NH (Female BOCs, exceptionality, Art 8, para 317) British Overseas Citizens [2006] UKAIT 00085 (26 October 2006) [2006] UKIAT 00085

UKIAT
NH (Female BOCs, exceptionality, Art 8, para 317) British Overseas Citizens [2006] UKAIT 00085 (26 October 2006)
[2006] UKIAT 00085 · 2003-04-01
[1]NH (Female BOCs, exceptionality, Art 8, para 317) British Overseas Citizens [2006] UKAIT 00085 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 3 October 2006 Before Mr Justice Hodge OBE, President Senior Immigration Judge Batiste Between NH and PV APPELLANT and ENTRY CLEARANCE OFFICER, MUMBAI RESPONDENT For the 1 st Appellant: Manjit S Gill QC instructed by Oliver Abey & Co For the 2 nd Appellant: Manjit S Gill QC instructed by Oliver Abey & Co For the Respondent: Elizabeth Laing instructed by Treasury Solicitor DETERMINATION AND REASONS Female British Overseas Citizens obtained UK citizenship only from 1 April 2003. Section 12 Nationality, Immigration and Asylum Act 2002 was passed to" right an historical wrong, which is something which should be taken into account when making the Huang assessment.. These two appeals have been heard together because they raise common points as to the approach to be taken to Rule 317 (i) (f) of the Immigration Rules (HC395 as amended) and Article 8 of the European Convention on Human Rights. The two Appellants (called for brevity H and V in this determination) have wholly separate claims, have no connection with each other, and are treated, separately, where appropriate, within this determination. But the same issues arise in both cases.[2]Each of the mothers of each Appellant has acted as the sponsor for her son. Both are women with East African connections who have been registered as British citizens under Section 4B British Nationality Act 1981. That section was inserted by Section 12 Nationality, Immigration and Asylum Act 2002 with effect from 30 th April 2003. Each Appellant claims to be a dependent child of his mother but each was over the age of 18 at the date of application. They were both refused entry clearance. They each appealed. Both Appellants were successful in their appeals; in the case of H to the Adjudicator, and in the case of V to an Immigration Judge.[3]The appeal in H was promulgated on 6 th January 2005. The Adjudicator (Mr M R Oliver) allowed the appeal under Article 8 of the ECHR. The Respondent (represented throughout in both cases by the Secretary of State and so referred to in this determination) applied for permission to appeal in time. This was granted on 18 th May 2005. The appeal had therefore been pending immediately before 4 th April 2005. Under Rule 62, Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No.230) the appeal falls to be reconsidered by this Tribunal in accordance with that rule. Rule 62(7) provides that in these circumstances the reconsideration is limited to the grounds upon which the former Immigration Appeal Tribunal granted permission to appeal.[4]In V the appeal was promulgated on 24 th October 2005. Immigration Judge Lingan allowed the appeal in respect of both the Immigration Rules and Article 8 of the ECHR. The Secretary of State applied for reconsideration and that was ordered on 8 th November 2005. The case of V came on for hearing on 14 th February 2006. The Deputy President who heard the case adjourned it and ordered it to be linked to H.[5]The Secretary of State argues there are three issues which arise in these cases: a) Whether the determination of the judicial officers which the Secretary of State seeks to challenge in these cases contain material errors of law; b) Whether the Appellants can rely on Article 8 of the ECHR if they cannot satisfy paragraph 317 of the Immigration Rules; c) Whether there is any merit in an argument based on historical injustice and/or discrimination and whether the applicants can pursue claims based on the shortcomings of the pre-2002 policy or rules.[6]On behalf of the Appellants it is submitted that: Having regard to the circumstances of each case and to the history of how the Appellants came to be in their current position and given governmental policies and statements, the Adjudicator or Immigration Judge in each case was entitled to allow the appeals whether under Rule 317 (i) (f) or under Article 8 ECHR or both so no material error of law was committed by either judicial officer. The H History[7]The Appellant's maternal grandfather was registered in Kenya as a British subject and a citizen of the United Kingdom and Colonies in 1957. The Appellant's mother, the sponsor, was born in Nairobi on 14 th October 1959 and was then a citizen of the United Kingdom and Colonies (). The sponsor married the Appellant's father an Indian national in 1975. They have four sons. The oldest born in 1976 now lives in the Seychelles; the second son born in 1978 lives in Muscat; the third son born in 1980 lives in India. The Appellant, their fourth son, was born on 6 th May 1985.