KC & Ors v Secretary of State for the Home Department [2007] EWCA Civ 327

Case No C5/2006/1748[2007] EWCA Civ 327
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: TH/09240/2004]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 13 March 2007
Before
LORD JUSTICE PILLLORD JUSTICE KEENELORD JUSTICE MOORE-BICK
Between
KC & ORSClaimant/SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant/
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MS G BRUCE (instructed by Messrs Glazer Delmar) appeared for Appellant.MR C BOURNE (instructed by Treasury Solicitor) appeared for Respondent.
Judgment
[1]This is an appeal against the decision of the Immigration Appeal Tribunal dated 8 May 2006 whereby they dismissed an appeal by KC against the determination of an adjudicator who had dismissed, under the Immigration Rules and on Article 8 human rights grounds, KC’s appeal against a decision of the Secretary of State for the Home Department (“the respondent”) on 19 February 2002 to refuse to vary her leave to remain in the United Kingdom. The appeal is pursued under the Immigration Rules alone, it being contended that paragraph 317 of the current rules has been wrongly construed. It is common ground that it was the adjudicator who was the fact-finding tribunal.[2]The appellant is a citizen of Morocco who was born on 1 January 1947. She arrived in the United Kingdom on 26 December 2000 with a visit visa, valid until 22 June 2001. She was accompanied by two of her children; S, born on 18 September 1987 and L, born on 23 February 1989. On 29 January 2001 the appellant applied for indefinite leave to remain as a dependent relative of another married daughter, who was a person present and settled in the United Kingdom.[3]Another son is also settled in the United Kingdom. The two children who accompanied the appellant apply as her dependants and their claim is accepted to be parasitic upon that of their mother. Paragraph 317 of the Immigration Rules HC395 provides:
“The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or 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: (a) mother or grandmother who is a widow aged 65 years or over; or (b) father or grandfather who is a widower aged 65 years or over; or (c) parents or grandparents travelling together of whom at least one is aged 65 or over; or (d) a parent or grandparent aged 65 or over who has entered into a second relationship of marriage or civil partnership but cannot look to the spouse, civil partner or children of that second relationship for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or civil partner or child of the second relationship who would be admissible as a dependant; or (e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or (f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if 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 or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and (iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and (iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and (iv)(a) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and (v) has no other close relatives in his own country to whom he could turn for financial support; and (vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.” (i) is related to a person present and settled in the United Kingdom in one of the following ways: (a) mother or grandmother who is a widow aged 65 years or over; or (b) father or grandfather who is a widower aged 65 years or over; or (c) parents or grandparents travelling together of whom at least one is aged 65 or over; or (d) a parent or grandparent aged 65 or over who has entered into a second relationship of marriage or civil partnership but cannot look to the spouse, civil partner or children of that second relationship for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or civil partner or child of the second relationship who would be admissible as a dependant; or (e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or (f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if 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 or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and (iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and (iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and (iv)(a) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and (v) has no other close relatives in his own country to whom he could turn for financial support; and (vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.”
[4]I refer to a predecessor of paragraph 317 as cited in this court in IAT v Swaran Singh and Ors [1987] Imm AR 563. That is not set out by way of sub-paragraphs and sub-sub-paragraphs, as is the current rule. Having dealt, in a rather more limited way, with widowed mothers and fathers etc aged 65 or over, part of the rule provides:
“They must also be without other close relatives in their own country to turn to. This provision should not be extended to people below 65 (other than widowed mothers) except where they are living alone in the most exceptional compassionate circumstances, including having a standard of living substantially below that of their own country, but may in such circumstances be extended to sons, daughters, sisters, brothers, uncles and aunts of whatever age who are mainly dependent upon relatives settled in the United Kingdom …”
We have been referred to an intervening rule; that is 251 of 1990, which is in similar form (it is not necessary to consider the detail) and again includes the expression, “without other close relatives in their own country to turn to”.[5]The appellant relies on paragraph 317(i)(e). The adjudicator directed himself that he should apply the test on the basis of facts existing at the date of the respondent’s decision. It is common ground in this court that, as the tribunal found, the relevant date is that of the hearing before the adjudicator; the date he used and correctly used when considering the Article 8 claim. The adjudicator found that because her two children would have been living with her in Morocco she was not “living alone” within the meaning of the sub-paragraph. Further, she was not living in “the most exceptional compassionate circumstances”. The adjudicator did find, having heard evidence, that the appellant would have met the third relevant requirement in the rule, being “mainly dependent financially on relatives settled in the United Kingdom”. The adjudicator held that he must make findings of fact “on the assumption that the appellant is living abroad and make findings as to the appellant’s circumstances if she had remained there”. That is agreed to be the correct approach.[6]The adjudicator heard evidence from the appellant, her daughter and son-in-law, and her son in the United Kingdom. The adjudicator was satisfied that the appellant’s marriage had been marred by violence and had ended in divorce in November 2000. The adjudicator did not accept that a risk of violence continued following the divorce. He accepted that the appellant suffered from a number of illnesses, including cancer, but he had regard to evidence that advanced medical treatment is available in Morocco. The adjudicator added, at paragraph 28:
“With three very caring children in the United Kingdom, between them, they should be able to provide sufficient financial assistance for the care and maintenance of all the three appellants.”
