Beckett v. Secretary of State for the Home Department

BECKETT v SECRETARY OF STATE FOR THE HOME DEPARTMENT

IMMIGRATION APPEAL TRIBUNAL

[1990] Imm AR 472

Hearing Date: 19 April 1990

19 April 1990

Index Terms:

Indefinite leave -- leave to enter granted to appellant as visitor -- widow of British citizen -- married abroad -- husband had died before appellant granted leave to enter -- whether appellant qualified for settlement under the rules -- whether the application was a request to the Secretary of State to depart from the rules. Immigration Act 1971 s 19(2): HC 169 paras 48-53, 133.

Step-parents -- whether the term 'parents' in paragraph 52 includes a 'step-parent'. HC 169 para 52.

Held:

The appellant was a citizen of Sierra Leone. In 1983 there she had married the late John Beckett: he was a British citizen with children and grandchildren in the United Kingdom from a previous marriage. The appellant and her late husband had intended to return to the United Kingdom at the beginning of 1985: family circumstances caused delay. In March 1985 Mr Beckett died. The appellant subsequently travelled to the United Kingdom and was admitted as a visitor to wind up her husband's affairs. Subsequently she applied for indefinite leave to remain, after becoming with leave, a student. The application was refused. An appeal was dismissed by an adjudicator. On appeal to the Tribunal it was argued that the appellant qualified under paragraph 133 of HC 169, with reference to paragraph 52. Held: 1. The appellant did not come within any of the particular categories specified in paragraph 133 of HC 169. 2. She was obliged therefore to rely on that rule's provisions relating to "close relatives of persons settled in the United Kingdom." 3. Those provisions were limited to those who also satisfied the provisions of paragraphs 48-53 of the rules. 4. Only paragraph 52, in that set had any relevance: there was no evidence to show that the appellant was financially dependent on any relative in the United Kingdom: she was thus also outwith paragraph 52. 5. The application therefore was a request to the Secretary of State to depart from the rules; his refusal to do so was not reviewable by the immigration appellate authorities. 6. Obiter and following Bibi Bagas 'patent' in paragraph 52 of HC 169 does not include a step-parent.

Cases referred to in the Judgment:

Bibi Bagas and ors v Entry Clearance Officer, Bombay [1978] Imm AR 85.

Counsel:

D Roberts for the appellant; A Cunningham for the respondent PANEL: Professor DC Jackson (Vice-President), Mrs M Padfield JP, AG Jeevanjee Esq

