Bibi and Purvez v. Immigration Appeal Tribunal
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 17 February 1988 |
| Citation / Document Symbol | [1988] Imm AR 298 |
| Cite as | Bibi and Purvez v. Immigration Appeal Tribunal, [1988] Imm AR 298, United Kingdom: Court of Appeal (England and Wales), 17 February 1988, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b63b13.html [accessed 17 September 2023] |
| Disclaimer | This 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. |
Bibi and Purvez v Immigration Appeal Tribunal
Court of Appeal (Civil Division)
[1988] Imm AR 298
Hearing Date: 17 February 1988
17 February 1988
Index Terms:
Wife -- child -- application for entry certificates -- wife had no intention of settling in the United Kingdom -- whether she was entitled to admission for settlement -- whether the child of her marriage was entitled to be admitted for settlement when the mother did not intend to settle -- the meaning of settlement in HC 81. Immigration Act 1971 ss 1(1), 1(2), 1(4), 3(1), 3(2), 33(2A): HC 81 paras 13, 14, 21, 22, 27, 31, 32, 34-36, 38, 40, 42, 45, 46.
Held:
Appeal from Kennedy J. The original first appellant (now deceased) was the wife of the sponsor settled in the United Kingdom: the second appellant was the son of the marriage. Both appellants were citizens of Pakistan, without a right of abode in the United Kingdom. The wife and son applied for entry clearance "for settlement". At the interview the wife made it clear that she did not intend to remain long in the United Kingdom: she would take her son there and then soon return to Pakistan. She declined an offer of entry clearance as a visitor. Entry clearance "for settlement" was refused because she had clearly stated she did not intend to settle and on that basis the son, then a minor, would not qualify for admission for settlement under the relevant rules. Appeals were dismissed by an adjudicator and the Tribunal. An application for judicial review was dismissed by Kennedy J. Before the learned judge at first instance the case was argued on the basis of the relevant rules in HC 81 and also the effect of s 1(5) of the 1971 Act. The application was dismissed on both grounds. Following the Court of Appeal judgments in Ruhul (Immigration Appeal Tribunal v Haque, Rahman and Ruhul [1987] Imm AR 587) the argument based on s 1(5) was not pursued on appeal. Counsel for the appellants sumbitted that on a true interpretation of the relevant rules in HC 81 settlement in that context was to be equated with "indefinite leave to enter" or "admitted with liberty to settle" and did not necessarily involve the concept of actual intention to become ordinarily resident in the United Kingdom. Held: 1. "Settlement" in the context of paragraphs 36 and 38 of HC 81 involved the idea of ordinary residence: it connoted a present intention to settle in the United Kingdom. Those paragraphs were concerned with the establishment of families in the United Kingdom. Per Parker LJ, "the language used in paragraph 36 is not clear: a purposive construction is appropriate and the purpose is clear". Per Staughton LJ "the real difficulty arises because the same words were used for two different purposes in paragraphs 36, 38 and 39. They describe both a condition which is to be fulfilled by someone else (the husband or parent) and the consequence, if it is fulfilled for the wife and child who wishes to enter". 2. In the circumstances no assistance could be derived from the meaning of "settlement" in paragraph 46 (returning resident), where it could only mean "given indefinite leave to enter": "in the context of these quite loosely expressed regulations", the necessary meaning of settlement in paragraph 46 could not alter the meaning it was proper to give it in paragraph 38. The Court also felt it not appropriate to consider the meaning the term might have in HC 79 as an aid to interpretation.Cases referred to in the Judgment:
Courtauld v Legh (1869) LR 4 Exch 126. Fothergill v Monarch Airlines Ltd [1981] AC 251: [1981] 2 All ER 696. R v Immigration Appeal Tribunal ex parte Rashida Bibi and anr [1986] Imm AR 61.Counsel:
A Nicol for the appellant; R Ter Haar for the respondent PANEL: Fox, Parker, Staughton LJJJudgment One:
FOX LJ: This case arises from an application by Rashida Bibi and Khalid Purvez, the wife and son of Mohd Sharif, who was at the material times a British subject and settled in the United Kingdom, for judicial review of a decision of the Immigration Appeal Tribunal. That Tribunal had dismissed an appeal by the applicants from the refusal of the entry clearance officer at Islamabad to grant the applicants entry clearance into the United Kingdom to join Mohd Sharif as his wife and son. In the course of her interview with the entry clearance officer, Rashida Bibi ("the mother"), had informed him that she wished only to go to the United Kingdom for five or six months, that she intendedto leave Khalid Purvez ("the son") there and then return to Pakistan. She said that she did not intend to live in the United Kingdom. These statements become material in relation to the interpretation of paragraphs 36 and 38 of the immigration rules, which authorise admission "for settlement". The entry clearance officer in his decision refusing entry clearance stated in relation to the mother ". . . I am not satisfied that you intend to settle in [the United Kingdom] permanently . . ." And in relation to Khalid Purvez he stated: "I am not satisfied that your mother is settled in the United Kingdom or travelling there for settlement . . ." The applications for judicial review were heard by Kennedy J who dismissed them. Since that hearing the other has died and her appeal is withdrawn. The present appeal is by the son alone. The relevant dates are as follows: 1950: Rashida Bibi married Mohd Sharif ("the father").September 1961: The son born. June 1962: Father came to United Kingdom. Father registered as a citizen of United Kingdom and 1974: Colonies. Rashida Bibi and Khalid applied for entry clearance to April 1978: United Kingdom. 