Visa Officer, Islamabad v. Saeedan

VISA OFFICER, ISLAMABAD v SAEEDAN TH/97187/82 (2865)

Immigration Appeal Tribunal

[1983] Imm AR 131

Hearing Date: 28 September 1983

28 September 1983

Index Terms:

Practice and procedure -- Children -- Settlement -- Immigration rules applicable -- Immigration Act 1971 s 1(5) -- HC 394 para 47.

Held:

Whether or not the adjudicator, from whose decision this appeal arose, was correct in ruling that, by reason of section 1(5) of the Immigration Act 1971, paragraph 47 of HC 394 was inapplicable to the present respondent's case. She had appealed to the adjudicator against the refusal by the present appellant of her application, made when she was nineteen years of age, for entry clearance to join her father for settlement. The facts are fully set out in the determination below. Held: (i) The adjudicator wrongly construed section 1(5) of the Immigration Act 1971. (ii) The appeal should have been considered under paragraph 47 of HC 394.

Cases referred to in the Judgment:

Md Hamidul Hague (Unreported) TH/93545/82 (2606) of 7 February 1983. Walker (Unreported) TH/12842/75 (1066) of 7 November 1977.

Counsel:

B Hunter for the appellant; K Drabu for the respondent. PANEL: DL Neve Esq (President), GW Farmer Esq (Vice-President), Professor DC Jackson (Vice-President).

Judgment One:

THE TRIBUNAL. The respondent is a citizen of Pakistan, a girl born on 10 January 1961. On 27 May 1980 -- when she was 19 -- she applied for entry clearance to enable her to join her father for settlement in this country. Her application was refused. She appealed to an adjudicator against the refusal. Her appeal was heard by Air Vice-Marshal Ayling and was allowed on 8 December last. Against the adjudicator's determination the visa officer now appeals to the Tribunal. We reserved our determination and the parties agreed to postal delivery of it. The respondent's application was refused because the visa officer was not satisfied that she was related to her alleged father as claimed, and also because she was over 18 at the time of application and the visa officer did not consider that she qualified for admission under paragraph 47 of HC 394, which he considered to be the applicable immigration rule. At the appeal before the adjudicator the question of relationship was conceded by the visa officer's representative and the only question at issue was whether paragraph 47 was the correct immigration rule under which to consider her application. After hearing submissions the adjudicator held that, in so far as her application was concerned, paragraph 47 was not applicable: and this by reason of section 1(5) Immigration Act 1971, which reads:

"The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed."

Because paragraph 47 of HC 394 (which contains the rules made under the 1971 Act) contained more stringent conditions than the earlier rules, the adjudicator considered that the earlier rules should be applied. Mr Hunter submits that he was in error in so finding. The appeal turned upon the proper construction of section 1(5). In order to discover its purpose he sought to refer us to a passage in Hansard, but we declined to consider this, it being well settled law that such a course is not permissible when attempting to arrive at the meaning of the wording of a statute. Mr Hunter submitted that the Commonwealth Immigrants Act 1962, as amended by the Commonwealth Immigrants Act 1968, specifically provided that certain categories of persons should not be refused admission to this country -- notably the wives and children under the age of 16 of Commonwealth citizens settled in this country. The purpose of section 1(5) of the 1971 Act, he suggested, was to ensure that such persons were not adversely affected by the Act. Mr Hunter pointed out that the preceding legislation -- the Commonwealth Immigrants Act 1962, as amended by the 1968 Act, and the rules made thereunder -- CP 4298 -- gave no entitlement to admission to children over the age of 16. There was certainly provision in the rules for children between the ages of 16 and 21 to be granted entry certificates in certain circumstances, but this was a matter depending on the exercise of discretion and not something to which they were entitled by virtue of either the 1962 and 1968 Acts or the 1971 as of right. Although the way in which such discretion should be exercised was prescribed in HC 394 in terms less favourable to applicants than in CP 4298, actual entitlement to entry as of right was not affected. This was the basis of the Tribunal's decision in the case of Md Hamidul Hague (2606). The Tribunal had come to a similar conclusion, for different reasons, in the case of Walker (1066). In reply, Mr Drabu submitted that it was not simply a matter of the exercise of discretion -- if children applicants between the ages of 16 and 21 fulfilled certain conditions set out in the rules they were entitled to admission. Therefore any rule made under the 1971 Act which lessened such entitlement (as paragraph 47 in effect did) was ultra vires the Act by reason of section 1(5). Thus the adjudicator's determination was correct. Mr Hunter then pointed out that if paragraph 47 was ultra vires there was no rule at all which was applicable, since CP 4298 and the succeeding rules ceased to exist upon HC 394 coming into force. We have considered these submissions. The point at issue is one of some importance because of late it has more frequently been claimed that certain rules in HC 394 are ultra vires by reason of section 1(5). One thing is perfectly clear: neither the 1962 and 1968 Acts nor the 1971 Act render admissible children over the age of 16 of the sort we have to consider: any claim to admissibility they had or have is derived from the rules. Paragraph 47 of HC 394 reads:

