Obeyesekere v. Secretary of State for the Home Department

OBEYESEKERE v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/1726/74(454)

Tribunal Immigration Appeal

[1976] Imm AR 16

Hearing Date: 14 April 1975

14 April 1975

Index Terms:

Visitor -- Extension as visitor -- Family reasons -- Care of daughter's children while daughter in full-time employment -- This purpose not disclosed at time of entry as visitor -- No certainty as to eventual date of departure after prolonged stay -- Not a genuine visitor within the immigration rules -- HC 80, para 8.

Held:

The appellant, a citizen of Sri Lanka, was an elderly widow in receipt of a Government pension. She applied for an entry certificate to enable her to visit her daughter and son-in-law for a period of 6 months; she showed the entry clearance officer a return ticket and she referred to her family ties in Sri Lanka. She was issued with an entry certificate and she arrived in the United Kingdom in September 1972. Applications were subsequently made for extensions of stay, first for 1 year and then -- after being granted only 6 months' extension on that application -- for a further year. At the time of the first extension application the appellant's son-in-law said that the primary purpose of the appellant's journey had been to assist his wife in the care of their 2 children as his wife was in full-time employment. The second application for extension of stay, made in August 1973, was refused under para 8 of HC 80. n1 n1 Paragraph 8 of HC 80 provides, so far as here material, as follows: "Where a visitor wishes to extend his visit, and provided that he has sufficient means to support himself and his dependants without working for the remainder of his proposed stay and intends to leave at the end of it, an extension should be granted...." On appeal to an adjudicator in July 1974 the appellant said she wished to prolong her stay for a further 18 months, and her son-in-law said he wanted her to stay for another 2 years. The adjudicator dismissed the appeal, stating inter alia that to bring a relative to this country as a visitor for 'purely financial reasons' was not an acceptable family purpose. On further appeal to the Tribunal, Held (affirming the adjudicator's decision): there was no reason why a person should not come here as a visitor to assist a relative in time of illness or for some other acceptable temporary family purpose; but the appellant had been here 2 1/2 years since her admission as a visitor, and to claim that she was still a genuine visitor -- that is, a person who has come here for a limited period -- was to disregard the clear intention of the immigration rule and the plain meaning of the English language.

Counsel:

Mrs Mary Dines of the Joint Council for the Welfare of Immigrants, for the appellant. B. Hunter for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Dr L. P. De Souza, Miss M. F. Hardie.

Judgment One:

THE TRIBUNAL: The appellant in this appeal is an elderly lady born on 22 November 1899. Her name is Margaret Sophia Obeyesekere and she is a citizen of Sri Lanka. On 21 August 1972 she applied at the British High Commission in Colombo for an entry certificate for a period of 6 months to enable her to visit her daughter and son-in-law Mr and Mrs J. D. Karunaratne who live in London. She told the entry certificate officer that she was a widow receiving a pension, that she had 6 children, 5 of whom were in Sri Lanka, and she produced a return ticket. She was issued with an entry certificate. The appellant arrived on 20 September 1972 and was granted permission to stay for 6 months as a visitor. On 28 February 1973 the Sri Lanka High Commission wrote to the Home Office requesting an extension of stay for one year for the appellant. It was said that the appellant's daughter Mrs Karunaratne worked at the High Commission as a typist and that she had arranged for the appellant to come here mainly to look after her two children, aged 7 and 8, as she found it difficult to look after them without assistance as she was working full-time. After further details had been requested and received from the First Secretary the Home Office decided to grant the appellant an extension of stay to 20 September 1973. On 17 August 1973 an extension of stay for a further year to enable the appellant to remain in the United Kingdom, was requested. This application was refused for reasons which are set out thus in the Home office statement:

"The Secretary of State considered the application under the provisions of para 8 of HC 80. The Secretary of State took note of the fact that the appellant had stated to the entry certificate officer that she wished to spend 6 months here on holiday, and that no mention had been made of her looking after her grandchildren. He also noted that the appellant's son-in-law had later stated that the primary purpose of the appellant's journey to the United Kingdom was to assist his wife in looking after the children. The Secretary of State was not satisfied that there had not been deliberate deception on the part of the appellant and the sponsor in order to obtain the entry certificate and the appellant's admission to this country. He also noticed that Mrs Karunaratne had worked for 6 to 7 years without the services of her mother. He also observed that it had been stated that the appellant intended to return to her home in a year's time, and she had been granted an extension of stay to 20 September 1973. Having remained here for one year an application had subsequently been made for an extension of stay of another year to enable her to remain in the United Kingdom. The Secretary of State was therefore not satisfied that the appellant was a genuine visitor who intended to leave the United Kingdom on the completion of the period requested. He therefore refused the application."

