Hamida Begum and Others v. Visa Officer, Islamabad

HAMIDA BEGUM AND OTHERS v VISA OFFICER, ISLAMABAD, TH/46316/79(2099)

Immigration Appeal Tribunal

[1981] Imm AR 126

Hearing Date: 6 August 1981

6 August 1981

Index Terms:

Dependants -- Admission for settlement -- General provisions -- Sponsor required to be "already in the United Kingdom" or "on the same occasion admitted for settlement" -- Sponsor a citizen of the United Kingdom by registration in the United Kingdom -- Sponsor settled in the United Kingdom but in Pakistan at time of dependants' application and temporarily in Denmark at time of its refusal -- Entry clearance not required by sponsor for re-entry -- Dependants admissible -- Immigration Appeal Tribunal v Manek ([1978] Imm. A.R. 131, C.A.) distinguished -- HC 81, paras 34, 38(c) -- Immigration Act 1971, ss 1(1), 2(1)(a).

Patriality -- 'Right of abode' -- British Nationality Act 1948 -- Application for citizenship by registration granted in 1970 to adult representing himself falsely as son of his cousin as whose purported son he had entered the United Kingdom in 1965 -- Citizenship not vitiated when he sought to sponsor his wife and children for settlement in 1977 -- As such citizen settled in the United Kingdom though temporarily resident in Denmark sponsor did not himself require entry clearance -- Dependent family admissible -- R v Secretary of State for the Home Department, ex p Akhtar ([1980]2 All ER 735, C.A.), distinguished -- British Nationality Act 1948, ss 6, 7(1) -- HC 81, paras 34, 38(c).

Held:

The appellants, citizens of Pakistan, sought entry certificates for settlement in the United Kingdom as the wife and children of their sponsor. He had come to this country in 1965 when aged 18 purporting to be the son of a named cousin already here, and in 1970 he applied for and obtained citizenship of the United Kingdom by registration in this country under s 6 n1 of the British Nationality Act 1948; he again represented himself as the son of his cousin. n1 Under s 6 of the Act the sponsor as a citizen of Pakistan, "being a person of full age and capacity" was "entitled, on making application therefor to the Secretary of State in a prescribed manner, to be registered as a citizen of the United Kingdom and Colonies" on his satisfying the Secretary of State that he was ordinarily resident in the United Kingdom throughout the period of 12 months immediately preceding his application and that he continued to be so resident. The appellant's applications were refused by the respondent visa officer because he was not satisfied that they were related as claimed to the sponsor. They appealed to an adjudicator. He was satisfied as to the relationship but dismissed their appeals, holding that the sponsor in 1965 was an illegal entrant who could not, therefore, be a person "settled" in the United Kingdom; and furthermore that his registration as a citizen of the United Kingdom and Colonies could not avail him as, citing Akhtar's Case n2, registration only protected the person described in the register, and he was not as described the son of the cousin whose name appeared as that of his father. n2 R v Secretary of State for the Home Department, ex p Parvaz Akhtar [1980] 2 All ER 735, C.A. On the appellants' further appeal to the Tribunal it was conceded for the respondent that when the sponsor entered the United Kingdom in 1965 he did not require leave to enter (Commonwealth Immigration Act 1962) and consequently there was no leave to be vitiated; and it was accepted that Akhtar's Case n2 was distinguishable inasmuch as the registration in that case was of a minor child by his purported father under s 7(1) n3 of the British Nationality Act 1948 and not the registration of an adult on his own behalf under s 6. For the respondent it was, however, submitted that the appellants were not eligible for entry, because words in para 34 of HC 81 required inter alia that the person sponsoring dependants be "already in the United Kingdom and settled here", and in Manek's Case n4 the Court of Appeal decided that the words "who is already in the United Kingdom" required actual physical presence; the sponsor at the time of the application was in Pakistan and at the time of its refusal he was employed in Denmark. It was noted that at neither time, as alternatively required by para 34 of HC 81, had he "on the same occasion (been) given indefinite leave to enter". n2 R v Secretary of State for the Home Department, ex p Parvaz Akhtar [1980] 2 All ER 735, C.A. n3 Section 7(1) provides as follows: "The Secretary of State may cause the minor child of any citizen of the United Kingdom and Colonies to be registered as a citizen of the United Kingdom and Colonies upon application made in the prescribed manner by a parent or guardian of the child." n4 Immigration Appeal Tribunal v Manek [1978] Imm. A.R. 131; TH/14026/77(1025). Held (allowing the appeal): (i) The sponsor could properly be regarded as settled in the United Kingdom because he owned a house here and regarded this country as his home, and he was only working in Denmark temporarily because of the unemployment situation here. (ii) While it was true the sponsor has not been "on the same occasion admitted for settlement" as a citizen of the United Kingdom and Colonies by registration he did not require entry clearance. Per curiam: In the opinion of the Tribunal the immigration rules must be construed is such a manner as to avoid absurdity, and it would be absurd if a citizen of the United Kingdom and Colonies were to be placed in a less favourable position (in relation to having his family join him in this country) than an alien.

