AP (India) v The Secretary of State for the Home Department [2015] EWCA Civ 89

[2015] EWCA Civ 89

Case No C5/2013/2659/AITRF

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE DAWSON

OA 07631 2012

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday 13 th February 2015

Before

LORD JUSTICE ELIAS

LORD JUSTICE McCOMBE

LADY JUSTICE KING

Between

AP (INDIA)Appellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

(Transcript of the Handed Down Judgment of

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Mr Manjit Singh Gill QC (instructed by Messrs Markland & Co) for Appellant

Ms Cathryn McGahey (instructed by The Treasury Solicitor) for Respondent

Hearing Hearing date: 28 January 2015

Judgment

Lord Justice Elias :

[1]The sponsor is a British citizen. He was registered as such on 7 September 2009, was issued with a passport on 5 October 2009, and entered the United Kingdom for settlement on 25 December 2009. He has a wife and two children, a son Arjun born on 28 June 1992 and a daughter, Urvi, born on 8 August 1996. They are all citizens of India.

[2]In 2010, just two weeks before his eighteenth birthday, Arjun sought entry clearance to join his father under paragraph 297 of the Immigration Rules then applicable. At that time he was living with his mother, sister and other relatives in India. In order to satisfy the terms of the rule it had to be shown that the father had sole responsibility for his son; alternatively, that there were serious and compelling family or other considerations which made his exclusion undesirable. The entry clearance officer refused entry on the grounds that the conditions were not met. Immigration Judge Kebede rejected the appeal. He did not accept that the father had sole responsibility; the evidence clearly pointed to both parents sharing responsibility. Nor were there any serious or compelling family or other circumstances to warrant his being granted leave to enter since he was living perfectly well with his mother in India. The judge also considered Article 8 but concluded that any interference with family life between father and son was proportionate.

[3]Subsequently, in 2012 the sponsor’s wife and both children applied together for entry clearance to join him in the UK. By this time the son was no longer a minor. Their situations were covered by different immigration rules; the wife had to satisfy the conditions in paragraph 281; the daughter, as a minor, paragraph 297; and the son, paragraph 317. The entry clearance officer rejected all their applications because he was not satisfied that the appellants would be adequately maintained and accommodated without recourse to public funds. That was a condition common to each of these rules. The wife was refused entry on the additional ground that she did not have an English language test certificate, as paragraph 281 requires. The son was rejected on the additional ground that he did not satisfy the condition in paragraph 317 of living alone outside the UK “in the most exceptional, compassionate circumstances”. The daughter, being a minor, did not have to satisfy this requirement.

[4]Each appealed the rejection to the First Tier Tribunal (Immigration and Asylum Chamber) (“FTT”). Immigration Tribunal Judge Beach, after hearing evidence from the sponsor and considering a letter from his landlord, concluded that there was adequate accommodation and maintenance available to the sponsor. That finding was sufficient to allow entry clearance for the daughter. It was not sufficient for the wife because she still had to overcome the hurdle of not having the relevant test certificate. However, by the time the case came before the judge she had obtained it. Strictly that was irrelevant because in entry clearance cases, as an exception to the usual rule, the appeal has to be determined on the basis of the facts as they were before the entry clearance officer: section 85(5) of the Nationality, Immigration and Asylum Act 2002. So she could not be said to qualify under the rules although if she were to make a fresh application, it would inevitably succeed. In the circumstances, when considering the claim under Article 8, the judge realistically concluded that it would be a disproportionate interference in family life if she were required to make a fresh application with the costs and delays necessarily involved in that course of action. Accordingly he allowed her appeal on Article 8 grounds.

[5]However, he reached a different conclusion with respect to the son. His circumstances were as follows. He was living in the family home with his mother and sister. He received financial support from his father who had indicated that this would continue even if his son were not to be granted entry clearance into the UK. In addition the son could remain in the family home. He was at the time undertaking studies in India. In these circumstances the judge unsurprisingly concluded that he did not satisfy the condition in paragraph 317 of living alone in the most exceptional, compassionate circumstances. There is no appeal against that conclusion.

