VISA OFFICER, ISLAMABAD v WAHEED AKHTAR, TH/65147/80(2073)
Immigration Appeal Tribunal
 Imm AR 109
Hearing Date: 25 June 1981
25 June 1981
Children -- Entry clearance -- Child's settlement sought in 1979 -- Issue whether both parents were 'settled in the United Kingdom' -- Mother given indefinite leave to enter to join sponsor as his wife in 1976 -- Only 4 1/2 months spent by mother in United Kingdom since 1976 (during 2 visits) -- Intention now to accompany son but return shortly thereafter to remaining children in Pakistan -- Whether mother, though herself entitled to readmission to the United Kingdom, was a parent 'settled' here so as to qualify the child to enter for settlement -- Whether mother acting in effect improperly as a courier with view to circumventing provisions relating to the admission of children for settlement -- Cases of Mushtaq Ali (May 1979) and Anayat Bibi (April 1981) considered and applied -- Immigration Act 1971, s 2(3)(d) -- HC 81, paras 1, 38(a) & (c).
Held:The issue in the determination of the Tribunal reported below was whether the mother of a Pakistan child whose settlement in 1979 was sought by his sponsoring father was herself already 'settled in the United Kingdom' or (at least) seeking settlement here with the child she proposed under para 38 of HC 81 to accompany to this country. n1 The Tribunal held that the child (aged 11) was not entitled to admission for settlement under para 38, because the evidence showed that his mother's previous residence with his father in the United Kingdom, following the indefinite leave granted to her in 1976, had totalled only 4 1/2 months (during two visits), and her intention in 1979 was to accompany the child and then -- after no more than a few months -- return to Pakistan to her other children; in those circumstances the mother, though entitled to come to the United Kingdom in her own right (under para 36 of HC 81), was not a parent settled here or being admitted for settlement under para 38(a) or (c) of HC 81. n1 n1 Paragraph 38 of HC 81 provides for the admission for settlement of children under 18 years of age if, inter alia and so far as here relevant, (a) both parents are settled in the United Kingdom, or (c) one parent is settled in the United Kingdom and the other is on the same occasion admitted for settlement. Semble, she was not "ordinarily resident" in the United Kingdom so as to comply with the definition of the phrase "settled in the United Kingdom" given in para 1 of HC 81 reproducing in part the definition contained in s 2(3)(d) of the Immigration Act 1971 n2. n2 Section 2(3)(d) of the 1971 Act provides generally (subject to an exception not relevant here) that "references to a person being settled in the United Kingdom and Islands are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain". Visa Officer, Islamabad v Mushtaq Ali & anr (TH/20157/77(1530) d 16.5.79) and Anayat Bibi & ors v Visa Officer, Islamabad (TH/53725/79(1994) d 1.4.81), considered and applied.
Counsel:D Massey for the appellant Visa Officer. A McGeachy of the United Kingdom Immigrants Advisory Service, for the respondent. PANEL: P. N. Dalton Esq (Vice-President) Mrs. J. M. Abrahams, Miss P. G. Liverman
Judgment One:THE TRIBUNAL The present respondent Waheed Akhtar, who is the son of Mohd Razak who lives in Crawley, Sussex, applied in 1977 at Islamabad for an entry clearance to enable him to join the sponsor as his son. When he was interviewed on 22 August 1979 he was accompanied by his mother Tasveer Jan. The entry clearance officer noted from Tasveer Jan's passport that she had been issued with entry clearance in July 1976 and that since that time she had spent only four and a half months in the United Kingdom. She was asked for how long she intended to remain in the United Kingdom this time and she said that she would stay six months only and that her purpose in going was to enable Waheed to study there. She said she would have to come back, since she had younger children in Pakistan, namely Mohd Idrees and Parvez Hussain who would continue to study in Muree. Waheed Akhtar (then 11 years old) confirmed what his mother had said but added that she would stay only two or three months in the United Kingdom. In reviewing the position the entry clearance officer noted the following matters. Tasveer Jan had been admitted to the United Kingdom (with an older son) free of conditions on 19 December 1976 to join her husband. However she had remained on that first occasion for only two months and on the second occasion only two and a half months. On this occasion, she said that she would stay again for only a temporary period. The entry clearance officer felt, therefore, that she was not a genuine 'returning resident' although she was entitled to return to the United Kingdom in her own right, (under para 36 of HC 81). The officer pointed out to her that it was his opinion that she was not settled in the United Kingdom and did not intend settlement and that in these circumstances it could not be said that Waheed's parents were both settled in the United Kingdom, or being admitted for settlement. He also pointed out that she had admitted that her sole reason for going to the United Kingdom was to enable Waheed to proceed there for studying. She did not deny this. The application by Waheed was refused as the entry clearance officer was not satisfied that both his parents were settled in the United Kingdom or being admitted for settlement. n3 n3 The officer acted under para 38 of HC 81, the relevant provisions of which are set out in footnote 1, ante. On appeal to the adjudicator, Mr W Phillips, Tasveer Jan gave evidence and said that when she was interviewed her intention was to stay in the United Kingdom for ever; she did miss her children in Pakistan but she would not go back. She said she was asked how long she intended to stay -- she did not understand the question. However her husband Mohd Razak said in his evidence (as noted by the adjudicator):