The appellant appealed to an adjudicator and her grounds of appeal were as follows: "It is true that I arrived in this country as a visitor. On my arrival here, my son-in-law requested me to remain in this country till his children who are aged 10 and 9 years respectively are a little older, as they need someone to look after them as both my son-in-law and daughter are employed full-time. As can be seen from the letter attached from my son-in-law, he intends leaving England in 1975, and has requested me to remain with him until that time. When I leave the United Kingdom along with him, I will continue to be a member of his household. I am over 73 years of age and have at no time sought employment or been a burden on Her Majesty's Government. I, therefore, humbly submit that I be allowed to remain in the United Kingdom till my son-in-law leaves the United Kingdom in 1975." The Secretary of State considered the grounds of appeal but saw nothing therein which might cause him to alter his decision. At the hearing of the appeal before the adjudicator, Mr T. D. Healy, Mrs Obeyesekere gave evidence and so also did her son-in-law. In her evidence the appellant claimed that she did say when applying for her entry certificate that she wished to come to look after the children but the adjudicator rejected that part of her evidence and accepted the High Commission's note of the interview because she had immediately added she was not sure if she had said it. The adjudicator was also of the opinion that there was an element of deception at the time of the application for an entry certificate. The appeal was dismissed for the reasons Mr Healy expressed as follows: "The technical reason for refusal of this application is that the respondent was not satisfied the appellant was a genuine visitor who intended to leave the United Kingdom at the end of the period requested. There were grounds for coming to this conclusion and subsequent events have shown the decision was well founded. I would like to think, however, that the real reason for refusal can be expressed in more direct and understandable terms. In my opinion there is no reason why a member of a family should not come here to assist a relative in times of illness or for some other acceptable temporary family purpose. There is equally no reason why an extension should not be given if the facts warrant it and of necessity some visits will be longer than others. I see nothing inconsistent with visitor status in the mutual recognition in some cases that there will be a need to apply for a further extension. But to bring a relative here for purely financial reasons is not an acceptable family purpose. The vast majority of families are brought up without such assistance and the fact that the practice is common in some other parts of the world cannot make it an acceptable family purpose here. Neither, on the facts of this particular case, can it be regarded as a temporary purpose. At each stage the period becomes longer and even now the end of the visit cannot be clearly defined. I find that what the appellant has been doing and proposes to do is inconsistent with the status of a visitor. The respondent's decision that she was not a genuine visitor is in accordance with the law and the immigration rules applicable to the case. He was entitled not to be satisfied that the appellant would depart at the end of her stay, as am I, and I only add that this is not the same thing as saying I am satisfied she will not depart or that she will remain permanently. The appellant comes from a very respectable and law-abiding family and I have no reason to think she has settlement in mind." The adjudicator granted leave to appeal to the Tribunal. The grounds of appeal filed were that there was a misdirection that the appellant was not a visitor, and that other reasons would be given on receipt of the written determination. In the event no further grounds of appeal have been put forward. In her submissions to the Tribunal Mrs Dines referred to the case of Tackie n2 in which the Tribunal said with reference to para 12 of Cmnd 4298: n2 Entry Certificate Officer, Accra v Tackie, TH/3311/72 (194) (unreported).

"There is no precise definition of 'family reasons', nor do we think there could be, and it may well be difficult in some cases to distinguish where a visit is genuinely for family reasons and where the real but concealed reason for a member of a family coming to this country is to relieve another member of household duties, and in fact be employed as a domestic, so as to enable that member of the family to engage in or continue in remunerative employment in the future."

Mrs Dines pointed out that the appellant is aged 75 and so one could not equate her with the appellant in Tackie's case n2 as there was no chance of her being engaged in domestic duties. Mrs Dines argued that if it were wrong to give the appellant an extension as a visitor when the second application was made it was wrong to give her a 6 months' extension on the first application when the Home Office was informed that the appellant's daughter found it difficult to look after her children without assistance. Mrs Dines submitted that this was a case involving a genuine family reason and not one of concealed employment to enable a member of the family to go out to work. n2 Entry Certificate Officer, Accra v Tackie, TH/3311/72 (194) (unreported). Mr Hurley argued that the case hinged on the interpretation of the word "visitor" and said that the application was refused because the Home Office was not satisfied that Mrs Obeyesekere was a genuine visitor or that she would leave at the end of the visit. Mr Hurley agreed that the appellant was indeed given an extension of stay for 6 months and this might have been given outside the rules but that, he submitted, was not to say that a further application could not be refused if the Home Office had reason to believe that the appellant would not leave. We agree with Mr Hurley's submission. In this case, as the explanatory statement shows, the application was refused because the Secretary of State was not satisfied that the appellant was a genuine visitor who intended to leave the United Kingdom on completion of the period requested. The conclusion to which the Secretary of State came appears to be borne out by the appellant's grounds of appeal to the adjudicator, since she clearly envisages staying here and then returning with her son-in-law who intended to leave some time in 1975, and this would certainly be some time after the expiry of the extended time she had applied for. Mrs Obeyesekere in fact told the adjudicator that she wished to stay for another year and a half which would have taken her up to the end of December 1975 and would have entailed at least one and possibly two or three more applications for extension of stay, if this present application had been granted. Mr. Karunaratne wanted the appellant to stay for another two years. We do not dissent from Mr Healy's opinion that there is no reason why a member of a family should not come here to assist a relative in times of illness or for some other acceptable temporary family purpose. However, the appellant has now been in this country, to which she was admitted as a visitor, for over two and a half years and to claim that she is still a genuine visitor, that is to say a person who has come here for a limited period, is to disregard the clear intention of the relevant immigration rule and the plain meaning of the English language. In the circumstances of this case we do not think that the decision in Tackie's case to which Mrs Dines has referred in any way advances this appeal. n3 n3 Miss Tackie's purpose in coming to the United Kingdom was to help look after her sister's new baby in order to enable her sister to complete an 18 months' post-graduate course which had been commenced before the baby's birth. The Tribunal approved the adjudicator's decision allowing Miss Tackie's appeal, holding that it was based on acceptable 'family reasons' under para 12 of Cmnd 4298.

DISPOSITION:

Appeal dismissed.

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