R v. Immigration Appeal Tribunal, Ex parte Manshoora Begum

R v IMMIGRATION APPEAL TRIBUNAL ex parte MANSHOORA BEGUM

Queen's Bench Division

[1986] Imm AR 385

Hearing Date: 10 July 1986

10 July 1986

Index Terms:

Dependent relative -- whether the requirement in paragraph 52 of HC 169 that an applicant's standard of living had to be substantially below that of his own country was reasonable -- whether it was ultra vires the enabling statutory power. Immigration Act 1971 ss 1(4), 3(2); HC 169, para 52.

Interpretation of immigration rules -- the principles to be applied.

Held:

The applicant for judicial review was a single lady, aged 48. She was a citizen of Pakistan. She had been disabled since birth and was financially dependent upon her brother, settled in the United Kingdom. She applied for admission under paragraph 52 of HC 169. Her application was refused. Her appeals were dismissed by an adjudicator and the Tribunal. Before the Tribunal the appeal failed because the Tribunal concluded that she did not have a standard of living substantially below that of her own country, as laid down in the relevant rule. In coming to that conclusion the Tribunal (following the majority of earlier Tribunal decisions) held that it was bound to take account of the support given to the appellant by her brother in the United Kingdom. By the time the case reached the High Court, other later Tribunal decisions, adopting a different approach had been published and were considered by the Court. Counsel for the applicant submitted that, following the later Tribunal decision in Patel, no account should be taken of remittances from the United Kingdom in assessing the relative standard of living of an applicant for admission under paragraph 52 of HC 169. Held: 1. The Tribunal's interpretation of paragraph 52 of HC 169 in dismissing the appeal was correct. "Ingenious though their approach was, and admirable the purpose to which it was directed" the Tribunal approach in Patel was "wholly unsustainable." 2. However, the requirement in the rule was unreasonable and ultra vires the enabling statutory power in the Immigration Act 1971. It was accordingly invalid. 3. The case would be remitted to the Tribunal for consideration as though that requirement were not contained in the rule.

Cases referred to in the Judgment:

Kruse v Johnson [1898] 2 QB 91. Entry Clearance Officer, Nairobi v Seth [1979-80] Imm AR 63. R v Immigration Appeal Tribunal ex parte Shaikh [1981] 1 WLR 1107: [1981] 3 All ER 29. R v Immigration Appeal Tribunal ex parte Alexander [1982] Imm AR 50. R v Secretary of State for the Environment ex parte Nottinghamshire County Council [1986] 2 WLR 1: [1986] 1 All ER 199. Timol (unreported) (2887). Patel (unreported) (3998).

Counsel:

A Riza for the applicant; N Pleming for the respondent PANEL: Simon Brown J

Judgment One:

SIMON BROWN J: By this motion the applicant, a Pakistani lady of 48 years of age, seeks to quash a decision of the Immigration Appeal Tribunal dated 8 November 1984, upholding earlier adverse determinations by an adjudicator and the Secretary of State against her application under paragraph 52 of the Immigration Rules HC 169, for entry clearance to settle in the United Kingdom as the dependent relative of her British brother. This motion raises in sharp form an important issue upon the proper approach to paragraph 52. In a sentence, it concerns the requirement within that paragraph that dependants such as this applicant must show that they have "a standard of living substantially below that of their own country". This is an issue which has divided opinion among the independent appellate authorities. Indeed, it has produced various inconsistent tribunal determinations. The point has not previously fallen for decision by the courts. At the outset of this judgment it is convenient to recite those sections of the Immigration Act 1971 which provide for the Immigration Rules, paragraph 52, and parts of other paragraphs of the rules which come into play. Section 1(4) of the Act provides:

"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."

Section 3(2) provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."

Insofar as it is relevant, paragraph 46 of the rules governs the admission for settlement of the dependants of a person who is present in the United Kingdom and settled there. It provides:

"that person must be able and willing to maintain and accommodate his dependants without recourse to public funds in accommodation of his own or which he occupies himself . . ."

Paragraph 47 provides:

"In addition, a passenger seeking admission as a dependant under this part of the Rules must hold a current entry clearance granted to him for that purpose."

