Brown and Another v. Entry Clearance Officer, Kingston

BROWN AND ANOTHER v THE ENTRY CLEARANCE OFFICER, KINGSTON, TH/3941/73(693)

Immigration Appeal Tribunal

[1976] Imm AR 119

Hearing Date: 19 March 1976

19 March 1976

Index Terms:

Dependent son(s) -- "part of the family unit overseas" -- Adoption locally of applicants' brother during babyhood -- De facto but not legal adoption -- Whether brother still part of family unit overseas so as to disqualify applicants from settlement in United Kingdom under HC 79, para 44.

Dependent son(s) -- "part of the family unit overseas" -- Sister of applicants unmarried but over 21 in domestic service some miles for Jamaican home -- Whether sister part of the family unit overseas so as to disqualify applicants from settlement in United Kingdom under HC 79, para 44.

Entry certificate -- Date of application -- Preliminary enquiries in vague terms -- Application not 'duly made' until request (written or verbal) to entry clearance officer in unambiguous terms in respect of particular person -- Immigration Act 1971, s 13(2).

Held:

In the determination reported below the Tribunal ruled that an application for an entry certificate was not 'duly made' until a request in quite unambiguous terms for an entry certificate to be issued to a particular person was before the entry clearance officer; and, affirming the adjudicator, the Tribunal added that as the legislation did not prescribe any form of application there could be such an application even if made verbally (see p 124, post). n1 n1 In respect of appeals against exclusion from the United Kingdom s13(2) of the Immigration Act 1971 provides as follows: "Subject to the provisions of this Part of this Act [i.e. Part II relating to appeals], a person who, on an application duly made, is refused a certificate of patriality or an entry clearance may appeal to an adjudicator against the refusal." The question was of special relevance in the instant appeals of two brothers, citizens of Jamaica, because the younger brother's age at the date of application would determine the immigration rule under which his request for settlement in the United Kingdom was properly to be considered, i.e. whether under the rule relating to children under 18 years of age or under the more onerous para 44 of HC 79 as a fully dependent unmarried son over 18 and under 21 years of age n2. In the circumstances (set out in the determination) the Tribunal held that the application was not made until after the second appellant's 18th birthday, namely on 30 May 1973, some 12 months after preliminary enquiries had been commenced through the post in quite vague terms by the sponsoring mother. n2 Paragraph 44 of HC 79 is set out in p 125, post. On the two appellants' admissibility to the United Kingdom under para 44 of HC 79 two questions had to be decided, (1) whether the appellants' older sister and younger brother who were remaining in Jamaica were part of the 'family unit' so that the requirement that the whole family be settled or were being admitted for settlement in the United Kingdom could not be met -- (a) the appellants' sister was about 22 years old and did not want to go to the United Kingdom, and since 1972 had been in domestic service in Kingston; (b) the appellants' younger brother was born in 1955 and had been handed over when a baby to a lady who had no children; and (2) whether the appellants were "fully dependent" sons. Held: (i) (reversing the adjudicator), (a) the appellants' older sister was no longer part of the family unit for the purpose of para 44 of HC 79 because being over 21 years old at the time of their applications for entry certificates she was an adult entitled to decide her own destiny and she had in fact left home in 1972 and entered domestic service some miles away in Kingston; and (b) the appellants' brother was likewise no longer part of the family unit, for since babyhood he had been regarded as part of the family of the lady who had de facto adopted him and been responsible for his upbringing and on whom he had depended. Per curiam: In the context of West Indian custom the Tribunal could not regard the lack of legal adoption formalities as having had the effect of keeping that brother within the original family unit. (ii) (affirming the adjudicator's decision), the appellants' parents had made a considerable contribution to their maintenance, but the appellants were not fully dependent on their parents because since leaving school the appellants had in some measure been 'earning their keep' by helping with the farming work on the land of the uncle in whose home they lived; accordingly they did not qualify for settlement under para 44 of HC 79.