Counsel:

Mukhtar Hussain, counsel for the appellants. D. Massey for the respondent. PANEL: D. L. Neve Esq (President), Mrs J. M. Abrahams, A. S. Newman Esq

Judgment One:

THE TRIBUNAL: The four appellants are citizens of Pakistan. On 4 July 1977 they applied to the visa officer in Islamabad for entry clearance to enable them to join a Mr Nisar Ahmed (the sponsor) for settlement in this country as his wife and children. The visa officer was not satisfied that they were his wife and children and refused their application on 21 February 1979. They appealed to an adjudicator against the refusals and their appeal was heard by Mr A G Hawthorn and was dismissed on 13 November 1980. Against Mr Hawthorn's determination they now appeal to the Tribunal. The adjudicator was satisfied that the appellants were related to Nisar Ahmed as they claimed and Mr Massey has accepted this finding. The adjudicator dismissed the appeal, however, because he found that Nisar Ahmed was an illegal entrant and consequently could not be regarded as settled in this country. Nisar Ahmed came to this country in 1965 when aged 18, representing himself (falsely, as he admits) as being the son of Qudarat Hussain (who was in fact his cousin). The adjudicator held that this was deception which vitiated Nisar Ahmed's leave to enter. But, as counsel pointed out to us, when he arrived in this country in 1965 he did not require leave to enter, under the Commonwealth Immigrants Act 1962 or any other legislation. There was consequently no leave to be vitiated. Mr. Massey conceded that this was so. In 1970 Nisar Ahmed applied for citizenship of the United Kingdom and Colonies by registration, and this application was subsequently granted. The adjudicator found, however, that this could not avail him because

"registration only protects the person described in the register, in this case Nisar Ahmed, the son of Qudarat Hussain. Nisar Ahmed, the son of Ali Akbar (Nisar Ahmed's real father) has never become a citizen of the United Kingdom and Colonies in spite of the purported registration."

In so finding the adjudicator stated that he was following the judgment of the Court of Appeal in the case of R v Secretary of State for the Home Department, ex parte (Parvaz) Akhtar. Mr Hussain has submitted that the present case is distinguishable from Akhtar's Case, n5 however, because that case involved an application by a father on behalf of a minor child, under s 7(1) of the British Nationality Act 1948, n6 whereas this case involved an application under s 6 of that Act by a person of full age on his behalf n7. Mr Massey intimated that he did not wish to contest this submission because he was instructed that if this were the only obstacle to the appellants' application, they would be granted entry clearance. n5 [1980] 2 All ER 735. The Court of Appeal (per Templeman LJ) summarised the facts in Akhtar's Case as follows: "The applicant was allowed into this country as Parvaz Akhtar, infant son of Waris Ali. If he was not the son of Waris Ali he was an illegal entrant and was not entitled to be registered as a citizen of the United Kingdom and Colonies. In due course on the application of Waris Ali there was registered as a citizen Parvaz Akhtar, son of Waris Ali. The Secretary of State, acting through immigration officers believes, and has reasonable grounds for believing, that the applicant is Abdul Hamid, son of Noor Hussain, and that Parvaz Akhtar, son of Waris Ali either never existed or was some person other than the applicant. The Secretary of State acting under powers conferred by the Immigration Act 1971 has directed the removal of the applicant from the United Kingdom as an illegal entrant." The Court of Appeal dismissed Akhtar's appeal. n6 Section 7(1) of the Act is set out in footnote 3, ante. n7 The material provision in s 6 of the Act is set out in footnote 1, ante. Mr. Massey drew our attention to another matter, however, which had not been considered either by the visa officer or the adjudicator. Paragraph 34 of HC 81 (which, it is not disputed, applies to this case) provides:

"34. Paragraphs 34-41 of these rules cover the admission for settlement of the dependants of a person who is already in the United Kingdom and settled here, or who is on the same occasion given indefinite leave to enter. In all such cases that person must be able and willing to support and accommodate his dependants without recourse to public funds."

The words "who is already in the United Kingdom" require actual physical presence in this country, as was decided by the Court of Appeal in the case of Manek n8. At the time of the appellants' application, however, the sponsor was, from his own evidence, in Pakistan: and at the date of refusal (21 February 1979) he was in Denmark. The appellants were consequently not eligible under the rules -- paras 34-39 of HC 81. n8 Immigration Appeal Tribunal v Manek, [1978] Imm. A.R. 131; TH/14026/77(1025), d 5.5.78. It is true that the sponsor was not "on the same occasion admitted for settlement" because, as a citizen of the United Kingdom and Colonies by registration, he did not require entry clearance. Nevertheless, in the opinion of the Tribunal the rules must be construed in such a manner as to avoid absurdity, and it would be absurd if a citizen of the United Kingdom and Colonies were to be placed in a less favourable position (in relation to having his family join him in this country) than an alien. This cannot have been the intention of the draftsman of the rules. Although the sponsor was working in Denmark when the appellants' application was refused, the evidence was that he owned a house in this country, which he regarded as his home, and that he was only working temporarily in Denmark owing to the unemployment situation in this country. In these circumstances the Tribunal considers that he could properly be regarded as settled here. For these reasons this appeal is allowed and the appellants are to be issued with the entry clearances applied for.

DISPOSITION:

Appeal allowed.

SOLICITORS:

Ramsbottom & Co, Blackburn.