R v. Secretary of State for the Home Department, Ex parte Dominic Omosanya Ademuyiwa

R v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte DOMINIC OMOSANYA ADEMUYIWA

Queen's Bench Division

[1986] Imm AR 1

Hearing Date: 24 October 1985

24 October 1985

Index Terms:

Returning resident -- whether an absence of six years disqualified the applicant from admission as a returning resident -- the relevant rules to be applied to a Commonwealth citizen previously settled in the United Kingdom from 1964 to 1978 on his return to 1984 -- the factors to be taken into consideration in exercising a discretion to admit as a returning resident one who has been absent for more than two years -- Immigration Act 1971 s 1(5): Cmnd Paper 4298 of 1970, para 48 and 49; HC 169 paras 56 and 57.

Held:

The applicant for judicial review was a citizen of Nigeria who had been in the United Kingdom with indefinite leave from 1964 until his return to Nigeria in 1978. He originally returned there because of family illness, but remained to engage in business. He had acquired a house in the United Kingdom on his return to Nigeria. His wife and children remained in the family home. The evidence suggested that during his absence in Nigeria he had not kept closely in touch with his family. In 1984, after one of his children urged him to return to the United Kingdom because of difficulties the family were experiencing, he sought to enter as a returning resident. He was refused. His application for judicial review of that refusal was dmissed. Held: 1. The applicant was settled in the United Kingdom with the Immigration Act 1971 came into force. He was therefore entitled to the protection of s 1(5). If the pre-1973 rules applicable were more helpful in his case than the rules in force at the date of his re-entry, those earlier rules should be applxied. In fact, the rules in force in 1984 were at least as beneficial to him as those established in 1970, and thus the later rules should be applied. 2. On the facts, the discretion exercised by the immigration officer had not been exercised in such a way as to lay it open to attack on Wednesbury principles. 3. When exercising his discretion as to whether to admit a returning resident, a person who had been away from the United Kingdom for more than two years, an immigration officer should consider, inter alia (i) the length of the applicant's earlier stay. (ii) The length of time the applicant had been away from the United Kingdom. (iii) The reason why that absence had extended beyond two years. (iv) The purpose of the applicant returning. (v) The nature of his family ties in the United Kingdom and the extent to which the applicant had maintained them during his absence. (vi) Whether he had a house in the United Kingdom and whether it was his intention to remain and live in that house.

Cases referred to in the Judgment:

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 [1947] 2 All Er 680 Costa v The secretary of State for the Home department [1974] Imm AR 69. Entry Clearance Officer, Dhaka v Armat Ali [1981] Imm AR 51.

Counsel:

A Riza for the applicant. G Pulman for the respondent PANEL: Farquharson J

Judgment One:

FARQUHARSON J. This is an application for judicial review and for an order of certiorari to quash the decision of the Secretary of State for the Home Department made on 24 July 1984 refusing the applicant entry into the United Kingdom as a returning resident. The applicant is 45 years of age and first entered the United Kingdom on 30 September 1964 as a student. No limitation was placed on his stay in the United Kingdom and he subsequently took employment. Some time after his arrival -- I have not been given the precise date --- he married Folashad and had by her two daughters, Abimbola, born on 14 March 1966 (now 19 years of age) and Adewummi, born on the 9 February 1970 (now 15 years of age). Apart from two five-month visits abroad in 1971 and 1973 the applicant remained in this country until 1978. During that time, he acquired the freehold of a house in London, No 23 Maygrove Road, NW6. On the 29 March 1978, the applicant left this country and returned to his native Nigeria because his mother was seriously ill. Having arrived in that country, he decided to stay there and go into business. His wife and family remained at the address at 23 Maygrove Road, occupying one of the four flats in the house. According to the applicant's affidavit, the other three were let and he intended that rent from those should be used to maintain both the property and his family. For the next six years, the applicant remained in Nigeria, seeing his family only once when his wife and daughters went there for a holiday in 1982. It is not clear what his true relations were with the wife. He told the immigration officer that these were normal, but it appears that a boy named Felix had been born to Folashad of whom the applicant is not the father. In 1984, Abimbola wrote to the applicant by a letter dated 17 April. She told him that there had been squatters at No 23 Maygrove Road for some time and that she and her sister had been staying at the flat of the applicant's cousin, John Jejelola. She complained about the mother's lack and care and for all these reasons besought the applicant to return to deal with the problems. In the letter, she referred to their little brother, which if he did not know before must have apprised the applicant of his existence. During that same month, the children were taken into care by the Camden Health Authorities, a somewhat unusual course as far as Abimbola was concerned as she was by then 18 years of age. The reason for this, apparently was because Abimbola complained to Miss Bennett of the Department of Social Services that both she and her sister had been sexually molested by Jejelola over a long period. It seems that proceedings were taken against Jejelola subsequently in respect of the offences were alleged to have been committed against the younger girl, but he was acquitted. At all events, these matters were unknown to the applicant. On the 18 May 1984, the applicant arrived at Heathrow and sought entry as a returning resident. He was interviewed by an immigration officer. Mr Barrett, who first questioned him about his history and later, after pursing enquiries to locate her, interviewed Abimbola in the presence of Miss Bennett. Having received all the information that he could obtain, Mr Barrett refused entry. On the 12 June 1984, representation were made by Lord Avebury, on the applicant's behalf, mainly directed to the need of his children for his support, though also referring to the applicant's other domestic problems. These representations were considered by a senior executive officer, Mr Ingham, but the decision remained unaltered and was conveyed to Lord Avebury by the letter of the 24 July from the Minister of State, which contained the decision now under attack. By section 1(5) of the Immigration Act 1971, it is provided:

"The rules shall be so framed that Commonwelath citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed."

The applicant benefits from this provision and when his case was reviewed, regard was had to Command paper 4298, which embodied the relevant instructions in 1970. The rules concerned were rule 48 and 49. The relevant part of rule 48 is that an 'immigration officer should satisfy himself that a Commonwealth citizen who claims to be returning to the United Kingdom after protracted absence has had his permanent home here at some time during the previous two years, bearing in mind that ordinary residence in the United Kingdom is compatible with lengthy absences abroad on business or in the employment of a firm based in the United Kingdom." The inflexibility of that rule is ameliorated by rule 490 which read thus:

"If a Commonwealth citizen is not entitled to return because he had not been ordinarily resident int he previous two years, and if he does not qualify to enter, the United Kingdom, under any other part of these instructions, he can still be admitted if, for example, he has strong family ties here and has previously lived in the United Kingdom for some considerable time. A Commonwealth citizen who had lived most of his life in the United Kingdom and wanted to return here could properly be re-admitted after a long absence."

The current rules on this topic are now embodied in the Statement of Changes in Immigration Rules, usually referred top as HC 169. The relevant rules now, which are rules 56 and 57 are in this form. Rule 56 states:

"A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the two years proceeding his return, is to be admitted for settlement. Any other passenger returning to the United Kingdom from overseas (except one who received assistance from public funds towards the costs of leaving this country) is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than two years."

The following rule, which again gives some flexibility to the first, is rule 57, which states:

"A passenger who has been away from the United Kingdom too long to benefit from the preceding paragraph may nevertheless be admitted if, for example, he has lived here for msot of his life."

Those rules seem at least as beneficial to the applicant as the ones that were current in 1969 and I consider them as being the relevant ones to apply. Rule 57 is concluded in very broad terms, giving but one example of the circumstances in which returning residents may be exempted from the provisions of rule 56. I have been referred to an authority dealing with the application of these rules, which is the case of Costa [1974] Imm AR 69, 74 when the precursor of rule 57 is considered. The commentary made by the Immigration Appeal Tribunal was in these terms, when they referred to the relevant paragraph: "From the example given in the paragraph (which we accept is by way of guidance) we are of the opinion that the underlying principle contained in the paragraph is that if a person cannot establish that he or she has not been away from this country for longer than two years that persons must show strong connections with this country by a combination of length of residence and family or other ties. That interpretation was adopted in a later case called Armat Ali [1981] Imm AR 51 and for my part, I would not dissent from that interpretation. It was the task of the respondent to decide whether on the 18 May 1984, the applicant did show strong connection with the United Kingdom by a combination of length of residence and family or other ties. Counsel for the applicant attacks the Minsiter of State's decision on Wednesbury principles, claiming that it was wrong in law, that he could not reasonably have made it on the facts available to him, that he took into account matters that he should not and paid no regard to matters that he should. Counsel points to the letter of the 24 July, which contained the Minsiter's decision. It is of some importance so I propose to read it. It is to Lord Avebury and after acknowledging the communications from him, it is in these terms: "On arrival the applicant sought entry as a returning resident. Although, however, he had been almost continuously resident in this country between 1964 and 1978, he had left the United Kingdom in the latter year. He had last seen his family for one month in 1982 in Nigeria and had not supported them since 1978. He claimed which was clearly not the case, that he had no marital problems, that his marriage still subsisted, and that his wife was still in this country. Letters which he was carrying suggested that the situation in Nigeria under the military government was difficult and that this might be one of the applicant's reasons for coming here. Since he did not qualify for admission under the rules as a returning resident, he was refused entry.

"In view of the compassionate circumstances relating to the applicant's children. I have carefully considered whether he should be admitted outside the rules. I understand, however, that since you wrote to me, the children's mother has returned here from Nigeria and is being temporarily houses by the local social services department. She does not wish the applicant to be involved with the children and there are no plans to deprive her of custody of them. This being the case I find no grounds for treating the applicant exceptionally and arrangements will now be made to return him to Nigeria." There is, I might say in passing, some uncertainty as to whether the applicant's wife has in fact divorced him. Certainly, if she has it was by a processs of which he was kept in ignorance according to the evidence he gave."

