Mokhopadhyay v. Entry Clearance Officer, Calcutta
MUKHOPADHYAY v THE ENTRY CLEARANCE OFFICER, CALCUTTA, TH/2183/73(315)
Immigration Appeal Tribunal
 Imm AR 42
Hearing Date: 13 August 1974
13 August 1974
Distressed relative -- 'distressed' as defined in immigration rule -- Standard of living of applicant -- Whether for purposes of comparison regard may be had to standard of living enjoyed by applicant's family and friends in his own country -- HC 79, para 46 -- (HC 509, para 44).
Distressed relative -- 'isolated' and 'distressed' as defined in immigration rule -- Whether factors showing applicant to be 'isolated' relevant when considering whether applicant 'distressed' as defined -- HC 79, para 46 -- (HC 509, para 44).
Held:The words in para 44 of HC 509 which appear in brackets immediately after the word 'distressed' viz "(that is, having a standard of living substantially below that of his own country)", n1 were intended to define 'distressed' in a narrow sense for the purposes of immigration control; they were not intended to provide just an example of distress; but in construing the words in individual cases regard must be had to the applicant's circumstances and to those of his family and of the circle in which he moved in order to make a realistic comparison of their respective standards of living and to ascertain if the applicant's 'standard of living' had fallen 'substantially below' that of his relatives and friends. n1 The same words appeared in brackets in para 46 of HC 79, the immigration rules which replaced HC 509. The Tribunal so held when dismissing on its facts the appeal of a 74 years old Indian citizen who had applied for entry clearance in order to join his nephew, a doctor practising medicine in the United Kingdom.
Counsel:N. Mookerjee of the United Kingdom Immigrants Advisory Service, for the appellant. R. W. B. Hurley for the respondent. PANEL: Sir Derek Hilton (President), G. J. Brown Esq, Miss M. F. Hardie.
Judgment One:THE TRIBUNAL: The appeal was against the determination of an adjudicator (Miss K. D. Phillips) dismissing the appellant's appeal against the refusal to grant an entry certificate to enable the appellant to join Dr A. K. Mukhopadhyay (the sponsor) in this country for settlement as his dependent uncle. The appellant, a citizen of India born in 1898, applied for an entry certificate in June 1972 and produced a number of documents in support of his claim that he was dependent on the sponsor. The facts relating to the application are set out in the Home Office statement as follows: -- "2. The appellant told the entry certificate officer that he had taken over the responsibility of the nephew's father (i.e. the appellant's brother) in bringing up and educating the nephew. In correspondence the nephew confirmed this and said that he felt it was now his duty to care for his uncle, now that he was retired. It was stated that the appellant had been living at the home of his nephew and wife until he had gone to the United Kingdom and his wife had joined him in February 1972. Paragraph 2 of Appendix 2 states that the appellant 'lived as a dependant on his nephew Dr A. K. Mukhopadhyay, since January 1970 till his departure for the United Kingdom in October 1971, thereafter on his nephew's wife, Dr Bharati Mukhopadhyay, MD, till her departure for the United Kingdom in February 1972 and was living in their flat...' 3. The application was referred to the Home Office for enquiries of the sponsor and in September 1972 Dr Asit Kumar Mukhopadhyay was interviewed by a Police Officer in connection with it. The Police Officer reported that Dr Mukhopadhyay and his wife were both doctors at Leicester Royal Infirmary with a total nett monthly salary in the region of @ 300. The sponsor said that he had been sending @ 15 per month to his uncle and produced documentary evidence of this. The sponsor, his wife and young daughter lived in a house rented from the hospital authorities, and the Police Officer considered that the sponsor would be able both to support and accommodate the appellant suitably. It was not intended that the appellant should take employment due to his age. Of the appellant Dr Mukhopadhyay said that he was a bachelor, lived at present alone in rented accommodation and was supplied with meals by a brother of Dr Mukhopadhyay." The application was considered under para 43 of Cmnd 4298 and refused on 19 January 1973 in the following terms: --
"You have applied for an entry certificate to enable you to travel to the United Kingdom to join your nephew for permanent settlement but I am not satisfied that you either form part of a family unit whose other members are in the United Kingdom or that you are in need of care and attention with no relatives in your own country to whom you could turn."When the appellant's appeal came before the adjudicator the respondent's representative said that the refusal should more properly have been related to para 44 of HC 509 which was the operative law at the time of refusal on 19 January 1973. n2 Miss Phillips accordingly considered the appeal under that paragraph. n2 The immigration rules HC 509 were in operation only during January 1973. They were replaced on 30.1.73 by HC 79, para 46 of which contained provisions for the admission of 'distressed relatives' which resembled closely the provisions