Counsel:

R. Sheikh of the United Kingdom Immigrants Advisory Service, for the appellants. K. E. R. Rogers for the respondent.

PANEL:

A. Hooton Esq (Chairman), Dr L. P. De Souza, Sir Gordon Whitteridge.

Judgment One:

THE TRIBUNAL: The appeal was against the determination of the Chief Adjudicator (Mr. J. D. Peterkin) dismissing the appellants' appeal against the refusal of the respondent to grant them entry certificates with a view to their admission to the United Kingdom to join their parents here. The appellants are two youths, citizens of Jamaica. The elder, Moses Winston Brown, was born on 7 July 1953; the younger, Donald Leonard Brown, on 21 December 1954. Their father, Mr Uriah Brown, left Jamaica in 1957 and settled in the United Kingdom, their mother joined him 3 years afterwards. The 5 children of the marriage were left behind. In addition to the appellants there was another son, Noel, born in 1955, and two daughters, Pearl born in 1951 and Dulcie born in 1958. Noel was handed over to a lady with no children of her own when he was a baby -- he has not, since his de facto adoption, been regarded as a member of the Brown family. The appellants, after their parents had left Jamaica, lived with their grandmother until she died, and then with an uncle and aunt. According to the evidence given by Mr and Mrs Brown to the adjudicator they had sent money and clothes for their children, and money realised on the sale of their house and land in Jamaica had also been used to support the children. After the boys left school they worked on their uncle's land but received no pay. Their sister Dulcie said they helped in the farming work but gave monies received to their aunt. A number of chfildren were born to Mr and Mrs Brown in the United Kingdom, but in 1972, some 15 years after Mr Brown had left Jamaica, they decided they were able and would like to bring over the children left behind. By letter dated 24 May 1972, received in the Home Office on 30 May 1972, Mrs Brown wrote in the following terms:

"Could you please send a form H2 for me. I have four children in Jamaica aged 21, 18, 17, 13 and there is no one to look after them for me, and would want them to live here from who were looking after them they died and wife poorly now. Thank you. Please."

The Home Office replied by letter dated 19 June as follows: "In reply to your letter dated 24.5.72, application for entry certificates under the Commonwealth Immigrants Act cannot be made in this country on behalf of persons wishing to come to the United Kingdom. All applications should be made abroad by the person wishing to come. In the case you mention, the application should be made to: British High Commission (P.O. Box 628), Harbour Street, Kingston, Jamaica." The sponsors thereupon on 21 June 1972 wrote to the High Commission.

"This is to inform you on behalf of my children them in Jamaica which is unprotected and I want them to join me in England. I would be grateful if you would send me a quick reply. Thank you."

This letter was received on 27 June 1972, and the High Commission did send a prompt reply on 29 June 1972. "I acknowledge receipt of your letter dated June 21st about the issue of a United Kingdom entry certificate to your relatives. Please let me have the full names and dates of birth of your relatives so that I can give you further assistance." Further correspondence followed including a letter from the sponsors dated 5 October 1972 reporting that Moses, Donald and Dulcie had been told to get their birth certificates and that Pearl had decided not to go. At last the appellants and also their sister Dulcie completed their application forms for entry certificates. (Forms IM2). These were dated 30 May 1973. The appellants described their occupation as farming. On that day Moses was aged 19 years and 10 months and Donald was aged 18 years and 5 months. Dulcie was then aged 15. Dulcie's application was granted. Since she was under 18 years of age and both her parents were settled in the United Kingdom, she was entitled to be admitted for settlement by virtue of rule 43(b) of HC 79. The entry clearance officer, however, refused the appellants' applications, since they were over 18 years of age and he was not satisfied that they had been fully dependent members of the sponsors' family overseas. In reaching this decision the entry clearance officer applied the facts as he saw them, to the provisions of para 44 of HC 79, which stipulates that unmarried and fully dependent sons over 18 (but under 21), who formed part of the family unit overseas, may be admitted to the United Kingdom if the whole family are settled here or are being admitted for settlement. n3 n3 Paragraph 44 of HC 79 is set out on p 125, post. On appeal to the adjudicator, Mr Sheikh submitted that, on the basis of the correspondence between the sponsors and the Home Office, the application for entry certificates was made in June 1972. At that time Donald was 17 1/2 years old and therefore, if that were the date of his application, entitled to succeed in his application. The adjudicator, after considering the terms of the correspondence and reviewing the relevant authorities found that the date of the application was 30 May 1973 -- he accordingly determined that Donald could not claim the entitlement of a child under 18 to join his parents under para 43(b) of HC 79 but had to be judged under para 44, as had Moses. The adjudicator proceeded to conclude that the appellants did not qualify under para 44 for two reasons, firstly that they were not fully dependent on the sponsors and secondly, that the whole family was not settled or coming to settle in the United Kingdom. It will be recalled that Noel (born in 1955) had been de facto adopted by a lady with no children of her own when he was a baby. The adjudicator considered that as he had not been legally adopted he was still part of the family unit. Pearl had gone into domestic service and did not wish to come to the United Kingdom. The adjudicator granted leave to appeal to the Tribunal on 3 grounds: "1. The letter of 21 June 1972 from the sponsors to the High Commission was a valid application in respect of Donald. 2. The adjudicator was wrong in deciding that Pearl and Noel were still members of the family unit. 3. The adjudicator's conclusion on the question of full dependency was against the weight of evidence." With regard to the first ground, if Donald's application was, as contended by Mr Sheikh, made by either the letter of 24 May 1972 or that of 21 June 1972, his eligibility to come to the United Kingdom is governed by the Commonwealth Immigrants Acts 1962 and 1968 and Cmnd 4298, since the Immigration Act 1971 did not come into force until 1 January 1973 and HC 79 did not have effect until 30 January 1973. Paragraph 38 of Cmnd 4298 contains, however, essentially similar provision to para 43 of HC 79 -- Donald, being under 18, would be "readily admitted", since both his parents are resident in the United Kingdom, provided, of course, he had an entry certificate. When was Donald's application for an entry certificate made? Was it in May or June 1972 or in May 1973? Mr Sheikh cited to us a number of cases in support of his submission that one or other of the letters dated 24 May 1972 and 21 June 1972 constituted an application for an entry certificate. In Barai's Case (TH/3835/73) an adjudicator held that, although the applicant was over 21 years old when she signed her form IM2, a letter from her parents to the High Commission written before she was 21 constituted "quite clearly" an application for an entry certificate. That letter read:

"I beg to enclose photostat copy of affidavit, and shall be grateful if you will issue to my daughter, Miss Vijyalaxmi Golcaldis Barai, a visa as I wish her to pursue her education in the United Kingdom."

In Sadler's Case (TH/4384/73) an adjudicator accepted as an application for an entry certificate a letter from the applicant's father addressed to the High Commission before the applicant's 18th birthday "asking in quite unambiguous terms for an entry certificate to be issued to his son". In Prawl's Case (TH/963/72(64)) application was made after the age of 18 but the Tribunal found that the applicant had been fully dependent on his parents and accepted that he formed part of the family unit. The Tribunal considered it reasonable, in the light of the facts of that particular case, to exercise the limited discretion permitted under para 40 of Cmnd 4298 to make an exception to the general rule that persons of 18 or over must qualify in their own right -- one example of a proper exception given in that rule was the admission of a fully dependent son under 21 who formed part of the family unit overseas. Rampersaud's Case (TH/1654/72(102), a decision of the Tribunal in January 1973, related to the application for an entry certificate with a view to admission to the United Kingdom as a returning resident. The Tribunal accepted a verbal application as sufficient. The adjudicator in his determination quoted a passage from the determination of the adjudicator (Mr E. G. Seagroatt) in the case of Shah (TH/2321/73) as follows:

"The Immigration Act 1971, s 13(2), refers to 'an application duly made' and I apprehend that means in conformity with the reasonable requirements of the authority by whom the application is to be considered. n4 It does not, in my view, mean that every tentative enquiry, every preliminary step towards ascertaining what is required, or any earlier indication of intention to make an application is to be regarded as the application itself. There must come a time when the gathering together of all the requisite documents and information crystalises itself into the making of a formal application...."

