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The Entry Clearance Officer, Bombay v. Seedat and Others

Publisher United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author Immigration Appeal Tribunal
Publication Date 4 December 1974
Citation / Document Symbol [1975] Imm AR 121
Reference TH/3126/73(375)
Cite as The Entry Clearance Officer, Bombay v. Seedat and Others, [1975] Imm AR 121, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 4 December 1974, available at: http://www.refworld.org/docid/3ae6b61f1c.html [accessed 18 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

THE ENTRY CLEARANCE OFFICER, BOMBAY v SEEDAT AND OTHERS, TH/3126/73(375)

Immigration Appeal Tribunal

[1975] Imm AR 121

Hearing Date: 4 December 1974

4 December 1974

Index Terms:

Dependent parent -- Accommodation available to sponsor -- Adequate for parents in sponsor's rented house and temporarily in relative's home for their accompanying dependent son -- Proposal to buy house large enough to accommodate all family under same roof -- Whether available accommodation meets requirements of immigration rule -- HC 79, para 45.

Dependent parent -- Means to support parents in United Kingdom -- Probably financially sufficient in present rented house -- Insufficient if suitable larger house purchased with view to accommodating also parents' dependent son -- HC 79, para 45.

Dependent parent -- Remittances for three years -- Parents also still farming own land -- Passports purjchased out of part of remittances -- Small amounts sent -- Evidence that parents to some extent, but not mainly, dependent on sponsor -- HC 79, para 45.

Held:

S, a citizen of India, was 66 years old. In April 1973 he applied with his wife (56) and son (13) to join in the United Kingdom a married son ('the sponsor') on whom he claimed they ('the S family') were mainly dependent. S owned and cultivated 4 acres of land with the help of his wife and two paid labourers, and he claimed that he had been receiving @ 5-L10 monthly from the sponsor for the past 3 years. Out of @ 65 received between May 1972 and April 1973 S had paid @ 35 to obtain passports. The sponsor earned @ 30 per week and lived with his wife in a 2-bedroom corporation house; he had savings of @ 563. He proposed accommodating his parents in his present house and his young brother temporarily in the home of a relative; with the assistance of a building society mortgage he contemplated buying a larger house in which he could also accommodate his young brother. The entry clearnace officer refused the applications under para 45 of HC 79 because he was not satisfied that S had shown himself to be mainly dependent on the sponsor, nor that the sponsor had sufficient means and adequate accommodation for these relatives. n1 The adjudicator to whom the S family appealed allowed their appeals, holding inter alia that the S family had been mainly dependent on the sponsor over the last few years because without his help they would have been 'quite unable to manage', that the sponsor had the ability to maintain the S family here, and that there was adequate accommodation 'realistically available' for them.

n1 Paragraph 45 of HC 79 is set out on p 125, post.

On appeal by the entry clearance officer to the Tribunal,

Held, (allowing the appeal): the S family could not bring themselves within para 45 of HC 79 for the following reasons: (a) although they became to some extent dependent on the sponsor the evidence did not establish that they were mainly dependent on him; (b) while in present circumstances as tenant of a house the sponsor might be able to support them, on the financial figures available it was far from certain that he could do so were he to buy a house of suitable size with the assistance of a repayment mortgage; and (c) the sponsor had not at present got sufficient accommodation to house his parents and their dependent son.

Counsel:

B. Lockett for the appellant entry clearance officer.

Mrs M. Baker of the United Kingdom Immigrants Advisory Service, for the respondents.

PANEL: Sir Derek Hilton (President), Sir John Rankine, Mrs B. Warburton.

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr V. D. Zermansky) allowing the appeal of the respondents against the refusal to grant them entry certificates to enable them to join Yusuf Ibrahim Seedat in this country as his dependent parents and brother.