of para 44 of HC 509. It was conceded by the respondent that the sponsor was able to support and accommodate the appellant, and the issues to be decided were as to whether the appellant was 'isolated' and 'distressed' within the meaning of para 44. n3 After hearing the evidence of the sponsor, whom she found to be a reliable witness, and after considering further documentary evidence the adjudicator found that the appellant was 'isolated', but she dismissed the appeal as she was not satisfied that the appellant was 'distressed' within the meaning of para 44 of HC 509. n3 Paragraph 44 of HC 509 is set out on p 47, post. In a full determination the adjudicator set out all the evidence and found that there was a special relationship between the appellant and the sponsor. She said: -- "The special relationship between the appellant and sponsor continued over the years. After the sponsor qualified he joined the Indian Army as a doctor in 1966, and as soon as the appellant retired from business in 1969 the sponsor began helping him financially. In January 1970 the sponsor had 3 months' leave and he and his wife (married in 1968) rented a small flat in Calcutta and had the appellant join them, the appellant from his savings giving the young couple about Rs.2000 towards the furnishings. It was intended that the appellant should make his permanent home with Dr and Mrs Mukhopadhyay, but the appellant told his nephew that if he got a better opportunity for medical work in the United Kingdom he (Dr Mukhopadhyay) should take it up and the appellant 'would try to manage.' In the result after leaving the Indian Army in 1970 the sponsor did some post-graduate study in Calcutta (for his D.C.P.) he applied for some medical appointments locally, and then after waiting some time he obtained an employment voucher enabling him to come to this country, something he said he had all along wanted to do to get more advanced experience. He came here in October 1971. The appellant stayed on in the sponsor's Calcutta home till the sponsor's wife also came to this country in February 1972. The appellant paid the air fares of the sponsor and his wife. The appellant then moved into smaller rented accommodation on his own, one room with kitchen, etc., the accommodation which he had occupied before joining the sponsor and the latter's wife in January 1970. It is clear on these facts that there is a very special relationship between the appellant and the sponsor, a relationship a good deal closer than that normally existing between uncle and nephew, and indeed more akin to that between father and son. Nonetheless the appellant's case falls to be decided under para 44 of HC 509, for there was never any adoption of the sponsor by the appellant, and certainly no evidence that there was any break in the sponsor's relationship with his parents -- his mother died in 1969 and his father in 1972." On the issue of isolation, after considering the evidence the adjudicator said in her determination: -- "On this evidence I am satisfied that the appellant is 'living alone with no relatives in his own country to turn to' in the sense that there are no relatives who would at all willingly accept responsibility for him in their homes. But is 'unwillingness' the criterion to be considered under para 44 of HC 509, or must I be satisfied that the relatives would be 'unable' to accept responsibility for their bachelor uncle? On a careful consideration of the facts in this case it seems to me that what might have been regarded by any one of the appellant's nephews as a normal family obligation if all of them had been beneficiaries of his bounty or interest, cannot properly be so regarded when there is a nephew who has accepted responsibility because he has been a very special beneficiary of his uncle since his very early years. The relationship of uncle and nephews should not, in my view, be equated with the relationship of father and sons, which in the latter case would impose an obligation on all the sons -- so far as they were able -- to support their father regardless whether one or another had been specially favoured by his father. If this were a father and sons relationship I would have little hesitation in saying that the appellant has other 'relatives in his own country to turn to', for the evidence has not satisfied me that none of those relatives is able to accommodate the appellant albeit 'not keen' to do so, to use the sponsor's words. So on a narrow balance of prohabilities I have come to the conclusion that this appellant can be said to be 'isolated', as that word is defined in para 44 of HC 509. (I should perhaps add in parenthesis that, strictly speaking the appellant was not altogether 'isolated' at the time of his application because his nephew Ajoy was still in Calcutta and able to help with his daily needs. However, it seems to me that in this appeal I can properly take into consideration that nephew's departure from Calcutta subsequent to the refusal of the application, in particular because it has not been suggested for the respondent that the nephew's departure was in any way arranged to strengthen this appeal.)" Miss Phillips then concluded her determination thus: -- "I turn now to consider whether the appellant is 'distressed' in the sense defined in para 44 as 'having a standard of