21 February 1980: Entry clearance was refused. 31 October 1983: Adjudicator's decision. 25 June 1984: Immigration Appeal Tribunal's decision. January 1986: Decision of Kennedy J. The father had at all material times a right of abode in the United Kingdom, that is to say, the freedom to live in and to come and go into and from the United Kingdom without let or hindrance [see section 1(1) of the Immigration Act 1971 ("the Act")]. A British citizen has the right of abode. It is conceded that neither the mother nor the son had the right of abode in the United Kingdom, and that leave to enter was necessary; neither was a British citizen. By section 1(2) of the Act it is provided that those not having the right of abode "may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into stay in and departure from the United Kingdom as is imposed by this Act; . . ." Section 1(4) of the Act provides: "The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom". Section 3(1) of the Act provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the Act, and that leave to enter (or remain) in the United Kingdom may be given either for a limited or an indefinite period. Limited leave to enter may be subject to conditions restricting employment or occupation in the United Kingdom. The relevant immigration rules are those laid before the House of Commons on 25 January 1973 (HC 81) in pursuance of the obligation of the Secretary of State, under section 3(2) of the Act, to make statements of the rules laid down by him as to the practice to be followed for the regulation of entry and stay in the United Kingdom. The paragraphs of HC 81 which are of primary relevance to this case are paragraphs 34-36 and 38. These are in Part IV of the regulations, which is headed "Passengers coming for Settlement". They are, so far as material, in the following terms: 34. Paragraphs 34-41 of these rules cover the admission for settlement of the dependants of a person who is already in the United Kingdom and settled here, or who is on the same occasion given indefinite leave to enter. In all such cases that person must be able and willing to support and accommodate his dependants without recourse to public funds. 35. In addition, a person seeking admission as a dependant under this Part of the rules must hold a current entry clearance granted to him for that purpose. Wives 36. The wife of a person who is settled in the United Kingdom or is on the same occasion being admitted for settlement is herself to be admitted for settlement if the requirements of paragraphs 34 and 35 are satisfied. A member of HM Forces based in the United Kingdom but serving overseas should be regarded for this purpose as being in the United Kingdom. Children 38. If the requirements of paragraphs 34 and 35 are satisfied, children under 18 are to be admitted for settlement: (a) if both parents are settled in the United Kingdom, or (b) if both parents are on the same occasion admitted for settlement, or (c) if one parent is settled in the United Kingdom and the other is on the same occasion admitted for settlement or (d) if one parent is dead and the other parent is settled in the United Kingdom or is on the same occasion admitted for settlement; or (e) if one parent is settled in the United Kingdom or is on the same occasion admitted for settlement and has had the sole responsibility for the child's upbringing, or (f) if the Secretary of State has authorised the admission of the child with or to join one parent or a relative other than a parent because family or other considerations make exclusion undesirable - for example, where the other parent is physically or mentally incapable of looking after the child -- and suitable arrangements have been made for the child's care". The issue is whether a child who is otherwise within paragraph 38(c) should be refused entry clearance his because mother, who accompanies him, does not have an intention to settle in the United Kingdom. In effect, therefore, the question is: Must the mother herself have an intention to settle in the United Kingdom? Mr Nicol for the son submits, in a very able argument, that the words "admitted for settlement" in paragraphs 36 and 38 mean "admitted with liberty to settle", and that accordingly there is no requirement of any intent to settle: the words merely indicate indefinite leave to enter. I should mention here that neither the Act nor the rules defines "settlement". The Act does provide, however, that references to a person being settled in the United Kingdom are "reference to his being ordinarily resident here without being subject under the immigration laws to any restriction on the period for which he may remain" [section 33(2A) of the Act]. It is not in dispute that the mother had no intention to "settle" in the United Kingdom under any relevant meaning of that word. It is Mr Nicol's case that the statutory framework indicates that the Immigration Rules are to describe the category of persons within each paragraph and then to give a direction as to what type of leave to enter should be given, ie, whether it should be indefinite or limited leave. Indefinite leave does not involve any maximum or minimum limits; it confers upon a person liberty to stay for as long or as short a period as he chooses. Mr Nicol further says that the rules in Parts II and III follow this framework, and so do those in Part IV. For example, in Part II of the Rules, paragraph 13 provides as follows: "Visitors A passenger seeking entry as a visitor is to be admitted if he satisfies the Immigration Officer that he is genuinely seeking entry for the period of the visit as stated by him and can, without working, support himself and any dependants for this period and meet the cost of the return or onward journey. Visitors coming to stay with relatives or friends are also to be admitted if the Immigration Officer is satisfeid that no more than a visit is intended and that the support available is adequate. But