Gupta v. Secretary of State for the Home Department

GUPTA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/33998/78(1546)

Immigration Appeal Tribunal

[1979-80] Imm AR 52

Hearing Date: 18 June 1979

18 June 1979

Index Terms:

Diplomatic privilege -- Immunity from deportation -- "Member of the family" and forming "part of the household" of a member of a diplomatic mission -- Widowed sister of such a member admitted as visitor for 3 months and staying in his home -- Overstaying after refusal of extension -- Sister living independent life before visiting married brother and sister-in-law -- Whether claim to immunity from deportation sustainable -- Whether jurisdiction to hear appeal against deportation when claim of diplomatic immunity raised -- Immigration Act 1971, s 5(3)(a), s 8(3), s 15(1)(a), s 19(1), s 20(1) -- Diplomatic Privileges Act 1964 -- HC 80, para 34.

Held:

The appellant was the widowed sister aged 48 of her sponsor, a member of a diplomatic mission in the United Kingdom. She came to the United Kingdom in January 1974 and was admitted as a visitor for 3 months, as requested by her. She stayed with her sponsoring brother and the latter's wife, who was expecting a baby. An application for a 12 months' extension of stay was duly refused, and her appeal against the refusal was dismissed by an adjudicator, and leave to appeal against his decision was refused by the Tribunal in November 1975. The appellant did not then leave the United Kingdom, but efforts to prolong her stay legally were made by many and various representations to the Home Office; those efforts raised new issues, including a claim that she was entitled to remain here by virtue of s 8(3) n1 of the Immigration Act 1971. The Secretary of State did not accept this claim and on 1 June 1978 he decided to make a deportation order against her under s 3(5)(a) on the ground that she had remained in the United Kingdom "beyond the time limited by (her) leave". On her appeal to an adjudicator, it was submitted by the appellant's representative that she was a person excluded from deportation by s 8(3) n1 of the 1971 Act and that the adjudictor had no jurisdiction to hear the appeal. The adjudicator was satisfied on the evidence that the appellant's sponsoring brother was a member of a mission within the Diplomatic Privileges Act 1964 and that, as his sister, the appellant was 'a member of a class eligible in certain circumstances to be regarded as a member of his family'; but he found that she had led a life wholly independent of the sponsor before coming to this country; that she had not been dependent on him and did not become part of his family when she arrived here to visit him and his wife for 3 months; for the fact that the sponsor's wife was temporarily in poor health was not a sufficient basis for regarding the appellant as one of his family, though it might warrant an application for a short extension of stay. The adjudicator held that the appellant was subject to immigration control; that the Secretary of State was entitled to consider making a deportation order against her for overstaying, and that on the facts (including her substantial family connections in India) the Secretary of State's decision to deport her was justified and his discretion [1979-80] Imm AR 52 should not have been exercised differently. n1 Section 8(3) of the 1971 Act is set out on p 56, post. On appeal to the Tribunal the appellant's representative did not contend that there were any compassionate circumstances which should preclude her return to India, but urged only that, since she had been declared by the Indian High Commission to be a member of the family of a person (her brother) to whom the exempting provisions of s 8(3) of the 1971 Act n2 applied and to form part of that person's household (as required by the section), the provisions of the Immigration Act did not apply to her; that the question of her eligibility for the diplomatic privileges which would exempt her from deportation was a matter entirely for the Foreign and Commonwealth Office and not the Home Office; and, therefore that neither the adjudicator nor the Tribunal had jurisdiction to entertain her appeal. n2 Section 8(3) is set out on p 56, post. Held: (i)(a) the Secretary of State having decided to deport the appellant, and she having exercised her right to appeal to an adjudicator under s 15(1)(a) of the 1971 Act, the adjudicator was bound to determine her appeal in accordance with s 19(1) of the Act; (b) the appellant, having then exercised her right to appeal to the Tribunal under s 20(1), the Tribunal not only had jurisdiction but had a statutory duty to entertain her appeal. (ii) dismissing the appeal, the adjudicator had given specific and valid reasons, justified on the evidence before him, for his conclusion that the appellant had not satisfied the requirements for diplomatic immunity, set out in s 8(3) of the Immigration Act 1971, n2 and his determination was in accordance with the law. n2 Section 8(3) is set out on p 56, post. Per curiam: Whilst cases could be envisaged in which a sister might properly be considered part of her brother's family and household, each case must be considered in relation to its own particular facts.