living substantially below that of his own country'. The appellant is living in rented accommodation consisting of one room and kitchen, etc; he is in receipt of @ 15 per month from the sponsor, and it would appear that he still has some very small savings; according to his letter (Ex A.1; letters dated 22 June, 27 September and 14 November 1973) he is able only with difficulty to do his household chores, and he is very depressed. The appellant is also suffering from failing sight, which he believes is due to a developing cataract. The sponsor informed me that the appellant had a slight cataract developing in his left eye in 1971, and the sponsor took him to an opthalmologist who said that an operation was not possible until the cataract matured. Do these factors amount to 'distress' under para 44 of HC 509? If the words 'standard of living' refer to the income and housing conditions of an applicant, then I must conclude that the appellant's standard of living is not 'substantially below that of his own country'. Mr Mookerjee for the appellant conceded this. He urged, however, that the standard must also relate to other needs, for example, whether other people are around to help him in his old age, to give him the care he would receive in a family circle. This of course implies an overlapping with the requirement explained as being 'isolated', and it seems to me that in para 44 the two requirements are to be aggregated not merged, the first one providing the strictly human and family element in the situation and the second one the personal economic element. Viewing the second requirement as economic, I ask myself further whether 'the standard of living in his own country' can be considered not as an average standard but as related to other persons of the appellant's class, persons of the business and professional middle class (to use those words as traditionally understood). It may be tempting to do this, but only right in my view in a case where the standard is substantially below the average in the class and not capable of amelioration. On the facts of this case I do not believe that the standard here is so low, nor do I find that it could not be improved with added economic help from the sponsor -- together perhaps with a little financial help which some of his brothers might also be willing to give (perhaps because 'not keep' to have the appellant in their homes); such additional financial help would enable the appellant to employ someone to help him with his daily chores and the provision of meals. Taking all these matters into consideration, I sum up my conclusions on the facts and the law applicable here as follows: -- (i) This particular bachelor appellant aged 75 needs help because he is living alone, suffering from failing strength and failing sight, and very depressed. I find he has 'no relatives to turn to' to suply the personal help and companionship which he needs, because the relatives he has in India are nephews with families who cannot reasonably be expected (if they are unwilling) to take over the obligations which quite properly have been accepted by their brother, the sponsor in this country; these factors in the case of this appellant amount in my view to 'isolation' under para 44 of HC 509 (para 46 of HC 79); (ii) when considered on the basis of his income and housing this appellant's standard of living is above that of the average citizen of India, but probably not very substantially below that of most persons from his class background; and it has not been shown that it could not be ameliorated by increased financial help, which it appears might well be available and which would enable the appellant to employ domestic help; in these circumstances the appellant is not in my view 'distressed' as that word is defined in para 44 of HC 509 (para 46 of HC 79). To succeed in his appeal the appellant must show that he is both 'isolated' and 'distressed' as defined in the rule applicable. If my interpretation of the rule when applied to the facts of this case is correct the appellant is 'isolated' but not 'distressed'. His appeal cannot therefore succeed. I dismiss this appeal with considerable regret, for I accept fully that the sponsor is understandably anxious to do the best he can for his uncle benefactor, and that that uncle has real emotional ties with the sponsor and would be much happier during the final years of his life if he could spend them in the home of the sponsor and the latter's wife and child." The Tribunal granted leave to appeal on the following grounds: -- "1. The adjudicator has made an error of law in interpreting para 46 of HC 79. n4 n4 See footnote 2, ante. 2. The adjudicator has made an error of law in separating the legal requirements, 'isolated' and 'distressed', and came to the wrong conclusion, that second one means, 'the personal economic element'. 3. The adjudicator has made an error of law is not taking into consideration the state of the appellant's health, and the emotional effects because of the state of 'isolation'. 