behalf of the appellants, Mr Gordon urges the narrow interpretation on the court. He places particular reliance on paragraph 1(f) of Rule 297, and makes the point that in that paragraph the draftsman has made express reference to the need for suitable arrangements to have been made for the child's care. He submits that the contrast with paragraph (iv) is telling and shows that, when the question of the adequacy of the accommodation provided by a parent is being considered, the suitability of child care arrangements is irrelevant. The decision by the draftsman not to include a provision applicable in all cases that suitable arrangements have been made for the child's care, Mr Gordon submits, must be deliberate and significant.[16]Mr Gordon also relies on Regulation 8 of the Asylum Support Regulations 2000 (Statutory Instrument 2000/704) ("the Regulations"). Regulation 8(1) provides:
"Subject to paragraph (2) the matters mentioned in paragraph (3) are prescribed for the purposes of subsection (5)(a) of section 95 of the Act as matters to which the Secretary of State must have regard in determining for the purposes of that section whether the accommodation of - (a) a person applying for asylum support, or (b) a supported person with whom accommodation is not for the time being provided by way of asylum support, is adequate."
[17]Regulation 8(3) contains a list of matters to which regard must be had.

(g) :

"whether it is probable that the person's continued occupation of the accommodation will lead to domestic violence against him or any of his dependants."
[18]Mr Gordon makes the point that in this legislation, it was thought necessary to provide expressly that, in determining whether the accommodation is adequate, regard must be had to the risk of domestic violence. The inference, he says, is that, but for that express provision, regard could not be had to that risk in determining the adequacy of the accommodation. On behalf of the Secretary of State, Ms Richards submits that the phrase "accommodated adequately by the parent" should be given the wider interpretation, and that this can be done without doing violence to the language. It would be odd if an application for indefinite leave to enter is required to fail because the accommodation is physically inadequate, but can or must succeed despite the fact that the accommodation will be shared with a person who poses a physical threat to the applicant. Ms Richards in her turn also relies to a limited extent on the Regulations. She submits that if the risk of violence renders accommodation inadequate for the purpose of the Regulations, then there is no basis for reading Rule 297(iv) as excluding such factors.[19]Discussion.[20]I am in no doubt that the Immigration Appeal Tribunal reached the right conclusion, and that this appeal should be dismissed. The starting point is that Rule 297 should be interpreted purposively as so to achieve its objective which is manifestly to promote family life. It is true that this objective is subject to certain conditions. Thus, the applicant may not be over the age of 18, or be married or indeed be leading an independent life. Nor will the applicant be given leave to enter unless he or she will be accommodated or maintained without recourse to public funds.[21]But subject to these conditions, the aim of the Rule is clearly to bring families together, and to keep children with their parents or other relatives until they become independent. That objective is also consistent with Article 8 of the European Convention on Human Rights. It seems to me that the narrow interpretation of the words "accommodated adequately" is inconsistent with the objective of promoting family life. Unless compelled to do so by clear words, I would not impute to Parliament an intention to authorise or require the grant to children of indefinite leave to enter the United Kingdom to join their parents if they are likely to be subjected to serious abuse from their parents, even if the parents are able to provide them with excellent physical accommodation. Children who are abused by their parents may well have to be taken into local authority care. Such an outcome is both inimical to family life and will involve a call on public funds. If this occurs, the objective of the Rule to promote family life, and to do so without recourse to public funds, is plainly defeated on two counts. I cannot accept Mr Gordon's argument based on Rule 297(i)(f). That paragraph is dealing with a specific situation where one parent or relative is present and settled in the UK, or being admitted for settlement on the same occasion, and there are serious family or other considerations which make exclusion of the child undesirable. Where those particular circumstances exist, I do not find it at all surprising that the draftsman should have seen fit to spell out expressly the further requirement that suitable arrangements have been made for the child's care. But it does not follow from the fact that there is no reference to arrangements for the child's care in the different context of Rule 297(iv), which contains the requirements that apply in all cases, that it was intended that the risk of danger to a child from a parent is irrelevant to the question of whether the child would be accommodated adequately by his or her parent. In my view, there was no need to make any reference to the child's care in Rule 297(iv) because the child's interest are sufficiently protected by the requirement that he or she will be accommodated adequately by the parent. Nor do I consider that the Regulations provide any assistance. They were made some time after Rule 297 was made. Their subject matter is different.[22]In my view, the question before this court should be answered by interpreting the language of Rule 297(iv) by giving the words of the paragraph their natural meaning in the context of the purpose of the rule. The language of Rule 297 does not require the adoption of the narrow interpretation. There is nothing which limits the factors which can be taken into account to the physical suitability of the accommodation. As a matter of ordinary language, accommodation may properly be described as "inadequate" for different reasons. It may be inadequate because it is too small, or too damp, or because it suffers from other physical shortcomings. It may also be inadequate because one or more of its occupants is dangerous. It is not a misuse of the language to describe accommodation as inadequate for a child because it is occupied by a parent who has physically or sexually abused the child in the past, and is likely to do so in the future. In such a case, the accommodation is unsafe, and therefore inadequate. Indeed, I find it difficult to see why it is straining ordinary language any more to speak of accommodation being inadequate because of the effect to the health and safety of a child from his co-occupying parent than because of the threat to his or her health and safety on the grounds that the property is physically unstable or suffers from damp or vermin.[23]Thus, if the requirement in Rule 297(iv) were that there can and will be available "adequate accommodation", I would have held that those words should bear the wider interpretation. In the context of Rule 297, that would be a perfectly natural use of language, and would promote rather than defeat the purpose of the rule. But the relevant requirement is that the child "can and will be accommodated adequately by the parent", not that the "proposed accommodation is adequate." It seems to me that the reference to the parent as the person by whom the child is to be accommodated adequately is important, since it focuses attention on the role of the parent, and not only on the physical qualities of the accommodation. It seems to me that this strengthens the argument in favour of the wider interpretation.[24]For the reasons that I have sought to give, which do not admit of great elaboration, I consider that this appeal should be dismissed.