[6]The judge went on to consider Article 8. He accepted that there was a family life established in India between the son and his mother and sister; and also some form of family life, albeit more limited, with the father. The judge also accepted that the separation of the son from the rest of his family would constitute an interference with that family life sufficient to engage Article 8. The question was whether the interference was in the circumstances proportionate. The judge concluded that it was and set out his reasons as follows (para 31):

“… The 2nd Appellant is an adult in full time education. He is continuing his studies and will continue to receive financial support. The 2nd Appellant is male and will not therefore be left in India as an unaccompanied female. There is a family home in which he can remain whilst he completes his studies and considers his options for the future. It will of course be a wrench to the Appellants to be separated as a family unit but I bear in mind that the 2nd Appellant is a young adult male who will be making his own way in the world given his age. The family can remain in contact by telephone and other forms of communication and they can also visit each other. As the 2nd Appellant grows older he would necessarily sever some ties with his family in any event given that he is currently undertaking postgraduate studies and will no doubt be considering forming his own life. In all these circumstances, whilst I have some sympathy with the circumstances of the Appellants, I find that the decision to refuse the 2nd Appellant entry clearance is a proportionate decision.”

The appeal to the Upper Tribunal

[7]The appellant appealed to the Upper Tribunal by leave of Immigration Tribunal Judge Beach. Three grounds of appeal were advanced but the judge refused leave on the first ground. This alleged that the FTT judge had wrongly taken into account matters which occurred after the relevant date, namely the date of the decision by the entry clearance officer. This is a reference to the observation of the judge that the appellant would be making his own way in the world, carrying the implication that this would be in the relatively near future.

[8]The second ground was that the judge had not given proper consideration in the proportionality assessment to the fact that the appellant had been affected by what is described as the British Overseas Citizen (“BOC)” policy, a policy which created historic injustice which the appellant alleged operated to his detriment in this case. In summary terms this was a policy where successive British governments had, on racial grounds, removed the unrestricted right of entry from certain British subjects of East African origin, only to restore it some thirty five years later. I set out this history in more detail later in this judgment. Counsel accepted before the Upper Tribunal that this had not been identified as a ground of appeal before the FTT, although it had been mentioned in the course of submissions. Not surprisingly in the circumstances, there was no reference to it at all in the FTT’s decision.

[9]The third ground was that insufficient account had been taken of the adverse effect which the separation would have on the mother and sister. The submission was that the case of Beoku-Betts v Secretary of State for the Home Department

[2008] UKHL 39

requires that the rights of all family members should be taken into account, and this was not done.

[10]Before the Upper Tribunal, counsel confirmed that he was not pursuing the first ground. In fact, however, he does appear to have run the argument that the judge was not entitled without any evidence to conclude that the appellant would be making his own way in the world, because Upper Tribunal Judge Dawson specifically dealt with it. He held that it was a legitimate inference for the FTT to draw and was relevant to the impact which the separation would have on the other family members.

[11]As the judge observed, counsel chose to run the other two arguments together and he did not pursue the historic injustice point with any real enthusiasm. The principal ground on which counsel relied was the third ground. The judge did nevertheless, deal specifically with the historic injustice ground which he rejected for the following reasons:

“18. It is relevant that the appellant before me unsuccessfully appealed against the decision refusing him entry clearance when he was a minor. The judge would have been aware of the earlier unsuccessful decision as it is incorporated in the decision under appeal. There was no evidence before him of any significant disadvantage suffered by the appellant and his family relating to the entitlement of the sponsor to register as a full British citizen. The appellant had applied as a minor and it remains unclear why he was unsuccessful on appeal but it is not the case that he was denied the opportunity of applying to settle with his father under the less demanding Rules for minor children. Having regard to the undeveloped manner in which the point was put to the judge I am not satisfied that he was in error in not taking it and furthermore, had he done so, I am not persuaded that it would have resulted in a materially different outcome.”