Paragraph 52, under the cross-heading "Parents, grandparents and other relatives" provides:

"Widowed mothers, fathers who are widowers aged 65 or over and parents travelling together of whom at least one is aged 65 or over should be admitted for settlement only where the requirements of paragraphs 46 and 47 and the following conditions are met. They must be wholly or mainly dependent upon sons or daughters settled in the United Kingdom who have the means to maintain their parents and any other relatives who would be admissible as dependants of the parents and adequate accommodation for them. They must also be without other close relatives in their own country to turn to. This provision should not be extended to people below 65 (other than widowed mothers) except where they are living alone in the most exceptional compassionate circumstances, including having a standard of living substantially below that of their own country, but may in such circumstances be extended to sons, daughters, sisters, brothers, uncles and aunts of whatever age who are mainly dependent upon relatives settled in the United Kingdom. The requirements of paragraphs 46 and 47 must be met in any such cases."

Paragraph 133, in that section of the rules concerned with control after entry, enables application to be made for variation of leave to enter or remain with a view to settlement, but provides:

". . . permission in such cases has to be limited to close relatives of persons who are settled in the United Kingdom. Particulars are set out in paragraphs 46-53."

The facts giving rise to this application can be comparatively shortly stated. The applicant is single. She is dependent upon her brother, Mohammed Abram, a British Citizen settled in the United Kingdom. He sends her money regularly and also arranges for her to receive a regular share of the crops produced on his land in Pakistan. The applicant has been disabled since birth. She suffers from partial paralysis. She walks only with difficulty. She also suffers from circulatory trouble. She lives alone, and although she can do some domestic work for herself, she requires assistance with other duties. She has some relatives close by, but they have not assumed responsibility for her and are disinclined to do so. Indeed, there is ill-feeling between her and those relatives, and on one occasion at least she has been unkindly treated by them. On 10 October 1982 the applicant applied to the British Embassy in Islamabad for entry clearance to join her brother in the United Kingdom. On 30 June 1983 her application was refused. She appealed. The appeal was dismissed by an Adjudicator on 25 April 1984. She further appealed to the Immigration Appeal Tribunal. They too decided that she had no claim for admission under paragraph 52 and dismissed her appeal. That decision is the subject of the challenge before this court. It is readily apparent from consideration of paragraphs 46, 47 and 52 of the rules that, for the applicant to qualify for admission to the United Kingdom for settlement as a dependent relative of her brother, six requirements have to be satisfied apart from the final requirement by paragraph 47 that she holds a current entry clearance. It is this final requirement which the applicant seeks to meet by this protracted series of applications and appeals. The other six requirements are: (i) Her sponsor must be able and willing to maintain and accommodate her in accommodation which he owns or occupies. (ii) She herself in Pakistan must be mainly dependent upon relatives settled in the United Kingdom. (iii) She must be without other close relatives in her own country to turn to. I add parenthetically that I assume, perhaps wrongly, that this requirement extends to those considered in the second part of the rule but the point does not arise in these proceedings. (iv) She must be living alone. (v) She must be living in the most exceptional compassionate circumstances. (vi) One of those circumstances is that she must have a standard of living substantially below that of her own country. This applicant clearly satisfies the first four requirements. The Immigration Appeal Tribunal concluded, with some apparent reluctance, that she failed to satisfy the sixth requirement. Thus, they found it unnecessary to decide upon the fifth requirement, namely whether in other respects there were most exceptional compassionate circumstances. Had they done so, however, it seems not unlikely that they would have found it satisfied having regard to the way in which they expressed their final conclusion:

"We conclude that under the Immigration Rules, the Appellant has no claim for admission into the United Kingdom. We are conscious however that she is clearly a person who suffers from severe disabilities and life must be very difficult for her. This is a case where the Secretary of State may feel that a review outside the rules would be right and proper."

The Tribunal's finding on the sixth requirement was this:

"If the regular remittances sent by the sponsor and the food he allows her are taken into account, her standard of living is not below that of her circle in her own country."

