Pinnock v. Entry Certificate Officer, Kingston, Jamaica

PINNOCK v ENTRY CERTIFICATE OFFICER, KINGSTON, JAMAICA, TH/2451/72(155).

Immigration Appeal Tribunal

[1974] Imm AR 22

Hearing Date: 24 May 1973

24 May 1973

Index Terms:

Children -- Child of unmarried and separated parents -- Whether entitled to admission if 'both parents resident in United Kingdom' but child joining the sponsoring parent (a Commonwealth citizen) only -- Immigration Appeals Act 1962, s 2(2A)(c) ; Cmnd 4298, para 38.

Held:

The appellant boy, a citizen of Jamaica born on 5.8.55, applied for an entry certificate on 8.9.71 to enable him to join his natural mother. His father and mother had separated when he was a week old on his father leaving Jamaica for the United Kingdom, and since January 1956 neither the appellant nor his mother had any further direct contact with his father. The appellant's mother came to the United Kingdom in 1962 and settled here with the husband she married in 1963. The appellant continued to reside with his maternal grandmother in Jamaica. His application for an entry certificate was refused under para 39 of Cmnd 4298 (on grounds not material to the present appeal). On appeal to an adjudicator it was contended for the appellant that if his father was in the United Kingdom as well as his mother the appellant had a right to admission under para 38(a) of Cmnd 4298 n1. The adjudicator found on a balance of probability that the appellant's father was still in the United Kingdom, but dismissed the appeal, holding that para 38 did not avail the appellant, because on a true construction para 38 was intended to facilitate the admission of a child who was seeking to come to the United Kingdom in order to be united with both his parents. On the appellant's further appeal to the Tribunal. Held: (i) dismissing the appeal, there was no evidence on which one could properly conclude that the appellant's father was resident in the United Kingdom; but (ii) approving the adjudicator's construction of para 38 of Cmnd 4298 n1, the intention of that paragraph was clearly that the child would be coming to this country to be united with both his parents n2. n1 Paragraph 38 of Cmnd 4298 reads as follows: "38. Children under the age of 16 are entitled to admission if at least one parent is a Commonwealth citizen and (a) both parents are resident in the United Kingdom, or (b) both parents accompany the child, or (c) one parent is accompanying the child and the other is already resident here. If one parent is dead, it is sufficient that the other parent is already resident here or is accompanying the child. Unmarried children aged 16 and under 18 may also be readily admitted in similar circumstances. 'Parent' includes a stepfather or stepmother, an adoptive parent, and the father as well as the mother of an illegitimate child." n2 The reasons for the construction adopted by the adjudicator are set out in an extract from her determination reproduced at footnote 6, on p 26, post.

Counsel:

C. O. Richards of the United Kingdom Immigrants Advisory Service, for the appellant. R. W. B. Hurley for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Dr. L. P. De Souza, Sir Gordon Whitteridge.

Judgment One:

THE TRIBUNAL: The appellant, Dennis Vesper Morales Pinnock, is a citizen of Jamaica born on 5 August 1955. He applied at the British High Commission in Kingston on 8 September 1971 for an entry certificate to enable him to join his mother Mrs Thelma Davis who lives in London, N15. When he made the application the appellant was accompanied by his maternal grandmother, Miss Maud Carty, with whom he lived and who had looked after him for the past 15 years. Miss Carty said that she last saw the appellant's father about 15 years before and the she did not know his present whereabouts. The appellant told the entry certificate officer that he visited his paternal grandfather very frequently and received clothes and pocket money from him. He also said that he received clothes and pocket money from other relations in the United Kingdom and that his mother had sent @ 5 a month to Jamaica for his maintenance for the last 12 years. His mother, however, when interviewed in London said that she did not send definite amounts to her son, only what she could afford. On this information the Secretary of State was not satisfied that Mrs Davis had had the sole responsibility for the appellant's upbringing or that there were any special circumstances which would render the appellant's exclusion undesirable. Paragraph 39 of Cmnd 4298 refers. The application was therefore refused. The appellant appealed to an adjudicator (Miss K. D. Phillips), and Mrs Thelma Davis gave evidence. She said that Dennis was born in 1955 and when he was a week old his father, Gilbert Pinnock, left for the United Kingdom. He told Mrs Davis that he was leaving for England and would send money for Dennis but he never sent any money and she never heard from him again. Mrs Davis qualified this later in her evidence when she said that Gilbert Pinnock sent for the appellant's birth certificate in January 1956 because he wanted to claim Income Tax relief. She sent the certificate in February 1956 but she could not remember the address except it was in Birmingham. The witness came to the United Kingdom in 1962, married Mr Davis in 1963, and has 3 children by him. Mr Richards, who also appeared for the appellant at the hearing before the adjudicator on 14.11.72, referred to a letter sent by him to the adjudicator's clerk on 7.11.72. In it he said that he had been informed by Mrs Davis: -- (a) that the Home Office had a letter or letters which confirmed that the appellant's father lives in the United Kingdom; (b) that the appellant's father and his paternal randmother went to Janaica for a holiday and returned to the United Kingdom after that holiday; (c) that a son called Philroy lives in the United Kingdom with his father. Mr A.J.T. Robinson of the Home Office put in a memorandum in answer to these three matters. The answers were: -- (a) There is no letter (or letters) on Home Office files confirming that the appellant's father is in the United Kingdom; (b) there is nothing in Home Office files stating that the appellant's father and paternal grandmother visited Jamaica for a holiday and returned to the United Kingdom; in a memorandum by the E.C.O. to the Home Office asking for Mrs Davis to be interviewed the E.C.O. mentions that he was told that the paternal grandmother had visited Jamaica and had said that the appellant's father was in the United Kingdom; (c) there was no first hand knowledge of this, only what the E.C.O. was told. In her determination the adjudicator said that she could not find on the evidence that Mrs Davis has had or even wanted to have the sole responsibility for the appellant. Accordingly the appeal failed under para 39 or Cmnd 4298. The adjudicator then considered Mr Richard's alternative submission that Dennis should be admitted under para 38(a) of Cmnd 4298 because there was sufficient evidence to show on the balance of probabilities that his father Gilbert Pinnock was in the United Kingdom n3. Miss Phillips considered that evidence and came to the conclusion that on the balance of probability Gilbert Pinnock was in this country and was resident here for the purpose of the immigration law. n3 Paragraph 38 of Cmnd 4298 is set out in footnote 1, ante. Two further questions then arose, (1) Was it established that Gilbert Pinnock was Dennis's father? and (2) Would his presence here entitle Dennis to be admitted under s 2(2A) of the Act of 1962 as amended and para 38(a) of Cmnd 4298? As to (1) Miss Phillips said she was satisfied that she could accept Mrs Davis's evidence as the appellant's paternity. As to (2), construing para 38 of Cmnd 4298 as a whole, the adjudicator said it seemed to her that in provisions (a) (b) and (c) of the paragraph the intention is clearly that the child is coming to be united with both his parents. Miss Phillips gave her reasons in detail n4 for this construction and found the appellant's alternative claim to admission under para 38 to be ill-founded. n4 The adjudicator's reasons are set out in footnote 6, post. The appellant applied to the Tribunal for leave to appeal on the following grounds: -- "1. The adjudicator misdirected herself when exercising the discretion contained in para 38 of Cmnd 4298. 2. The rule is in clear terms and must be construed in its natural meaning. 3. The word 'join' does not appear in the Section (of the Act of 1962), nor does it appear in the rule. See s 2(2A) of the Act as well as para 38 of Cmnd 4298." n5 n5 Section 2(2A) of the Commonwealth Immigrants Act 1962, as amended, provides that a child under 16 who has at least one parent who is a Commonwealth citizen shall not be refused admission if he satisfies an immigration officer -- "(c) either that both his parents are resident in the United Kingdom, or that both of them are entering or seeking to enter the United Kingdom with him, or that one of his parents is resident in the United Kingdom and the other is entering or seeking to enter the United Kingdom with him." Paragraph 38 of Cmnd 4298 paraphrases s 2(2A)(c) , with an additional provision intended to benefit a child one of whose parents is dead, and to extend the right of entry in similar circumstances to children under 18 years of age. Paragraph 38 is set out in full in footnote 1, ante. Leave to appeal was granted. Mr Richards for the appellant said that the appeal was mainly on entitlement for admission under para 38 of Cmnd 4298, and in fact he did not address any arguments to the Tribunal to show that the appellant was entitled to admission under paragraph 39 because Mrs Davis had had sole responsibility for his upbringing. Mr Richards submitted that the appellant is unmarried and between 16 and 18 years of age, he is the son of Gilbert Pinnock, and the adjudicator had accepted that Mr Pinnock is resident in this country for the purpose of the immigration law. The appellant therefore has both parents here, and Mr Richards submitted that paragraph 38 is quite clear and unambiguous and does not require the help of canons of construction. Mr Hurley for the respondent said that there are two issues in this appeal. Is Mr Pinnock in this country and if so, can he be taken to be a parent under the terms of paragraph 38? As to the first issue Mr Hurley referred to the evidence and submitted that the evidence that Gilbert Pinnock is in the United Kingdom was far from conclusive and it would need stronger evidence to conclude, even on the balance of probabilities, that he is still in the United Kingdom. Mr Hurley also submitted that the adjudicator came to a correct decision on the interpretation of para 38 of Cmnd 4298. The evidence that Mr Gilbert Pinnock is in this country is as follows: The appellant told the entry certificate officer that his paternal grandfather had told him that Mr Pinnock was living in the United Kingdom, and in a letter which the entry certificate officer saw the appellant's mother confirmed that this was so although she said she had not seen him since the appellant was a week old and she did not know his whereabouts. In her evidence Mrs Davis said that Gilbert Pinnock left for England when the appellant was a week old; his mother Miss Estella Pinnock, who had come to the United Kingdom previously, had sent for him. An official of the Jamaican High Commission interviewed Mr Pinnocks' mother in Bath on 25.11.72 and explained why the High Commission wished to locate her son but the lady was most unco-operative and said it was neither a High Commission affair nor hers. In the end she did bend a little and say that if she saw her son she would ask him to get in touch with the High Commission. Apart from the interview with Miss Pinnock no effort appears to have been made to ascertain the whereabouts of Gilbert Pinnock. It is well known from the figures published in the press that many West Indians return each year to their homes in the West Indies. In our opinion there is no evidence on which one could properly conclude that Gilbert Pinnock is resident in this country. It he is still alive he might indeed be anywhere. It is for this reason that we dismiss this appeal. Though this appeal is dismissed for the reason given, we wish to add that in our view the adjudicator was right in her construction of para 38 of Cmnd 4298. We agree that the intention of the paragraph is clearly that the child is coming to be united with both his parents. n6 n6 The adjudicator's reasons for the construction adopted are set out in the following extract from her determination, d. 14.12.72: -- "On a narrow construction of s 2(2A)(c) of the Commonwealth Immigrants Act 1962 as amended, and para 38(a) of Cmnd 4298 [the terms of which appear in footnotes 1 and 5, ante], it can be argued that all that need be established by a child seeking entry is no more than that both his natural parents are resident in this country. Such a construction would, however, ignore the intention which in my view is implicit in the section, and in para 38 regarded as a whole, namely to facilitate the uniting of a child with both his parents if at least one of them has a residential qualification in this country. Construing para 38 as a whole it becomes evident that under provision (a) the child can travel to the United Kingdom alone only because both his parents are already resident here; under (b) both parents must accompany him -- this imports that they form a family unit with a right of residence, under (c) a parent who is not already resident (e.g. a mother) may be admitted with the child if the other parent is already resident here -- this imports that the parent and child are joining the other parent. And if one looks at the sentence which follows (a), (b) and (c) , namely:

'if one parent is dead, it is sufficient that the other parent is already resident here or is accompanying the child'

it becomes clear that the child is not to be penalised because there cannot be two parents to join. Nobody would contend that this latter sentence could be interpreted to mean that a child whose only surviving parent was already in this country (and therefore unable to 'accompany' him on the journey here) would be entitled to come to this country by reason of that parent's residence but not necessarily to join that parent. Similarly it seems to me that in (a) (b) and (c) the intention is clearly that the child is coming to be united with both his parents. I find support for this construction of para 38 in the terms of paras 39 and 40, both of which are also included under the general heading 'Children'. Paragraph 39 provides for the admission of a child 'in company with or to join only one parent' (my italics) -- this is obviously stated as an exception to the general rule under para 38, and in my view imports that under para 38 the child would be joining both paren)s. And I do not consider that the reference to the other parent being resident outside the United Kingdom necessarily precludes this interpretation, for para 39 is merely stating what the likely circumstances would be which would justify the child's exceptional admission. It is perhaps worth noting that the second part of para 39 dealing with 'family or other considerations' (not in issue in the present case) does not in any way specify that 'the other parent' must be resident outside this country, and in a proper case it would be possible for a child to qualify for admission when such other parent was actually in this country. Indeed the fact that this would be possible suggests to me that where both parents, though not cohabiting, are resident in this country, a case for the admission of their child to join the sponsoring parent here should be considered (if the other family factors justify it) under this paragraph and not under para 38; in other words, the conduct of that 'other parent' wherever he may be might be one factor in the hardship which underlines the qualifying words 'family or other considerations' and which is being assessed for the child applicant. Turning now to para 40 for further support for the construction of para 38 which I have suggested, I find that the completion of the family unit is the underlying intention, but because the 'children' are over 18 the qualifying conditions for admission are made more onerous inasmuch as, inter alia, 'the whole family' must be settling in this country, i.e. siblings as well as both parents (or the surviving parent). Applying to the present appeal the construction of paragraph 38 of Cmnd 4298 which I have adopted, I hold that I cannot on the facts of this case allow this appeal by reason only of the residence in this country of both Dennis's parents. They have been separated since his birth more than 16 years ago and Mr Gilbert Pinnock has played no part in Dennis's life, and it would appear he has no wish to do so. In these circumstances he cannot be a sponsoring parent and, if I may venture to regard this question from a purely commonsense point of view, it seems to me that his presence in this country is a fortuitous but irrelevant matter when considering the admission of his child to join its natural mother."

DISPOSITION:

Appeal dismissed.