"Children aged 18 or over must qualify for settlement in their own right unless there are the most exceptional compassionate circumstances (in which case their cases should be considered under paragraph 48). Special consideration may, however, be given to fully dependent and unmarried daughters over 18 and under 21 who formed part of the family unit overseas and have no other close relatives in their own country to turn to. The requirements of paragraphs 42 and 43 must be met in all cases."

Paragraph 40 CP 4298 (which deals with persons of the appellant's age) reads:

"Generally, children over 18 must qualify for admission in their own right; but, subject to the requirements of paragraphs 37 and 38 an unmarried and fully dependent son under 21 or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family is resident in the United Kingdom or are admitted for settlement, and undertake to accommodate and maintain her and her dependants."

Paragraph 44 of HC 79 (which came into effect on 25 January 1973 and which the adjudicator thought should apply to this case) reads:

"Generally, children aged 18 or over must qualify for admission in their own right; but, subject to the requirements of paragraphs 39 and 40, an unmarried and fully dependent son under 21 or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement."

Thus paragraph 47 of HC 394 is less favourable to persons such as the respondent that the previous rules, as the conditions which their case is required to fulfil are more stringent. Accordingly we are left in no doubt that they are, to use the words of section 1(5) "by virtue of . . . the rules . . . less free to come into . . . the United Kingdom". However the matter does not end there. Section 1(5) provides that they shall not be less free "than if this Act had not been passed". What would the position have been if the Act had not been passed? Both HC 394 and the earlier rules conferred admissibility upon such children which was not conferred by the statutes themselves. The rules under which they obtained such admissibility were made by the Secretary of State. In the case of CP 4298 they were not, strictly speaking, rules at all in that there was no provision in the 1962 Act requiring or authorising the Secretary of State to make rules. Section 16(3) of the 1962 Act provided that:

"In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions as may be given by the Secretary of State . . ."

and such instructions were presented to Parliament, but that is as far as it went. The later rules made under the 1971 Act were made under section 3(2) of the Act and laid down a procedure which had to be followed. They had to be approved by Parliament. Thus it might be said to have been easier for the Secretary of State to change the rules under the earlier legislation than under the 1971 Act, and he could at any time have changed the rules relating to Commonwealth children over the age of 16 as they were in fact changed by paragraph 47 of HC 394. Indeed he could have made a rule even less favourable to such children than this paragraph. So it was not the passing of the 1971 Act which was responsible for the rules becoming less favourable and such children becoming less free to come to this country. For these reasons we consider that the adjudicator wrongly construed section 1(5) and the respondent's appeal should have been considered under paragraph 47 of HC 394. The appeal is therefore allowed. It appears from the record of proceedings that the respondent may wish to produce evidence of admissibility under paragraph 47, and consequently the appeal is remitted to Air Vice-Marshal Ayling to hear any such evidence as it may be desired to adduce, to entertain any submissions it is desired to make, and to redetermine the appeal in the light of this determination.

DISPOSITION:

Remitted to the adjudicator as above.

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