That, indeed had not been disputed. What was disputed, and lay at the heart of the appeal to the Tribunal was the propriety of taking the sponsor's contributions into account. The appellant's argument was that they should be ignored in assessing her standard of living. It was the rejection of that argument which was fatal to her appeal. It is that argument indeed which founds the primary ground of challenge before this court. Before examining it, I must refer briefly to another later decision of a differently constituted Immigration Appeal Tribunal -- one composed, I am told, of three legally qualified members under the chairmanship of Professor Jackson -- in the case of Patel. This tribunal (the Patel Tribunal as I shall call it) in a most thorough and careful determination, held (a) that the requirement that an applicant has a "standard of living substantially below that of their own country" is to be construed as referring to such standard as the applicant has based on his or her own resources (ie ignoring the sponsor's contribution), but (b) that these financial contributions nevertheless fall to be considered when assessing whether the applicant is living in the most exceptional compassionate circumstances. That conclusion was less extreme than the one arrived at in the earlier case of Timol (where the Tribunal decided that the sponsor's contribution should be ignored for all purposes). That decision was wholly contrary to the conclusion reached by the applicant's Tribunal, and indeed by earlier Tribunals who had had to consider a substantially similar previous rule. Before this court, Mr Riza, for the applicant, advances three alternative contentions. First, that the requirements of the rule should be construed as by the Timol Tribunal, namely so that the sponsor's contributions are ignored for all purposes. Second, that the rule should be construed as by the Patel Tribunal so that the sponsor's contributions are ignored for the purposes of determining the applicant's standard of living, but not when it comes to a general assessment of the degree of compassionate circumstances. Third, that the relevant requirement of the rule, if its language is unambiguously against him and cannot sustain either of those two constructions, should be struck down as being ultra vires and unreasonable. I make two brief initial comments upon the third contention. Firstly, it is not one which could have been advanced before the Tribunal. Only the High Court has power under its supervisory jurisdiction to strike down such a provision. The Tribunal, having construed it, had simply to apply it, however unreasonable and unfair they regarded it to be. Secondly, it was added by amendment to the initial grounds of challenge. No doubt, strictly, the Secretary of State for the Home Department should then formally have been joined with the proceedings, because the rules are his. However, Mr Pleming, instructed in the case by the Treasury Solicitor essentially to represent the Immigration Appeal Tribunal, has valiantly undertaken also to defend the attack on the rule. Before I consider these three contentions it is convenient to set out again those words in paragraph 52 which are crucial to this motion:

"This provision -- (ie for the admission for settlement of those 'who are mainly dependent upon relatives settled in the United Kingdom')" should not be extended to people . . . except where they are living alone in the most exceptional compassionate circumstances, including having a standard of living substantially below that of their own country . . ."

The foundation of Mr Riza's argument in support of all three of his contentions is that, construed and applied as prima facie appears necessary, and as the Tribunal here decided it should be, the requirement that the applicant must have "a standard of living substantially below that of (her) own country" is wholly unfair and unreasonable in its application. Put shortly, the crucial point made is that an applicant who has to be mainly dependent on his or her sponsor or other relatives abroad (such sponsor, moreover, being required by Rule 46 to be "able and willing to maintain and accommodate" the dependant) is singularly unlikely to comply with the requirement that their actual standard of living is substantially below that of their own country. Thus, the rule is a snare and a delusion, a pretence which raises expectations without there being any real possibility of fulfilling them. It was clearly this consideration above all which led the Patel Tribunal to its conclusion that the rule should be otherwise construed. That is well illustrated by reference to the following three passages from their determination: "It would require a precise statement for us to imply to Parliament the intention to enact a Rule which, accepting the 'catch 22' result, in effect was nothing but an elaborate charade the only effect of which would be to create unnecessary public cost and private anguish . . .

"In our view, to consider as resources of an applicant, contributions which are beyond his or her control in assessment of the standard of living in construing this factor in the context of the Rule, leads to manifest absurdity. Given the express requirement of dependency the circumstances in which a relative could be admitted is where a sponsor, either by calculation or a lack of resources is able to contribute to an applicant just enough to make the applicant dependent but not enough to bring the applicant above a standard substantially below that of his own country. To express the proposition is to display, in our view, its unreality -- an unreality made more extreme by the principle in Seth through which the applicant, dependent on a calculating but financially able sponsor, would be excluded and by the obstacle of maintenance and support in this country with which the poor sponsor would no doubt collide."

The Seth principle dictates that when applying the rule, account should be taken of whether or not the position of a person claiming to be distressed can be ameliorated by financial assistance from the sponsor or other relatives. The third quotation is:

"We find the Rule as drafted difficult and arcane. We are faced with a contended construction by the Home Office which in our view can only lead to absurdity and renders the Rule pointless. Unless we were driven inexorably to that conclusion we prefer to construe the Rule so that it provides what it purports to do -- a ground for admission."