[8]On 27 th July 1998 the Appellant's mother obtained her British overseas citizen passport. In August 2003 the sponsor applied for a British passport. She was registered as a British citizen with full rights on 9 th September 2003. Her passport was available in October of that year. She returned to India to support the entry clearance application of the Appellant and her husband, his father. On 5 th May 2004, the Appellant and his father, together with the sponsor, were interviewed by the entry clearance officer in Mumbai. Entry clearance was refused for both the Appellant and his father.[9]On 17 th May 2004 the sponsor returned to the United Kingdom. A notice of appeal was filed for both the Appellant and his father on 27 th May 2004. The appeals were reviewed. The Appellant's father was granted a visa to settle in the United Kingdom as a dependent spouse of the Appellant's mother on 23 rd October 2004. The review of the Appellant's appeal changed nothing and his appeal was heard before an Adjudicator in December 2004. The V History[10]The sponsor of V was born in India on 16 th October 1955. Her maternal grandfather, Mr H K Ruda, had registered as a British citizen of the United Kingdom and Colonies on 25 th March 1953 in Kenya. Mrs V, qualified as a by reason of Section 5 (1) British Nationality Act 1948.[11]The sponsor married the Appellant's father on 24 th July 1978. She had three sons born in 1981, 1983 and 1984. They all reside in Nairobi, Kenya. The Appellant, her fourth son, was born on 15 th August 1985. He was therefore at the time his appeal was lodged aged 19 years 2 months. The sponsor entered the United Kingdom as a visitor in April 2003. She shortly thereafter applied for a British passport which was issued to her on 19 th August 2003 and gave her full citizenship rights.. The Appellant applied for entry clearance as did his father, the sponsor's spouse, on 8 th October 2004.[12]The Appellant was interviewed on 14 th December 2004. His entry clearance was refused but the Appellant's father was granted entry clearance. The notice of appeal was filed on 30 th December 2004. The Appellant's father had been granted a visa by the entry clearance officer and settled in the UK with the sponsor in April 2005. The hearing of the appeal took place on 11 th October 2005 and the Immigration Judge allowed the appeal in respect of both the Immigration Rules and human rights. Thereafter reconsideration was ordered as indicated above. The Legislative Background[13]Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1 st January 1950. They each, when born, became citizens of the United Kingdom and Colonies by birth (). Their rights to settle in the UK were restricted by the Commonwealth Immigration Act 1968. The Immigration Act 1971 came into force on 1 st January 1973. It introduced the concept of a right of abode. On 14 th 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. But it could not assist either of the two sponsors since married women who were not heads of households were excluded from the Scheme.[14]The Special Quota Voucher Scheme had been introduced from 1968 to assist both s 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 1 st Edition 1983 pg.248 and 2 nd 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 18 th 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, e.g. severely physically or mentally 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 th 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 th 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 th 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."
[18]The Appellants applied to enter the United Kingdom in each case to join their mother a British Citizen settled in the UK at the time of each application. Each relied on paragraph 317 of the Immigration Rules:
" The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the … 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 … (f) the son… over the age of 18 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… a person who is present and settled in the United Kingdom… and (iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and (iv) can, and will, be maintained adequately without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and (a) can, and will, be maintained adequately and without recourse to public funds and (v) has no other close relatives in his own country to whom he could turn for financial support …."
