Entry Certificate Officer, Lahore v. Abdullah

ENTRY CERTIFICATE OFFICER, LAHORE v ABDULLAH, TH/1070/71(109)

Immigration Appeal Tribunal

[1973] Imm AR 57

Hearing Date: 15 February 1973

15 February 1973

Index Terms:

Dependent parent -- Father aged 67 with second wife -- Not dependent on sponsoring son at time of refusal of entry certificate -- Whether subsequent change in parent's circumstances could be considered on appeal -- Cmnd 4298, para 42 -- Immigration Appeals Act 1969, s 8(1).

Dependent parent -- Accommodation available to sponsor -- Adequacy of accommodation in own house -- Overcrowding and fitness standards of local authorities for houses in multiple occupation -- Alternative accommodation not under sponsor's control -- Cmnd 4298, para 42.

Practice and procedure -- Adjudicator's task when hearing appeals against decisions of immigration authority -- Evidence of facts occurring subsequent to refusal of entry certificate -- Changes in appellant's circumstances not considered by entry certificate officer -- Whether changed circumstances relevant fact on appeal to adjudicator -- Immigration Appeals Act 1969, s 8(1) -- Cmnd 4298, para 42.

Held:

The respondent ('A') sought admission to the United Kingdom as the dependent father of a son who was settled in this country. At the time of his application for an entry certificate and its refusal by the appellant ('the entry certificate officer') in 1970 A was 67 years old and living with his second wife. He owned 8 acres of land, from the profits of which he maintained himself, his wife, another son and the latter's family; he also at times received odd sums of money from his sponsoring son. On A's appeal to an adjudicator in September 1972 evidence was produced to show that during the past 2 years A had become increasingly dependent on his sponsoring son, inter alia because his land was now being farmed by someone who paid no rent but gave him half the produce; A's sponsoring son was also sending larger sums to Pakistan for his father's use. The adjudicator found (i) on this new evidence, that A had since the refusal of his application become "mainly dependent" on his sponsoring son and should be admitted; and (ii) that accommodation in the sponsor's own home in Glasgow was not adequate for A and A's wife, but that satisfactory arrangements had been made to accommodate them in a rented room nearby. The adjudicator held that the requirements of Cmnd 4298, para 42, had been fulfilled n1 and he allowed A's appeal. n1 Pararaph 42 of Cmnd 4298 is set out on p 61, post. On the appeal of the entry certificate officer to the Tribunal, Held: (i) (allowing the appeal), (a) evidence of subsequent facts which if before the entry certificate officer might have influenced his decision by indicating some change in the applicant's original circumstances should normally form the basis of a further application; (b) on the evidence before him the entry certificate officer's decision was in accordance with the law and the immigration rules applicable; and (c) even if relevant, the evidence of subsequent facts showed at best that A was to some extent dependent on his sponsoring son, but he was not wholly or mainly dependent on him under para 42 of Cmnd 4298 n1. n1 Paragraph 42 of Cmnd 4298 is set out on p 61, post. Secretary of State for the Home Department v Purushothaman ([1972] Imm A R 176) explained, (at p 61, post). (ii) the arrangements for rented accommodation nearby hardly established that A's sponsoring son had adequate accommodation available n2; and as to the adequacy of the accommodation in the sponsor's own house the further evidence (produced by leave of the Tribunal) of a local authority in another part of the country could not be accepted on the standard of fitness and overcrowding to be applied for houses in multiple occupation, because the standard varied from one local authority to another and no evidence had been produced as to the requirements of Glasgow Corporation in this respect n3. n2 See in this connection Francis v Secretary of State for the Home Department, [1972] Imm A R 162, at p. 167. n3 See p 62, post and footnote 9.

Counsel:

R. W. B. Hurley for the appellant. R. A. Hashmi of the United Kingdom Immigrants Advisory Service, for the respondent. PANEL: Sir Derek Hilton (President), G. J. Brown Esq, A. S. W. Newman Esq.

