R v. Immigration Appeal Tribunal, Ex parte Manek

R v Immigration Appeal Tribunal, ex parte Manek

COURT OF APPEAL, CIVIL DIVISION

[1978] 3 All ER 641, [1978] 1 WLR 1190, 143 JP 40

Hearing Date: 15 MAY 1978

15 MAY 1978

Index Terms:

Commonwealth immigrant - Admission - Grounds for admission - Admission as dependant of person already in the United Kingdom and settled there - Already in the United Kingdom - Sponsor settled in United Kingdom but temporarily absent on visit abroad when application for admission made - Whether sponsor required to be physically present in United Kingdom and settled there when dependent's application made - Immigration Rules for Control on Entry: Commonwealth Citizens, para 39.

Held:

The applicant was a citzen of Kenya. His mother came to England and by 1971 was ordinarily resident here. The applicant remained in Kenya. In January 1972 the mother went to Kenya and after she had been there for about 11 months she sent the applicant to England. Shortly after his arrival in December 1972, he applied for admission for settlement in the United Kingdom as a dependant of his mother. At that date she was still in Kenya. The application was refused on the ground that the mother was not a person who is 'already in the United Kingdom and settled here', within para 39 a of the Immigration Rules for Control on Entry: Commonwealth Citizens b, because, although she was ordinarily resident in the United Kingdom and therefore settled there, she had not been physically present and therefore not 'already' in the United Kingdom at the relevant time. The applicant appealed to the Immigration Appeal Tribunal against a decision to deport him. The tribunal dismissed the appeal. The applicant applied for an order of certiorari to quash the tribunal's decision on the ground of error in law in the construction of para 39. The Divisional Court granted the application holding that the mother's temporary absence from the United Kingdom did not disqualify the applicant from admission under para 39. The tribunal appealed. a Paragraph 39, so far as material, is set out at p 642 e, post. b Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (H of C Paper (1972-73) No 79) Held - Under para 39 a dependant's sponsor was not 'already in the United Kingdom' unless he or she was physically present in the United Kingdom when the dependant applied for admission. It followed that, as the mother had been in Kenya when the applicant had applied for admission, he did not qualify under para 39. Accordingly the appeal would be allowed (see p 642 j and p 643 b to d and f g, post). R v Secretary of State for the Home Department, ex parte Mughal [1973] 3 All ER 796 applied.

Notes:

For the admission for settlement of dependants of a person settled in the United Kingdom, see 4 Halsbury's Laws (4th Edn) para 992.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department, ex parte Mughal [1973] 3 All ER 796, [1974] QB 313, [1973] 3 WLR 647, 137 JP 846, CA, Digest (Cont Vol D) 25, 101j.

Cases cited in the Judgment:

R v Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All ER 452, [1977] 1 WLR 766, CA

Introduction:

Appeal. The Immigration Appeal Tribunal appealed against the decision of the Queen's Bench Divisional Court (Lord Widgery CJ, Melford Stevenson and Lloyd JJ) on 20th January 1978 to grant an order of certiorari quashing a decision of the Immigration Appeal Tribunal (chairman D L Neve Esq) on 22nd September 1977 dismissing the appeal of the applicant Kaushik Kumar Liladhar Virji Manek, against a deportation order made by the Secretary of State for the Home Department against the applicant under s 3(5)(a) of the Immigration Act 1971.

Counsel:

Harry Woolf for the tribunal. Michael Beloff for the applicant. PANEL: LORD DENNING MR, GEOFFREY LANE AND EVELEIGH LJJ

Judgment One:

LORD DENNING MR. This case raises a short point on the immigration rules. Mr Kaushik Kumar Liladhar Virji Manek is a young man who is very nearly 21 years of age. He was born in Kenya in September 1957. His mother came here some time ago leaving the son behind in Kenya. By 1971 she was ordinarily resident here. In January 1972 she went back to Kenya. Her son was still there. After she had been back in Kenya for about 11 months, she sent the son over to England. She did not come over herself, but she sent the son here. On 7th December 1972 he came in as a visitor for two months on conditions prohibiting employment. After he arrived, he made a new application. He asked to stay as a dependant of his mother, his mother who was then still in Kenya. She did not come back from Kenya, because unfortunately she died there on 7th July 1973. She never came back. The question is whether the son satisfies the provisions of para 39 of the Immigration Rules for Control on Entry: Commonwealth Citizens. Paragraph 39 is the one paragraph which arises for construction. It reads as follows:

'39. Paragraphs 39-46 of these rules cover the admission for settlement of the dependants of a person who is already in the Uniked Kingdom and settled here, or who is on the same occasion given indefinite leave to enter...' It is said that the mother is 'already in the United Kingdom and settled here'; and that this son is the dependant. Paragraphs 40 to 46 describe the nature of dependants, wives, children, grandparents and distressed relatives, but the overriding condition on which these dependants are allowed to come at all is that they have to be dependants of a person who is 'already in the United Kingdom and settled here'.

The mother was certainly settled here. She was ordinarily resident here, and satisfied the meaning of 'settled' in the Immigration Act 1971. The word 'settled', coming in s 33(1) and referring back to s 2(3)(d), means in a case such as this 'ordinarily resident here'. So the mother was certainly 'settled' here. Then there is this other requirement which has to be satisfied: she has to be a person 'who is already in the United Kingdom'. That is additional to being settled. It seems to me that the person has actually to be present in this country to satisfy those words. I am afraid I take a different view from that of Lord Widgery CJ. He took, as an illustration, a case where, for instance, the mother had gone on a day trip to Boulogne. He said how odd if in such a case as that this son did not qualify for entry. He said: '... the use of the words "already in" implies to my mind a journey, a travelling, and a termination of that journey by an arrival...' I must say that I cannot construe the words 'already in' in such a sense as that. I think 'already in the United Kingdom and settled', and 'already' applies to both, must mean that the sponsor is actually physically present in the United Kingdom. That view is borne out by what this court said on similar words in another part of the 1971 Act in R v Secretary of State for the Home Department, ex parte Mughal n1. It is also borne out by the last sentence of para 41 which deals with the wife of a person in the forces: 'A member of HM Forces based in the United Kingdom but serving overseas should be regarded for this purpose as being in the United Kingdom'. That shows the contrast. A man serving 'overseas' would not ordinarily be within the United Kingdom. He would not be 'already' here, but, because he is a member of the forces, this paragraph says that he is to be regarded as being in the United Kingdom. n1 [1973] 3 All ER 796, [1974] QB 313 We were told that in 99 cases out of 100 the sponsor is here, ready to meet the dependant as he comes through the airport to clear up any questions which may arise. Of course there has to be an entry clearance first in the ordinary way; not in this case because he came as a visitor. But it seems to me that the words of the paragraph 'already here' are too strong to be whittled down. I gather both the adjudicator and the tribunal took that view and they have operated it in practice. Construing the words in the ordinary sense, a sponsor has to be ordinarily resident in the United Kingdom and settled here, and physically present when the dependant applies for admission. I would allow the appeal accordingly and say that this son does not qualify under para 39 to come in as a dependant.

Judgment Two:

GEOFFREY LANE LJ. I agree. With great respect to the Divisional Court, it seems to me that the words of para 39 of the immigration rules are unambiguous. The requirements are two-fold. First of all, that the mother, the sponsor in this case, as she has been conveniently called, should be already settled here, and that she undoubtedly was. One only has to look at the provisions of s 2(3)(d) of the Immigration Act 1971 to see that that was so. It reads as follows:

'... references to a person being settled in the United Kingdom and Islands are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.'

That is satisfied, but the second requirement of para 39 is not. That requirement is that the sponsor should already be in the United Kingdom. Was this lady already in? She was not. She was out. She had been out for some considerable time. She was in Kenya, and she had it seems been in Kenya for something like 11 months when this appellant left Kenya in order to come here to be sponsored by her. It seems to me for the reasons expressed by Lord Denning MR that the plaint provisions of para 39 were not complied with. It seems to me that the determination of the adjudicator and that of the Immigration Appeal Tribunal were correct, and accordingly I too would allow this appeal.

Judgment Three:

EVELEIGH LJ. I agree.

DISPOSITION:

Appeal allowed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Treasury Solicitor; Malkin Cullis & Sumption (for the applicant).

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.