[12]As to the third ground, the judge was satisfied that there had been a proper analysis of the proportionality question. More specifically, with respect to the argument that there had been insufficient consideration of the impact on other family members, he said this:

“It is clear the judge had in mind the impact of separation of the parties in referring to the wrench “to the appellants to be separated as a family unit”

. It is not the case that he did not have in mind the impact on the appellant’s mother and sister.”

The grounds of appeal

[13]The application to appeal was refused on paper but permission was granted following an oral hearing by Lord Justice Christopher Clarke, notwithstanding that it is a second appeal. In granting permission, he left it to this court to determine whether to admit fresh evidence. We do admit it although in fact it adds nothing of substance to the case. It relates to the father’s attempts to secure his registration as a British citizen.

The BOC policy

[14]Before addressing the specific grounds, I will set out the nature of this policy and the reasons why it is alleged that it was unfair for the Tribunals below not to apply it in the particular circumstances of this case.

[15]The background to this shameful episode in British history was set out by Sedley LJ in NH (India) v Entry Clearance Officer, Mumbai

[2007] EWCA Civ 1330

; [2008] INLR 154 para.6, relying upon the explanation given by the AIT in that case:

“Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1 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 1 January 1973. It introduced the concept of a right of abode. On 14 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. …. 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, eg severely physically or mentally *159 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 5 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 30 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 5 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.”” “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.””

[16]The effect, therefore, was that the unrestricted right of entry was removed from 1968 until May 2003; that there was a limited discretionary right for part of that period for male heads of household only following a condemnatory ruling from the Strasbourg court; and that the purpose of the 2002 Act was to correct what was somewhat euphemistically termed an “historical anomaly”.

[17]The case of NH and the later decision in Patel v ECO Mumbai

[2010] EWCA Civ 17

, on which Mr Gill relied, were both cases where the various appellants (and there were a number of them) alleged that they had been adversely affected by the historical injustice. In each case they were no longer minors by the time they applied to join the sponsor, but it was asserted that but for the historic injustice they would either have been born in the UK or at least would have applied for entry whilst still minors, when the rules permitting entry to join their families would have been far less rigorous.

[18]Mr Gill QC was counsel for the appellant in this appeal but not at either stage below. In attractive submissions he alleged that this was a case where there was an obvious need to correct the historic wrong and this factor should have been decisive in the appellant’s favour when carrying out the proportionality exercise. He relied upon the following comments of Sedley LJ in Patel (paras. 13-15):

“…. It needs to be remembered that what is at issue in these cases is not reuniting a family which was divided by the 1968 Act: far too much time has gone by for that to matter save in the rarest cases. Appellants – the present ones included - are typically children who, but for their parents’ legal inability to settle here between 1968 and 2002, would have either been born here or have come as minors in right of their parents. 14 You can set out to compensate for a historical wrong, but you cannot reverse the passage of time. Many of these children have now grown up and embarked on lives of their own. Where this has happened, the bonds which constitute family life will no longer be there, and art. 8 will have no purchase. But what may constitute an extant family life falls well short of what constitutes dependency, and a good many adult children – including children on whom the parents themselves are now reliant – may still have a family life with parents who are now settled here not by leave or by force of circumstance but by long-delayed right. That is what gives the historical wrong a potential relevance to art. 8 claims such as these. It does not make the Convention a mechanism for turning the clock back, but it does make both the history and its admitted injustices potentially relevant to the application of art. 8(2). 15 As the individual cases to which I now turn illustrate, the effect of this is to reverse the usual balance of art. 8 issues. By the time they come to seek entry clearance, adult children may well no longer be part of the family life of British overseas citizens who have finally secured British citizenship. If so, the threshold of art. 8(1) will not have been crossed and the proportionality of excluding them will not be an issue. If, however, they come within the protection of art. 8(1), the balance of factors determining proportionality for the purposes of art. 8(2) will be influenced, perhaps decisively, by the fact (if it is a fact) that, but for the history recounted in NH (India), the family would or might have settled here long ago.”

