Kantaria v. Entry Clearance Officer

KANTARIA v ENTRY CLEARANCE OFFICER, BRUSSELS
Immigration Appeal Tribunal
[1992] Imm AR 508
HEARING-DATES: 19 May 1992
19 May 1992

CATCHWORDS:
Dependent relative -- daughter aged over 18 -- father granted entry clearance as a businessman -- whether daughter entitled to entry clearance as his dependent -- whether the father could be held to have been granted entry clearance "with a view to settlement". HC 169 paras 40, 48, 50-53.

HEADNOTE:
The applicant was a citizen of Kenya, aged 20 whose father, mother and younger sister were granted entry clearance. Her father had been granted entry clearance as a businessman, and his wife and younger daughter qualified under paragraph 40 of HC 169 as his dependants. The appellant, aged over 18, was refused entry clearance in accordance with the provisions of that rule.

An appeal was dismissed by an adjudicator. Before the Tribunal counsel argued that the appellant's father had been admitted in effect "with a view to settlement" within the meaning of paragraph 48 of HC 169, so that the appellant could qualify for entry clearance under paragraph 51.

Held

1. The appellant's father had been granted entry clearance merely as a businessman, and not "with a view to settlement".

2. The wording of paragraph 40 of HC 169 was clear and unambiguous. It restricted dependants to the wife and children aged under 18.

3. There was no justification, in those circumstances, in seeking to extend its provisions by reference to other paragraphs in the rules.

4. The appellant did not qualify for entry clearance as the dependent relative of her father.

CASES-REF-TO:
No cases are referred to in the determination.

COUNSEL:
N Blake for the appellant; A Gammons for the respondent

PANEL: WB Scott Esq CBE JP (Chairman) Mrs M Padfield JP, Mrs AJ Cross de Chavannes

JUDGMENTBY-1: THE TRIBUNAL

JUDGMENT-1:
THE TRIBUNAL: The appellant, a citizen of Kenya, appeals against the determination of an of an adjudicator (Mr JA O'Brien-Quinn) dismissing her appeal against the refusal of the respondent to grant her entry clearance as a dependant of her parents.

The background is this.

"….The appellant's father was granted entry clearance to the United Kingdom as a businessman and the appellant's mother and younger sister, aged 14 years, were granted entry clearance as the dependants of the appellant's father. However, the Secretary of State noted that at the time of the application being made the appellant was 20 years old and was therefore over the age permitting a person to be considered as the dependant of a person admitted under paragraphs 27-39 of HC 169 as set out in paragraph 40 of HC 169. The Secretary of State also noted that the appellant had extant leave to remain in the United Kingdom as a student until 31 October 1991 to complete her studies at Brunel University. The Secretary of State therefore instructed the Entry Clearance Officer to refuse the appellant's application under paragraph 40 of HC 169 which the Entry Clearance Officer did on 13 December 1989."

Paragraph 40 of HC 169 reads:

"The wife and the children under 18 of a person admitted to the United Kingdom to take or seek employment, or as a businessman, a self-employed person, a writer or artist or a person of independent means, should be given leave to enter for the period of his authorised stay if, apart from his having only limited leave to enter, the requirements of paragraphs 46-50 are fulfilled. Their freedom to take employment should not be restricted unless the head of the family is himself prohibited from taking employment, in which case the prohibition should extend to the wife and children. No other dependants are to be admitted before the person is settled here."

In dismissing the appeal, the adjudicator wrote:

"In this case, the paragraph of the Rules which applies is paragraph 40 of HC 169, as the appellant is a child of her father who applied to be admitted at the same time as a businessman. Thus, the father, being a person with only limited leave to enter may have leave to enter given to his dependants if the requirements of paragraph 46 to 50 are fulfilled. However, paragraphs 46 to 50 deal with spouses, other relatives where adequate accommodation is available, and children under 18 only. The appellant, at the time of application was over 18; being 20 years of age. Mr Owen submitted that paragraph 40 should be looked at in the light of the Rules generally and that the terms of paragraphs 48 and 51 should be taken into account in construing paragraph 40. His argument was an attractive one and did clearly exercise my mind. However, in view of the strict terms of the last sentence of the paragraph namely: "no other dependants are to be admitted before the person is settled here." and the fact that while reference is made, in paragraph 40, to other paragraphs, those other paragraphs are 46 to 50 only, and it does not bring paragraph 51 into play."

The grounds of appeal are:
"In upholding the Secretary of State's decision, the Adjudicator erred in law for the following among other reasons:

iIn responding to the Appellant's application for entry clearance the ECO/Secretary of State wrongly concluded that the Appellant's case fell to be dealt with exclusively under para 40 of the Rules;

ii it is submitted that the Appellant's father was a person who on 16 October 1989 was "given a limited leave with a view to settlement" within the meaning of paragraph 48 of HC 169 and accordingly the Appellant's application fell to be decided in accordance with para-graphs 50-53;

iii para 51 provides for special consideration to 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 to turn to. The Appellant was such a person and accordingly the ECO/Secretary of State ought to have considered her application for entry clearance in the light of the provisions of para 51;

ivthe Adjudicator erred in concluding that paragraph 40 was the only provision applicable to the Appellant's application and that the strict terms of the final sentence ("No other dependants are to be admitted before the person is settled here.") excluded consideration of the Appellant's application under any other rule."

Mr Blake informed us that the appellant now has leave to remain as a student until June 1993. Her grandfather in Kenya has died and her grandmother will be coming to this country.

Mr Blake argued that in paragraph 40 no other dependants must mean no other classes of dependants. Paragraph 52 covered relatives who could not come in under paragraph 40 but regard can be had to paragraph 51 which deals with fully dependent and unmarried daughters over 18 and under 21. The link lies in paragraph 48 (as amended) which refers to relatives of a person given limited leave with a view to settlement. The appellant's father had been given such leave.

The rules did not have the force of statute, and consideration should be given to the question of family unity. Children in full-time education are generally regarded as dependants. A child could have been here for studies but become over 21 by the time of the parents' settlement application. The Home office practice is to look at the family as an entity. Sometimes the Home office ask why something had not been done before the student child had become 21. That is what this appellant has done. The question is what will happen in 1993.

We have considered this argument. The issue is a short one. Can paragraph 40 be extended or paragraph 51 applied. It seems to us that paragraph 40 is quite clear and unambiguous. The only dependants to be admitted are the wife and children under 18 of a person admitted as a businessman. As the rule makes specific provision for such a case, without qualification, reference cannot be made to other rules. We would add, however, that we cannot accept that the appellant's father was given limited leave with a view to settlement. He was simply given limited leave to set up in business.

The appeal is dismissed.

We feel sure that the Secretary of State will, in the exercise of his discretion, look carefully at the appellant's position in 1993 in the light of her father's future immigration status, and what a return to Kenya would mean for her.

DISPOSITION:
Appeal dismissed

SOLICITORS:
Suchak & Co, Wembley, Middlesex