[7]As to living alone, the adjudicator held at paragraph 18 that the appellant “has not demonstrated that she would have been living alone in her country”; on the balance of probability her two younger children would have been living with her. At paragraph 28 the adjudicator stated that the appellant would be accompanied by those children. Given their ages “they would therefore both be in a position to provide the kind of support that [her son] presently provides”. At the date of the adjudication the children were 17 and 15 years old. That reasoning was in the context of the claim under Article 8, which is not pursued in this court, but it is rightly conceded that the findings of fact may be relevant to and can be used when considering the claim under the Rules.[8]The adjudicator’s principal finding on compassionate circumstances is set out in paragraph 20:
“I am prepared to assume that on the date of the respondent’s decision she suffered from those conditions; that is, the cancer, high blood pressure and diabetes. In my judgment, taking the case at its highest, they do not amount to the most compelling compassionate circumstances. The appellant’s evidence was that two months prior to her departure from her country her husband had left to go and live with his family. He had not returned whilst she was there. There is no evidence to show that other than threats he made to her whilst coming face to face on a few occasions he has actually been violent towards her. In any event if the appellant’s husband had turned violent she could have turned to her country’s authorities for protection. As was held in the case of Joseph the threshold is high for meeting the requirements of this aspect of the rule. In my judgment the appellant would not have been living in circumstances which could be properly described as most compelling and compassionate. There must be thousands of others living in her country who are divorcees and who suffer from medical conditions.”
[9]The adjudicator went on in paragraph 28 to make the statement I have already cited and at paragraph 29 he referred to the continuing role of the rest of the family:
“Whilst there would undoubtedly be interference with their family life, all the sponsors in the United Kingdom have the right to live here permanently. They could therefore maintain family life by regular visits to Morocco and of course contact on telephone as well as by letter.”
[10]In upholding the decision of the adjudicator the tribunal found, at paragraph 11:
“We can imagine circumstances in which it could be argued that, for example, an individual living with one or more very young children might still be said to be living alone. However, on the facts of this case we find that it was open to the Adjudicator to come to the conclusion that the appellant was not living alone where, at the date of the decision, she was living with two children then aged approximately fifteen and fourteen whilst at the date of the hearing before the Adjudicator they were, as he said in paragraph 28, seventeen and fifteen.”
[11]The tribunal also found that there was no error of law in the adjudicator’s finding on most exceptional compassionate circumstances. It found that the inclusion of the statement that “there must be thousands of others living in her country who are divorcees and who suffer from medical conditions” did not amount to an error of law. On behalf of the appellant, Ms Bruce submits that the purpose of paragraph 317 of the rules is humanitarian. The expression “living alone” in the paragraph does not demand total physical isolation. The expression is to be read as meaning that there are no other persons to whom the person could turn for meaningful support. The sponsor in this country administers medicine and contributes to the care of her mother. Minor dependants could not fulfil that role if the appellant is removed to Morocco. It is not suggested that the support alleged to be necessary would need to include financial support. As to most exceptional compassionate circumstances, the point taken is a narrow one. It is clear that the adjudicator did deal with the point which appears to have loomed large in the evidence before him, namely the likely conduct of the former husband. The adjudicator also deals with the illnesses and the state of the appellant’s health. The point taken is that the adjudicator has applied the wrong test because of his use of the expression, at the end of paragraph 20, beginning “thousands of others”, already cited. The test, it is submitted, is not to compare the appellant’s position with that of other women but to consider whether the circumstances evoke an exceptional degree of compassion.[12]Reliance is placed on the judgment of Chadwick LJ in Senanyake v SSHD [2006] Imm AR 155. Having considered two possible approaches to the meaning of the phrase, Chadwick LJ stated:
“The answer, as it seems to me, is that the words ‘most exceptional’ are used in that context to describe the degree of compassion which the circumstances evoke in the mind of the decision maker.”