4. It is submitted that the appellant is distressed, not because of the 'personal economic element', but because of his failing eyesight and because he is emotionally distressed." At the hearing of the appeal before us Mr Mookerjee referred to the facts and pointed out that the adjudicator had found that the sponsor could support and accommodate the appellant and that the appellant was 'isolated'. The only issue was whether the appellant was 'distressed' within the meaning of para 44 of HC 509. In Mr Mookerjee's submission distress in the context of the paragraph had a wider meaning than that placed on it by the adjudicator. It embraced more than a person's finances and economic position and could originate from isolation and because of it. This was such a case and each case must be considered on its own merits. In his view the words in brackets "(that is, having a standard of living substantially below that of his own country)" were by way of example only, and in construing the meaning of the paragraph a more liberal interpretation should be placed on those words than was placed on them by the adjudicator. In reply Mr Hurley said that he accepted the close relationship between the appellant and the sponsor; that the sponsor was able to support and accommodate his uncle, and that the appellant was 'isolated' within the meaning of para 44 of HC 509. He had considerable sympathy for the appellant, but in his submission the adjudicator for the reasons she gave correctly found that the appellant could not qualify as a distressed relative. Mr Mookerjee was attempting to strain the language of the paragraph. In Mr Hurley's submission the words "that is" in brackets in para 44 were not intended to indicate that the words which followed were by way of example (in his view had that been the intention other words would have been used) but the words indicated the Secretary of State's definition of 'distress' for immigration purposes. The only question to be considered in the context was a person's standard of living. This case falls to be decided under the provisions of para 44 of HC 509, which reads: -- "Distressed Relatives 44. Subject to the requirements of paragraphs 37 and 38 the Secretary of State will authorise the admission as distressed relatives of the near relatives (grandparents, brothers, sisters, aunts, uncles) of people settled in the United Kingdom if they are over 65 and the relatives here are able to support them and to provide adequate accommodation for them. To qualify as a distressed relative the person must be isolated (that is, living alone with no relatives in his own country to turn to), and distressed (that is, having a standard of living substantially below that of his own country). The concession should not be extended to other relatives or to people below 65 save in the most exceptional compassionate circumstances." It has been accepted that the appellant is over 65 years of age, that the sponsor can support and accommodate him in this country, and that the appellant is 'isolated' as defined in para 44. We have to decide whether the appellant is 'distressed' within the meaning of the paragraph. We accept Mr Hurley's submission that the words in brackets "(that is, having a standard of living substantially below that of his own country)" are intended to define 'distressed' in a narrow sense for the purpose of immigration control. Had the draftsman intended such words to provide an example of distress he would in our view have used other and more appropriate wording. We find it far from easy to interpret the words "having a standard of living substantially below that of his own country", and we hope that it may be possible in the near future for the wording of the paragraph to be amended in order to make the meaning of the words in question clearer. We have no evidence before us of the 'standard of living' in India although we understand that many in that country have an extremely low one. If the lowest standard were to be taken as the correct criterion it seems to us that very few, if any, 'distressed persons' from the sub-continent could bring themselves within the provisions of paragraph 44 of HC 509 (or para of HC 79). In our view in construing the words in brackets regard must be had to the individual circumstances of the applicant and to those of his family and of the circle in which he moves in order to make a realistic comparison of their respective standards of living and to ascertain if the applicant's standard of living has fallen substantially below that of his relatives and friends. Applying that test to the present case as the adjudicator did, we cannot find on the evidence before us that the appellant's standard of living has so fallen, and for that reason we dismiss the appeal. We find it unnecessary to decide whether the adjudicator was right when she said that in a case such as this there should also be evidence that the standard of living locally cannot be ameliorated for the appellant by increased financial help from relatives, whether the sponsor in this country or other relatives at home. We have considerable sympathy with the appellant. According to the evidence the sponsor was, with the consent of his parents, to a large extent brought up by the appellant. Had he been adopted by the sponsor it appears to us that the appellant would in all probability have qualified for admission. In view of the somewhat special circumstances of this case we hope that the appellant's application may be considered on a compassionate basis outside the immigration rules.
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