Hasan & Ors (Dependent parent) (India) [1975] UKIAT 00001 (12 May 1975) [1975] UKIAT 00001

UKIAT
Hasan & Ors (Dependent parent) (India) [1975] UKIAT 00001 (12 May 1975)
[1975] UKIAT 00001 · 1975-05-12
[1]Hasan & Ors (Dependent parent) (India) [1975] UKIAT 00001 TH/4567/73 IMMIGRATION APPEAL TRIBUNAL Date of hearing: Date Determination notified: 12 May 1975 Before P. N. Dalton Esq (Vice-President) E. A. Lewis Esq Sir Gordon Whitteridge Between Hasan & Ors APPELLANT and THE ENTRY CLEARANCE OFFICER, BOMBAY RESPONDENT Mukhtar Hussain, counsel for the appellants. K. E. R. Rogers for the respondent. DETERMINATION AND REASONS Dependent parent — Widow (48) seeking admission with sons approaching ages 18 and 15 years — Small earnings by widow and small income from family land — Sons not working though able-bodied and not shown to be unable to get employment — Sponsoring son in UK making small remittances to supplement family's poor and precarious livelihood — Whether the teen-age sons should be expected to make effort to help themselves — Whether widow and sons entitled to join sponsoring son if their dependence not a 'necessary dependence" — HC 79, para 45. The appellants were citizens of India, a widow and her 2 sons. They applied for entry certificates to enable them to come to the United Kingdom for permanent settlement as the dependants of the widow's sponsoring older son, a resident in this country. At the time of their application (August 1973) the widow was rising 48 and the 2 sons were approaching 18 and 15 years respectively. Their applications were refused by the ECO, inter alia on the ground that he was not satisfied that the widow was wholly or mainly dependent on the sponsor as required under para 45 of HC 79. [1] At the hearing of their appeal to an adjudicator (July 1974) it was accepted that the sponsor made some irregular remittances to the appellants which supplemented the small income from the widow's earnings as a labourer and from the family land, and that without those remittances they would live 'poorly and precariously'. But the adjudicator found on a narrow balance that they were not mainly dependent on the sponsor. On their appeal to the Tribunal,[2]Held (dismissing the appeal): the question for consideration in the present appeal—as in the case of Mohammad Zaman ( [1973] Imm AR 71 ) under the similar earlier immigration rule in Cmnd 4298—was whether there was a 'necessary dependence' on the sponsor in the United Kingdom: there was no evidence to suggest that the 2 teen-age sons were not able-bodied or were unable to work to supplement the earnings coming into their mother's home; and the Tribunal were of opinion that it was not contemplated under para 45 of HC 79 that such persons—without showing any reason why they could not make an effort to help themselves, should be able to claim that they were wholly or mainly dependent on another person. Determination[3]The appellants in this appeal are Bibi Musa Hasan, a widow, and her sons Ali Hasan and Yusuf Hasan, born on 29 September 1925, 29 December 1955 and 19 September 1958 respectively. They applied at the British Deputy High Commission, Bombay, on 22 August 1973 for entry certificates to enable them to be admitted to the United Kingdom for permanent settlement with Valli Musa Hasan, the first appellant's son who lives in Bolton, Lancashire.[4]Various documents were produced in support of the applications which were considered in accordance with para 45 of HC 79. [2] After the appellants had been interviewed their applications were refused by the entry certificate officer for reasons which are set out as follows in the explanatory statement:
"Mrs Hasan, as a widow, was permitted by HC 79 to join her son in the United Kingdom with her dependants providing she was dependent on her son. From the information I had noted and from the evidence presented I was not satisfied that the first appellant was mainly or wholly dependent upon her son in the United Kingdom. Among the documents produced to support the application was Valli Hasan's notice of coding for the tax year 1973-74. I noticed that no allowances had been made for dependent relatives. This seemed to indicate that Valli Hasan was not sending money regularly to support his mother. Another consideration is the accommodation available for the appellants. According to the letter from the Chief Health Inspector for Bolton the sponsor's home would not be overcrowded if the appellants went to live there. This, however, would not hold good when the sponsor's son reaches his first birthday."
[5]At the hearing of the appeal before the adjudicator, Air Vice-Marshal R. C. Ayling, the sponsor was the only witness. In his determination the adjudicator said:
"The sponsor gave evidence at the hearing and it was soon clear that the sole issue for decision is that of dependence. The availability of support for the appellants in the UK has not been questioned and the sponsor produced evidence of having bought a second house for the appellants which he says is empty awaiting their arrival. I am prepared to accept this and to find that suitable accommodation is available. I attempt now to analyse the evidence on dependence."
The adjudicator then considered three separate matters, namely the income from the family land, the income received by the widow from working as a labourer and lastly subventions from the sponsor. The adjudicator concluded his determination thus:
"Can one be satisfied by all this imprecise evidence that the appellants are 'wholly or mainly dependent' on the sponsor? They are certainly not wholly dependent: On the other hand, if he sent them nothing they would live poorly and precariously as so many others of their kind do. There is a degree of dependence which on balance I do not believe satisfies a hard rule - they are not in my judgment 'mainly' dependent. The appeal is dismissed."
The adjudicator granted leave to appeal to the Tribunal primarily because his decision was narrowly balanced for dismissal.[6]Mr Hussain before the Tribunal called the sponsor Valli Musa Hasan, who has recently returned from India, to give evidence. The sponsor said that he had recently been in India for some weeks and had seen his family and then he gave an estimate of what was needed by the appellants to pay for their everyday requirements.[7]The main issue in this appeal is dependence, as Mr Hussain said, and since it cannot correctly be argued that the appellants are wholly dependent on the sponsor the question that remains is whether the appellants are mainly dependent. Mr Rogers referred to the case of Mohammad Zaman in which the Tribunal said [3] :
"In our view the purpose lying behind para 42 of Cmnd 4298 is to enable widowed mothers and elderly parents to join children in this country who have been supporting them because the resources of the parents are insufficient to meet their own needs. We agree with the view expressed by the adjudicator that such parents to make a successful application must show that they are necessarily so dependent."
[8]Paragraph 45 of HC 79 has the same provisions regarding parents who are wholly or mainly dependent on children in the United Kingdom. [4] In considering the question of necessary dependence in this particular appeal the fact is that two of the appellants are youths who at the time of the application were approaching 18 and 15 years respectively and each was nearly a year older at the time of the adjudicator's determination. There is no evidence to suggest that they are not able-bodied or unable for some other reason to work so as to supplement the earnings coming into their mother's home. We do not think that it is contemplated under para 45 of HC 79 that such persons, without showing any reason why they cannot make an effort to help themselves, should be able successfully to claim that they are wholly or mainly dependent on another person. For these reasons this appeal is dismissed. Appeal dismissed. Note 1 Paragraph 45 of HC 79 provides, so far as here materia1, as follows: "... widowed mothers ... should be admitted for settlement if wholly or mainly dependent upon children settled in the United Kingdom who have the means to support their parents and any other relatives who would be admissible as their dependants and adequate accommodation for them...." [Back] Note 2 The material part of para 45 of HC 79 is set out in footnote 1, ante. [Back] Note 3 Mohammad Zaman v Entry Certificate Officer, Lahore, [1973] Imm AR 71 at p 75. (TH/ 2672/71 (116).) [Back] Note 4 The material part of para 45 of HC 79 is set out in footnote 1, ante. [Back]