LADY JUSTICE HALE: I agree. The concept of the welfare of a child first found its way into the statue book back in the 19th century. The debate then was about what it encompassed, a debate that was answered by Linley LJ in Re McGrath (Infants) [1893] 1 Chancery 143 at page 108 in these words:

"The welfare of the child is not to be measured by money alone, nor by physical comfort only. The word 'welfare 'must be taken in its widest sense."
[26]One hundred years later the concept of a child being "accommodated adequately by the parent, parents or relative" must encompass not just the physical environment of the home, but also the way in which the child is being accommodated there by those people. If the quality of the care afforded falls so short of what can be regarded as "good enough parenting" that the child suffers or is likely to suffer significant harm as a result, it cannot be adequate. Those are the circumstances which may justify intervention by local authorities under the Children Act 1989 and their taking the child out of that environment.[27]Care is taken that such intervention is both necessary and proportionate for the purpose of protecting the child from harm, so that it complies with Article 8 of the European Convention on Human Rights. Similarly, in circumstances of this case, there could be no breach of the rights of the parents or the child under the Article if a child is refused admission to this country in order to protect that child from that degree of harm.[28]THE VICE CHANCELLOR: I agree.[29]The point is short and free from any authority. It is necessary to have regard to the words used in the context of which they appear, and having regard to the purpose of the provision as a whole. The purpose of paragraph 297 is to make provision for the admission of children to join for an indefinite period a parent, parents or other relative who are themselves settled in the United Kingdom in any one or more of the circumstances described in paragraph (i) (a) to (f). Given that purpose, it would be surprising if the suitability of the parent or relative as a person with whom the child is to live is not a relevant consideration.[30]Paragraph (iv) applies in all the circumstances described in paragraph (i). It deals with the adequacy of the proposed accommodation from at least two different stand points, namely accommodation by the parents and in accommodation they own or occupy exclusively. Prima facie, therefore, it is material to consider the suitability of the parent or relative as a person by whom the child is accommodated as well as the adequacy of the place they own or occupy as a place in which to live.[31]The counter argument is founded almost entirely on the terms of paragraph (i)(f). That introduces the concept of suitable arrangements having been made for the child's care. Counsel for the appellants submits that such a specific reference in that context excludes the more general one in the context of paragraph (iv). I do not agree. Paragraph (i)(f) deals with the specific case of a child seeking to join a parent or relative who does not have sole responsibility for the child. In that context it is natural to make special reference to suitable arrangements having been made, so as to ensure that the application is not being used to surmount the limitations embodied in paragraphs (i)(a) to (e). It is clear that paragraph (iv) imposes an additional requirement because of the reference to a relative who is only brought in by paragraph (i)(f). Even if there may be some duplication between them, I do not accept the argument that the necessary implication to draw is that the adequacy of the accommodation by the parents does not entitle the immigration authorities to have regard to their suitability as parents with whom the child is to live.[32]The other counter argument is based on the provisions of the Asylum Support Regulations SI 2000/704. I do not consider that they are helpful, even if permissible, as a pointer to the proper interpretation of paragraph 297.[33]For these short reasons, I also agree that this appeal should be dismissed.

ORDER

Appeal dismissed. No order made as to costs.

Cited in 2 later judgments