[19]As paragraph 15 makes clear, there must be a causal connection between the historic injustice and the appellant’s circumstances. If the sponsor would not have come to the UK any earlier than he did even had the right not been removed from him, no prejudice would have been occasioned by the historic injustice and it would be immaterial to the proportionality exercise.

[20]Lord Justice Sedley’s judgment also indicates the very considerable weight which this factor will have where it is applicable.

[21]In R (on the application ofGurung) v Secretary of State for the Home Department

[2013] EWCA Civ 8

, the Court of Appeal was faced with a similar, if not quite so culpable, historic injustice perpetrated on those who had been veterans of the Gurkha brigade and had served in the British army. The Master of the Rolls, Lord Dyson, referred to Sedley LJ’s comments in paragraph 15 of Patel to the effect that the historic injustice may perhaps be decisive, but he emphasised the word “perhaps”. Consistently with that observation, Lord Dyson added (para.38) that any historic injustice was only one of the factors to be weighed against the need to maintain a firm and fair immigration policy. However, later in his judgment he emphasised the considerable weight which should be afforded to that factor where it is applicable (para.42):

“.. If a Gurkha can show that, but for the historic injustice, he would have settled in the UK at a time when his dependant (now adult) child would have been able to accompany him as a dependant child under the age of 18, that is a strong reason for holding that it is proportionate to permit the adult child to join his family now.”

He noted that this principle would apply whether the historic injustice was to the Gurkhas or the British citizens from East Africa.

[22]More recently the Upper Tribunal in R (Ghising) v Secretary of State for the Home Department

[2013] UKUT 00567

has interpreted these decisions as saying that where the only justification for refusing entry is in order to maintain firm immigration policy, the historic injustice should always outweigh that consideration. Accordingly, entry should be granted as a matter of course in such cases. It is only if there is some other factor weighing in favour of refusal, such as the commission of criminal offences or a bad immigration record, that it will not be decisive.

[23]Ms McGahey very properly informed us that on 5 January this year the Immigration Directorate issued instructions which have accepted the analysis in Ghising for Gurkha cases; and the Secretary of State further accepts that no different rule can be applied to BOC cases. Accordingly, Ms McGahey accepts that if the appellant had been able to demonstrate that but for the historic injustice, his father would have settled in the UK earlier, with the consequence that the appellant would have sought entry as a minor rather than as an adult, his appeal ought to have succeeded. Her case is that he failed to establish the causal connection which was critical to this part of his application.

The argument on appeal

[24]Mr Gill has skilfully re-orientated the direction of the argument. He has focused upon the historic injustice argument and has submitted that when that is properly taken into consideration it is plain that the appellant ought to have succeeded in his case. But he also relies upon the grounds which were advanced below and which were rejected by the Upper Tribunal Judge. Indeed he has added some additional submissions in an attempt to bolster his case on these points which were not advanced below.

[25]He repeats the argument, for which permission to appeal was originally refused, that the judge in the FTT had erred in speculating that the appellant would shortly make his own way in the world. This was made not in the context of denying that Article 8 was engaged, but merely to explain why the separation resulting from the denial of entry clearance would not be as grievous as it might otherwise have been. Nevertheless, Mr Gill says it was wrong both because the focus must be on the circumstances as they were at the time of the decision by the entry clearance officer and such speculation was inconsistent with that principle, and also because he was not entitled to draw that inference without concrete evidence.