[13]Reliance is also placed on the statement of Buxton LJ in Husna Begum [2000] AIT 2181, a case concerning paragraph 317(f): “The question properly to be raised under that rule is whether the applicant’s circumstances are exceptional in general and judgmental terms and not -- or at least not necessarily -- whether she is different in that respect from other unmarried females in Bangladesh.” (Paragraph 46)[14]On behalf of the respondent, Mr Bourne submits that, on the adjudicator’s findings of fact, the appellant passed neither test which was required of her. As to living alone, the test is whether the individual lives in a household as opposed to living alone. A degree of support is to be expected in the context of “household” but the children who would live with the appellant are of an age to supply a degree of support which prevents the appellant from satisfying the test. The appellant is not “without others who could provide meaningful support”. That submission has been the subject of detailed debate in the course of this hearing. Mr Bourne accepts that paragraph 317 has a humanitarian purpose. He says that he is not instructed to press an absolutist view of the expression -- by which he means adopting the dictionary definition -- “living by oneself”, which is what living alone normally means, without any glosses necessary. He accepts that the presence in the household of an 18-month old baby would not necessarily defeat a claim to be living alone. Mr Bourne submits, however, that the court should not re-write the rule. He invites the court to give guidance as to what the rule means. I will return to that later.[15]Ms Bruce has sought to rely on an Immigration Directorate instruction on September 2004, annexe 5. That does not in my judgment assist her because the notes concerned relate, not to the wording with which the court is concerned on the hearing of this appeal, but to the expression “has no other close relatives to turn to”, which appears in another part of rule 317 and appeared in earlier editions of the Rules already cited. All the guidance says under the heading with which we are concerned is:
“Each application must be considered on the individual merits of the case, it is therefore not possible to list every possible circumstance which may arise, however, illness, incapacity, isolation and poverty are all compassionate circumstances which should be considered.”
[16]Similarly the reliance sought to be placed upon the judgment of Dillon LJ in Swaran Singh is in my view misplaced because there, too, as Dillon LJ made clear, the expression “they must also be without other close relatives in their own country to turn to” was the crucial sentence for the purposes of the appeal. His remarks at page 566 as to the effect of that expression, do not assist upon the construction of the words “living alone”.[17]The expression was considered in this court in EK v SSHD [2006] EWCA Civ 926, Brooke LJ presiding. That too was a case where the question arose whether the court should give guidance as to the meaning of the expression “living alone”. Brooke LJ stated as paragraph 22:
“It seems to me that this is not a case in which we need go into any further detail as to what is or is not meant by “living alone”
. On the findings of the tribunal the appellant was living with her father’s two sisters. They were not treating her unkindly or harshly. She was paying them rent which was being provided by her father in England, and although the accommodation was overcrowded, even in the absence of her mother it could not be said that she was living alone. In my judgment it is quite impossible to form that conclusion as a matter of law.”[18]Brooke LJ did cite, at paragraph 19, Hosan Jan v Entry Clearance Officer [2002] UKIAT 05330 where the tribunal quoted an adjudicator as saying:
“I have considered the cases of PAW and Alyha BEGUM to which I was referred. In those cases it was held that an appellant could be regarded as living alone, although physically there was another person in the same household because that other person was not either willing or able to give the appellant in those cases the support necessary.”