in all cases leave to enter should be refused if the Immigration Officer is not so satisfied; and in particular leave to enter should be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds if admitted". Paragraph 14 then states: "The Immigration Officer should impose a time limit on the period of the visitor's stay . . ." Again in Part II, paragraphs 21 and 22 deal with "au pair" girls. Paragraph 21 describes the "au pair" arrangements and paragraph 22 states: "When the Immigration Officer is satisfied that an 'au pair' arrangement has been made he may admit the passenger for a period of up to 12 months . . ." In Part III paragraphs 27 and 28 (Businessmen), 31 (Persons of independent means) and 32 (Self-employed persons) follow the same pattern. In Part IV of the rules, similar examples are in paragraphs 42 to 45. All the above are examples of cases where only limited leave will be granted. It is contended that in other provisions of Part IV, and in particular paragraphs 36 and 38, the words "admitted for settlement" are intended to perform the same function as the specific directions as to limited leave in the paragraphs to which I have referred. They indicate, it is said, the type of leave to be given, ie, indefinite leave. We are concerned in this case with the construction of paragaraph 38, that is to say: "If the requirements of paragraphs 34 and 35 are satisfied, children under 18 are to be admitted for settlement: "(c) if one parent is settled in the United Kingdom and the other is on the same occasion admitted for settlement . . ." As the wife of a person who is, admittedly, settled in the United Kingdom, the mother is entitled to be "admitted for settlement" under paragraph 36 (it being admitted that the provisions of paragraphs 34 and 35 are satisfied). Kennedy J held that the mother's purpose in applying for entry was not for settlement, since she intended to leave England after a few months and return to live in Pakistan. Accordingly, he held that the case is not within paragraph 38(c). As a matter of the ordinary use of the English language, the meaning of paragraph 38(c) seems to me to be clear. It provides that children will be admitted if one parent is settled here and the other is at the same time as the child's entry, admitted for settlement. The word "for" I take to mean "for the purpose of", or "with the object of". As to the word "settlement", it is common ground that it must be construed in the light of the definition of the word "settled" in the Act. But that, in fact, does not lead me to any conclusion other than I would have reached as a matter of normal usage. "Settlement" in the context of these rules involves, in my view, the idea of "ordinary residence". The mother, we know, had no intention of becoming ordinarily resident in the United Kingdom. The word "settled" which appears in a number of places in paragraph 38 must itself, I think, have a meaning which itself imports ordinary residence here. I think therefore that "settlement" imports an element which is absent from the concept of indefinite leave to enter. It imports ordinary residence. Simply as a matter of language, therefore, I see no reason to depart from Kennedy J's conclusion. However, these rules (as we were reminded) are not ordinary delegated legislation, and are fairly loosely drawn with a view to giving guidance rather than stating precisely-drawn requirements. They need to be read with reasonable liberality. Looking to the substance of the provisions, it seems to me that the whole emphasis of paragraphs 36 and 38 is upon settlement in the sense which I have mentioned. In paragraph 38 the words "settled" or "settlement" appear in each of the sub-paragraphs (a) to (e). The paragraph as a whole seems to me to be concerned with the establishment of families in the United Kingdom. Thus, sub-paragraph (a) applies "if both parents are settled in the United Kingdom". "Settled" in that passage plainly means ordinarily resident. Sub-paragraph (b) applies "if both parents are on the same occasion admitted for settlement". That must, I think, be directed to a situation where, after entry, the parents' situation will be equated with that in sub-paragraph (a), ie, they will both have chosen this country as their place of ordinary residence. In sub-paragraph (c) it must have been contemplated that the parents admitted for settlement will, upon entry, be in the same position as the parents in (b), that is to say, having chosen the United Kingdom as their place of ordinary residence. Similarly, in paragraph 36, the wife of a person who is settled in the United Kingdom is herself to be admitted for settlement, and it seems to me that the paragraph is contemplating ordinary residence in both cases, ie, its existence in the case of the husband, and its intended establishment in the case of the wife. Where both the husband and wife are applying for entry, it seems an odd result of the paragraph if both are entitled to indefinite leave to enter if the wife has no intention of living here, but the husband has. In general, paragraph 38(a) to (e) is, in my view, dealing with the concept of "settlement" in the United Kingdom as it is generally understood. That is plainly so in sub-paragraph (a), and in the reference to "settled" in (c), (d) and (e). Mr Nicol's construction seems to assume an altogether too sharp a change in meaning and approach when the draftsman uses the word "settlement". In the context of these closely linked paragraphs in which settlement is a central feature, "admitted for settlement" would, at best, be an eccentric way of saying "shall be given indefinite leave to enter". Of course, nobody can be compelled to settle here permanently. People can change their minds and go elsewhere. But I cannot avoid the impression that in paragraphs 36 and 38 the word "settlement" was used to connote a present intention to settle here. It is difficult to see why a person who had no intention of staying here should have been given the benefit of inclusion