R v. Immigration Appeal Tribunal, Ex parte Gurdev Singh

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE GURDEV SINGH

Court of Appeal (Civil Division)

[1989] 1 FLR 115

Hearing Date: 3 May 1988

3 May 1988

Index Terms:

Immigration -- Appeal -- Applicant seeking admission to UK as dependent adoptive son of sponsor -- Adjudicator not satisfied that there had been a genuine transfer of potential responsibility -- Whether onus of proof shifted in last sentence of para 50 from application to the Secretary of State -- Statement of Changes in Immigration Rules (IIC 169), para 50

Held:

This was an appeal from a decision of Otton J dismissing the applicant's application for judicial review of the decision of the Immigration Appeal Tribunal which, in its turn, had refused leave to appeal from a determination of the adjudicator. The adjudicator had refused the applicant an entry certificate enabling him to settle in the UK as the dependent adopted son of the sponsor on the basis that he was not satisfied that on the balance of probabilities, the onus of proof being on the applicant, there had been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child. Paragraph 50 of HC 169 provided (1) that unmarried children under 18 were to be admitted for settlement if one parent or a relative other than a parent was settled in the UK. (2) that 'parent' also included an adoptive parent, but only where there had been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child and (3) that the adoption was not one of convenience arranged to facilitate the child's admission. The applicant contended that while the onus of proof was on him to show a prima facie case that the person he wished to join was his adoptive parent, the burden of proof shifted from him in the final part of para 50 to the Secretary of State. Held -- dismissing the appeal -- the Immigration Rules must be construed sensibly according to the natural meaning of the language employed. The onus of proof lay on the applicant to show, firstly, that he was an adoptive child, secondly, that there had been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child and thirdly, that the adoption was not one of convenience arranged to facilitate the applicant's admission, since those matters were clearly wholly within his own knowledge or that of the adoptive parent. The onus of satisfying the court that the applicant or his parent came within the relevant definition in para 50 must lie on the applicant himself. Statutory provision considered Statement of Changes in Immigration Rules (HC 169), para 50

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765; [1983] 2 WLR 321 R v Immigration Appeal Tribunal ex parte Tohur Ali [1988] 2 FLR 523 Alexander v Immigration Appeal Tribunal [1982] 2 All ER 766; [1982] 1 WLR 1076

Introduction:

APPEAL from decision of Otton J in the Queen's Bench Division.

Counsel:

Harjit Singh and Maluck Singh Chuhan for the applicant; David Pannick for the Immigration Appeal Tribunal. PANEL: May, Stocker and Stuart-Smith LJJ

Judgment One:

MAY LJ: This matter comes before the court by way of an appeal from a decision of Otton J of 18 June 1987. He had before him an application for judicial review of the Immigration Appeal Tribunal which in its turn had refused leave to appeal from a determination of 14 April 1985 of Mr Disley, the adjudicator. The relevant passage in the decision of Mr Disley reads as follows:

'Having considered all the facts of this appeal and upon the balance of probabilities I find Kartar Singh's statement to Mr Weir that Mrs Gill adopted the appellant because she had no children is credible. Mrs Gill who was a childless divorcee adopted the appellant to the mutual satisfaction of the entire family. I believe the adoption was not one of convenience to secure entry to the UK.However, on the facts, I am not satisfied on the balance of probabilities that there has been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child'.

He therefore dismissed the application. Otton J, in his turn, dismissed the application for judicial review finding for the construction of the last paragraph of para 50 contended for by the Secretary of State, contrary to that contended for by counsel for the applicant. For my part I think it wholly unnecessary to go into to facts of this case. Paragraph 50 is in these terms:

'If the requirements of paragraphs 46 and 47 are satisfied,' [those are immaterial for present purposes] 'children under 18, provided that they are unmarried, are to be admitted for settlement:'Then there follow a number of sub-paras each of them beginning with the word 'if'. We are concerned with subpara (e).

'. . . if one parent is settled in the UK or is on the same occasion admitted for settlement and has had the sole responsibility for the child's upbringing:'The important point in the instant case is that the relevant parent is said to be an adoptive parent. The last part of para 50 provides:

'In this paragraph "parent" includes the stepfather of a child whose father is dead; the stepmother of a child whose mother is dead; and the father as well as the mother of an illegitimate child. It also includes an adoptive parent, but only where there has been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child, and the adoption is not one of convenience arranged to facilitate the child's admission.'Mr Singh, in an attractive argument on behalf of the appellant, has submitted that whereas he accepts that the obligation is on the appellant to show a prima facie case that the person he wishes to join is his adoptive parent, that is, that there has been an adoption, nevertheless, in the last sentence of para 50 the burden of proof changes from the appellant in the first part to the Secretary of State in the remainder.

