Sampson v. Secretary of State for the Home Department

SAMPSON v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/2388/72(167)

Immigration Appeal Tribunal

[1974] Imm AR 27

Hearing Date: 7 June 1973

7 June 1973

Index Terms:

Practice and procedure -- Application for revocation of conditions of entry as visitor -- Single woman applying to remain in United Kingdom permanently -- Compassionate grounds advanced -- Parents admitted for settlement during daughter's prolonged visit -- Whether application should be considered under rules relating to Commonwealth citizens seeking entry, or under rules relating to control of Commonwealth citizens after entry -- Cmnd 4298, para 40; Cmnd 4295, para 7 -- Immigration Appeals Act 1969, s 8(1).

Held:

The appellant was a citizen of India born on 1.9.47. She entered the United Kingdom as a visitor for 6 months in June 1969. In October 1969 she applied for an extension of stay on compassionate grounds, namely to help her brother's wife who was blind and had two young children; the appellant had obtained secretarial employment which enabled her to support herself. The application was refused under para 7 of Cmnd 4295 n1, but subsequently an extension was granted to enable the appellant to finalise arrangements for emigration to Canada. Later in 1970 she decided against emigration and expressed a wish to remain permanently in this country to care for her brother's wife. In December 1970 her brother's wife died, and in 1971 the appellant's parents were granted entry certificates to enable them to join their son and care for his children. In September 1971 the appellant renewed her application for permanent residence, claiming that her parents were now in the United Kingdom and that as their unmarried daughter she had no one to return to in India. Her application was refused on the grounds that she was "over 21 years of age, self-supporting and was living independently of the remainder of her family". n1 Paragraph 7 of Cmnd 4295 is set out on p 29, post On her appeal to an adjudicator the appellant's case was considered and dismissed on its facts under para 40 of Cmnd 4298 n2. The appellant appealed to the Tribunal, who found that she wished to stay in the United Kingdom in permanent employment. n2 Paragraph 40 of Cmnd 4298 is set out on p 29, post. Held: (dismissing the appeal), the appellant's case fell to be considered under Cmnd 4295, as her application to remain here as a permanent resident had been made subsequent to her arrival; paragraph 7 of Cmnd 4295 explicitly provided that a Commonwealth citizen admitted as a visitor could not stay here permanently in employment; accordingly, though the Tribunal did not agree with the reasons given by the adjudicator, his decision was in accordance with the law and the immigration rules because there was a rule specifically applicable to the case n3. n3 See s 8(1) of the Immigration Appeals Act 1969, and the similar section in the Immigration Act 1971, s 19(1). Gomas v Secretary of State for the Home Department ([1972] Imm. A.R. 131) followed.

Counsel:

M. I. Hill for the appellant. R. W. B. Hurley for the respondent PANEL: P. N. Dalton Esq (Vice-President), L. Golding Esq, Sir John Rankine.

Judgment One:

THE TRIBUNAL: The appellant, Miss Eunice Sampson, is a citizen of India born on 1 September 1947. She arrived at London Airport on 22 June 1969 and was admitted as a visitor for 6 months. On 15 October 1969 she wrote to the Home Office asking for an extension of stay on compassionate grounds to enable her to help her sister-in-law who she said was blind and had two small children. Miss Sampson also said that she had secured a good job earning @ 18 a week as a secretary and so was well able to support herself. The appellant's application was refused as she had been admitted as a visitor and so was not qualified to remain here in employment. On 28 February 1970 the appellant wrote to the Home Office enclosing a letter from the Canadian High Commission which indicated the likelihood of her being accepted as an immigrant to Canada, and in view of this her stay was extended to 30 June 1970 to enable her to finalise her arrangements for emigration. However when the Home Office wrote to the appellant's solicitors in August 1970 in order to clarify the position, they replied that the appellant wished to remain permanently in the United Kingdom to care for her sister-in-law and that the question of emigration to Canada did not arise. The appellant's sister-in-law died in December 1970, and a member of the Welfare Department of Haringey Borough Council telephoned to say that the appellant must now look after the children. A member of the same department telephoned the Home Office again in July 1971 to say that the appellant's brother intended to apply for his own parents to come to the United Kingdom from India to look after the children, and Home Office records show that in June 1971 the sponsor's parents had been exceptionally granted entry certificates to enable them to join their son for compassionate reasons. On 14 September 1971 the appellant renewed her application for permanent residence so she could be with her parents, and she said that she now wanted to remain here on compassionate grounds, as she had no one to return to in India. The Secretary of State refused her application as she had no claim to remain here under the immigration rules being over 21 years of age, self-supporting, and living independently of the remainder of her family. Miss Sampson appealed to an adjudicator, stating that her "whole family" were in England and asking that she be allowed to stay on compassionate grounds n4. She gave evidence before the adjudicator (Mr W. Phillips) and also put in a statement of the facts setting out the compassionate circumstances of her case n5. n4 Form APP 101C dated 22.9.71. n5 In evidence before the adjudicator on 31.10.72 the appellant said that one of her 3 brothers emigrated to Australia with his wife and child 'about a month ago'; a third brother was here as a student nurse and would, she supposed, be returning to India in 2 years' time. In his determination the adjudicator set out the facts of the case and also the provisions of para 40 of Cmnd 4298, on which he said the appellant's case for permanent residence could only be based. This paragraph reads as follows: --

"40. As a general rule persons of 18 or over must qualify for admission in their own right, for example as the holders of employment vouchers or as students. But exceptions may be made. For example, it will be proper to admit an unmarried and fully dependent son or unmarried daughter under 21 who formed part of the family unit overseas if the whole family is coming to settle in the United Kingdom; or to admit a widowed daughter of any age who is dependent on a parent in this country if the parent undertakes to provide for the widow and her dependents."

The adjudicator said that the appellant, who seemed to him to be an intelligent and determined young woman, had accepted that she was not financially dependent on her parents and he thought that she had effectively separated herself from them in 1967. In the circumstances of the case Mr Phillips thought that Miss Sampson did not meet the requirements of para 40 and so dismissed her appeal. Miss Sampson applied to the Tribunal for leave to appeal on grounds which the Tribunal, in granting leave, described as lengthy and based on compassionate grounds. Mr Hill at the hearing said that he had to show that the appellant comes within the ambit of para 40 of Cmnd 4298. He submitted that the appellant is part of a family unit all of whom are in the United Kingdom and she has now no home or prospects in India. Mr Hurley submitted that none of the provisions in Cmnd 4298 applied and that as the appellant was admitted as a visitor Cmnd 4295 applies. Command Paper 4295 sets out the rules for the control of Commonwealth citizens after entry into this country. Miss Sampson was admitted as a visitor on 22 June 1969 and her application to remain here as a permanent resident had been made subsequent to her arrival. In our view the appellant's case falls to be considered under Cmnd 4295 and not, as the adjudicator said, under para 40 of Cmnd 4298. In her written statement Miss Sampson says that she is employed as a shorthandtypist in a bank, and we have no doubt that she wishes to stay in this country in permanent employment. However, para 7 of Cmnd 4295 is explicit. It states: --

"7. A Commonwealth citizen admitted as a visitor cannot stay here permanently in employment. Commonwealth citizens coming to settle and take employment in the United Kingdom are admitted only if they hold vouchers issued to them by the Department of Employment... before they come."

Therefore, while we do not agree with the reasons given by the adjudicator for his decision we are of opinion that his decision was in accorance with the law and rules because there is a rule which specifically applies to the case. The case of Gomas v The Secretary of State for the Home Department is relevant. n6 n6 [1972] Imm AR 131; TH/841/71

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Branston & Hill; Leicester.