"In December 1978 not decided how long she should stay -- question of bringing the appellant here. If the appellant got entry certificate idea she and appellant would come back (i.e. to the United Kingdom). No certain plan as to how long she would stay -- she would have to go back to see sons and daughters."In his determination the adjudicator referred to s 2(3)(d) of the Immigration Act 1971, which provides that a person is settled in the United Kingdom when he is "ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain". The adjudicator said that it seemed to him that the movements of Tasveer Jan were entirely compatible with the retention of her status as ordinarily resident in the United Kingdom and he therefore allowed the appeal. The Visa Officer, Islamabad, was granted leave to appeal to the Tribunal on the following grounds: "The adjudicator has erred in law in his interpretation of paragraph 38 of HC 81 and failed to follow the directions laid down by the Tribunal in Ali (1530) regarding wives who intend coming to the United Kingdom on a temporary basis only." n4 n4 Visa Officer, Islamabad v Mushtaq Ali & anr, TH/20157/77(1530) d 16.5.79. The case was not cited to the adjudicator. This appeal really involves a very short point. Mr McGeachy claimed that the adjudicator's finding that the movements of Tasveer Jan were 'entirely compatible with the retention of her status as ordinarily resident in the United Kingdom' was a reasonable finding, but Mr Massey submitted that such movements -- which are referred to earlier in this determination -- were directly opposed to the retention of the status of being ordinarily resident. The ground of appeal refers to the case of Mushtaq Ali n4, the facts in which were not dissimilar to the facts in the present case. In that case the wife had first joined her husband in the United Kingdom in 1970 with a son and daughter, had returned to Pakistan in 1971 with her daughter leaving the son in this country, had returned with her daughter to the United Kingdom in September 1972 and remained here until March 1974, when she again returned to Pakistan with her daughter. In 1975 she applied to come here with two other sons of the marriage. Her application was refused because the entry clearance officer was not satisfied that the boys were the sons of the sponsor but the adjudicator on hearing further evidence found that they were the sons of the sponsor and he allowed the appeal. In the determination of the Tribunal allowing the appeal of the Visa Officer, Islamabad, it is stated: "The adjudicator has referred in his determination to Fazal Bi's right to enter and to live in the United Kingdom as the wife of a person settled here, now a citizen of the United Kingdom and Colonies, but the question in the present appeal is not whether she has a right to settle but whether she is in fact settled here or is now coming for settlement. It does not follow that, because as the wife of Mohabet Ali she qualifies for entry, her sons qualify for settlement. In the opinion of the Tribunal, bearing in mind the definition of
'settled in the United Kingdom' in para 1 of HC 81, she has not, up to now, settled here. She has not been settled permanently in the United Kingdom; she has had a home in Pakistan which she has on two occasions left for visits to this country. She can hardly he said to have been, up to now, 'ordinarily resident in the United Kingdom'. If there has not been a typographical error in the passage quoted above, then we agree with the adjudicator's conclusion (though not with his reasons therefor) that the appellants cannot come here under para 38(a) and that one must look instead to para 38(c).We now come to the crux of the matter, which is a question of fact rather than interpretation of the immigration rules, namely is Fazal Bi proposing to come with her sons to settle in this country or is she proposing merely to act as their courier and then return to Pakistan? If she is not coming to settle, then the boys cannot come to settle, if she is coming to settle, then they, now that they have established their relationship, can come with her to settle." The Tribunal in that case held that there was insufficient evidence to establish that her purpose was to return to this country for settlement. In the present case there was evidence that the intention was to stay in the United Kingdom for only six months and then return to Pakistan, since there were younger children still there. Waheed Akhtar himself confirmed what his mother had said though he stated she would only stay two or three months in the United Kingdom. Indeed, she maintained she would only stay a short time. Before the adjudicator, however, she claimed that her intention was to stay here for ever and when asked how long she intended to stay, she did not understand the question. Her husband said that there was no certain plan how long she would stay -- she would have to go back to see the sons and daughters. In the more recent case of Anayat Bibi n5 the applications of a mother and her two sons to come to this country for settlement with the sponsor were refused because the visa officer was not satisfied that the first appellant -- the mother of the two other appellants, intended to come to this country for settlement. He was of opinion that she intended to come here with the two children, leave them here with the sponsor, and then return to Pakistan. Mr McGeachy had argued that if the relationship claimed was genuine it was mandatory for the visa officer to issue entry clearance. The Tribunal was unable to accede to such arguments because, in their opinion, for such an application to be successful it had to be a genuine application for settlement and not simply a device to circumvent the requirements of para 38 of HC 81 relating to children and thereby secure the admission of children who would otherwise be inadmissible to join one parent for settlement. n5 Anayat Bibi & ors v Visa Officer, Islamabad, TH/53725/79(1994) d 1.4.81 (unreported). In the present case the adjudicator made no finding on the evidence but in our view the visa officer reached a wholly reasonable conclusion that it was the intention of Tasveer Jan to bring Waheed Akhtar to this country to enable him to study and that she herself, as she had done in the past, would return to her home and remaining children in Pakistan.
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