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Mistry v. Entry Clearance Officer, Bombay

Publisher United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author Immigration Appeal Tribunal
Publication Date 23 July 1975
Citation / Document Symbol [1976] Imm AR 54
Reference TH/4848/74(522)
Cite as Mistry v. Entry Clearance Officer, Bombay, [1976] Imm AR 54, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 23 July 1975, available at: http://www.refworld.org/docid/3ae6b6500.html [accessed 3 September 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.

MISTRY v THE ENTRY CLEARANCE OFFICER, BOMBAY, TH/4848/74(522)

Immigration Appeal Tribunal

[1976] Imm AR 54

Hearing Date: 23 July 1975

23 July 1975

Index Terms:

Convention for the Protection of Human Rights and Fundamental Freedoms -- Unmarried son (Indian citizen) aged 25 seeking entry certificate to join parents settled in the United Kingdom -- Not entitled to settle in this country under the relevant immigration rules -- "Respect for family life" -- Whether Art 8 of the Convention could be invoked to defeat para 44 of HC 79 -- Whether the Convention part of English law.

Dependent son -- Twenty-five years of age, unmarried and claiming to be fully dependent -- Not eligible for settlement under immigration rules applicable to Commonwealth citizens though parents settled in United Kingdom -- Article 8 of Convention for the Protection of Human Rights and Fundamental Freedoms invoked by appellant -- "Right to respect for family life" -- Whether Art 8 of the Convention made the age restriction in para 44 of HC 79 ultra vires -- Whether the Convention part of English law.

Held:

In this appeal the Tribunal were asked to consider the application of Art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention') to the position of a citizen of India whose application to join his parents in this country as their unmarried fully dependent son was refused by the entry clearance officer under para 44 of the Immigration Rules HC 79, on the ground, inter alia, that he was over 21 years of age (namely 25 years old). n1

n1 Paragraph 44 of HC 79 is set out on p 55, post.

In their determination reported below the Tribunal on a consideration of the judgments of LORD DENNING MR, in Ram Chand Birdi v Secretary of State for Home Affairs (11 February 1975, unreported) and R v Secretary of State for Home Affairs, ex p Bhajan Singh ([1975] 2 All ER 1081), n2 and of the Decision of the European Commission in the case of A & E Papayianni ([1975] Imm A R 1 at p 7 et seq), held that the law applicable to the appellant was contained in para 44 of HC 79 and that, as stated by the European Commission in the case of A & E Papayianni (ibid, at pp 10-11), although the exclusion of a person from a country where close members of his family are living "may amount to an infringement" of a person's "right to respect for his family life" under Art 8 of the Convention n3, at the same time "no right to enter and reside in a particular country (was) as such guaranteed by the Convention". On the facts the appellant did not comply with the requirements for admission to the United Kingdom for settlement under para 44 of HC 79 and accordingly his appeal would be dismissed.

n2 A passage from the judgment of the Master of the Rolls in Bhajan Singh's case is reproduced on pp 57-58, post, and an extract from a later judgment of LORD DENNING MR of relevance in the context of the Convention and its limited applicability in immigration cases, with special reference to the duty of immigration officers, is reproduced in footnote 7, post.

n3 Article 8 of the Convention is set out in footnote 4, post.

Counsel:

J. Dhruv counsel for the appellant.

K. E. R. Rogers for the respondent.

PANEL: P. N. Dalton Esq (Vice-President), Mrs L. Bonham-Carter, Mrs B. Warburton.

Judgment One:

THE TRIBUNAL: The appellant in this appeal is Amratlal Morarji Mistry, a citizen of India, who was born on 4 February 1949. He applied on 17 April 1974 in Bombay for the grant of an entry certificate with a view to admission to the United Kingdom for permanent residence as the dependent of his parents Mr and Mrs Morar Bhana of 76 Great Russell Street, Bradford 7.

The appellant was interviewed and the explanatory statement gives a full account of what transpired at the interview and also refers to the various documents that were produced and examined. The appellant's application was refused by the entry clearance officer and the reasons for the refusal are set out as follows in the explanatory statement:

"10. I explained to the appellant that the provisions for the admission of children to the United Kingdom were set out in para 44 of HC 79 which, as they referred to sons, stated that they must be unmarried, fully dependent and under 21. I accepted that he was unmarried, doubted that he was fully dependent upon his father and was certainly not satisfied that he was under the age of 21. I therefore informed the appellant that in view of his age I was obliged to refuse his application. The appellant replied that as he is the eldest son and his father had recently had an operation, it was his duty to maintain the family. I explained that whereas this might be so, but noted that he had a younger brother already working there, I could not permit him to enter the United Kingdom as a dependant."

The appellant appealed to an adjudicator, Mr D. Markwick Smith, and was represented by Mr J. Dhruv, of counsel. Mr R. Forbes was the Home Office presenting officer. The appellant's father and brother gave evidence.

In his determination the adjudicator first dealt with Mr Dhruv's submissions concerning para 44 of HC 79. this paragraph is in the following terms:

"44. Generally, children aged 18 or over must qualify for admission in their own right; but, subject to the requirements of paras 39 and 40, an unmarried and fully dependent son under 21 or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement."