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of Sierra Leone, appeals against the decision of an adjudicator (Lady Anson DL) dismissing her appeal against the refusal of the Secretary of State to vary her leave to remain in the United Kingdom either (a) as a student, or (b) by the granting of indefinite leave. There is no dispute as to the factual background to this case although no oral evidence was given before the adjudicator or before us. If the appellant can show an arguable entitlement under the immigration rules for either of her appeals further evidence might well have to be heard. Mrs Beckett, the applicant, was married to her husband John Beckett in Sierra Leone on 9 April 1983. Both had been married before, Mr Beckett's wife having died in this country and he having in this country a married son who has children and a daughter. It seems that at the time of the marriage Mrs Beckett had two children from her previous marriage. Mr Beckett was employed in Sierra Leone by the National Diamond Mining Company and on 10 January 1985 he was made redundant. Mr Roberts told us that the family lived on company premised and on his being made redundant tickets were provided for him, his wife and the child of Mrs Beckett's by the previous marriage to return to this country. That return was delayed because they wanted the child to finish the academic year in June. Regrettably, however, Mr Beckett died on 14 March 1985. After exchange of telegrams with Mr Beckett's family in this country it was agreed that Mr Beckett should be buried in Sierra Leone and that Mrs Beckett would then go to the United Kingdom. This occurred and on her arrival here on 29 April 1985 she was admitted as a visitor for the purpose of completing her late husband's affairs. This leave was extended for the same purpose ultimately until 29 October 1986. There is on file a grant of probate on 9 April 1986 specifying the value of the estate as some @91,000. There seems to have been an amicable settlement of the division of funds and Mrs Beckett received approximately @40,000. There followed an application from Mrs Beckett to remain in this country as a student in order to undertake a hairdressing course. This was said to be for the purpose of opening a hairdressing salon in Sierra Leone. This course began in January 1987 and Mrs Beckett was granted leave to remain as a student ultimately until 31 July 1988. On 18 March 1988 the appellant's solicitors applied for indefinite leave to remain in this country apparently on the ground of her marriage to Mr Beckett. On 18 July 1988 the Ebony School of Hairdressing applied for further leave for her to remain as a student to complete the hairdressing course with them. They indicated that one of Mrs Beckett's daughters had died and that her studies were interrupted. These applications were refused, initially on 31 October 1988, the wording of the refusal being amended by the letter of 24 April 1989. As a result the grounds of refusal as to both applications are: "Raphael Teff and Company, Solicitors have applied on your behalf for indefinite leave to remain in the United Kingdom on the basis of your marriage to a now deceased British citizen, but there is no provision for this under the Immigration Rules. Furthermore, you were not admitted or allowed to remain for one of the purposes leading to settlement listed in paragraph 133 of HC 169 and the Secretary of State is not satisfied that you are the close relative of a person or persons settled in the United Kingdom. Also the Ebony School of Hairdressing Ltd have applied on your behalf for further leave to remain as a student, but the Secretary of State does not believe that you intend to leave at the end of your studies." It was clear from what Mr Roberts told us that the appellant's case is based essentially on her application for indefinite leave. Mr Roberts stressed that Mrs Beckett had not been advised to apply for indefinite leave until 1988. Mr Roberts did not press the student application before us and in all the circumstances we agree with the adjudicator that the application must fail. The clear intention of Mrs Beckett is and on the date of decision was not to return to Sierra Leone but to remain in this country. The application for indefinite leave is to be ajudged in accordance with HC 169 paragraph 133. This paragraph, as is well-known, provides for the application for indefinite leave from persons who are in this country in one of a number of specified capacities. The part of the rule which applies in this case, however, is that providing for an application based on the presence of close relatives in this country. That part of the rule reads: "Applications for variation of leave to enter or remain with a view to settlement may also be received from persons given leave to enter or remain otherwise than for the purposes set out above, but permission in such cases has to be limited to close relatives of persons who are settled in the United Kingdom. Particulars are set out in paragraphs 48-53." It is clear from that rule that the categories of applicant are those which on entry would be considered under paragraphs 48-53. Of those rules the only rule possibly applicable to Mrs Beckett's case is that set out in paragraph 52. This reads: "Widowed mothers, fathers who are widowers aged 65 or over and parents travelling together of whom at least one is aged 65 or over should be admitted for settlement only where the requirements of paragraph 48 and the following conditions are met. They must be wholly or mainly dependent upon sons or daughters settled in the United Kingdom who have the means to maintain their parents and any other relatives who would be admissible as dependants of the parents and adequate accommodation for them. They must also be without other close relatives in their own country to turn to. This provision should not be extended to people below 65 (other than widowed mothers) except where they are living alone in the most exceptional compassionate