[26]I do not accept the submission when framed in those general terms. The Tribunal must have regard to all relevant circumstances when considering the issue of proportionality, and in my view that includes in an appropriate case having regard to likely future events. That is not taking into consideration later events but assessing matters in the round at the point when the decision is made. Moreover, in my view the Tribunal must in an appropriate case be entitled to make common sense inferences about what is likely to happen in the future based on the facts as they were before the entry clearance officer. It does not necessarily require specific evidence on the point.

[27]The difficulty in this case, however, is that when drawing that inference both Tribunals seem to have been making illegitimate assumptions about what young men in the appellant’s position are likely to do. As Mr Gill submitted, adult males in the position of this appellant frequently remain in the family home and bring their spouses to join them and their parents, so family life may indeed remain close for a lengthy period of time. So this is potentially a material error because it undermined the analysis of the strength of family life and therefore of the full impact which separation would have on each of the members of the family.

[28]Mr Gill also repeated the submission advanced below that no proper weight was given to the impact on other members of the family, as Beoku-Betts requires. In my judgment, that is quite unsustainable, for the reasons given by the judge in paragraph 20 of his decision, the relevant part of which I have summarised at paragraph 12 above.

[29]Mr Gill sought to reinforce his argument that insufficient recognition had been afforded to the weight of the family links by relying upon two additional features which, he suggested, demonstrated that the judge had under-estimated their importance. These were not relied upon below but I will briefly consider them.

[30]First, he submitted that the interests of the sister had not properly been taken into account and as a child, her best interests had to be treated as a primary consideration in accordance with the well known authority of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department

[2011] 2 AC 166

. I do not agree that the tribunals below made this error. It is true that there was no specific reference to this authority, but in my view that was not necessary in the circumstances of this case. There was no evidence suggesting that the relationship was in any material way different from that which one would typically find between two siblings four years apart, and the impact of separation on the sister was obvious. Nor was there any suggestion that the impact in relation to this particular fifteen year old would be materially worse than for others in her situation.

[31]It was also suggested that the judge had erred in concluding that the relationship with the father was more limited than with the mother and sister. Mr Gill in fact accepted in his skeleton argument that it plainly and necessarily was more limited, given that they were separated. His real complaint is that the judge should have gone on to recognise that the separation was only ever intended to be a temporary one which would not significantly have undermined the strength of the relationship.

[32]It may be that the judge could have qualified his observation in that way but in my judgment it was not an error of law to fail to do so. The point would have had real force if the judge had concluded that as a consequence of the father coming to the UK Article 8 was not engaged by the refusal of entry to the son, but that was not his finding. In any event I do not accept that this factor would have had any bearing in practice on the proportionality exercise, given that the judge accepted that there was a close family link between the son and his mother and sister which would be ruptured by the refusal of entry.

The historic injustice point

[33]The critical issue with respect to this part of the case is whether the appellant can demonstrate that the difficulty he faced in gaining entry as a young adult was only because his father had, as a result of the historic injustice, not been able to gain entry into the UK sooner. Mr Gill says that the causal link is plainly established here. Had the son been able to apply together with his mother and sister when he was still a minor, instead of once he was an adult, he would have had a right to enter on the same basis as his sister. She had no difficulty in securing clearance once it was shown that her father had accommodation and the necessary finances. If that is the right analysis, then Ms McGahey accepted that the proportionality exercise would necessarily have to be determined in the appellant’s favour.

[34]Ms McGahey, in commendably frank submissions, quite properly made three potentially highly material concessions. First, although both tribunals below were apparently under the impression that the sponsor had not sought to come to the UK until 2009, there was evidence before the FTT - although no-one expressly adverted to it - that he had taken steps to secure his registration as early as 2006. (In fact the new evidence demonstrated the history of the somewhat protracted correspondence with the authorities from late 2005.) Second, she accepted that someone in the position of the sponsor would necessarily be allowed a certain period of time after the right to register had been conferred in May 2003 to assess his position and decide whether to take the significant step of uprooting his family and seeking a new life in the United Kingdom. Third, she conceded that in view of these considerations, if the sponsor had given express evidence to the effect that he would have come to the UK earlier if he had been entitled to do so, that would have been enough to demonstrate that the causal connection existed. She would not have been able to advance any evidence to cast doubt on that assertion.