Mr Dhruv had argued that this paragraph could not be interpreted as imposing an age limit on an unmarried fully dependent son as to do so would be to regard para 44 as violating Art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter called 'the Convention') presented to Parliament on October 1953 in Cmnd 8969. It followed that the respondent could not consider the application in isolation from Art 8 of the Convention. As Cmnd 8969 was as much the law of this country as HC 79 the age requirement of para 44 was made ultra vires by Art 8. n4 The adjudicator disposed of Mr Dhruv's arguments concerning para 44 in the following way in his determination:

n4 Article 8 of the Convention is in the following terms: "(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests 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."

"In view of the terms of this plea I can only believe that Mr Dhruv misapprehends the status of the Convention in the law of this country. It is true that the Convention was signed and ratified by the United Kingdom and presented to Parliament. It was from that point that the Convention could be reflected in the legislation of this country and it is by that legislation that the Convention is applied in this country. I must presume, and I have no doubt on this issue, that the legislature of the United Kingdom have reflected the terms of the Convention in subsequent or prevailing legislation but it is in no way my responsibility to decide whether the law, or a rule made under the law, is wrong or that the legislature had gone beyond its powers in accepting the age limitation in para 44 of House of Commons Paper No 79. My responsibility is to determine whether the law and immigration rules as they stand, and which are applicable to the appellant, were applied to him correctly; that the respondent's decision was in accordance with the law and rules, and that there was no wrongful exercise of any discretion properly available to the respondent within the rules.

The appellant applied for an entry clearance under the Immigration Rules contained in House of Commons Paper No 79. Those rules are made by the Secretary of State for the Home Department under the powers provided to him by the Immigration Act 1971. Consequently the law applicable to the appellant so far as his application for entry clearance to this country is concerned is the Immigration Act 1971, and the immigration rules are those contained in HC 79 -- particularly para 44 of that Paper."

The adjudicator then turned to the question whether the appellant could be considered for settlement in terms of para 44. Mr Dhruv had not contested that the appellant had any qualification, if para 44 was considered in isolation, because of the age limitation, but he contended that the appellant was unmarried and fully dependent on the sponsor. The adjudicator, however, for the reasons he gave in his determination, was only able to place a low value on the sponsor's credibility, and Mr Markwick Smith was far from convinced from the evidence established that the appellant had been fully dependent on the sponsor prior to his application for an entry clearance.

The adjudicator dismissed the appeal but granted leave to appeal to the Tribunal on the appellant's application for reasons which are set down in the record of proceedings.

Of the grounds of appeal argued by Mr Dhruy the first ground is that the appellant is dependent on his father. The other grounds of appeal are concerned with Art 8 of the Convention n4, Cmnd 8969 and HC 79, and are, we think, really summarized in the last ground of appeal which states:

"7. The learned adjudicator should have read para 44 of HC 79 and Art 8 of Cmnd 8969 together, and held that Art 8 prevails over para 44, and allowed the appeal."

Mr Dhruv argued the appellant's case very fully and his submissions have been noted and considered carefully by this Tribunal. We find no merit in the first ground of appeal. In his determination the adjudicator referred to the evidence of the two witnesses before him and mentioned the obvious prevarication on the part of the sponsor; the discrepancies in the two witnesses' evidence, and also the differences in their evidence from the appellant's statements in Bombay. Nothing has been put before us showing that the adjudicator, even if he thought the matter somewhat academic, erred in this matter.

On the appellant's last ground of appeal Mr Rogers submitted that Mr Dhruv had to surmount the hurdle of showing that the Convention was part of the English law and he had failed to do so. We were referred to the case of Ram Chand Birdi v Secretary of State for Home Affairs n5 in the Court of Appeal dated 11 February 1975. In his judgment the Master of the Rolls, who had referred to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 to which the United Kingdom had adhered, said:

n5 Unreported, (1975) Bar Library transcript 67B; The Times 12 February 1975.

"In my opinion, therefore, the procedures laid down in the Immigration Act 1971 do not in any way infringe the Convention. As I said at the beginning, I would so construe an Act of Parliament so as to see it conforms to that Convention. If it did not conform I might be inclined to hold it invalid. But in this case there is no want of conformity."

We were also referred by Mr Rogers to the case of R v Secretary of State for Home Affairs ex p Bhajan Singh n6 in the Court of Appeal. In that case the applicant relied on Art 12 of the European Convention on Human Rights, which relates to the right to marry. LORD DENNING MR said in his judgment:

n6 [1967] 1 QB 198; [1975] 2 All ER 1081.

"What is the position of the Convention in our English law? I would not depart in the least from what I said in the recent case of Birdir v Secretary of State for Home Affairs. The Court can and should take the Convention into account. They should take it into account whenever interpreting a statute which affects the rights and liberties of the individual. It is to be assumed that the Crown, in taking its part in legislation, would do nothing which was in conflict with treaties. So the court should now construe the Immigration Act 1971 so as to be in conformity with a Convention and not against it.