[19]Each appellant also relied in the alternative in support of their claim on Article 8 of the European Convention on Human Rights which provides: 8(1) Everyone has a right to respect for his private and family life, his home and his correspondence(2) There should be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[20]The interrelationship of Article 8 ECHR and the Immigration Rules was considered in Huang and others v Secretary of State for the Home Department [2005] EWCA Civ 105 . Laws LJ said of the Immigration Rules at paragraph 57 " the rules have themselves struck the balance between the public interest and the private right the search for which is inherent in the convention as it has been interpreted by the Strasbourg Court" . At paragraph 56 he said " the adjudicator has no business whatever to question or pass judgement upon the policy given by the Rules . In our judgement his duty, when faced with an Article 8 case where the would be immigrant has no claim under the Rules, is and is only to see whether an exceptional case had been made out such that the requirement of proportionality requires a departure from the relevant rule in the particular circumstances" . At paragraph 59 it was said " the true position … is that … (the adjudicator is required to allow an appeal) if, but only if he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the Appellants favour notwithstanding that he cannot succeed under the Rules" H[21]The Appellant applied for entry clearance to join his mother the sponsor on 29 th March 2004. He was then aged 19. The application was under paragraph 317(i)(f) of the Immigration Rules. The application was refused. The ECO was not satisfied that the Appellant was living alone in the most compassionate of circumstances or that he was mainly dependent on the sponsor.[22]In his determination the Adjudicator when dealing with paragraph 317 found as follows:
"4.2 Under paragraph 317 the Appellant is clearly the son of a person present and settled in the United Kingdom. Having seen the various financial documents concerning the assistance given by the sponsor to the Appellant I am satisfied that he is mainly dependent on his mother. By virtue of the same documents and the evidence of the sponsor as to her and her husband's employment, I am satisfied that the Appellant could and would be maintained adequately without recourse to public funds. Having seen the affidavit I am satisfied that he could and would be accommodated without recourse to public funds and that the accommodation was exclusively occupied by the sponsor. Although questions have been asked by the respondent as to the assistance which could be provided by the Appellant's close relatives still in India the arguments were presented to me as bare inferences from the factual relationship. The only evidence came from the sponsor. In those circumstances I find that the Appellant cannot turn to his close relatives for financial support. I further find that he is living a life effectively on his own since there is no evidence that the finances or substance of his life are in any way intertwined with those of his brother and family. 4.3 There is however one final hurdle which the Appellant in my view cannot cross under the Immigration Rules. I cannot see how he satisfied the requirement that he is living in the "most exceptional compassionate of circumstances"
. I have no evidence to suggest that his current life is other than that of a supported student living in unexceptional circumstances".[23]The Adjudicator went on to consider Article 8. He concluded that the entry clearance officer had not performed the relevant balancing exercise. He found that there was family life between the Appellant on the one hand and the sponsor and her family in the United Kingdom on the other. He addressed the issue as to whether it would be reasonable for the sponsor and her husband to relocate back to India. The Appellant's parents had only recently settled in the UK. The Adjudicator did not regard it reasonable for them to return to India. He found that the refusal of the entry clearance officer was an interference with the Appellant's Article 8 rights. He said:
"4.9 Whether that places the State in breach of the obligations to show respect for family life depends on whether it is a proportionate response to the counter veiling public interest in maintaining an effective immigration policy. It is my view it is not. Although the Appellant is over the age of 18 he is not far beyond it. He is single, and not engaged. His relationship is not one deemed to be one of the less important but one of the greatest. In all those circumstances I find that the refusal is disproportionate and accordingly I find that the refusal does place the State in breach of its positive obligations under Article 8."
[24]The respondent points out that the Adjudicator did not consider whether or not the case was exceptional as required by Huang. Nor did he consider the history of the SQVS. We note that Huang was not in fact decided until 1 st March 2005 nearly three months after the Adjudicator heard this appeal.[25]The Immigration Appeal Tribunal gave permission to appeal on 15 th March. It considered that there appeared to be an error of law in that the decision was contrary to the principles in Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840 . It is said by the respondent that by analogy the Appellant H's case falls to be considered under the third head outlined by Lord Phillips of Worth Matravers at paragraph 55 of his judgement in Mahmood . He there reached conclusions as to the approach of the European Court of Human Rights in relation to potential conflicts between the respect for family life under article 8 and the enforcement of immigration controls vis:
"(3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded even where this involves a degree of hardship for some or all of the members of the family."
