Nisa v. Secretary of State for the Home Department

NISA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/32485/78(1488)

Immigration Appeal Tribunal

[1979-80] Imm AR 20

Hearing Date: 19 April 1979

19 April 1979

Index Terms:

Dependent parent -- Divorced mother of only son in the United Kingdom -- Purportedly dependent on son since her divorce 4 years previous to application -- Application to remain as dependent parent made (when aged 48) after given leave to enter as a visitor for 3 months -- Whether divorced mother should qualify for entry as though she were a widowed mother -- Literal interpretation of immigration rule by immigration appellate authority -- Hosenball's Case (CA) considered -- HC 81, para 40 -- Immigration Act 1971, s 19(1).

Immigration rules -- Literal interpretation by adjudicator and Tribunal -- Whether dependent parent, a divorced mother, should be treated as qualifying for entry as though she were a widowed mother -- Hosenball's Case (CA) considered -- HC 81, para 40 -- Immigration Act 1971, s 3(2), s 19(1).

Held:

In the determination reported below the Tribunal held that the immigration rules, though they were "not rules in the nature of delegated legislation so as to amount to strict rules of law" (per LORD DENNING MR in Hosenball's Case, [1977] 3 All ER 452 at p 459), were to be regarded as binding on the Tribunal and adjudicators in view of the provisions of s 19 of the Immigration Act 1971; this had been recognised by the Court of Appeal. Accordingly, since 'divorced' mothers were not mentioned in para 40 of HC 81, neither the Tribunal nor adjudicators were entitled to equate them with 'widowed' mothers and thereby extend the categories of dependent parents (which included 'widowed' mothers) who were eligible for entry under that rule.

Counsel:

Miss A. M. Turkan, counsel for the appellant. B. Hunter for the respondent. PANEL: D. L. Neve Esq (President), E. A. Lewis Esq, B. L. Shibko Esq

Judgment One:

THE TRIBUNAL: The appellant Mrs Faizuu Nisa is a citizen of Pakistan, a lady who is now approaching the age of 50. She was divorced by her husband in 1973. She arrived in this country in May 1977, when she was granted leave to enter for three months subject to a condition prohibiting employment. In August 1977 her son made application for her to be allowed to remain permanently in this country as his dependent. He claimed that she had been totally dependent upon him -- her only son -- since she had been divorced. This application was refused. Against the refusal she appealed to an adjudicator and her appeal was heard by [1979-80] Imm AR 20 Sir John Cotton and dismissed on 29 November 1978. Against the adjudicator's determination she now appeals to the Tribunal. There is a short point to be decided in this appeal, which is this: the paragraph upon which she relies is para 40 of HC 81 which reads as follows:

"Subject to the requirements of paragraphs 34 and 35 widowed mothers, widowers aged 65 or over and parents travelling together of whom at least one is aged 65 or over, should be admitted for settlement if wholly or mainly dependent upon children settled in the United Kingdom who have the means to support their parents and any other relatives who would be admissible as their dependants and adequate accommodation for them. Where a parent has remarried admission should not be granted unless he or she cannot look to the spouse or children of the second marriage for support, and the children in the United Kingdom have sufficient means and accommodation to support both the parent and any spouse or children of the second marriage who would be admissible as dependants. The provisions of this paragraph apply to grandparents of persons settled in the United Kingdom as they apply to parents."

It is claimed on her behalf that para 40 should be read to include divorced mothers who are mainly dependent upon children settled in the United Kingdom. It is urged on her behalf that although divorced mothers are not specifically mentioned in this paragraph they are in the same position as widowed mothers -- indeed, if not the same position, a worse position, if they come from a Muslim society, owing to the stigma which attaches to divorced women in such a case. Miss Turkan submits that it is open to the Tribunal to interpret immigration rules in such a way as they see fit to give effect to their intention. In this connection she referred us to the case of Hosenball n1. In that case the status of the immigration rules was considered by the Court of Appeal. Referring to the rules, LORD DENNING MR said n2: n1 R v Secretary of State for the Home Department, ex p Hosenball, [1977] 1 WLR 766; [1977] 3 All ER 452.