In addition, I would add that the immigration officer and the Secretary of State in exercising their duties ought to bear in mind the principles stated in the Convention. They ought, consciously or subconsciously, to have regard to the principles in it -- because, after all, the principles stated in the Convention are only a statement of the principles of fair dealing; and it is their duty to act fairly.

I would, however, like to correct one sentence in my judgment in Birdir's case. I said: 'If [an Act of Parliament] did not conform [to the Convention] I might be inclined to hold it invalid.' That was a very tentative statement, but it went too far. There are many cases in which it has been said, as plainly as can be, that a treaty does not become part of our English law except and in so far as it is made so by Parliament. If an Act of Parliament contained any provisions contrary to the Convention, the Act of Parliament must prevail. But I hope that no Act ever will be contrary to the Convention. So the point should not arise.

I would repeat that when anyone is considering a problem concerning human rights, we should seek to solve it in the light of the Convention and in conformity with it." n7

n7 In May 1976 (nearly 10 months after the hearing and determination of the appeal to the Tribunal which is here reported) a further immigration case came before the Court of Appeal, R v Chief Immigration Officer, Heathrow Airport and the Secretary of State for the Home Department, ex p Salamat Bibi, d 11 May 1976. In that case (unreported as yet -- Ed.) the Court was concerned inter alia, on the submission of leading counsel, with the application of Art 8 of the Convention by immigration officers and by the Courts, and in his judgment LORD DENNING MR adverted to statements previously made in Bhajan Singh's case ([1976] 1 QB 198; [1975] 2 All ER 1081); and in respect of the duties of immigration officers the Master of the Rolls said he desired to amend the statement contained in the passage from Bhajan Singh's case which appears above in the Tribunal's determination. The Master of the Rolls' amendment appears in the following passage from his recent judgment in Salamat Bibi's case, a passage which contains also guidance which is applicable generally when the Convention is invoked on behalf of appellants in immigration cases:

"Mr Blom-Cooper said that the immigration officer ought to have admitted the lady because of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 says in sub-para (1): 'Everyone has the right to respect for his private and family life, his home and his correspondence.' In sub-para 2, there is a set of exceptions in the interests of national security, public safety, and the like. We have again been invited to consider how far this Convention is part of the law of this country. Mr Blom-Cooper drew our attention to some Declarations which have been made by the Government of the United Kingdom. This country has declared, in accordance with Art 25 of the Convention, that the European Commission is competent to receive petitions from persons who complain that the rights set forth in the Convention have been violated. If a person has exhausted all remedies available to him in England, he can apply to the European Commission so as to get a remedy there. Mr Blom-Cooper submits that, in consequence of those Declarations, every person is given by Art 8, a right which the Courts must recognise and enforce. I cannot accept this submission. I would repeat what I said in Bhajan Singh ([1976] 1 QB 198; [1975] 2 All ER 1081); and in the Pan Am Case, not reported, on 29 July 1975.

"The position as I understand it is that if there is any ambiguity in our Statutes, or uncertainty in our law, then these Courts can look to the Convention as an aid to clear up the ambiguity and uncertainty, seeking always to bring them into harmony with it. Furthermore, when Parliament is enacting a Statute, or the Secretary of State is framing rules, the Courts will assume that they had regard to the provisions of the Convention, and intended to make the enactment accord with the Convention: and will interpret them, accordingly. But I would dispute altogether that the Convention is part of our law. Treaties and Declarations do not become part of our law until they are made law by Parliament. I desire, however, to amend one of the statements I made in the Bhajan Singh case. I said then that the immigration officers ought to bear in mind the principles stated in the Convention. I think that would be asking too much of the immigration officers. They cannot be expected to know or to apply the Convention. They must go simply by the immigration rules laid down by the Secretary of State, and not by the Convention.

"I may also add this: The Convention is drafted in a style very different from the way which we are used to in legislation. It contains wide general statements of principle. They are apt to lead to much difficulty in application: because they give rise to much uncertainty. They are not the sort of thing which we can easily digest. Article 8 is an example. It is so wide as to be incapable of practical application. So it is much better for us to stick to our own Statutes and principles, and only look to the Convention for guidance in case of doubt."

The other members of the Court of Appeal, ROSKILL and GEOFFREY LANE LJJ, in the course of their judgments expressed views similar to those of the Master of the Rolls.

Mr Dhruv referred to the case of Papayianni [1974] Imm. A.R. 1, and called the attention of the Tribunal to the decision of the European Commission of Human Rights to whom the case had been submitted (p 7 et seq). At p 11 the Commission stated:

"The Commission is of opinion that the application primarily falls to be considered under Art 8 which provides, inter alia, that everyone has the right to respect for his family life. It observes that it has previously held that the exclusion of a person from a country where close members of his family are living may amount to an infringement of this right."

Exclusions therefore may only amount to an infringement, and earlier in the decision it is stated:

"The Commission first recalls that it has repeatedly held that no right to enter and reside in a particular country is as such guaranteed by the Convention."

We are satisfied that the adjudicator did not err in the manner claimed in the grounds of appeal and we are further satisfied that he properly dismissed the appellant's appeal because he had failed to bring himself within para 44 of HC 79.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Michael Sears and Co.

Copyright notice: Crown Copyright

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