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr I. M. S. Donnell) allowing the appeal of the respondent against the refusal to grant him an entry certificate to enable him to join his son, Mr Fazal Mohammad, in the United Kingdom. The respondent Mr Mohammad Abdullah, who is stated to have been born on 12 October 1903, is a citizen of Pakistan. He applied for an entry certificate at Lahore on 15 October 1970 and produced a number of documents in support of his application. According to the appellant's explanatory statement the respondent first told him that he wished to settle in this country with his son, but later during the interview the respondent said he wished to visit his son for six months or a year but if he like the United Kingdom he would stay here. The respondent was living with his second wife and he had a married son and a married daughter in Pakistan. He was supporting that son who was then unemployed. The respondent owned some land from the profits of which he maintained himself and his wife and also his son and family. The respondent said that Mr Fazal Mohammad had sent him money at times but he was not then dependent on his son. According to the son's income tax notice of coding for 1969-70 which the respondent produced the son was not claiming relief for any dependent relative. After considering the evidence the appellant refused the application as he was not satisfied that the respondent was wholly or mainly dependent on Mr Fazal Mohammad. Mr Mohammad Abdullah appealed against this decision. At the hearing of the appeal before the adjudicator, Mr Fazal Mohammad represented his father and gave evidence. The adjudicator allowed the respondent's appeal concluding his determination as follows: -- "There is no doubt that at the time of application for the entry certificate the appellant was not wholly or mainly dependent on the sponsor. However, that was two years ago and in the intervening period the appellant, who is now 69 years of age, has become increasingly dependent upon the sponsor. Mr Mohammad, the sponsor, has produced receipts for varying amounts of money he sent to Pakistan dating back to 1967 and although he admitted that not all of his money would have gone to his father he stated that a good proportion of it did. More recently he sent @ 200 to the appellant, on 9 June 1972, through the Habib Bank, as was evidenced by the letter Ex. A.1, and he also produced a letter from his father (Ex. A.2) which showed that his father was relying on the money which he was sending. Mr Mohammad stated that the appellant does not now receive rent from the land which he owns but does receive one half of the produce from it. It seems to me that Mr Mohammad has shown concern for his father's welfare and he has produced evidence of sending considerable sums of money to Pakistan for his maintenance. In the circumstances I am prepared to hold that the appellant is mainly dependent upon him. As regards the question of accommodation, Mr Mohammad, the sponsor, owns a three-room and kitchen house but as he has a wife and four children I do not consider that he can accommodate the appellant also. He has however made arrangements to take on let accommodation for the appellant which would be sufficient for both the appellant and his wife if she should wish to accompany him. The appellant's other son, Mohammad Aslam, is now 26 years old and as I understand it he would not be admissible as a dependent of the appellant. It is not necessary therefore for the sponsor to show that there is accommodation for him. I consider that the requirements of para 42 of Cmnd 4298 are now fulfilled. n4 I therefore allow the appeal and direct that the appellant be given an entry certificate to come to the United Kingdom for permanent settlement as the dependent parent of the sponsor." n4 Paragraph 42 is set out on p 61, post. The adjudicator granted leave to appeal to the Tribunal. At the hearing of the appeal before us Mr Hurley requested leave to amend his ground of appeal and this application was granted. The amended grounds of appeal read: -- "The adjudicator failed to interpret correctly the provisions of para 42 of Cmnd 4298, in so far as they relate to the provision of adequate accommodation and in holding that the respondent is mainly dependent on the sponsor." n4 n4 Paragraph 42 is set out on p 61, post. Mr Hurley accepted that the respondent was over 65 years of age and that the sponsor had sufficient means at his disposal to support the respondent in this country. He did not accept that the respondent was mainly dependent on the sponsor or that the latter had adequate accommodation for his father. He made the following submissions to us: -- (1) Dependence implied reliance on another person. The adjudicator had accepted that the respondent was not wholly or mainly dependent on the sponsor when his application was refused. Since then the sponsor had made payments to his father and had said in evidence that the respondent had ceased to let his land on rent (some 8 acres) but that a relative was farming it and giving him half the produce, some of which he sold. The respondent was also continuing to support his son in Pakistan. The situation had not materially changed. If the Tribunal was minded to allow the appeal he asked for guidance as to whether it was proper and permissible for an adjudicator, in considering an appeal under s 8(1)(a)(i) of the Immigration Appeals Act 1969, to take into account evidence of facts which occurred after the date of the refusal and which were therefore unavailable to the entry certificate officer. n5 n5 See in the Immigration Act 1971, s 19(1)(a)(i). (2) To have adequate accommodation under para 42 of Cmnd 4298 a sponsor must be in a position to control it effectively if it was not in his own house. There was no evidence that the sponsor had any control over the room in Mr Siddique's house which was to be available for the respondent. At Mr Hashmi's request we agreed to hear further evidence from Mr Fazal Mohammad