Counsel:

Z. H. Chishti of the United Kingdom Immigrants Advisory Service, for the appellant. D. A. Birks for the respondent. PANEL: D. L. Neve Esq (President), R. S. Charnley Esq, Miss M. F. Hardie

Judgment One:

THE TRIBUNAL: The appellant Mrs Raj Dulari Gupta is a citizen of India, a widow some 47 years of age. In 1973 she applied for an entry certificate to enable her to come to this country for a visit to her brother Mr Narinder Goel, the sponsor. This application was refused. She successfully appealed against the refusal, and arrived in this country on 14 January 1974, when she was admitted (at her request) for three months. She applied for an extension of her permitted stay for a period of twelve months. This was refused, but her stay was extended until 31 December 1974. She appealed against the refusal. Her appeal was unsuccessful. She applied for leave to appeal to the Tribunal, which was refused on 12 November 1975. She has remained here without permission ever since and has ignored repeated warnings that she should leave. Eventually, on 1 June 1978, the Secretary of State decided to make a deportation order against her. She appealed to an adjudicator against the decision. Her appeal was heard by Mr T. D. Healy and was dismissed on 2 February this year. Against Mr Healy's determination she now appeals to the Tribunal, leave to appeal having been given solely in regard to the question of law in s 8(3) of the Immigration Act 1971. After the appellant had been refused leave to appeal to the Tribunal in November 1975 against the adjudicator's determination dismissing her appeal against the refusal of an extension of her permitted stay, what the adjudicator aptly describes as a "rearguard action" was instituted, and the appellant for the first time claimed that she was entitled to remain here by virtue of s 8(3) Immigration Act 1971, since her brother is employed by the Indian High Commission. This "rearguard action" took the form of initiating correspondence which raised new issues and reasons for delay in her departure, and involved a Member of Parliament, and the Indian High Commission, as well as the Home Office. The protracted correspondence and enquiries culminated in the decision to deport the appellant. When the appeal went before the adjudicator the appellant was represented by Mr R. B. Bhardwaj. The adjudicator records: "Mr Bhardwaj submitted I had no jurisdiction to hear the appeal because of this provision but I am sure what he meant was that I should exercise my jurisdiction to determine that the respondent did not have the power to deport the appellant because of the provision in question. I said that my determination would contain the decision on this point as well as on the merits of the case but although evidence was completed on the issue of deportation Mr Bhardwaj confined his closing address to the points he made under s 8(3). I have of course, despite this, considered all the facts of the case as set out in the three files and other documents submitted to me and the oral evidence led. Let me say at the outset that the respondent should have given the appellant the reasons why her claim to remain under s 8(3) was refused. It was a perfectly legitimate claim and has been properly raised by Mr Bhardwaj on this appeal, yet not one word regarding these complicated issues appears in the explanatory statement. I am satisfied on the evidence presented to me that the sponsor is a member of a Mission within the meaning of the Diplomatic Privileges Act 1964. There appears to be no direct authority in English law as to who is a 'member of the family' of such a person. However from the books on the general subject of Diplomatic Privilege to which I was referred it appears that the interpretation of the term 'family' varies between states. Normally a member of a mission who is a bachelor or widower would be entitled to count his mother or sister as part of the family if they are living with him. [1979-80] Imm AR 52 I am prepared to hold therefore as a matter of law, that the appellant as the sponsor's sister, is a member of a class eligible in certain circumstances to be regarded as a member of his family. However the appellant led a life wholly independent of the sponsor before she came here. I reject such suggestion as there is that she was dependent on him. She was not part of his family then and she did not become part of his family when she arrived here to visit him for 3 months. The sponsor was not single. He was a married man. I accept his wife was not in good health but that merely warranted an application being made for a short extension. It was not in my opinion a sufficient basis for regarding the appellant as one of the sponsor's family. Mr Bhardwaj submitted that the moment the appellant joined the sponsor's household, which I am satisfied she did on the day of her arrival, she became exempt from deportation because she was part of his family. I must reject that because it is based on the fallacy that all the sponsor's sisters are members of his family because of the relationship itself whereas I consider the matter to be a mixed question of law and fact which I have decided against the appellant for the reasons I have given. Neither of course can the appellant constitute herself a member of the sponsor's family merely by remaining with him and refusing to leave after her various applications have been refused. She had the right to apply for recognition but she was refused. I am satisfied the appellant was subject to immigration control and has remained in the United Kingdom without authority since her application for leave to appeal was refused on 12 November 1975. The respondent was therefore entitled to consider making a deportation order against her. It is now clear that the appellant's original application in May 1973 was not unconnected with the fact that the sponsor's wife was about to have her first child in July 1973. If there was any doubt about it it was dispelled by a passage in a letter dated 6 May 1975 from that lady's doctor to the Indian High Commission which was later sent to the Home Office. It said:

"At my suggestion Mr Goel asked his sister to come across to London so as to offer his wife assistance at home until such time that she is able to cope better and look after her two children more effectively..."

The appellant added a further dimension to the problem when she claimed in evidence that she had left her brother in India because she did not get on with him and was distressed all the time. Contrary to all the evidence previously given she said the brothers in India could not maintain her and she had to come here to save her life. She could not go back as there was nowhere for her to go. I am afraid there is a clearly discernible trend throughout this case for those intimately concerned to say whatever they consider necessary to achieve their immediate object without regard to its truth. But it is a sign of family solidarity and therefore when it comes to considering whether the normal course of deportation should be followed in this case I have no fears about the appellant's future in India. I am satisfied she will be looked after there by her brothers as she has been in the past. [1979-80] Imm AR 52 At the age of 48 there is no reason why the appellant should not be deported. She has never had to fend for herself and there is no reason to believe she will have to do so now. While the appellant has been here since 1974 only the first three months were fully authorised, since then she is either indebted to the appeal system or to the Home Office for considering the various applications she made. I find little in the actual length of her stay to indicate she should not be deported. The appellant's connections here are almost the same as those she has in India. She left a family with two children to come here. There are undoubted compassionate circumstances in the breakup of any five-year relationship but it is not a new experience for the appellant and the ease with which she faced the earlier separation indicates there will be no lasting ill-effects. Apart from immigration matters I am sure the appellant is of good character and a normal law-abiding citizen. However, the public interest in preserving an effective immigration control considerably outweighs any aspects of this case which favour the appellant as does the policy of decisions which are consistent and fair as between one person and another. The appellant has, I consider, achieved all that she came here to do -- to provide help and assistance in her brother's household while his children were very young and his wife was not well. The latter apparently made a good recovery as at one point she returned to employment. The respondent has now decided it is time for her to go and I do not consider discretion should have been exercised differently. This appeal is dismissed." The appeal having come before us solely on the legal argument as to the proper application of s 8(3) of the Immigration Act 1971, Mr Chishti has not argued the merits of the case in any other aspect and indeed agreed with the Tribunal that such merits were minimal. He put before us his arguments relating to s 8(3). Section 8(3) of the Act reads as follows:

"The provisions of this Act relating to those who are not patrial shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent."

