Levy v. Entry Clearance Officer, Kingstone, Jamaica

LEVY v ENTRY CLEARANCE OFFICER, KINGSTON, JAMAICA, TH/16381/77(1193)

Immigration Appeal Tribunal

[1978] Imm AR 119

Hearing Date: 20 April 1978

20 April 1978

Index Terms:

Distressed relative -- 'Distressed' as defined in immigration rule -- Stateless person -- "... in his own country" -- Whether standard of living properly to be compared with that in country in which applicant currently resident -- Whether, alternatively, comparison should be with sponsor's standard in the United Kingdom -- HC 81, para 41.

Distressed relative -- Woman aged 55 -- "the most exceptional compassionate circumstances" -- Stateless person -- Standard of living not disclosing 'distress' by local standard -- 'Isolated' in home for aged persons in country of different cultural background -- Reactive depression and loneliness -- Whether "the most exceptional compassionate circumstances" -- HC 81, para 41.

Held:

The appellant was a stateless person. She was born in Libya in 1923. In 1964 she married and went to live in Jamaica. Her marriage broke down in 1965 and the couple separated. In 1969 the appellant was admitted to a home for elderly people of the Jewish community in Jamaica. In 1976 she applied for a visa to enable her to join her married sister and the latter's husband who were settled in the United Kingdom and with whom she had resided in Libya prior to 1964. At the time of her application the appellant had capital of about L5,000 on deposit in a bank, and her modest earnings as a dressmaker were more than sufficient to pay for her accommodation and board in the elderly persons' home. The entry clearance officer considered her financial means and, not being satisfied that she was 'distressed' as defined in HC 81 para 41, he refused her application. n1 n1 Paragraph 41 of HC 81 is in the following terms: "Subject to the requirements of paragraphs 34 and 35 the Secretary of State will authorise the admission as distressed relatives of the near relatives (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 people below 65 save in the most exceptional compassionate circumstances, but may in such circumstances be extended to parents and grandparents and to more distant relatives." The appellant appealed to an adjudicator and from the adjudicator to the Tribunal. It was agreed by the parties' representatives that the appellant was 'isolated' as defined in para 41 of HC 81, and it was submitted for the appellant that the requirement defining 'distressed' as "having a standard of living substantially below that of his own country" was inapplicable because, as a stateless person, the appellant could not be said to have her "own country"; counsel invited the Tribunal to compare her standard of living not with the general standard in Jamaica but with that of her married sister in this country, applying for this purpose the test applied by the Tribunal in Mukhopadhyay's Case ([1975] Imm. A.R. 42 at p 48). Fresh evidence was produced to the Tribunal to support the claim that "the most exceptional compassionate circumstances" existed in the appellant's case, (a) a medical certificate stating that the appellant was suffering from a 'reactive depression' due to her having been left stranded in an environment completely alien to her, and (b) a letter from a rabbi in Jamaica stating that the appellant should not be in the home for the aged and that she would not be allowed to remain there much longer. Held: The appeal would be dismissed because -- (i) confirming the adjudicator, the words "in his own country" relating to the standard of living in the definition of 'distress' in para 41 of HC 81 meant the country in which an applicant was currently resident or, if he was only there temporarily, the country in which he was normally resident; (ii) taking into account the medical certificate and the rabbi's letter, there were circumstances of a compassionate nature in this case, but they did not amount to "the most exceptional compassionate circumstances" as required in para 41 for applicants under 65 years of age.

Counsel:

A. Riza, of the Joint Council for the Welfare of Immigrants, for the appellant. W. G. Chalmers for the respondent. PANEL: D. L. Neve Esq (Vice-President), A. J. Coles Esq, J. A. Noble Esq

Judgment One:

THE TRIBUNAL: The appellant lady Mrs Clima Levy (formerly Rubin) is now 54 years of age and is resident in Jamaica. She is stateless. In 1976 she applied for entry clearance to enable her to come to this country for settlement with her sister who is resident here. Her application was refused. She appealed to an adjudicator against the refusal and her appeal was heard by Mr E. J. T. Housden and dismissed on 1 November 1977. The respondent considered the appellant's application under para 41 of HC 81 relating to "distressed relatives" but came to the conclusion that she did not qualify under this paragraph n2 or indeed any other paragraph. Her application was consequently refused. n2 Paragraph 41 is set out in full in footnote 1. When the appeal went before the adjudicator there was some suggestion that she might have been admissible as a person of independent means but this claim has not been pursued. The facts of this case are not in dispute and are quite simple. Until 1964 the appellant was living with her sister and her sister's husband in Libya. In 1964 the appellant's sister and her husband came to the United Kingdom and settled here. The appellant married in Italy and then went to Jamaica in 1964. In 1965 the appellant's husband took a mistress and their marriage came to an end. The appellant lived in various places in Jamaica until 1969, when she moved into a Jewish home in Kingston where she has lived ever since. At the time of her application she had J $ 11,500 on deposit in a bank (approximately @ 5,000) earning interest at 8%. She told the visa officer that full board at the home where she lived cost her J$ 40 a month and she earned between J$ 120 and J$ 130 monthly from dressmaking and knitting. It was argued before the adjudicator that having regard to these circumstances she should be admissible under para 41, since it was submitted that she was "isolated" and "distressed" and there were "the most exceptional compassionate circumstances". "Distressed" is defined in para 41 as "having a standard of living substantially below that of his own country". n2 It was argued before the adjudicator that because the appellant was stateless she could not be said to have her "own country" and that this particular requirement was therefore inapplicable to her. As to this, the adjudicator in his determination said: n2 Paragraph 41 is set out in full in footnote 1.

"I do not agree with that argument. Common sense suggests to me that the reference in the rule to 'his own country' means the country in which the applicant is currently resident or, if he is there only temporarily, the country in which he is normally resident."

The adjudicator expressed some sympathy for the appellant but did not consider that there were "the most exceptional compassionate circumstances" and dismissed her appeal. Mr Riza (who also represented the appellant before the adjudicator) has put in evidence a medical certificate from a doctor in Jamaica. This certificate states that he has attended the appellant on many occasions since 1971, that she is suffering from a reactive depression due to the fact that she has been left stranded alone in an environment completely alien to her, and that he is convinced that she will completely recover once she has joined her sister in this country. Mr Riza has also put in evidence a letter from a rabbi in Kingston stating that the home where the appellant is living is a home for the aged where she should not really be, and saying that they will not keep her there much longer. Mr Riza has repeated to us the submissions which he made to the adjudicator and has stressed that the appellant is very lonely and suffering from reactive depression as certified by the doctor. He submits that "standard of living" should not be determined only by financial considerations. He referred us to the case of Mukhopadhyay n3 in which the Tribunal, considering the matter of an appellant's standard of living, said n3 Mukhopadhyay v Entry Clearance Officer, Calcutta, [1975] Imm A R 42 at p 48; TH/2183/73(315).

"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."

Mr Riza invites us to adopt this test and to compare the appellant's standard of living in this case with that of her sister. He submits that the breakdown of the appellant's marriage, the fact that the appellant has to live in a home for old people, and the medical evidence regarding her 'reactive depression', all taken together constitute exceptional compassionate circumstances. Mr Chalmers submits that the adjudicator did not misdirect himself in any way and that his findings were in line with the evidence before him. We have considered the submissions and the evidence. We have some sympathy with the appellant, who clearly would be very much happier with her sister in this country than in her present circumstances in Jamaica. We have to consider, however, whether the adjudicator was correct when he found that she did not qualify for admission under para 41 of HC 81 n4. We have no doubt that he was correct in his findings. We agree with his interpretation of the words "his own country" in para 41 and -- even taking into account the medical certificate and the letter from the rabbi now produced -- we agree with him that, although there are circumstances of a compassionate nature in this case, they do not amount to "the most exceptional compassionate circumstances" as provided in the paragraph. n4 Paragraph 41 is set out in full in footnote 1. For these reasons, in our view, he properly dismissed the appeal and this appeal to us is also dismissed.

DISPOSITION:

Appeal dismissed.

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