in what, as a matter of language, would be the wholly inapt words "admitted for settlement". The rules relating to wives and children were, I think, solely directed, in the interests of the cohesion of families, to allowing the entry of spouses and children in order to make their homes here. That is not achieved by construing the words "admitted for settlement" as extending to "courier mothers" who merely intend to deposit a child or children here and then leave. The mother in this case intended to stay for a few months, but if the argument on behalf of the appellant is right, the result would be the same if she had handed over the child at the airport and left the United Kingdom the same day. I quite follow that the rules (in particular paragraphs 13, 14, 16, 19, 20 21, 22, 25, 28 and 31 to 33) prescribe requirements and then specify the leave to be given. It seems to me, however, that the provision as to entry for settlement is a requirement. If it is, no direction as to leave to enter is necessary. If the requirement is satisfied, leave would follow automatically and necessarily be indefinite leave. We were referred to paragraph 46, which is in these terms: "A passenger returning to the United Kingdom from overseas (except one who received assistance from public funds towards the cost of leaving this country) is to be admitted for settlement on satisfying the Immigration Officer that he was settled in the United Kingdom when he left and that he has not been away for longer than 2 years". It is said that the applicant must be admitted for settlement if he satisfied the immigration officer as stated in the paragraph, and that accordingly admitted for settlement can here only mean "given indefinite leave to enter". I agree. The point is certainly in Mr Nicol's favour. Paragraph 46 is, however, dealing with circumstances widely different from those in paragraphs 36 and 38. It is dealing with a man who was settled in the United Kingdom when he left and has not been away more than two years. Moreover, the structure of the paragraph is different from 38(c). There is a preremptory direction that the passenger is to be admitted upon satisfying the immigration officer of the specified matters. "Admitted for settlement" in paragraph 46 is not a requirement; it is a consequence. In the context of these quite loosely expressed regulations, I do not feel able to regard paragraph 46 as sufficient to alter the conclusion which I have otherwise reached on the meaning of paragraphs 36 and 38. It is said that under paragraph 40, which provides for parents and grandparents to be admitted for settlement, there is no reason why they should not be admitted for settlement even though they only intend to stay for a short period. The "courier mother" argument cannot apply to parents and grandparents. I follow that, but as the Judge observed, a wife, parent or grandparent who cannot demonstrate an intention to settle would normally be able to get limited entry leave under paragraph 13 as a visitor. The mother did not seek such leave though the entry clearance officer suggested it. Mr Nicol also advanced an argument that if the words "admitted for settlement" bear the meaning attributed to them by the Judge, there are provisions in the rules contained in HC 79 which would be ultra vires unless those words have different meanings in HC 79 and HC 81. We are, however, concerned with the meaning of HC 81 and no question of ultra vires arises in relation to HC 81. In the circumstances I do not think that an examination of the provisions of HC 79 is appropriate. The result, in my opinion, is that the Judge came to the right conclusion. The Notice of Appeal contains in paragraph two a further contention in support of the son's claim to entry. It is conceded, however, that on the existing authorities the point is not sustainable in this Court. I would dismiss the appeal.Judgment Two:
PARKER LJ: The question for determination on this appeal depends upon the true construction of paragraphs 34, 35, 36 and 38 of the statement of immigration rules for control on entry of EEC and other non-Commonwealth nationals (HC 81) laid before Parliament on 25 January 1983 under section 3(2) of the Immigration Act 1971 ("the Act"). The relevant paragraphs of HC 81 appear in Part IV, which is entitled "Passengers coming for settlement". The word "settlement" is not defined in HC 81, nor is it defined in the Act. The Act does, however, define the word "settled" as follows: ". . . references to a person being settled in the United Kingdom . . . are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain." [See sections 2(3)(d) and 33(1)]. The word must clearly, unless the context otherwise requires, have the same meaning where used in HC 81. If such is the meaning of the word "settled", it must in my view follow, as a matter of ordinary language, that someone coming "for settlement" is prima facie a person coming with a view to becoming ordinarily resident in the United Kingdom, and without any restriction on the time for which he may remain. I now come to the terms of the relevant paragraphs themselves. Paragraphs 34 and 35, which appear under the sub-heading "General", provide: "34. Paragraphs 34-41 of these rules cover the admission for settlement of the dependants of a person who is already in the United Kingdom and settled here, or who is on the same occasion given indefinite leave to enter. In all such cases that person must be able and willing to support and accommodate his dependants without recourse to public funds. "35. In addition, a person seeking admission as a dependant under this Part of the rules must hold a current entry clearance granted to him for that purpose." Under the terms of paragraph 34, the conditions for the applicant of the subsequent paragraphs up to 41 are: (i) that the passenger should be the dependant of a person who either (a) is already in the United Kingdom and settled there, or (b) is on the same occasion given indefinite leave to enter. (ii) that