n4 Section 13(2) of the 1971 Act is set out in footnote 1, ante. The adjudicator's finding on the date of the application is set out in para 6 of his determination, which reads: "6. Bearing in mind these determinations I turned to the present appeal. I had not been referred to any decision of the Appeal Tribunal nor can I find anywhere the Tribunal specifically meets Mr Sheikh's point head on as it were. I was however persuaded that Mr Seagroatt's observations to which I have already referred were correct, except possibly the use of the concluding words -- 'formal application'. I would have thought it more accurate to say that the material date arrives when the entry clearance officer has before him, verbally or otherwise, the major particulars required to enable him to consider the application. He need not have an IM2 as long as he knows what he is being asked for. At that material date he must consider the application in the light of the immigration law and rules then prevailing, not of the law and rules pertaining in the event of a change at the date he makes his decision. Should I be correct in this, what of this case? The letter of 29 June 1972 indicates strongly that the entry clearance officer lacked material particulars of the children concerned. He needed names and, in particular, dates of birth. These he did not get on the papers before me until 30 May 1973. That must therefore be in my view taken as the material date, the date of application. By that date Donald was 18 years and 5 months old and the immigration rules of Cmnd 4298 had given way to paras 43 and 44 of HC 79. Donald could not claim in my view the entitlement of a child under 18 to join both his parents in the United Kingdom under para 43. He had to be judged under para 44 as had Moses." The legislation does not prescribe any form of application. The use of form IM2 is convenient as it ensures that the main particulars required for consideration of the application are before the entry clearance officer. Certainly if there has been a request for an entry certificate, containing those particulars, there will have been an application, even though they have not been put on that form and even if the request has been made verbally. It may be that a request might properly be held to be a valid application even though a number of the particulars needed for determining it had not yet been supplied. What is necessary is (as said in Sadler's case) a request "in quite unambiguous terms for an entry certificate to be issued" to a particular person. We agree with the view of the adjudicator in Shah's case that tentative enquiries, preliminary steps towards ascertaining what is required, indications of intention to make an application are not to be regarded as 'an application duly made'. We cannot regard the letters of the sponsors of 24 May 1972 or 21 June 1972 as an application. They were preliminary steps, an expression of desire on their part to bring their children in Jamaica to this country, an enquiry as to how this could be accomplished. They did not even really identify those children. We must therefore concur with the adjudicator's finding that the date of Donald's application was 30 May 1973, by which time he was over 18 years of age, and that like Moses he had to be judged under para 44 of HC 79, which reads:

"44. Generally, children aged 18 or over must qualify for admission in their own right; but, subject to the requirements of paragraphs 39 and 40, an unmarried and fully dependent son under 21 or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement."

As the adjudicator said in his determination, two points arise. First, did the two appellants form "part of the family unit overseas" when the whole family were settled or being admitted for settlement in the United Kingdom and secondly, were they (being unmarried) fully dependent on their parents in this country? The adjudicator found against the appellants on both points. We have, however, come to a different conclusion on the first requisite. What was the family unit overseas at the time of the applications of the appellants? The appellants and Dulcie, certainly -- and Dulcie has been admitted. There remain for consideration two other children of the marriage, Pearl born in 1951 and Noel born in 1955. The adjudicator considered that Noel remained part of the family unit because he had not been legally adopted. We, however, do not think that the lack of legal formality kept him within the family. When he was a baby he was handed over to another lady. From that time on he had been regarded as part of her family -- he had depended on her and she, not the sponsors, had been responsible for his upbringing. In the context of West Indian custom, we cannot regard the lack of legal adoption formalities as having had the effect of keeping Noel within the Brown family unit. Pearl, at the time of the application of the appellants was over 21 years old. She was no longer a child dependent upon her parents, but an adult entitled to decide her own destiny, and in 1972 she had left the family home and entered domestic service some 40 miles away in Kingston. Whilst of course she remained a member of the family, we do not consider that she was any longer a part of the "family unit" as envisaged in para 44 of HC 79, the purpose of which is to enable the whole family, consisting of the father and mother and dependent children to continue to live together. On the second point, namely whether the appellants were fully dependent on their parents, we agree with the adjudicator that, on the evidence, they were not dependent to that degree. As he says in his determination, the concept is different from that of "sole responsibility" in para 43(e) of HC 79 and from that of "wholly or mainly dependent" in para 45. The appellants described their occupation in their application forms as "farming". Although undoubtedly their parents had made a considerable contribution to their maintenance, they in some measure at least were "earning their keep" after they left school by helping with the farming work on their uncle's land. The circumstances are not dissimilar to those applying in the case of Samuj Miah (TH/341/73(422)), a case decided by the Tribunal in January 1975 and referred to by the adjudicator in his determination. We therefore affirm the adjudicator's determination. In so doing we are not insensitive to the force of Mr Sheikh's contentions that the lateness of the applications may be attributed to financial considerations and to lack of understanding on the part of the sponsors of the procedure involved in obtaining the requisite authority to bring the remainder of their family to the United Kingdom. However, we can only decide this appeal on the basis of the immigration rules as applied to the facts -- any plea for consideration of the case outside the rules is a matter for the Secretary of State and not this Tribunal.

DISPOSITION:

Appeals dismissed.