[19]That of course is a tribunal decision and not binding on this court. We have been referred to the case of PAW, which does not in fact support the proposition stated by the adjudicator. Alyha BEGUM has been lost without trace and I am not able to comment on it. The statement did not have the approval of this court in EK and Brooke LJ, with whom Arden and Wall LJJ agreed, made no comment upon it. Arden LJ stated at paragraph 26:
“I would like to leave open the question of the full meaning of the term ‘living alone’.”
Like the court in EK we do not propose to attempt a definition of the expression. Also as with that court, we do not approve the statement of the adjudicator cited by the IAT. When the point needs to be determined that decision is of course entitled to be treated with respect. On the facts of this case the appellant fails in my judgment both in establishing that she was living alone and in establishing that there were most exceptional compassionate circumstances. The fact-finding tribunal was the adjudicator. He considered the position of the appellant had she been living in Morocco and the age of her children, who it appears were in good health. Even if the expression “living alone” is eventually held to involve some notion of the absence of a person in a position to give some support, in my judgment, as in EK, it could not be extended so broadly as to cover the present situation. The appellant would have been living with young people of 15 and 17 who could have made appropriate contributions to her support. There is no evidence that in Morocco young people of that age are for any reason prevented from giving the support to their mother which one would normally expect in such circumstances. It is not suggested that financial support was lacking. There was evidence which commended itself to the adjudicator that the appellant would have financial assistance from her other children settled in the United Kingdom.[20]As to most exceptional compassionate circumstances, the adjudicator was in my judgment entitled to reach the conclusion he did. I do not consider that his conclusion is challengeable on the basis that he applied the wrong test. Paragraph 20 is to be read as a whole, and with paragraphs 28 and 29, which also deal with the circumstances in which the appellant would have been living. Some reference to the position of other women in Morocco was not inappropriate. What compassion is evoked in a particular situation will depend, in part, as one of the factors to be considered, on the position of women in general, or the class of women in general, in the country involved. That reference by the adjudicator does not in my judgment mean that he applied other than the correct test, which was the high one the words inevitably require, and which involved a consideration of the degree of sympathy evoked in the particular case.[21]I referred earlier to Mr Bourne’s invitation to the court. We have attempted, with counsel’s help, to discover the principal or purpose behind the expression “living alone”. It is not easy to see what was intended by the inclusion of the expression in the sub-paragraph. It appears unnecessary because any consideration of whether a person is living in most exceptional compassionate circumstances will involve consideration of whether the person is living alone or with other people.[22]There may be cases in which the requirement to establish living alone as well as most exceptional compassionate circumstances will work unfairly against a claimant; where, for example, those circumstances include abuse by persons with whom the claimant is undoubtedly living. The claimant might succeed on most exceptional compassionate circumstances and yet fail to make good the requirements of the paragraph because he or she is not living alone. There may also be cases where claimants are undoubtedly living with another person but a person for whom they are caring rather than someone who is in a position to support them.[23]Mr Bourne has not been able to assist us as to the policy behind the inclusion of the requirement to live alone or as to why it was placed before Parliament for inclusion in the Rules. Nevertheless, he asks the court to give guidance, and I quote his criteria, as to how many people need to be present to prevent someone living alone, what their age and health, mental and physical, needs to be, and how close their relationship with the claimant. The inclusion of such factors in any guidance would appear to create a contradiction in terms between the simple words used in the paragraph and the guidance sought; at least it would involve a re-writing of the rule, which is what we are requested not to do.[24]The court is left in a position where we do not consider it would be helpful or appropriate to give general guidance as to how to construe the expression “living alone”. There are serious dangers in attempting to do so when we have no clear idea of what is the purpose of including the expression along with the other requirement in the rule. The most I would be prepared to say, following the concession made on behalf of the Secretary of State, is that it cannot have been intended that the company of a baby child prevents a claimant from establishing that she is living alone. There may possibly be other common sense exceptions. Secondly, it may be -- I put it no higher -- the notion of the presence of a person able to offer a degree of support was the reason for including the expression. That is better considered in a case in which the issue is crucial to answering the question posed by the entire expression used in the Rules. It is not crucial in the present case, for the reasons I have given, either to the application of the expression “living alone” or as to the overall application of the test including the words “exceptional compassionate circumstances”.