[35]Her case fundamentally boiled down to a submission that given the lack of express evidence to that effect, coupled with the very limited reliance on the historic injustice, the FTT could not be criticised for failing directly to address it; and the Upper Tribunal was entitled to conclude that even had the matter been considered, it would not have altered the outcome.

[36]Mr Gill submits that the only proper inference from the undisputed facts was that the father had sought to exercise his right of entry as soon as he reasonably could. The failure to give express evidence to that effect was most unfortunate, but ought not to be held against him. He applied within three years of being allowed to do so and he has subsequently sought to bring his family, having first established himself so as to satisfy the rules relating to the provision of accommodation and adequate resources. It would perpetuate the historic injustice to refuse to have regard to these obvious features of this application. They compel the conclusion in this case that the appellant had been prejudiced by the historic injustice and ought to have been granted entry clearance.

[37]I accept the submission of Mr Gill that the causal connection in this case has been established notwithstanding the lacuna in the evidence. In my judgment, the courts should not in this context be unduly rigorous in the application of the causation test, given that its significance is to redress this historic injustice. I think there would be manifest unfairness to conclude that the absence of express evidence on the causation point should defeat the claim.

[38]No doubt there may be cases where it can be shown that a sponsor would not have come to the UK any earlier than he or she did perhaps, for example, because there were obligations to care for other persons who would have been unable or unwilling to come to this country. Moreover, the causal link is likely to be more difficult to establish as the years pass because the longer the delay from the time when the right was conferred in May 2003 before a sponsor exercises the right to enter, the more difficult will it be to show that he would have come earlier had there been no barrier to entry before 2003. But here the sponsor acted relatively quickly once the right of entry was conferred.

[39]There were, however, two features of the case which have caused me some concern. The first is that although the historic injustice issue was raised below, it was not given any real emphasis. Mr Gill submits that this ought not to matter; he argues that this is one of those cases, like the well known Robinson case in the asylum field, where a tribunal must take the point of its own motion once it is apparent that it is potentially in play.

[40]I do not accept that. The onus is on the applicant to show that he or she is entitled to come into the United Kingdom and if it is alleged that there is prejudice as a result of this historical wrong then the applicant ought to identify why that is alleged to be the case. Having said that, in this case the point was raised below, albeit in a less than satisfactory way. In any event, the Court of Appeal has power to allow a fresh point of law not argued below: see for example Miskovic v Secretary of State for Work and Pensions

[2011] EWCA Civ 16

. Given the moral dimension to this argument, I would allow the point to be raised for the first time on appeal, at least in circumstances where the unchallenged documentary evidence provides a powerful case for inferring that the applicant was in all likelihood adversely affected by the historic injustice.

[41]The second point is that it can be said with some force that in this case the appellant was able to apply as a minor and therefore he was not in fact prejudiced as a result of the delays. This was a factor which understandably weighed with the Upper Tribunal and at first blush I thought it had real force. But I think on a proper analysis the appellant plainly was prejudiced. The appellant no doubt first sought to apply when he did specifically in order to take advantage of the more generous entry rules for minors, since he applied very shortly before his eighteenth birthday. His application was rejected essentially because his mother had been sharing responsibility for him and was still in India, where he could continue to live without difficulty. However, if at that stage he had been accompanied by his mother and sister, as he later was, both parents would have been present in the UK (subject at least to his mother’s application succeeding, as it did) and he would not have been refused entry for the reasons he was. In short, had there been more time, there would not have been the same urgency for the appellant to apply at the time that he did. In all likelihood he would have applied as a minor with his mother and been granted a right of entry just as his sister subsequently was.