such person must be both able and willing to support and accommodate the dependant without recourse to public funds. With regard to the alternative in (i)(b) above, it is not clear to me why the words "given indefinite leave to enter" are used instead of the words "admitted for settlement". However, the two phrases are, it appears to me, at least in some cases interchangeable. In paragraph 46, for example, it is plain that "admitted for settlement" can only mean "given indefinite leave to enter". Added to the preliminary requirements in paragraph 34 is the requirement that the person seeking admission as a dependant under Part IV must hold a current entry clearance "for that purpose". "That purpose" must be the purpose of admission as a dependant under Part IV, and the question arises whether this covers a person who is seeking admission under Part IV if he has no intention of remaining for longer than a short period, but nevertheless wants indefinite leave to enter, or whether to be a person seeking admission as a dependant under Part IV it is necessary not merely to want indefinite leave but also to intend to live or become ordinarily resident in the United Kingdom. It is, on the face of it, an abuse of language to say that someone is "coming for settlement" and seeking admission as a dependant under Part IV if that someone has no intention of staying for more than, say, two days. This is so whether one looks at the word "settlement" as an ordinary English word unaided by the definition of "settled", or whether one looks at the word with such aid. It is, however, submitted by Mr Nicol for the appellant that this remarkable result follows, and I accept that there is great force in his argument which was developed with great clarity and admirable brevity. It is therefore necessary to examine in some detail other provisions. Paragraph 36 provides: "Wives The wife of a person who is settled in the United Kingdom or is on the same occasion being admitted for settlement is herself to be admitted for settlement if the requirements of paragraphs 34 and 35 are satisfied. A member of HM Forces based in the United Kingdom but serving overseas should be regarded for this purpose as being in the United Kngdom". This paragraph envisages two situations, the first of which is that the husband is settled in the United Kingdom, ie, is ordinarily resident in the United Kingdom without restriction on time of stay. By virtue of the incorporation of paragraphs 34 and 35, the husband (unless covered by the last sentence of paragraph 36) must also be in the United Kingdom. Finally, the wife must hold a current entry clearance. If these requirements are satisfied, the wife is entitled to be admitted for settlement. The alternative situation is that the husband is, on the same occasion that the wife seeks admission for settlement, himself admitted for settlement. In so far as Part IV of HC 81 is concerned, the only paragraph which directly covers such a situation is paragraph 46, which provides: "Returning residents A passenger returning to the United Kingdom from overseas (except one who received assistance from public funds towards the cost of leaving this country) is to be admitted for settlement on satisfying the Immigration Officer that he was settled in the United Kingdom when he left and that he has not been away for longer than 2 years". This would cover the case of a husband already settled here but who was returning after an absence of less than two years. Indirectly it would also cover a person who had been settled in the United Kingdom for most of his life, but had been away for longer than two years. [See paragraph 47]. In this case, however, admission for settlement is discretionary, whereas a passenger who brings himself within paragraph 46 has an entitlement to admission for settlement. When one requirement is that the husband should actually be settled, it would be very odd if the alternative was intended to cover a case where the husband had no intention whatever of doing more than take his wife to, eg a brother, and then departing forever. It would also be odd if a wife whose sole intention was to visit her brother to transact some business with him and then depart forever was entitled to indefinite leave to enter, or could be regarded as seeking admission as a dependant under Part IV. She would be a dependant, but she would have no intention of joining her husband, let alone for the purpose of settlement. SHe would merely be paying a business visit. It is, of course, true that in such cases the wife would, in all likelihood, fail to comply with the requirement of paragraph 34 that the husband must be able and willing to support and accommodate her without recourse to public funds, but this is not necessarily so. She might well be able to show ability and willingness. Thus, far, whatever doubts may be raised by detailed examination of the language used, it is in my view clear that paragraph 34-36 were intended to secure that a wife should be admitted either: (a) if she intended to join and remain with a husband already settled here, or (b) if she came from her husband and intended, if he were admitted on an indefinite basis, to remain with him. The provisions of paragraph 38 throw further light on the intention. There are six situations in which a child under 18 is to be admitted for settlement: (a) if both parents are already settled. (b) if both parents are on the same occasion admitted for settlement. (c) [The relevant one in the present case] if one parent is settled here and the other is on the same occasion admitted for settlement. (d) if one parent is dead and the other is either already setled here or is on the same occasion admitted for settlement. (e) if one parent is settled here or is on the same occasion admitted for settlement and has had sole responsibility for upbringing of the child. (f) if the Secretary of State has authorised admission with or to join one parent or other relative because family or other considerations