[25]If the guidance of the court is to be sought, I would respectfully recommend that the Secretary of State first considers what humanitarian purpose the expression has and what it had when laid before Parliament. It may be that amendment is the best way to achieve clarity of purpose, though clearly that is a matter for the Secretary of State and Parliament to consider.[26]For those reasons I would dismiss this appeal.[27]I agree that this appeal should be dismissed and I only add a few words of my own because it has been suggested by counsel for the Secretary of State that we should give some guidance as to the meaning of “living alone” in paragraph 317(1)(a) of the Immigration Rules. The Secretary of State does not press for a literal interpretation of those words and one can readily understand why. A literal approach could mean that a person living in the most exceptional compassionate circumstances and on his or her own save for a young baby was ruled out simply because of the presence of that infant. It is very difficult to see that that could ever have been the intention of the legislature or of the Secretary of State, with whom the Immigration Rules originate. A more purposive interpretation may be appropriate.[28]At that point, however, one gets into difficulties, as my lord, Lord Justice Pill, has already indicated. Mr Bourne for the Secretary of State tells us that the object of paragraph 317 is a humanitarian one. No doubt that is so, but it is difficult to see what the requirement for the applicant to be “living alone” is intended to add to the requirement that he or she live in the most exceptional compassionate circumstances. Counsel for the Secretary of State was unable to tell us what policy justification or policy purpose lies behind the former requirement in the paragraph.[29]Consequently, rather than seeking to respond to the Secretary of State’s request for guidance as to the meaning of the current phraseology, I too would hope that the Secretary of State and Parliament will themselves give some consideration to achieving greater clarity in the wording of this paragraph, which in its current form gives rise to such problems in its application.[30]I also agree that this appeal should be dismissed. The precise meaning and scope of the words “living alone” in rule 317(1)(e) of the Immigration Rules is not by any means easy to determine. The expression has to be read in the context of the paragraph as a whole which refers to a parent or grandparent under the age of 65“living alone outside the United Kingdom in the most exceptional compassionate circumstances.”[31]The requirement that there be the most exceptional compassionate circumstances sets the barrier very high and if satisfied might on its own be thought to provide sufficient reason for allowing a person to enter this country on humanitarian grounds. However, to that there has been added, presumably for some purpose, the requirement that the applicant be living alone. The difficulty lies in discerning that purpose with a view to giving the rule its proper meaning. Does it refer to a person living on his or her own with no-one else sharing the same dwelling (a construction for which the Secretary of State has not contended on this appeal); or does it mean a person living without anyone to provide human company or a reasonable degree of psychological and physical support, as might be the case, for example, of a woman living on her own with a very young child? I agree with Pill and Keene L.JJ. that steps could usefully be taken to dispel the obscurity that surrounds this part of rule 317.[32]In the present case the adjudicator found that that the appellant would be living with her two adolescent children and in the absence of evidence to the contrary he was in my view entitled to assume, having regard to their ages, that they could be expected to provide her with companionship and support. Accordingly, he decided that she would not be “living alone”. In those circumstances it is unnecessary in my view to reach any conclusion about the precise meaning and scope of the phrase “living alone” because, whatever that may be, that was a decision to which the adjudicator was entitled to come on the evidence before him.[33]When he came to consider the appellant’s circumstances the adjudicator gave consideration both to her medical condition and to her relationship with her husband, which were the two principle matters relied on in support of the submission that she would be living under the most exceptional compassionate circumstances. He also considered the social conditions which she would be likely to experience. Having done so, he expressed the conclusion that neither individually nor in conjunction were they sufficient to cause her circumstances to meet the required standard before making the comment that “there must be thousands of others living in her country who are divorcees and who suffer from medical conditions” on which this part of the appeal really depends.[34]In my view that comment cannot be taken as an indication that the adjudicator applied the wrong test. On the contrary, it seems to me clear that he had already applied the right test and that the conclusion that he had reached was not only open to him on the evidence, but correct. Having said that, however, I am unable to accept that it was necessary for him to put entirely out of his mind the living conditions of other people in the appellant’s native country whose circumstances are similar to hers, since such matters may in an appropriate case properly affect the degree of compassion for her position which the reasonable decision maker might be expected to feel.[35]In my view the decision of the tribunal was correct and for those reasons I too would dismiss the appeal.

Order

Appeal dismissed.

Cited in 2 later judgments