Conclusion

[42]For these various reasons, I am satisfied that the appeal should be allowed. Ms McGahey realistically accepted that if we were to uphold the appeal the only proper outcome would be to declare that the appellant is entitled to entry clearance. So I would make a declaration to that effect.

Lord Justice McCombe:

[43]I agree with Elias LJ that this appeal should be allowed and that we should make the declaration that the appellant is entitled to entry clearance as Elias LJ proposes. I agree that this course should be taken in reliance upon the “historic injustice” point alone, for the reasons which my Lord gives in paragraphs 33 to 41 of his judgment.

[44]For my part, I do not feel the same confidence in rejecting Mr Gill’s other arguments.

[45]It seems to me that adult children (male or female) who are young students, from most backgrounds, usually continue to form an important part of the family in which they have grown up. They attend their courses and gravitate to their homes during the holidays, and upon graduation, while (as the FTT put it) they seek to “make their own way” in the world. Such a child is very much part of the on-going family unit and, until such a child does fly the nest, his or her belonging to the family is as strong as ever. The proportionality of interference with the family rights of the various family members should receive, I think, careful consideration in individual cases where this type of issue arises.

[46]Equally, I found Mr Gill’s submissions founded upon Beoku-Betts (supra) attractive and am troubled as to whether that issue was sufficiently ventilated or considered in the Tribunals, although it is clear that the emphasis that was put below on the various arguments (including this one) seems to have fluctuated considerably from time to time.

[47]It seems to me that, while three members of the family passed through the gate (by means other than a success based upon historic injustice) this nuclear family as a whole, including the student son, wanted to settle in the UK. Three of them were held entitled to do so. Not surprisingly, the son continued his studies for the time being in India, but he alone was ultimately refused entry. The decision to refuse entry to the appellant stopped all that and split up the family abruptly. The idea that this family’s family life (as it existed before) should be maintained by telephone, other forms of communication and occasional visits, as the FTT considered possible in paragraph 31 of its judgment, is to my mind wholly unrealistic.

[48]In the light of the course of proceedings below, however, I would not base my decision upon these matters. As it is, and as already indicated, I would allow the appeal on the “historic injustice” ground, the basis of which has been so clearly set out by Elias LJ in the paragraphs of his judgment to which I have referred in paragraph 43 above. Lady Justice King

[49]I agree with Lord Justice Elias and Lord Justice McCombe that this appeal should be allowed and that a declaration should be made as proposed by Elias LJ that the appellant is entitled to entry clearance. I also agree that this course should be taken in reliance upon the “historic injustice” point alone, for the reasons which my Lord gives in paragraphs 33 to 41 of his judgment.

[50]I too however would wish to make some observations about the finding by the judge in the FTT that the appellant would shortly ‘make his own way in the world’.

[51]Elias LJ and McCombe LJ both give examples of categories of young people where it is common place for them to remain fully integrated within their nuclear family life after the age of 18 years. It is now well recognised that many young people in their twenties continue to live ‘at home’ long after a time which would have been the case 10 or 15 years ago, a state of affairs which impacts on families regardless of their cultural heritage, educational or employment status.

[52]I agree with the view expressed by Elias LJ at paragraph 26 of his judgment that the “Tribunal must in an appropriate case be entitled to make common sense inferences about what is likely to happen in the future based on the facts as they were before the entry clearance officer” . In my judgment such an inference, if it is not to be mere speculation or an unhelpful generalisation, can only be safely made against the backdrop of contemporary cultural and society mores. In most cases such an inference will be a straight forward common sense view based on the facts before the entry clearance officer but may, in certain circumstances, require evidence.

[53]In the present case, the view of the FTT was that this young man, (who had been trying to join his father and then the rest of his family in England since before he reached his majority), would soon make his own way in the world in such a way and to such an extent that his family life could be supported via telephone and Skype. Such a conclusion appears to have been based on a presumption, and one which was not supported by the facts before the entry clearance officer and which failed to consider in broad terms the cultural background of this particular young man.