make exclusion undesirable, as for instance where the other parent is physically or mentally incapable of looking after the child. The first of these situations is the simple one of the dependant child coming to join both parents who are already settled. The second is the equally simple one of the child coming with both parents and both parents being aditted for settlement. This is clearly to prevent a dependent child being parted from his parents. The fourth is where the dependent child comes with or to join its only surviving parent. The fifth is where the child comes with or to join a parent who has been wholly responsible for his upbringing, and the sixth is to cover the case where a dependent child cannot be cared for by the overseas parent, but a parent or other relative can and will do so. The third situation (the one presently relevant) requires one already settled parent and the other being admitted for settlement on the same occasion. Assuming that the wife seeking entry is physically, mentally and financially able to look after the child but no longer wishes to do so, and wishes merely to hand the child over to the United Kingdom settled husband who is will and able to care for it, none of the first, second, fourth, fifth or sixth situations applies. It is, however, submitted that the third does, and that the mother is entitled to an entry clearance and must be admitted for settlement, notwithstanding that she has arranged at the outset either a return flight or a flight onwards to another country on the same day as her arrival, and has come merely to hand over the child in the Arrivals Concourse at Heathrow. She has, it is said, this right on proof of nothing more than being the wife of the United Kingdom settled husband. If she has, much of paragraph 38 is clearly without purpose or effect. Moreover, it would have been very simple to provide merely "the wife of a person already settled in the United Kingdom shall be entitled to a right of abode", for that is what the right contended for amounts to. She would, so long as the wife of a person settled in the United Kingdom be in the position of someone who, under section 1 of the Act, has such a right of abode. The persons having such a right are, however, specified by the Act and do not include the non-Commonwealth wife of a United Kingdom settled person, even if such a person is a citizen of the United Kingdom and Colonies or Commonwealth citizen. It is true that leave to enter would still be required, but it would be mandatory upon proof of the facts, just as a person claiming a right of abode must, if any question arises, establish the facts. To construe the provisions of HC 81 so as to give such a right would therefore, in my view, be inconsistent with the Act. In the light of this and the (as I think) plain intention of Part IV of HC 81 that wives are only to be given indefinite leave to enter if their intention is to make the United Kingdom their place of ordinary residence, I am unable to construe paragraph 36 as Mr Nicol would have us do. On no view can the language be regarded as clear. The case is clearly one for the application of a purposive construction and the purpose is clear. I do not set out the various steps in Mr Nicol's argument because they are fully dealt with in the judgment of Staughton LJ, which I have had the opportunity to read in draft, and because I have already accepted that they are forceful. For the reasons which I have set out I do not, however, consider that they cannot be allowed to prevail. I would dismiss the appeal.Judgment Three:
STAUGHTON LJ: The only remaining question in this appeal is whether Mr Purvez qualified for indefinite leave to enter the United Kingdom, notwithstanding that Mrs Bibi ("the mother") did not intend to settle permanently here when she arrived with him. The answer depends on the true meaning of paragraphs 36 and 38 of the Statement of immigration rules for control on entry (EEC and other non-Commonwealth nationals) of 25 January 1973 ([HC 81]. Paragraph 38 provides that children under 18 are to be admitted for settlement: "(c) if one parent is settled in the United Kingdom and the other is on the same occasion admitted for settlement". In April 1978, when application was made for entry clearance, Mr Purvez was aged 16; his father was settled in the United Kingdom, and the mother was applying for admission on the same occasion. So the question is whether she, in turn, qualified under paragraph 36: "The wife of a person who is settled in the United Kingdom or is on the same occasion being admitted for settlement is herself to be admitted for settlement . . ." Mr Ter Haar, for the Immigration Appeal Tribunal argues that the words "admitted for settlement" mean admitted with the object or purpose of being ordinarily resident here. He has the support of the Oxford English Dictionary, where one of the meanings of "for" is: "With the object or purpose of". The word "settled" is defined in sections 2(3)(d) and 33(1) of the Immigration Act, 1971 (since amended by the British Nationality Act, 1981) and in HC 81, so as to accord with Mr Ter Haar's argument; there has been no dispute that "settlement" means the process of becoming ordinarily resident in the United Kingdom for an indefinite period. Mr Nichol, for Mr Purvez, argues that "admitted for settlement" means admitted with indefinite leave to remain in the United Kingdom. In his submission, a person who is entitled to be admitted for settlement need not intend to reside here permanently, but is given the right to stay, if he chooses, for an indefinite period. So "for", in effect, means "with permission for". The legislative purpose of paragraph 38 is clear enough: children under the age of 18 should have a right to come to the United Kingdom if, but only if, both their parents are living here, or are about to live here, or if the sole surviving parent, or the only parent with responsibility for the child's upbringing, meets those requirements. Per contra, if a