The question raised by Mr Riza's second contention (and, indeed, necessarily by his first) is: Could the Tribunal so construe it? In my judgment, they could not. I recognise, of course that the Immigration Rules are not legislation, and that they clearly fall to be construed less strictly than Statutes. In deciding just what that involves, however, it is helpful first to remind oneself of the general principles governing the correct approach to statutory construction. These may, I believe, be summarised broadly as follows: (i) If a phrase is ambiguous in that it has no clear, natural and ordinary meaning, ie its literal and grammatical sense is uncertain, the court should choose between the various candidate meanings, applying to the task the well established canons of construction, these providing presumptions or pointers in favour of one particular meaning over another. (ii) If the phrase is not obviously ambiguous, ie if its natural and ordinary meaning is at first blush clear, then so construe it, unless such construction leads to absurdity ie to some result which cannot reasonably be supposed to have been intended by the draftsman or legislature. In that event, look for some other possible meaning consistent with a more reasonable result and, if it can be found -- assuming, that is, that the language is capable of bearing more than the one meaning first apparent -- adopt it. (iii) The more unreasonable the result of giving the phrase its natural and ordinary meaning the readier will the court be (a) to find the phrase capable of bearing another meaning, and (b) to prefer such other meaning even if, contrasted to the meaning first suggested, this other meaning is substantially further from the literal and grammatical sense of the phrase. (iv) If the words of the Act are clear and unambiguous, to the extent that they are quite incapable of bearing more than one meaning, then they must be given that one meaning, however absurd the result. The correct approach to the Immigration Rules has been considered in earlier cases. In R v Immigration Tribunal ex parte Shaikh [1981] 3 AER 29, Bingham J said this:

"I entirely agree that the Rules must be read together since they form part of a coherent scheme governing immigration into the country and permission to remain within it and it would indeed be absurd to attempt to read the Rules in isolation. I further agree with Counsel's submission that one should not construe these Rules as if they were a Statute. On the other hand, it is, in my judgment, incumbent upon anybody seeking to give effect to these Rules to read what they say and, so far as possible, give effect to the language used, unless of course that leads to absurdity or inconvenience so gross as to have been clearly outside anyone's contemplation."

In the House of Lords' decision in Alexander v The Immigration Appeal Tribunal [1982] 2 All ER 766, Lord Roskill said:

"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. The Rules give guidance to the various officers concerned and contain statements of general policy regarding the operation of the relevant immigration legislation."

The effect of these authorities is surely this: The construction of the rules should be approached in essentially the same way as the construction of legislation, save only less strictly, namely by giving the very fullest rein to the third principle which I have sought to state. But that is not to say, if the words are wholly unambiguous, that they can be given some other meaning, even in order to accommodate the demands of fairness and reasonableness. It is not, I think, necessary to deal in this judgment with the detailed process of reasoning by which the Patel Tribunal came to its conclusion that it could so construe the relevant provision as to require the sponsor's contributions, and thus the applicant's actual standard of living to be ignored in favour of the hypothetical standard of living which she would have been able to support if dependent exclusively upon her own personal resources. Ingenious though their approach was, and admirable the purpose to which it was directed, I am bound to say that it seems to me to be wholly unsustainable. I find it quite impossible to see how the phrase "having a standard of living substantially below that of their own country" can be interpreted to mean "would, if reduced to living entirely on their own resources, have a standard of living substantially below that of their own country". Such a construction seems to me yet the more impossible in the context of the requirement as a whole which, as the Patel Tribunal itself recognised, compels one to consider the actual facts rather than hypothetical facts when it comes to determining whether "the most exceptional, compassionate circumstances" exist. Nor am I able to see why support for the Tribunal's construction is to be found in paragraph 133. Inevitably, that rule involves a notional assessment, namely consideration of what an applicant's situation would be in his own country. It seems to me to be no less artificial, however, if one ignores likely contributions for part only of the assessment, but brings them into account when evaluating compassionate circumstances. I also have difficulty with the Tribunal's view that their own construction itself makes sense and does not leave the requirement impossible of sensible application. Upon this point they said: "Dependency means the meeting of needs and there may well be a meeting of individual needs through contributions building on a base not substantially below the average standard of living." In other words, they suggested that the requirement could still operate to disqualify an applicant on the basis that his own resources were sufficient to take him just above the point at which he would be living at a standard substantially below that of his own country, but received more through his sponsor's or other relatives' contribution. Whatever view one takes of all these points, the critical consideration in my judgment is the bald point that the relevant words simply will not surrender any meaning, save to require that the applicant's actual standard of living, however financed, must be assessed. It follows, of course, that Mr Riza's argument fails upon his first two contentions. That, however, is not an end of the case. This rule, unlike a statutory provision to which effect must be given however absurd, is amenable to the court's power under its review jurisdiction to condemn it, in whole or in part, as invalid for unreasonableness. The principle is well established. In the leading case of Kruse v Johnson [1898] 2 QB 91, concerned with the vires of a county council by-law, Russell LCJ, said this: "I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppresive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges." That passage well expresses not only the court's power, but also its limitation. Indeed, earlier in his judgment, Russell LCJ had said this of by-laws passed by bodies of a public representative character and entrusted by Parliament with delegated authority which is then exercisable subject to various checks and safeguards:

"They ought to be supported if possible. They ought to be, as has been said, 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered . . . I think Courts of Justice ought to be slow to condemn as invalid any by-law, on the ground of supposed unreasonableness."