[26]On the other hand the Appellant H submits that the Adjudicator's approach was in line with Mahmood . It is suggested that in essence the Tribunal has to ask itself whether, having regard to all the circumstances, it is reasonable not to expect relocation back to the country of origin here for the parents rather than the Appellant. It is said on behalf of the Appellant that the Adjudicator was aware that the mother had not qualified under the SQVS. Her right to settle had only come about because of section 12 of the 2002 Act. He considered the Appellant's case should receive sympathetic consideration outside the Rules. He was entitled to take into account that it was not a simple case of parents relocating to India. Several other relatives had been granted leave to reside in the UK. Nor was it an attractive proposition to uproot the family from the UK when they had only recently arrived. It is said the history in context required a different approach to assessing the reasonableness of relocation than might be so in other cases. This was a rational approach and one open to the Adjudicator so no error of law was demonstrated. In particular at the time of the application the Appellant was not in fact much beyond 18 and the relationship with a parent and child is one of the most important. The Appellant was also at all material times dependent on his mother and father. V[27]Entry clearance was refused for V by the ECO on 14 th December 2004. The Appellant was said not to meet the requirements of Rule 317 and that determination was upheld on review.[28]It is clear from the evidence accepted by the immigration judge that the appellant would be joining his mother who was present and settled in the UK and would be maintained and accommodated without recourse to public funds. The Immigration Judge was satisfied on the evidence that " the sponsor had provided financial support for her family as a whole" (paragraph 14 of the determination). She found that as a student the Appellant was dependent on his mother of a necessity (paragraph 15) and she held that the Appellant's sister could not be relied on to support him so there were no close relatives to turn to in India.[29]The Immigration Judge however nowhere deals with the entry clearance officer's note which says " the Appellant stated his sister lived in the village next door and his aunt and grandmother also lived in the same village. He was a student and if needed there was no reason why he could not support himself. His description of his house and circumstance were that he lived in reasonable circumstances". The reasoning given for the conclusion reached that the Appellant was " living alone in the most exceptional compassionate of circumstances" is not adequate. We regard the judge as having made a material error of law in approaching that aspect of the test in rule 317 as she did.[30]The judge then having concluded that the appellant met the requirements of Rule 317 Immigration Rules also decided that the requirements of article 8 were satisfied. She refers to the legislative history we have outlined. She noted that there had been injustice to the sponsor as a result of that. The accepted there was family life between the appellant and the sponsor. She said given all the background facts that the claim was truly exceptional under Huang and allowed the appeal under article 8. However where an appeal is allowed under the Immigration Rules it will rarely be necessary to consider the article 8 claim and that need not have been done in this case had she been correct to allow the appeal under Rule 317. Conclusion[31]We do not consider on the evidence that either appellant could properly be said to be "living alone in the most exceptional compassionate circumstances". So we agree with the adjudicator in H and for the reasons given consider the judge in V was wrong so to decide. But we have further considered these cases both in the light of the individual circumstances of each appellant and having regard to the legislative background. We have concluded that in both cases the IJs were entitled to allow the appeal under Article 8 ECHR and indeed we would have come to the same conclusion. We are satisfied from the findings before the Adjudicator and the Immigration Judge that in each case the Appellant was wholly or mainly dependent on the sponsors; that each Appellant will be accommodated adequately without recourse to public funds in the UK; that each dependent can and will be maintained adequately without recourse to public funds and neither has close relatives in his own country to whom he could turn for financial support. In other words most of the requirements of Rule 317 are satisfied.[32]We note that each Appellant was only just over the age of 18 when the application for entry clearance was made. The opportunity to make an application prior to the 18 th birthday of each appellant was very limited. In each case the application was made with the Appellant's father so both the father and the son could join each Appellant's mother as sponsor. In each case there was and is a strong family life. Each mother had only recently obtained citizenship of the UK with the right to settle and each had only recently settled in the UK.