Counsel for the applicant submits that the Minister was in error in the second paragraph of that letter by considering whether the applicant should be admitted outside the rules and then taking into account matters, for example, the position of the children, which was something he should have considered when applying his mind to the impact of the rules. I do not accept that. What the Minsiter was saying in the first paragraph was that the applicant did not qualify under rule 57, but that he had considered, notwithstanding that fact, whether the applicant could be admitted on compasionate grounds. The latter decision was one entirely for the Minister's discretion and is not subject to review in this court, at any rate on the present facts. In my judgment, when an immigration officer or the Minister is considering the application of a returning resident, under rule 57 he has to review a number of matters. For example, he has to consider (i) the length of the original residence of the applicant: (ii) the reason for the delay which has extended his absence beyond the two years contemplated by rule 56; was it at the applicant's wish or through no fault of his?: (iv) what is the purpose and intent of the applicant in returning at the time he has?: (v) what is the nature of the family ties; how close are they and to what extent has the applicant maintained them whilst absent from the United Kingdom?: (vi) whether he has a home in this country and if he is admitted to the United Kingdom, it is his intention to remain and live at that home? The ansers to these questions may influence the immigration officer or the Minister either way and, in the end, he has to do whuat consel for the respondent described as a balancing act, taking all the relevant material into consideration. In the present case, the applicant had resided in the United Kingdom for 14 years before leaving, it that is to say, about half his life then lifetime, but he had then remained away for some six years. The longer the period which an applicant has remained out of the United Kingdom in excess of two years, the more difficult it will be to qualify for admission under rule 57. His family ties are with his daughters. That may be regarded as the closest kind of tie outside marriage, but this applicant had been apart from the girls throughout their formative years. There was also present cause for anxiety about the girls' welfare although it is right to say that at the time of the applicant's return to this country, they were in care. The applicant's sister lived in this country although very little has been said about her in the hearing before me. Furthermore, the applicant did own property in this country which, at the time, needed his urgent attention. It was not clear whether the applicant wished to remain in the United Kingdom permanently or to return to his business in Nigeria. On these facts, it was no doubt possible for the Minister's decision to go either way. Certainly, I could not say that a decision to refuse admission was unreasonable in the Wednesbury sense. Furthermore, the affidavits of Barrett and Ingham demonstrated that they had considered the material set out above in evidence, bearing in mind that the position of the children was crucial. Specific complaints were made by counsel for the applicant about the contents of the Minister's letter. It should, of course, be borne in mind that this letter was not intended to be an exhaustive account of the matters considered. Those appeared in the affidavits. It was more of a notification of the decision which the Minister had made. Counsel submits that the letter itself shows errors of fact. Firstly, it states that the applicant had not supported his family since 1978 whereas in the affidavit, the applicant alleges that he did support them int the sense that he had left them the house and the benefit of certain rents which could be obtained from the letting of the flats. However, at the time of his return the applicant in fact told the immigration officer that he had not supported his family during the period of his absence, see paragraph 6 of Mr Barrett's affidavit. The next claim by Mr Riza, on behalf of the applicant, was that the applicant did not know about the marital problems or, at all events, there was no evidence that he did know, contrary to what was indicated in the letter. Once again, if one refers to his own daughter's letter in April there was the clearest reference there to the existence of the half-brother, which, as I have already indicated, must have put the applicant on notice. Thirdly, argues counsel, the reference to the military government in Nigeria was irrelevant. I am in some difficulty in considering that as to which was it is to be regarded. Overall, it seems fairly clear that whatever the position was with regard to the correspondence found upon the applicant relating to the problem, it was of little importance. Counsel further submits that the return of the mother referred to in the letter of the minister was irrelevant. I must reject that submission. It seems to me that the return of the mother referred to in the letter is a most material consideration in resolving whether the family ties are of a nature which would permit the applicant's return into this country. The girls by this time were 18 and 16 years of age respectively and not only were they in care, but the mother was returning and seeking to have the custody, or at any rate the care of them once more. That was a material fact. Finally, counsel submits that the views of the children and the allegation of sexual abuse were ignored. As I have already recounted the immigration officer, Mr Barrett, did interview Abimbola on the 19 May and gave an account of that interview in the affidavit to which I have already made reference. It is perfectly clear, by examining both affidavits, that the position of the children was carefully considered. So far as the sexual allegations are concerned, here the applicant is in much greater difficulty. They come entirely from the evidence of the girl herself, Abimbola, and they were not established. It is not suprising that the social worker did not regard that acquittal as conclusive, but nonethelessone is bond to give it less weight than if the accusation had been established. For all these reasons, I am of the opinion that the application fails and it must be dismissed.

DISPOSITION:

Application dismissed.

SOLICITORS:

West Hampstead Community Law Centre, Treasury Solicitor.