about available accommodation. In evidence Mr Mohammad confirmed the accommodation in his house 12 Albert Drive and he gave us the approximate sizes of the rooms. He said that the room he had rented from Mr Siddique for his father was nearby. He was paying @ 3 a week for this room unfurnished and understood that the arrangement could be terminated on 2/4 weeks notice by either party. He was not able to produce a rent book but he showed us a letter from Mr Siddique dated 15 September 1972 stating that he had let a room in his house to Mr Fazal Mohammad for the respondent's use. Mr Hashmi produced to us a letter from the Medical Officer of Health of Huddersfield dated 17 March 1971 setting out the overcrowding standards under the Housing Acts which had been approved by his Council, and Mr Hashmi argued that the size of rooms in the sponsor's house might well satisfy the requirements and enable the respondent to live in the house. If not the arrangements which had been made with Mr Siddique were temporary as the sponsor intended to obtain a larger house. Mr Hashmi submitted that the adjudicator was entitled to consider all further evidence up to the date of his determination. The respondent had recently had to get a relative to farm his land and he was becoming more dependent on his son. To succeed in his application the respondent had to satisfy the requirements of para 42 of Cmnd 4298, which reads: -- "42. Widowed mothers, fathers and mothers aged 65 or over, and parents traveling together of whom at least one is aged 65 or over, should be admitted for settlement provided that they hold entry certificates granted for that purpose. The Secretary of State will authorise the issue of entry certificates if satisfied that such parents are wholly or mainly dependent upon children settled in the United Kingdom who have sufficient means at their disposal, and adequate accommodation, to support both the parents and any other relatives admissible as their dependants. If a parent has re-married, an entry certificate will not be issued unless -- (a) he or she cannot look to the spouse or children of the second marriage for support; and (b) 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 that would be admissible as dependants." n6 n6 See the closely similar provisions in H.C. 79 at para 45, which applies to the admission of parents and grandparents of sponsors in this country. It has been accepted that the respondent is over 65 years of age and that his son has sufficient means at his disposal to support him in this country. The appellant was not however satisfied (inter alia) that the respondent was wholly or mainly dependent on the sponsor or that the sponsor had adequate accommodation for the respondent. On the question of dependence the adjudicator found that at the time of his application the respondent was not wholly or mainly dependent on the sponsor but that evidence of payments of money by the sponsor particularly since the date of refusal showed that the respondent was relying on such money, and in consequence the adjudicator was prepared to hold that at the date of the appeal the respondent was mainly dependent on his son. In ruling in the appeal of the Secretary of State for the Home Department v Purushothaman n7 that an adjudicator in coming to his decision must take into consideration all the evidence, including any further evidence, before him and for that purpose might review any determination of a question of fact on which the original decision was based, the Tribunal in our view had in mind, as a matter of general principle, evidence which was in existence but which was not before the immigration officer when he made his decision. Evidence of subsequent facts which if before the immigration officer might have influenced his decision by indicating some change in the applicant's original circumstances should normally form the basis of a further application. In this case we are satisfied that on the evidence before him the appellant's decision was in accordance with the law and the immigration rules applicable. Further we are not satisfied that the subsequent evidence, if relevant, shows that the respondent is wholly or mainly dependent on his son in this country. It seems to us, at best, to show that he was to some extent dependent on the sponsor. n7 [1972] Imm A R 176; TH/2398/71 d. 15.12.71. Although in view of our finding on dependence it is not necessary for us to consider the question of accommodation, nevertheless we express the opinion that we should find it difficult to accept that the arrangements stated to have been made with Mr Siddique established that he sponsor 'had' adequate accommodation available for his father. n8 We cannot accept the letter from the Medical Officer of Health of Huddersfield as relevant as he admits that standards of fitness and overcrowding for houses in multiple occupation vary from one authority to another. The sponsor's house is in Glasgow and there is no evidence before us as to the requirements of Glasgow Corporation in this respect. n9 n8 See Francis v Secretary of State for the Home Department, [1972] Imm A R 176. n9 Writing on 19.3.71 the Medical Officer of Health of the County Borough of Huddersfield stated, inter alia, that so far as overcrowding was concerned the standard applied for an ordinary dwelling house occupied as such was the standard set out in schedule 6 to the Housing Act 1957. He concluded his letter with the following words: --

"As far as I am aware, standards of fitness and overcrowding in dwelling-houses apply to all Local Authorities, but the standards relating to multiple occupation may vary from one Authority to another. Possibly Leeds or Bradford, who will also have many such houses, have quite different standards. I have only listed those that apply within the County Borough of Huddersfield, and trust that the information will be of interest."

For these reasons we allowed the appeal.

DISPOSITION:

Appeal allowed.

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.