Mnasukani and Another v. Secretary of State for the Home Department

MANSUKANI AND ANOTHER v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/50521/79(2169)

Immigration Appeal Tribunal

[1981] Imm AR 184

Hearing Date: 29 October 1981

29 October 1981

Index Terms:

European Economic Community -- United Kingdom citizen with right of abode sponsoring settlement of his parents, citizens of India, claiming them to be his dependants -- Parents by age and circumstances not qualified for settlement under immigration rules affecting Commonwealth citizens in HC 79 and HC 80 -- Whether immigration rules in HC 81 and HC 82 affecting nationals of EEC countries were applicable because appellant's sponsor was a United Kingdom citizen -- Whether EEC legislation (specifically EEC Regulation 1612/68 and Directive 68/360) could have any application to circumstances of this case, the appellants being Indian citizens -- Immigration rules binding upon adjudicators -- HC 79, paras 45, 46 -- HC 81, paras 49-54 -- Immigration Act 1971, s 19(1).

Held:

The appellants, citizens of India, had sought leave to remain in the United Kingdom as the elderly dependent parents of their son, a citizen the United Kingdom by registration having the right of abode in this country. On his view of their circumstances the Secretary of State decided that they did not qualify as dependent parents nor as distressed relatives under the immigration rules HC 79, paras 45 and 46. The adjudicator to whom they appealed upheld the Secretary of State's decision. They appealed to the Tribunal. It was again asserted that they were the dependents of their son, and it was further submitted that, as he was a national of a member state of the European Economic Community, it would be contrary to EEC Regulations and Directives to prevent them from joining him: their case should have been considered under the special provisions relating to nationals of EEC countries contained in the immigration rules HC 81 and HC 82, which substantially repeated the EEC Regulations. Held: The appeal would be dismissed because (i) the immigration rules were designed to deal with the rights of applicants and appellants, not with those of their sponsors, and in this case the appellants as citizens of India were subject to the provisions of HC 79 and HC 80; (ii) even if (i) were wrong, the immigration rules in HC 81 and HC 82 which related to EEC nationals could have no application because the sponsor as a United Kingdom citizen was not subject to any rules at all; (iii) if counsel's submissions were correct any Commonwealth citizen would be entitled to unconditional admission if a close member of his family had become a United Kingdom citizen by registration and acquired the right of abode: this would make nonsense of the immigration rules, by which -- unless those rules were ultra vires the Immigration Act 1971 under which they were made -- adjudicators were bound under s 19(1) of the Act.

Counsel:

John Friel for the appellants. D. A. Massey for the respondent. PANEL: D. L. Neve Esq (President), J. H. Bowman Esq, L. W. Chapman Esq

Judgment One:

THE TRIBUNAL: The appellants Dr Gobind Singh Mansukhani and Mrs Tripat Mansukhami are citizens of India. They arrived in this country on 10 February 1978, stating that they wished to visit their son for six months. Their son came to the United Kingdom in 1965, and in 1970 he became a citizen of the United Kingdom and Colonies by registration in this country, thereby acquiring the right of abode under the Immigration Act 1971 n1. He is a business man. n1 Section 2(1) of the Act refers. On 14 March 1978 the appellants' son applied for them to be allowed to remain in this country permanently as his dependants. This application was considered by the Home Office under paras 45 and 46 of HC 79 and refused. The appellants appealed to an adjudicator against the refusal, and their appeal was heard by Mr T. D. Healy and was dismissed on 1 September 1980. An application for leave to appeal to the Tribunal against Mr Healy's determination was refused by the Tribunal on 22 October 1980. On application made to the Divisional Court, on 10 June 1981, the Tribunal was ordered to grant the appellants leave to appeal and to determine the appeal to the Tribunal from Mr Healy's determination. The amended grounds of appeal submitted to the Tribunal by Mr Friel were as follows: "1. The adjudicator failed to consider the appellants' submission that as the dependent parents of a British national, the rules governing entry concerning EEC citizens apply and by reason of Regulation 1612/68 and Directives 68/360, the appellants were entitled to entry as the dependent parents of an EEC citizen. 2. Further the adjudicator failed to consider that the European Court of Justice as a matter of settled law and when considering he Treaty of Rome and its provisions that a national of a member state is not to be treated in any different manner as nationals of any other member state. 3. In so far as the immigration rules appear to impose any obligations or conditions of entry on a dependent of an EEC citizen, it is settled law in the EEC that such provisions are void and of no effect when having regard to an EEC citizen or dependant covered by the provisions of the EEC treaty, its articles and directives. 4. The relevant articles of the European Economic Community require a national or dependant thereof to comply only with the provisions of Regulation 1612/68 and Directive 68/360. In rejecting the said submission the adjudicator erred in law. 4A. In the alternative, the appellant will seek to rely on the grounds 5 and 6 of the original grounds of appeal." At the outset Mr Friel intimated that he did not intend to pursue the original grounds 5 and 6, which are referred to in the amended ground 4A, and it is therefore unnecessary to reproduce them here. He stated that he relied entirely upon the consideration of EEC Regulations and Directives. The Tribunal indicated that it would be helpful first to consider whether EEC legislation had any application to the circumstances of this case. Mr Friel submitted that it had, and referred to various Articles, Directives, and judgments of the European Court. The Tribunal indicated that it did not find these to be of assistance, since the very matter at issue was whether or not it was relevant to consider such legislation and judgments. The Tribunal asked Mr Friel whether he had any English authorities which might be pertinent and he cited two cases -- R v Pieck n2 and Van Duyn v The Home Office (No. 2) n3. Since both these cases were concerned with persons who were nationals of member states of the EEC, whereas the appellants in this case are citizens of India, the Tribunal did not find them to be of great assistance. n2 Case 157/79, Court of Justice of the European Communities, 3.7.80, [1981] 3 All ER 46. n3 Court of Justice of the European Communities, 4.12.74, [1975] 3 All ER 190. Section 19(1) of the Immigration Act 1971 lays down the way that adjudicators must determine appeals. It reads as follows: "19(1). Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act: (a) shall allow the appeal if he considers; (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal." It follows that -- whatever the status of the immigration rules, and there have been various judicial opinions expressed as to this -- they are binding upon adjudicators, unless such rules are ultra vires the Immigration Act 1971 under which they are made. The appellants are Commonwealth Citizens, being citizens of India. As such the rules relating to them were those set out in HC 79 (Control on Entry) and HC 80 (Control after Entry). It has been submitted that because their son, the sponsor in this case, is a United Kingdom citizen, the proper rules to have applied were those in HC 81 (paras 49-54) and HC 82 which refer to EEC nationals and substantially repeat the corresponding EEC regulations. In the opinion of the Tribunal this submission must fail for three reasons. First, it is clear from the preamble to each set of rules that they are designed to deal with the rights of applicants and appellants and not with those of their sponsors: which set of rules is applicable to any particular case must depend upon the nationality or citizenship of the applicant or appellant. The appellants in this case are citizens of India. The rules applying to citizens of India are HC 79 and HC 80, and the fact that their sponsor is a United Kingdom citizen is neither here nor there. Secondly, even if this is wrong and the proper rules to have considered were those relating to EEC nationals because the sponsor was an EEC national, they can still have no application because as a citizen of the United Kingdom the sponsor was not subject to any rules at all. Thirdly, if the submissions made by Mr Friel, are correct, any Commonwealth Citizen who happens to have a close member of his family who has become a United Kingdom citizen by registration and acquired a right of abode as provided in s 2 of the Immigration Act 1971 thereby becomes entitled to unconditional admission to this country. This makes nonsense of the immigration rules by which, as we have mentioned, adjudicators are bound. For these reason the Tribunal considers that the adjudicator's remarks towards the end of his determination:

"The appellants are Commonwealth Citizens. Normally the rules relating to such citizens are the only ones which do apply..."

are entirely correct. The Tribunal does not consider that he was guilty of any misdirection in this respect. No other grounds of appeal are now relied upon and this appeal is consequently dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Maurice Nadeem & Co, WC1.