"They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act. n3 They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the courts must have regard to them because there are provisions in the Act itself, particularly in s 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition the courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether the officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law."

n3 The immigration rules "for regulating the entry into and stay in the United Kingdom of persons who are required by the Immigration Act 1971 to have leave to enter" are made by the Secretary of State under s 3(2) of the Act. These remarks were cited with approval in the case of A. D. Patel and others n3. In the Hosenball case, GEOFFREY LANE LJ, after considering the rules, referred [1979-80] Imm AR 20 to s 19(1) of the Immigration Act 1971 and continued n4: n3 The immigration rules "for regulating the entry into and stay in the United Kingdom of persons who are required by the Immigration Act 1971 to have leave to enter" are made by the Secretary of State under s 3(2) of the Act. n4 Amratlal Dahyabhai Patel v Chief Immigration Officer, London (heathrow) Airport and Secretary of State for the Home Department, [1977] Imm A R 116 (CA).

"So, as far as an adjudicator is concerned at least, the rules have the force of law."

In the same case CUMMING-BRUCE LJ, referring to the rules, said n5: n5 [1977] 3 All ER at p 463.

"They are not in my view in any sense of themselves of legislative force. It is true that by section 19(2) of the Immigration Act 1971, the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal..."

Miss Turkan also referred us to the case of Lambri n6. This was a case which fell to be decided under the old immigration rules -- in particular para 40 of Cmnd 4298. This paragraph refers to the admission of children over the age of 18, dependent on a parent in this country, and gives an example of a widowed daughter. The Tribunal in that case expressed the opinion that a divorced daughter might be eligible if she could establish that she had absolutely no means of support apart from that provided by the parent. Miss Turkan submits that by analogy the same principle should be applied to a dependent divorced mother, as in this case. n6 Ibid, at p 466. In reply Mr Hunter submits that an adjudicator in the exercise of his statutory duty (and also this Tribunal) does not need to consider the status of the immigration rules in view of the provisions of s 19 of the Immigration Act. Omitting the question of the exercise of discretion, which does not apply in this case, s 19 provides that an adjudicator shall allow an appeal if he considers the decision appealed against was "not in accordance with the law or with any immigration rules applicable to the case... and in any other case, shall dismiss the appeal." This indeed appears to have been recognised by their Lordships in the passages of their judgments quoted above. With regard to the case of Lambri n6, Mr Hunter points out that this case is distinguishable because the paragraph which was under consideration in that case -- para 40 of Cmnd 4298 -- specified examples of persons who might be eligible; whereas para 40 of HC 81 is precise and refers specifically to those persons who are eligible by virtue of its provisions. Mr Hunter submits that there is nothing in the judgments in Hosenball or indeed any other case which enables the Tribunal to extend the categories of people who are eligible for admission under the rules. n7 Lambri v Secretary of State for the Home Department, [1972] Imm A R 80; TH/88/70 [1979-80] Imm AR 20 Having carefully considered the submissions made to us we are of opinion that Mr Hunter's submissions are well-founded. Insofar as adjudicators and this Tribunal are concerned the immigration rules have to be regarded as binding. Divorced mothers are not mentioned in para 40 of HC 81 and neither the adjudicator nor this Tribunal is entitled to find that the Secretary of State should have added to the specific list of persons contained in the paragraph. For these reasons this appeal is dismissed. The adjudicator considered making a recommendation to the Secretary of State to exercise his discretion in favour of the appellant outside the rules, but decided not to do so as there were elements of deception in the way the appellant obtained admission to this country. We are unable to find that this decision was in any way wrong.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Bryan R. Lizzimore, Chorley Wood.

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