The respondents (Ebrahim Hasan Seedat, Fatema Ebrahim Seedat and Ismail Ebrahim Seedat) are citizens of India born respectively on 1 January 1907, 5 March 1917 and 10 April 1960. They applied for entry certificates on 13 April 1973 and produced a number of documents including a declaration by the sponsor showing that his wages were @ 30 per week, that he had a bank balance of @ 563 and that he owned the house in which he lived with his wife. The first named respondent was interviewed and he gave the following information as recorded in the explanatory statement: --

"6. Mr Cole (the entry clearance officer) asked the appellant whether he was employed and he replied that he was a farmer and cultivated 4 acres of land which he owned. He was assisted by two casual labourers named Sukher and Jager who worked 10-15 days each month at a daily wage of 2 rupees (10 pence approx) each. Mr Cole asked the appellant if his wife was employed and he replied that she also assisted on the land. Mr Cole asked the appellant what his income from the land amounted to and he replied that none of the grain was sold; the main cropw as rice. Some of this was given to the labourers as payment in kind; the remainder was consumed by the family. Mr Cole asked the appellant if he could give some details of his monthly expenditure and he replied that he spent on average rupees 50 (L2.50 approx) each month on household expenses and wages for his farm labourers. Mr Cole calculated that if the labourers were each paid 2 rupees per day their wages would total rupees 40 assuming that they were employed for 10 days each month: If they were employed for 15 days during a month their wages would total rupees 60. Mr Cole therefore asked the appellant if he and his family had managed to live on the balance of the alleged rupees 50 monthly expenditure and the appellant replied that he had, but that in any event his sponsor had been sending him @ 5 or @ 10 each month for the last three years.

7. Mr Cole asked the appellant how he had been able to manage in the years before his sponsor began remitting money to him and he replied that both he and his wife had worked on neighbouring land for a daily wage of rupees 2 (10 pence approx) each. Mr Cole asked the appellant whether anyone had looked after his own land during this period and he replied that both he and his wife had done so in their spare time.

8. Mr Cole asked the appellant for details of his family and these were given as follows: --

Sons

Yusuf (sponsor) married

Adam married, has one daughter

Ismail (aged 12) -- lives with appellant

Daughter

Hawa married, has one daughter

9. Mr Cole asked the appellant whether his son Adam was employed and he replied that he was an agricultural labourer earning rupees 2 per day (10 pence approx). Mr Cole asked the appellant why his son was not employed on the family land and he replied that the son lived in separate accommodation. Mr Cole pointed out that the two labourers employed by him also lived in separate accommodation and the appellant replied that Adam had refused to work with him."

After interviewing the other applicants also the entry clearance officer refused the application as he was not satisfied that the first named respondent was wholly or mainly dependent on his sponsoring son for his support nor that the sponsor had sufficient means to support the respondents and adequate accommodation for them.

When the respondents' appeal came before the adjudicator evidence was given by the sponsor. In his testimony he said that he lived in a corporation house which had two bedrooms. The house would accommodate his parents but arrangements would have to be made for his brother to live with relations. The sponsor was thinking of buying a larger house with the assistance of a building society mortgage. The adjudicator allowed the respondents' appeal. In his determination he said on the issue of adequate accommodation: --

"Indeed, it is obvious that having a 14 year old boy live in separate accommodation from his family as a permanent residence would not be adequate. I do, however, think that it would be quite unrealistic in view of the system of immigration control to expect sponsors to obtain accommodation for their dependent family on the off chance that their application to arrive in England, either initially or at appeal, may succeed. It would be foolhardy to say the least for Mr Seedat, the sponsor, to buy a three-bedroomed house in the hope that his parents and brother may join him only to find that, having made the applications pertaining to such a house, their certificates were refused as, in fact, was the case here, and could well find their certificates refused on appeal too. I think that all he must satisfy me about is that there is adequate accommodation realistically available and I am satisfied that there is actual accommodation available for the parents and that there would be no difficulty in obtaining a larger house either upon a rental basis or with this sponsor, upon the purchase basis, in order to receive his family or certainly within a short time of their arrival."

On the question of the sponsor's ability to maintain the respondents the adjudicator said that he was impressed by the sponsor in the way he had conducted his financial affairs and the impression he had of him was that he would not accept an obligation which he did not think he could financially fulfil, and the adjudicator was satisfied that the sponsor had the ability to maintain the respondents.

On dependency the adjudicator said in his determination: --

"There we have the other sources of income for the parents. On the other side we have the situation where the sponsor has been paying at least @ 75 per annum to his parents towards their maintenance -- not a princely sum by any means, and certainly one that if they come to England, the sponsor is going to find needs substantial supplementation, but in deciding where the main source of dependency lies, I must compare the receipts of the old people from their sponsor son with the receipts they have available elsewhere.