In support of that, if he will permit me to say so, rather suprising construction of para 50, surprising because I do not find it easy to construe a single part sentence in the rules as to onus of proof differently from another part of the same sentence; nevertheless, he principally relies on three main arguments. First of all, he draws attention to the well-known decision of their Lordships' House in Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765 and in particular the dictum from the speech of Lord Scarman at p782 where he said:

'Second, there is the problem of proof. The initial burden is on the applicant. At what stage, if at all, is it transferred to the respondent? And, if it is transferred, what is the standard of proof he has to meet? It is clear from the passages cited from Lord Atkin's opinions in Liversedge v Anderson and Eshugbayi's case that in cases where the exercise of executive discretion interferes with liberty or property rights he saw the burden of justifying the legality of the decision as being on the executive. Once the applicant has shown a prima facie case, this is the law.'For my part, with all respect to the argument, I do not think that Khawaja has any relevance in the instant case at all. In Khawaja their Lordships' House was concerned with the question of whether or not a person was an illegal immigrant and as such liable to be detained and deported. That is not the situation in the instant case. There is no question of the applicant's liberty or property rights being interfered with. The question is, as I understand it, whether the applicant has made out his case to be admitted, as the adoptive child of the relevant parent under the provisions of para 50 of HC 169.

Superadded to his submission that the case is covered by the decision in Khawaja, and that dictum to which I have referred. Mr Singh also relies upon the decision of this court in R v Immigration Appeal Tribunal ex parte Tohur Ali [1988] 2 FLR 523. In that case, this court by a majority adopted what was said to be a more benevolent construction of the Immigration Rules, having regard in particular to the terms of para 2 of HC 169. So Mr Singh submits in the instant case that the court ought to adopt a benevolent construction of the last sentence of para 50 and, although accepting that the onus is on the applicant in the first part of that sentence, should nevertheless construe the other part of the sentence as one in which the burden of proof has been, changed to the Secretary of State. In further support of those arguments, Mr Singh has drawn our attention to the wording of other paragraphs in HC 169, some of which make it clear (even clearer perhaps than para 50) where the onus of proof lies, in the one case on the applicant and in another case perhaps on the Secretary of State. But in the course of those submissions he also directed our attention to the salutary dictum, if I may so describe it, in the case of Alexander v Immigration Appeal Tribunal [1982] 2 All ER 766. In the leading speech of Lord Roskill in that case he said at p770:

'These rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed.'That in my opinion is the proper approach to the construction, in particular, in this case of that last sentence of para 50. It seems to me, as I have already said, wholly unarguable that there is any change in the incidence of the onus of proof a third of the way through the last sentence. When one reads it sensibly, as one was enjoined to by the decision in Alexander's case, it seems to me quite clear that before an applicant can come within the definition, or can bring his parent within the definition of adoptive parent, because that is what it is at the end of para 50, he must show, first, that he is an adoptive child, secondly, that there has been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child, and thirdly, the adoption was not one of convenience arranged to facilitate the child's admission.

If anything else was required for the ultimate decision of those words, there is another consideration which, in my judgment, is wholly overpowering in so far as the proper construction is concerned and that is this; if the onus of proof of the second and third parts of the last sentence is said to be on the Secretary of State, one asks rhetorically, from what source or sources is it intended that he should obtain the necessary information so as to be able to discharge the burden of proof which is allegedly upon him? The matters to which those two parts of that last sentence refer are clearly matters wholly within the knowledge either of the adoptive parent himself or herself or of the child applicant seeking entry into the UK. On that ground alone, quite clearly the onus of satisfying the court that one comes within the relevant definition, or that one's parent comes within the relevant definition in para 50, must lie on the applicant himself. In my judgment the decision of the judge below was wholly right and I would dismiss this appeal.

Judgment Two:

STOCKER LJ: I agree.

Judgment Three:

STUART-SMITH LJ: I also agree.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Mandla & Co, Birmingham, for the applicant; Treasury Solicitor