child has at least one functioning parent who does not live or propose to live here permanently, that child should not be granted indefinite leave to enter the United Kingdom. The question is whether the language of HC 81 achieves what I find to be its legislative purpose. Part II of HC 81 is headed "Passengers coming for temporary purposes". Part III, "Passengers coming for employment or business or as persons of independent means." And Part IV "Passengers coming for settlement". One would therefore expect that, in all three cases, the purpose or object of the applicant would be a relevant matter for consideration. However, the Part headings are only intended as a general guide to the detailed provisions which follow in each case, and cannot alter the meaning of those provisions if it is otherwise plain. Furthermore, as Mr Nicol observes, where the purpose of the passenger is clearly relevant to the decision of an immigration officer, that is stated in plain terms. [See for example paragraph 13 ("satisfied that no more than a visit is intended . . . reason to believe that the passenger's real purpose is to take employment"); paragraph 16 ("a passenger seeking entry to study in the United Kingdom") and paragraph 28 ("for the purpose of establishing themselves in the United Kingdom in business")]. By contrast, there is no express requirement in Part IV that the purpose or object of the passenger must be to reside here permanently, unless it is contained in the words "admitted (or admission) for settlement". But there are, in Part IV itself, instances where the immigration officer has to enquire into the purpose of the passenger, for some special reason. [See paragraph 43 ("a man seeking to enter the United Kingdom for marriage to a woman settled here"); paragraph 44 ("a man seeking temporary admission to the United Kingdom for marriage to a woman settled here") and paragraph 45 ("a woman seeking to enter to marry a man settled in the United Kingdom")]. If it had been intended that the application of Part IV should in general be confined to those who intend to reside in the United Kingdom permanently, it would not have been difficult to say so. And it is open to question whether such an intention can have been required for all the cases govered by Part IV. The object of the legislature was to control and restrict entry into the United Kingdom; but it was allowed that some persons should qualify for indefinite leave to enter. If those persons, despite the rights which are conferred upon them, decide that they wish to come for a temporary visit only, there is no mischief in that. As Mr Nicol put it, their greater right to settle permanently includes the lesser right to come on a visit. Thus in the case of wives (subject to a point on paragraph 36 which I shall mention later), parents and grandparents (paragraph 40), or returning residents (paragraph 46), no harm is done if the words "admitted for settlement" mean admitted for an indefinite period, which may be permanent or temporary as the passenger chooses. That such may well have been the general intention of Part IV is shown by paragraph 34: "Paragraphs 34-41 of these rules cover the admission for settlement of the dependants of a person who is already in the United Kingdom and settled here, or who is on the same occasion given indefinite leave to enter. In all such cases that person must be able and willing to support and accommodate his dependants without recourse to public funds." (My emphasis). The first sentence of that paragraph appears to be intended as a summary of paragraphs 35 to 41. But if Mr Ter Haar is right, and there is a difference between being given indefinite leave to enter and being admitted for settlement, it is not an accurate summary. In the case of wives and children, it should have read: "who is on the same occasion admitted for settlement". Being a summary, it does not necessarily have to be precisely accurate. However, the draftsman could easily have made it accurate, and it is surprising that he did not do so. On the other hand, if Mr Nicol is right and "admitted for settlement" means the same as "given indefinite leave to enter", it is surprising that the draftsman switched from the first phrase in paragraph 34 to the second in subsequent paragraphs. There is much to be said for Mr Nicol's argument that the various paragraphs of HC 81 deal first with the conditions which must be satisfied in a particular type of case, and then with the nature of the permission which should be granted if those conditions are satisfied. "Admitted for settlement" is, according to Mr Nicol, concerned only with the second part of the process. This argument receives its clearest support from paragraph 46: "A passenger returning to the United Kingdom from overseas . . . is to be admitted for settlement on satisfying the Immigration Officer that he was settled in the United Kingdom when he left and that he has not been away for longer than 2 years". In that case there are only two conditions to be fulfilled. If they are satisfied, Mr Ter Haar concedes that the passenger is entitled to indefinite leave to enter, whether he intends to stay permanently or for a short while. That concession produces the consequences, which any lawyer would find surprising, that the words "admitted for settlement" bear a different meaning in paragraph 46 from that which they bear, according to Mr Ter Haar, in paragraphs 36 and 38. The real difficulty arises because the same words were used for two different purposes in paragraphs 36, 38 and 39. They describe both a condition which is to be fulfilled by someone else (the husband or parent) and the consequence, if it is fulfilled, for the wife or child who wishes to enter. The general intention of paragraph 38 appears, as I have said, to be to restrict the entry of children to cases where both parents, or the only surviving or functioning parent, is actually living here. Four of the cases with which it deals are these: "(b) if both parents are on the