[33]We are supported in our view that this case is exceptional in relation to the ages of the Appellants by two factors. First the SQV Scheme adopted an upper age of 25 rather than 18 for family reunion. Children up to the age of 25 so long as they were dependent, as the Appellants are, could be admitted as part of the family under the scheme even though they were over 18. This SQV Scheme policy was of course withdrawn well before the mothers in this case were able to secure their rights to enter the UK. But it informs our thinking when considering the application of article 8 in the particular circumstances of these cases and the Respondent's past policies in comparable situations. Further the September 1998 Home Office IDI deals with cases of re-applicants who can show in the light of DNA evidence that they have been previously wrongly refused. There an upper age of 25 was adopted rather than 18. This provides an example of how an apparent absolute cut-off age is not always mandatory where the Respondent accepts that an error of judgement or fact has been made.[34]Each of the Appellants' mothers had been a British overseas citizen since birth. As they were females and not head of a household they could never have applied to settle in the UK under the Special Quota Voucher Scheme. The foundation of any entitlement to come to the UK had been prevented by racially discriminatory earlier legislation. The SQVS which sought to deal with that position was itself discriminatory on gender grounds against the mother of each of the Appellants. There was an historic discrimination.[35]The first occasion from which either of the Appellants' mothers could acquire British citizenship, giving them the right to apply for their dependents to settle with them, was on and after 1 st April 2003 subsequent to the passing of Section 12 Nationality, Immigration and Asylum Act 2002. We accept the Appellants' arguments that part of the reason behind the passing of Section 12 of the Act was to " right an historical wrong" .[36]These facts as taken together constitute in our judgement truly exceptional circumstances as required in Huang. The SQVS could not avail either mother. The previous legislation as a whole had been discriminatory in excluding those with the Appellants mothers' background from the possibility of citizenship of the UK.[37]In each case the fathers of the two Appellants were able to exercise their right to join their wives, the Appellants' sponsors, and settle in the UK. The Appellants, otherwise wholly dependent and still in education, would have had an absolute right to come to the UK had they been under 18 on the date of application. We regard this history and context as of the utmost relevance. We agree with the Appellants' representatives that the assessment of what is necessary in a democratic society in Article 8 terms should involve a consideration of all the circumstances including the previous history of any previous wrongful act and an understanding of how the convention rights have to be enforced. We accept the submission that " in Strasbourg cases the Courts have looked at the history of development of legislation in assessing what is the right thing to do in the modern context when acknowledgements of past wrongful treatment are made". We also agree that there is no question in this case of attempting to enforce rights retrospectively.[38]Further we are not here dealing with family relationships which have been created after entry. The relationship in both cases is of longstanding since the birth of each Appellant. If each Appellant had been under the age of 18 then each claim would have been allowed.[39]We accept that the time taken for each Appellant's mother to make application for registration as British citizens and to apply for their families to come to the UK was reasonable. Both Appellants were only just over the age of 18 and were fully dependent and living alone when the applications were made.[40]We accordingly regard these two cases as one among the very small number of cases which are truly exceptional. We consider that the decisions of the entry clearance officer in each case breached Article 8 ECHR. Both the Adjudicator in H and the immigration judge in V allowed the appeals under Article 8. The immigration judge in V need not have made that finding given her conclusion under Rule 317. But the findings she made under that Rule do contribute towards the conclusion that the Appellant V's case is truly exceptional. We accordingly conclude that decisions that the appeal in respect of human rights in each case should be allowed must stand. The decision that provisions of Rule 317 are met in the case of V was wrong and is quashed. For the avoidance of doubt we conclude for the reasons given[41]The appeal of H is allowed on Human Rights grounds.[42]The appeal of V is allowed on Human Rights grounds.[43]In the particular circumstances of these two cases we exercise the power given by Section 87 (1) Nationality, Immigration and Asylum Act 2002 and direct that entry clearance be granted for each of these Appellants. Mr Justice Hodge OBE, President 30 November 2006