circumstances, including having a standard of living substantially below that of their own country, but may in such circumstances be extended to sons, daughters, sisters, brothers, uncles and aunts of whatever age who are mainly dependent upon relatives settled in the United Kingdom. The requirements of paragraph 48 must be met in any such cases." Relevant to the construction of paragraph 52 is paragraph 53. This reads: "Where a parent has remarried admission should not be granted under the preceding paragraph 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 maintain both the parent and any spouse or children of the second marriage who would be admissible as dependants. The provisions of this and the preceding paragraph apply to grandparents of persons settled in the United Kingdom as they apply to parents." Unless Mrs Beckett can show that she falls within the ambit of that rule any application for leave to remain in this country must depend upon the exercise of the Secretary of State's discretion outside the rules. Because of the link between paragraph 133 and the On Entry rules, it is clear that any such application would be a request to the Secretary of State to depart from the rules. Any refusal so to do is not reviewable before us (section 19(2) of the Immigration Act 1971). It is not asserted that Mrs Beckett has any claim to a right of abode and her claim therefore depends entirely on paragraph 52. As Mr Roberts reluctantly agreed in this case any such claim meets an insuperable obstacle in that it is simply not arguable that Mrs Beckett is dependant upon any member of her family or Mr Beckett's family in this country. Mr Roberts stressed the family connections between Mr Beckett's children by his previous marriage and Mrs Beckett. However strong these may be they cannot amount to a dependency to satisfy paragraph 52. There is not the slightest evidence of any financial dependency and while it may be arguable that there is some emotional dependency without at least some financial dependency no case can be made. In effect that answers the appeal but Mr Roberts did argue the point as to whether Mrs Beckett as the stepmother of Mr Beckett's children by his previous marriage fell within the ambit of paragraph 52. He asked us to indicate our view on this but as the case in effect does not turn on it we do no more than that. Mr Roberts argued that it would be strange if the concept of mother or parent were to exclude stepmothers or step-parents. He gave us an illustration where the circumstance was that a natural mother or father died early in the childhood of their children and the step-parent performed the role of the natural parent during the upbringing of the children. This of course is not this case which falls rather towards the other end of the spectrum ie where the step-parent has had little connection with the children -- at least during their formative years. Mr Cunningham relied on the language of the rule and the construction placed upon it by the Tribunal in Bibi Bagas [1978] Imm AR 85. In that case the Tribunal were construing the equivalent provisions of HC 79 but the reasoning is equally applicable to HC 169. The Tribunal rejected an argument that the wording of the rule that is now paragraph 53 meant that the rule that is now paragraph 52 included step-parents. On the contrary, held the Tribunal, paragraph 53 requires the existence of a natural parent. Further, said the Tribunal, in the provision dealing with children (in HC 169 paragraph 50) the word "parent" is defined to include in certain circumstances the stepfather or stepmother. The Tribunal took the view that had the draftsman intended similar interpretation for parent in paragraph 52 he would have said so. We agree that paragraph 53 cannot be used to show that step-parents are included within paragraph 52. On the other hand neither does it show that they are necessarily not included. It simply underlines the need for dependency of both the "parent" and the "spouse" on the children in this country. It is focused on the possibility of support from the spouse or children of the second marriage thus removing the dependency on the children of the first marriage. It is not concerned directly with the application by a stepmother who is dependent on children in this country. We take the point about definition of a parent in paragraph 50 and note that if that definition were adapted to paragraph 52 it would make some sense if stepmother and stepfather are within paragraph 50 only if the respective natural mother or father of a child is dead. It seems to us impossible to adapt the definition set out in paragraph 50-52 and without it there is the danger of a plurality of parents qualifying for entry under paragraph 52. We doubt whether that was the intention of the draftsman particularly bearing in mind the favourable position of parents under that paragraph. For these reasons we incline to the view taken by the Tribunal in Bibi Bagas. However, as we say, we do not decide the case on the ground that the appellant as a widowed stepmother falls outside the rule but simply on the ground that it is not arguable that at the date of decision she was dependent upon any one of those who would qualify as close relatives were the appellant within paragraph 52. The appeal is dismissed. Mr Roberts asked us to consider a recommendation and we note that in the final paragraph of her determination the adjudicator recommended that the Secretary of State should look at the case in the light of the facts which had emerged before the adjudicator. We were told by Mr Cunningham that this review had taken place. For our part we are content to agree with the adjudicator that the facts did call for a fresh review. The circumstances presently in existence are not all before us and no doubt the appellant's representatives will ensure that they are before the Secretary of State.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Michael A Grant & Co.

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.