Neither are princely but I am satisfied that without the support they have received from their son in England over the last few years at any rate, they would have been quite unable to manage. It has been suggested to me that most of the money that has been paid has been paid for passport purposes but, in fact, in 1973 receipts amounting to @ 60 or thereabouts have been produced and as I well know it is impossible or unusual to be able to provide a full set of documentary evidence.

I do appreciate the doubts that may have existed in the minds of the entry certificate officer and am sure that he was attempting to resolve a border-line case in the way he thought was appropriate, but I have had the benefit, denied to him, of seeing the sponsor and having to add the impression that he makes upon me upon the scale in his favour.

In all the circumstances, therefore, I do find upon the balance of probabilities that the appeal should be allowed and I allow it accordingly."

The Tribunal granted leave to appeal on the following grounds: --

"The adjudicator has erred in his interpretation of the provisions of para 45 of HC 79 and on the weight of evidence in holding that:

i. The parents and son, Ismail, are wholly or mainly dependent on their son, and sponsor, Mr Yusuf Ibrahim Seedat of 28 Maythorne Avenue, Staincliffe, Batley, Yorks.

ii. That the sponsor is able to support and provide adequate accommodation under his direct control for them."

Mr Lockett in addressing us said that he accepted the relationship of the respondents to the sponsor, and their ages. On the question of dependence he asked what evidence there was to support payments at the rate of @ 75 per annum. According to the record of proceedings there was evidence before the adjudicator of payments totalling @ 80 during the period May 1972 to October 1973 but only of @ 65 to the date of decision. The cost of the passports -- @ 35 -- had been paid out of remittances from the sponsor. In his submission the circumstances of the respondents did not support the claim that they were wholly or mainly dependent on the sponsor.

Mr Lockett further submitted that on the authority of the Tribunal decisions in Entry Certificate Officer v Abdullah ([1973] Imm. A.R. 57) and Francis v Secretary of State for the Home Department ([1972] Imm. A.R. 162) the sponsor had not adequate accommodation for the respondents. At the date of the decision the sponsor might have had the means to support them but (in Mr Lockett's submission) he would not have sufficient means to do so if he bought a house of adequate size.

In reply Mrs Baker said that the sponsor had not intended to deceive the appellant when he said he owned the home he occupied. The sponsor was the eldest son and he was therefore expected to care for and maintain his family. If the sponsor's support was withdrawn the respondents could not pay the farm labourers and the farm would be of no value if not worked. The sponsor had sent regular payments on which the respondents had had to rely and therefore they were mainly dependent on him.

In Mrs Baker's submission the sponsor was quite capable of supporting the respondents even if he were to buy a house. The question of accommodation was a vexed one but the adjudicator felt able to distinguish the cases of Abdullah and Francis as in this case the proposed accommodation for the sponsor's brother belonged to a member of the family rather than to a stranger.

The relevant immigration rule in this case is para 45 of HC 79 which reads: --

"45. Subject to the requirements of paragraphs 39 and 40, widowed mothers, widowers aged 65 or over and parents travelling together of whom at least one is aged 65 or over, 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. Where a parent has remarried admission should not be granted unless he or she cannot look to the spouse or children of the second marriage for support, and the children in the United Kingdom have sufficient means and accommodation to support both the parent and any spouse or children of the second marriage who would be admissible as dependents. The provisions of this paragraph apply to grandparents of persons settled in the United Kingdom as they apply to parents."

On the issue of dependence, according to the evidence the sponsor has been sending money to the respondents at best for only three years and they managed out of those small remittances to pay @ 35 for their passports. Before money was sent to them it appears that the respondents managed without family support. We accept that the first named respondent was 66 years of age when he made application and no doubt the money from the sponsor was very welcome to him. We further accept that the respondents became to some extent dependent on the sponsor but in our opinion the evidence does not establish that at the date of the decision they were mainly dependent on him. We are further of the opinion that the sponsor in his present circumstances as tenant of a house might be able to support the respondents in this country, but on the financial figures available we are far from certain that he could do so were he to buy a house of suitable size with the assistance of a repayment mortgage. At the present time the sponsor has not got sufficient accommodation to house the respondents. For these reasons we do no consider that the respondents can bring themselves within the requirements of para 45 of HC 79. We accordingly allow the appeal.

DISPOSITION:

Appeal allowed.

Copyright notice: Crown Copyright

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