Mr Chishti drew attention also to para 34 of HC 80 (which paraphrases s 8(3)) and argued that the question whether the appellant was a person to whom s 8(3) of the Act applied was a matter to be decided by the Foreign and Commonwealth Office and not by the Home Office. He referred us to passages in HARDY'S Modern Diplomatic Law (1st Edn) and to SATOW'S Guide to Diplomatic Practice (1979, 5th Edn). If we understand him correctly, his basic submission is this: Since the appellant has been declared by the Indian High Commission to be a member of the family of a person to whom the section applies, and forms part of his household, the provisions of the Immigration Act do not apply to her; any question of her eligibility for the diplomatic privileges which exempt her is entirely for the Foreign and Commonwealth Office. Therefore neither the adjudicator nor this [1979-80] Imm AR 52 Tribunal has jurisdiction to entertain this appeal. This appears to us to be a somewhat curious proposition, and we doubt whether a person who applies to a tribunal for relief can then be heard to allege that such tribunal has no jurisdiction to grant it. Rightly or wrongly, the Secretary of State decided to deport the appellant. She exercised her right under s 15(1)(a) to appeal to an adjudicator against the decision. The adjudicator determined her appeal, as he was bound to do, in accordance with s 19(1). She has now chosen to exercise her right of appeal to this Tribunal against the adjudicator's determination, under s 20(1). Not only are we satisfied that we have jurisdiction to entertain the appeal but indeed we are of opinion that we have a statutory duty to do so under s 20. There remains the question to be decided -- and it is really the only question in this case -- as to whether or not the appellant is a member of the sponsor's family who forms part of his household. Mr Chishti adduced additional evidence before us in the shape of an insurance policy effected on the sponsor's life in favour of the appellant after the death of their parents, but in our view this evidence is of limited assistance. As his sister she is clearly a member of his family in the widest sense of the word, and since she is living with the sponsor it is possibly arguable that she is part of his household. But does she fulfil the two requirements in the sense intended by s 8(3)? Mr Birks submits that she does not. In his submission the privilege conferred by the section is intended to enable persons in the diplomatic service, who are moved from country to country for long periods, to take their families and households with them. The appellant came to this country as a visitor and has never been here in any other capacity (except that of overstayer). Whilst we can envisage cases in which a sister might properly be considered part of her brother's family and household, in our view each case must be considered in relation to its own particular facts. The adjudicator in this case gave specific reasons for his finding that the appellant did not satisfy the requirements of the section. They appear to us to be valid reasons justified by the evidence before him, although we agree with him that the failure of the Secretary of State to give such reasons was regrettable. In our opinion, however, the determination of the adjudicator was supported by the evidence before him and in accordance with the law. n3 n3 The above decision of the Tribunal, affirming the decision of the adjudicator, was quashed by the Divisional Court of the Queen's Bench on 16 January 1981 on an application for judicial review made on behalf of Mrs Gupta. WOOLF J, considering the proper interpretation of s 8(3) of the Immigration Act 1971, together with the Diplomatic Privileges Act 1964, held that, while a brother and sister were inevitably members of the same family, a sister did not necessarily become a member of her brother's family (or vice versa) by their living in the same home; but, if a person had become a member of a relative's household, this fact would go a long way to establish that that person had become a member of his family where (as here in the case of a diplomat) he was the head of the household. The adjudicator had erred in focussing his attention on the outset of Mrs Gupta's arrival as a visitor (in 1973) and not considering as relevant what happened after she remained here for a long period after being refused further leave; he had erred when he said that the fact of her [1979-80] Imm AR 52 remaining with her brother after being refused leave could not constitute her a member of his family. The adjudicator should have considered what Mrs Gupta's status under s 8(3) of the 1971 Act was at the time the decision to deport her was made (June 1978): it was to be noted that the adjudicator had found that Mrs Gupta had never -- either previously in India or more recently in this country -- had to 'fend for herself'. WOOLF J concluded his judgment by saying that on different evidence at a different date the position might be different; and if at any time her brother ceased to be someone entitled to the benefits of the Diplomatic Privileges Act 1964 then Mrs Gupta would also lose the protection provided by his diplomatic immunity.

DISPOSITION:

Appeal dismissed.

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