It should also be recognised that where the relevant power is given, as here, to a Minister responsible to Parliament, the court is even less willing to intervene, a fortiori where, as is also the case here, the rules in question were laid before Parliament and subject to a process akin to negative resolution. Indeed, the speeches of the Judicial Committee of the House of Lords in the recent case of Nottinghamshire County Council v Secretary of State for the Environment [1986] 1 All ER 199 -- admittedly a case where the decision under challenge had secured the express approval of the House of Commons -- provide a powerful and salutary reminder of the strict limits to the court's proper exercise of its supervisory role in this area of the law. In the light of that approach, namely with a marked reluctance to condemn the rule as invalid, I now have to decide this question: Is the requirement that an applicant dependent relative must establish that he has a standard of living substantially below that of his own country "partial and unequal" in its operation as between different classes, or "manifestly unjust", or in any other such extreme fashion unreasonable? In my judgment it is. I share the views of the Patel Tribunal as to the vices and absurdity of such a provision within the rule. Mr Pleming submits that the requirement may be more readily satisfied if the dependant is living in an affluent society rather than, as he accepts is infinitely more probable, in a Third World country. Clearly that is so, but whilst that may give the requirement some scope for coherent application in rare cases, to my mind it makes it generally no less unjust, and if anything more "partial and unequal in its operation as between different classes". I recognise that section 3(2) of the Act expressly empowers the Secretary of State not to make uniform provision for the admission of persons coming, inter alia, as dependants, and allows him to take account of nationality. Nevertheless, I see no possible basis in sense or justice for a requirement which will automatically disqualify from admission under the rule virtually all those from the poorer countries of the world, irrespective of whatever exceptional compassionate circumstances may surround their case, and yet allow most dependants from the more affluent countries to be considered on general compassionate grounds. Whether, moreover, one is considering the application of the rule to dependants living in rich or poor countries, I regard it as manifestly unjust that -- however extreme may be the compassionate circumstance of the case -- a dependant is barred from admission under the rule unless only his or her sponsor (who, of course, equally seeks their admission) cannot afford to send abroad enough money to raise the dependant's standard of living to above that where it still remains substantially below the general standard of living in that country, but yet has enough (presumably, only just enough) to maintain the dependant were he or she to be admitted for settlement here. All other dependants, namely those whose sponsors are able to afford to send them enough money that they may live above a substantially sub-standard level, are doomed to fail in their applications for leave. To them and their sponsors the rule is indeed but a mirage. In my judgment, it is unreasonable in the narrow sense indicated in Kruse v Johnson, and thus ultra vires the enabling statutory power. In the result, I hold this requirement of paragraph 52 to be invalid. It conveniently appears between commas as an independent subordinate clause within the paragraph, and it may easily be severed from the remainder of the rule. That, I conclude is how the rule henceforth must be applied. Little, save a great potential for injustice, will be lost by this excision. The rule will still be applied only in favour of dependants "in the most exceptional compassionate circumstances," a most stringent test as Mr Pleming emphasised in argument. Moreover, in applying this test, it will remain open to the Home Office in their assessment of the level of compassionate circumstances in any given case, to have regard to the dependant's standard of living abroad. That approach, indeed, defeated the applicant in Patel's case itself. One can readily see how an applicant might fail to satisfy even the depleted rule, because the standard of living which he achieves as a result of financial contributions from abroad takes his case out of the category of "the most exceptional compassionate circumstances". But at least all other compassionate aspects of the case will have been brought fully into account and the application judged on its overall merits. So far as this application is concerned, it follows that the decision of the Immigration Appeal Tribunal must be set aside and the applicant's outstanding appeal from the adjudicator must be remitted to the Tribunal for their further consideration and redetermination in the light of this judgment. In short, the Tribunal must now apply paragraph 52 with the offending requirement deleted.

DISPOSITION:

Order accordingly

SOLICITORS:

Winstanley Burgess, London, Treasury Solicitor

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