Secretary of State for the Home Department v. Xu

SECRETARY OF STATE FOR THE HOME DEPARTMENT v XU

Immigration Appeal Tribunal

[1993] Imm AR 519

Hearing Date: 4 May 1993

4 May 1993

Index Terms:

Husband -- admitted to United Kingdom as visitor -- application for variation of leave as dependant of wife, herself admitted as student -- whether any immigration rule applied -- whether the application was a request to the Secretary of State to depart from the rules -- whether the application fell to be considered as an application to extend leave as a visitor. Immigration Act 1971 s 19: HC 251 paras 104, 116.

Held:

The respondent was the husband of a person who had been admitted to the United Kingdom as a student. He himself had been granted leave to enter as a visitor. An application was made for variation of his leave to remain as the dependant of his wife. The application was refused, the relevant rule making no provision for the admission of a husband as the dependant of his student wife. On appeal the adjudicator allowed the appeal, she holding there was no applicable immigration rule and on the facts, the respondent before the Tribunal was entitled to succeed. The Secretary of State appealed. Held 1. The application was properly considered by the Secretary of State under the rules relating to visitors. 2. A person applying for limited leave will fall within the visitor rules unless the purpose of his stay places him in a different category of the rules or outside the rules altogether. 3. The visitor rules had no express purpose implied in them and the purpose of the respondent, to stay with his wife, fell within the broad ambit of those rules. 4. He had already enjoyed the maximum period permitted under the visitor rules and the application was a request to the Secretary of State to depart from the mandatory requirements of the rules.

Cases referred to in the Judgment:

Sehan Kelada v Secretary of State for the Home Department [1991] Imm AR 400. Sharad Deen (unreported) (9563).

Counsel:

A Gammons for the appellant; The respondent did not appear and was not represented. PANEL: Professor DC Jackson (Vice-President), RE Hunte Esq JP, AK Khandwala Esq JP

Judgment One:

THE TRIBUNAL: The Secretary of State appeals against the decision of an adjudicator (Mrs PA Symons JP) allowing the appeal of Yi Fan Xu against the refusal of leave to remain as the dependant of his wife, Ying Liang. The Tribunal heard representations from Mr Gammons, and indicated that it would determine the appeal subject to notification to the respondent of this intention. Subsequent to the hearing the respondent and his wife apologised for their absence, stating that, as they had indicated in respect of their appeal to the adjudicator, they did not wish a hearing: they had not thought that there was any obligation on them to appear on their own behalf before the Tribunal. After further enquiry the respondent indicated that he and his wife were content for the Tribunal to decide the matter on the evidence before it. They made written representations. The respondent was granted leave to enter the United Kingdom on 21 March 1991 for six months as a visitor. On 14 August 1991 he applied for leave to remain. This application was refused on 3 October 1991, the notice of refusal reading: "Mrs Ying Liang has applied on your behalf for leave to remain in the United Kingdom as the dependant of your wife who is a student in the United Kingdom. The Immigration Rules makes provisions for the wife and children of a person who is a student to remain as a dependant. However as you are not the wife or child of a person here as a student the relevant requirements of the Rules are therefore not met. The Secretary of State therefore refuses your application." There is before us, and was before the adjudicator, a certificate from the Open University confirming that Mrs Liang started a full-time postgraduate research course there on 1 October 1990 and that it will terminate on 30 September 1993. At all times she has been in receipt of a maintenance grant including an allowance for her husband as a dependant. The immigration rule relating to dependants of students is that set out in HC 251 paragraph 116. This reads: "116. The wife and children under 18 of a person granted an extension under paragraphs 108 to 115 should be granted a corresponding extension if they can be maintained and accommodated without recourse to public funds. Their freedom to take employment should not be restricted unless the student himself is prohibited from taking employment in which case the prohibition should extend to the wife and children." The rule quite clearly refers only to "wife and children under 18" and does not include the husband. An accompanying letter to the certificate from the Open University from the Director of Equal Opportunities at the university expresses concern that the rejection was based on legislation "which so clearly distinguishes the rights of male and female students". The director asked that the Home Office exercise its discretion not to enforce "these out of date rules". In a written representation accompanying the notice of appeal, the respondent and his wife seek exceptional treatment for the respondent. They make the points, first, that there are several precedents for such a course and that the legislation is "blatantly discriminatory". It is stressed that Mrs Liang needs the presence of her husband while she is at Open University because of its character, in that there are very few students present in Milton Keynes. This support was particularly important in case she was in need of medical attention, and it is said by the respondent's wife that she has a duodenal ulcer which often pained her. She needed her husband's help in daily life. In a response to the letter from the Director of Equal Opportunities at the Open University, the Immigration and Nationality Department confirmed that the immigration rules made no provision for husbands of women students to accompany or join their wives studying here, but that applications could be considered outside the rules "where there are strong compassionate circumstances". However, said the writer of the letter, the decision in this case was to be maintained. The adjudicator who dealt with the matter on the papers set out the background to the case, but thought that the wording in the notice of refusal was not entirely accurate. In the adjudicator's view, the immigration rules made no provision for husbands of women students to accompany them. "There appears to be no rule which is applicable to the husband of a person who is a student here who seeks to remain for a limited period as her dependant." In reaching that conclusion the adjudicator found that this was a case in which the Secretary of State was not requested to depart from the rules because there was no applicable rule. The adjudicator held that, therefore, she had jurisdiction to review the discretion of the Secretary of State and, bearing in mind all the arguments and the facts, she allowed the appeal. In their representations to us the respondent and his wife repeated their belief that it is not the policy of this country to force a married couple to live apart in different countries, although they could afford their living expenses here. They say that Mrs Liang has made great progress and expects to complete her course on time if her husband could be allowed to accompany her. She stressed she still needed her husband's help in daily life because there was no student campus in Milton Keynes and she had to live alone. They point out that the university strongly supported their appeal. Conclusions As Mr Gammons said, the Tribunal has held that where a person is applying for a temporary stay in this country, he will fall within the visit rule unless the purpose of his stay places him in a different category of the rules or outside the rules altogether because of the nature of the purpose of stay (see Kelada [1991] Imm AR 400; Sharad Deen (9563)). In the Tribunal's view, as in those cases, so in this, the purpose of the respondent's stay does not place him outside the visit rules and, indeed, it would appear that was the purpose for which entry was given in the first place. The visit rules have no express purpose implied in them and the purpose of the respondent in remaining with his wife, in our view, cannot be excluded from the broad ambit of the rules. It follows, therefore, that there is a rule which covers the respondent's application and he, having stayed for the maximum duration permitted by that rule, cannot succeed under the rules. It is axiomatic that the rules actively discriminate against female students, in that they do not provide expressly for dependants. However, that is a matter of policy by Parliament with which the appellate authority must comply. There being a rule which covers the respondent's application, it is, as was recognised by the respondent, an application to depart from the rules. The appellate authorities have no jurisdiction to review the merits of that discretion, and there is no factor in this case which would go to show that the Secretary of State did otherwise than consider all the circumstances put to him. The appeal of the Secretary of State is allowed. We bear in mind, however, that Mrs Liang's course will end in September 1993, and we also bear in mind the strong support by the university for her husband to accompany her and the somewhat unusual circumstances of the university which she is attending. We have no doubt that her husband's presence is an encouragement and of assistance to her, and that, in all probabilities, he will help to ensure that she does complete the course within the period set. This being so, we strongly recommend to the Secretary of State that he seek further representations from the respondent and his wife, and that in the light of that evidence he reconsider whether, in all the circumstances, leave should not be granted outside the rules until September 1993.

DISPOSITION:

Appeal allowed
 

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