same occasion admitted for settlement, or (c) if one parent is settled in the United Kingdom and the other is on the same occasion admitted for settlement, or (d) if one parent is dead and the other parent is settled in the United Kingdom or is on the same occasion admitted for settlement; or (e) if one parent is settled in the United Kingdom or is on the same occasion admitted for settlement and has had the sole responsibility for the child's upbringing . . ." To effect the apparent legislative intention in those four sub-paragraphs, "admitted for settlement" has to mean "admitted with the intention to reside permanently in the United Kingdom". A similar argument can be based on paragraph 36 itself. A wife is to be admitted for settlement if the husband is already settled here, or is on the same occasion admitted for settlement. Can it have been intended that the wife should have indefinite leave to enter if the husband did, even if the husband had no intention to stay? I suspect not. There is little or no hint of the equality of the sexes in HC 81; for a wife to be admitted for an indefinite period as the dependant of a husband who intends only a short stay does not seem consonant with its philosophy and general tenor. The point is clearer still in paragraph 39: "Generally, children aged 18 or over must qualify for admission in their own right; but, subject to the requirements of paragraphs 34 and 35 an unmarried and fully dependent son under 21 or an unmarried daughter under 21 . . ." [no equality there] "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". Suppose that parents arrive with their 20-year-old son; the parents are entitled to, and are granted, indefinite leave to enter, but they intend only a short stay. Can it really have been intended that the son should be granted indefinite leave to enter so that he should reside here permanently? I think not. That consideration of paragraphs 36, 38 and 39 compels me reluctantly to the conclusion that the words "admitted for settlement", when used as part of a condition wnhich must be fulfilled in relation to someone other than the passenger in question, mean admitted with intention to reside permanently in the United Kingdom. There is one further argument of Mr Nicol which must be mentioned. This arises out of the Statement of immigration rules (Commonwealth citizens), which was also laid before Parliament on 25 January 1973. Paragraph 41 provides: "The wife of a person who is settled in the United Kingdom or is on the same occasion being admitted for settlement is herself to be admitted for settlement if the requirements of paragraphs 39 and 40 are satisfied". I need not refer to paragraphs 39 and 40. The point made by Mr Nicol is this: If paragraph 41 contains a requirement, by virtue of the words "admitted for settlement", that the wife must have an intention to reside permanently in the United Kingdom, it is ultra vires. Should the wife alternatively seek entry as a visitor, she would be met by the requirements of paragraph 15 as to means of support and not intending to take employment. But Section 1(5) of the Immigration Act 1971 provides that: "The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed". By virtue of the Commonwealth Immigrants Acts 1962 and 1968, and notwithstanding the Immigration Appeals Act 1969, the wife of a Commonwealth citizen who was resident in the United Kingdom could not be refused entry, provided that she had an entry certificate, which must be granted. Mr Nicol seeks to make a similar point, if necessary, about the provisions of HC 79, which deal with returning residents and children. Mr Ter Haar does not accept that the provisions of HC 79 in question are ultra vires. Furthermore, he argues that the Court is concerned with HC 81, and should leave any difficulties over HC 79 to a case in which they actually arise. One would normally expect that the same words have been used in the same sense in each of two papers dealing with the same or a similar topic which are laid before Parliament on the same day. Mr Nicol referred us to the case of Courtauld v Legh (1869) LR 4 Exch 126, at 130 where Cleasby B said: ". . . it is a sound rule of construction to give the same meaning to the same words occurring in different parts of an Act of Parliament or other document". On the conclusions that I have reached, either the same words have different meanings in one and the same paragraph -- that is to say paragraph 41 of HC 79 -- or that paragraph is ultra vires. So too the words "admitted for settlement" have a different meaning in paragraph 46 of HC 81 (on Mr Ter Haar's concession) to that which they bear at least in paragraphs 36, 38 and 39 when used as part of a condition to be fulfilled by another or others. The strength of Cleasby B's presumption depends on the style, quality and qualifications of the draftsman. It is common in commercial cases to encounter documents which are not drafted by lawyers or with the skill and technique that are to be expected of lawyers. I do not know who drafted HC 81. It was, I suspect, intended to be comprehensible to ordinary people of modest educational attainment. In those circumstances, it seems to me that one should not give overmuch weight to legal rules of construction, but pay more attention to what I consider to be the intention and purpose of the document. Otherwise one would be requiring it to be ". . . couched in language that accords with the traditional, and widely criticised, style of legislative draftsmanship which has become familiar to English judges during the present century and for which their own narrowly semantic approach to statutory construction, until the last decade or so, may have been largely to blame". [Fothergill v Monarch Airlines Ltd [1981] AC 251 at page 280, per Lord Diplock]. I agree that this appeal should be dismissed.DISPOSITION:
Appeal dismissed. Leave to appeal to the House of Lords refusedSOLICITORS:
Sushma Lal, Manchester; Treasury SolicitorCopyright notice: Crown Copyright