Tilak Ram v. Entry Clearance Officer, New Delhi

TILAK RAM v ENTRY CLEARANCE OFFICER, NEW DELHI, TH/8402/76(1209)

Immigration Appeal Tribunal

[1978] Imm AR 123

Hearing Date: 27 April 1978

27 April 1978

Index Terms:

Distressed relative -- 'Isolated' as defined in immigration rule -- Bachelor aged 71 living in own home -- Married sisters living with children some distance away -- Hindu social code that sisters not responsible for their brothers -- Sponsor in United Kingdom, applicant's nephew, able to accommodate and support him -- Whether regard should be had to Hindu social code in determining whether applicant 'isolated' under the immigration rule permitting settlement of 'distressed relatives' -- HC 79, para 46.

Held:

The appellant, an Indian citizen aged 71, applied in 1976 for an entry certificate to enable him to come to the United Kingdom to join his nephew (only son of his deceased brother) as the latter's "distressed relative" under para 46 of HC 79. The appellant had never married but he had two younger married sisters, one living with her husband and son and daughter in a village 25 miles away, the other living with her husband, three sons and two daughters, in Delhi 210 miles away. The appellant owned his house and had an income of Rs. 200 per month through collecting rent from a house owned by his sponsoring nephew; he also had savings of Rs. 12,000-Rs. 13,000; in 1973 when he was ill he had received money for medical expenses from his sponsor. The entry clearance officer refused an entry certificate because, inter alia, he was not satisfied that the appellant was (under para 46 of HC 79) "'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)". On the appellant's appeal to an adjudicator it was argued that under the Hindu social code sisters were not responsible for brothers, and that when considering para 46 of HC 79 the immigration appellate authority should have regard to Hindu local custom, according to which the appellant would be 'isolated'. The adjudicator found (1) that the appellant's standard of living was not substantially below that of his own country -- as the appellant had himself admitted; and (2) that there was no reason why the appellant should not "turn to" his sisters to prevent isolation, applying in this respect Sibal's Case ([1973] Imm. A.R. 50) in which the Tribunal had held that on a fair and rational construction "a person who has no relatives in his own country to whom to turn" meant a person who was living alone there isolated from his family. The adjudicator confirmed the ECO's decision. On further appeal to the Tribunal, Held: (i) The adjudicator had correctly held that the appellant did not meet the criteria on 'isolation' and 'distress' in para 46 of HC 79; and (ii) in particular, the adjudicator had properly applied the Tribunal's decision in Sibal's Case ([1973] Imm. A.R. 50) because, although the facts in Sibal's Case were different, the argument on Hindu custom had been the same and had not commended itself to the Tribunal (ibid, at p 53); and (iii) while in the present case the appellant's sisters lived some distance away from him, they both had children some of whom might be expected to keep in touch with him, so that he should not be isolated.

Counsel:

Mrs S. Maguire of the United Kingdom Immigrants Advisory Service, for the appellant. B. Hunter for the respondent. PANEL: P. N. Dalton Esq (Vice-President), E. A. Lewis Esq, Sir Gordon Whitteridge

Judgment One:

THE TRIBUNAL: This is an appeal from the determination of an adjudicator, Mr R. C. Patten, dismissing the appellant's appeal from a refusal to grant him an entry certificate to the United Kingdom for permanent settlement. Tilak Ram, said to have been born in March 1905, applied in New Delhi on 16 March 1976 for an entry certificate in order to join his nephew, Yoginder Pal Bhanot (the only son of his deceased brother), in the United Kingdom and remain here permanently. The appellant was asked about his family circumstances and it appeared that he had two younger sisters, one who lived with her husband and son and daughter in a village 25 miles away from his home and the other living in Delhi, some 210 miles away from his home, with her husband and three sons and two daughers. The appellant himself had never married. As to his financial circumstances, Tilak Ram said he had a monthly income from the sponsor of Rs. 200 a month through collecting rent from a house owned by the sponsor, and he also had savings in the bank amounting to Rs. 12,000-13,000. He had also received two remittances from the sponsor in 1973 for medical expenses when he had been ill. Having interviewed the appellant, the entry clearance officer considered the application under the provisions of para 46 of HC 79 which states:

"Subject to the requirements of paragraphs 39 and 40, 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 application was refused, the notice of refusal being in the following terms:

"You have applied for an entry certificate with a view to joining Mr Yoginder Pal Bhanot in the United Kingdom as a distressed relative, but having regard to the fact that you have two younger sisters in India, I am not satisfied that there are sufficient grounds to justify your admission. Furthermore, I am not satisfied that Mr Bhanot is able to provide adequate accommodation for you in the United Kingdom or that your standard of living is substantially below that of your own country."

When the appellant appealed to the adjudicator it was not disputed that the sponsor could provide adequate accommodation for Tilak Ram. It was also agreed that the sponsor was financially able to support the appellant and that the appellant was over 65. In his determination the adjudicator said:

"I am not satisfied that the appellant has a standard of living substantially below that of his own country, and there is no reason whatsoever why the appellant should not 'turn to' his sisters to prevent isolation. It was argued by Mrs Maguire that a Hindu male cannot live on the resources of a younger sister, and that therefore the appellant is isolated. It was argued that the appellate authority in London should have due regard to local customs. On the other hand it was argued by Mr Cottrell for the Home Office that this country is not bound by Indian traditions and that the appellant does have his sisters to turn to. Accordingly it was argued that the defendant is not 'isolated'. A similar set of circumstances was dealt with in the case of ECO, New Delhi v Sibal n2. In that case it was submitted on behalf of an applicant, in a similar position to the appellant in this case, that the relatives to whom an applicant could turn meant relatives that were physically able or willing to give care and attention. It was argued for the appellant in the Sibal case that the Hindu social code prevents sisters being responsible for brothers. It was held by the Tribunal that, although the sisters might not be willing to continue caring, on a fair and rational construction 'a person who has no relatives in his own country to whom to turn' meant a person who was living alone there isolated from his family. In the light of this decision I feel I have no alternative but to hold that the appellant is not 'isolated' within the meaning of para 46. I have already held that he is not 'distressed' and consequently the appellant in this case fails on both counts to meet the criteria established by para 46. Accordingly I dismiss this appeal."

Leave to appeal to the Tribunal was granted. At the hearing of the appeal before us Mrs Maguire first submitted that the adjudicator erred in his interpretation of para 46 of HC 79, which was the relevant rule, as he had relied on the case of Sibal n2 which was determined under a different rule, that is para 43 of Cmnd 4298. Also Mr Sibal was well below the age of 65 and was living with his sister. n2 Entry Certificate Officer, New Delhi v Sibal, [1973] Imm A R 50; TH/3122/73 (107) We agree that in the case of Sibal the facts were different from the facts of the present case and that it was decided under different rules, but the point to which the adjudicator was addressing his mind when he mentioned the case of Sibal in his determination, was the argument that was advanced in both cases, namely that under the Hindu social code sisters were not responsible for brothers, so that a Hindu male cannot "turn to" a younger sister for care, which is the situation in the present appeal. This argument, as Mr Patten indicated, did not commend itself to the Tribunal in Sibal's case as they found that he had relatives in his own country to whom to turn. n3 n3 Ibid, at pp 53, 54. It was submitted in the grounds of appeal that the adjudicator erred in law when finding the appellant did not have "a standard of living substantially below that of his own country". We do not agree that the adjudicator was wrong in this matter. The appellant was in receipt of a small monthly income from the collection of rent on behalf of the sponsor, he had some savings and owned his own house and had himself said that his standard of living was not substantially below that of his own country. Mrs Maguire also argued that though the appellant has two sisters in India, they live some distance away. This is indeed so but they both have children (between them four sons and three daughters) and some of those children might be expected to keep in touch with him. We do not consider that the appellant is isolated. In our view the adjudicator correctly held that the appellant failed to meet the criteria established in para 46 of HC 79.

DISPOSITION:

Appeal dismissed.