R v. Immigration Appeal Tribunal, Ex parte Zainib Bibi

R v IMMIGRATION APPEAL TRIBUNAL ex parte ZAINIB BIBI

Queen's Bench Division

[1987] Imm Ar 392

Hearing Date: 19 March 1987

19 March 1987

Index Terms:

Dependent relative -- mother of United Kingdom resident -- separated from husband -- aged under sixty-five -- whether entitled to admission under immigration rules: HC 169 para 52.

Immigration rules -- interpretation -- where a purposive construction is proper, to avoid absurdity -- the guidance in Alexander.

Held:

The applicant aged 62 was a citizen of Pakistan dependent on her only son resident in the United Kingdom. She was separated from her husband, or possibly divorced. It was common ground in any event that she was not a widow. She was refused admission to the United Kingdom as the dependent relative of her son. Her appeal to an adjudicator was dismissed. On appeal to the Tribunal, the Tribunal in a majority determination upheld the decision of the adjudicator. It rules, in effect, that whereas the provisions of paragraph 52 of HC169 provided for the admission in some circumstances of certain more remote relatives aged under 65, it precluded the admission of a mother in the circumstances of the applicant. The applicant sought judicial review. Held: 1. In construing the immigration rules absurdity should if possible be avoided by a purposive construction. Following Alexander it was not necessary to construe the rules with the strictness applicable to statutes. It was however perhaps unwise to rely on the opening remarks of a Command Paper or observations of the Secretary of State in Parliament. 2. There was an element of ambiguity in the phrasing of the rule. 3. Adopting the appropraite rules of construction a person in the position of the appicant was entitled to admission to the United Kingdom provided the other requirements of the rules were satisfied.

Cases referred to in the Judgment:

Alexander v Immigration Appeal Tribunal [1982] Imm AR50; [1982] 1 WLR 1076.

Counsel:

KS Nathan for the applicant; M Harris for the respondent PANEL: Kennedy J

Judgment One:

KENNEDY J. This is an application for judicial review of a majority determination of the Immigration Appeal Tribunal, of which notice was given on 16 August 1985. The majority of the Immigration Appeal Tribunal agreed with the Adjudicator who, on 18 October 1984, had found the applicant not eligible for settlement within paragraph 52 of HC 169. Before Mr Harris, for the respondents, did not seek to uphold that finding, but both he and Mr Nathan, who appeared for the applicant, assisted me as to how paragraph 52 ought to be construed, and I am grateful to them for their submissions. As the point which I have to consider is one of counstruction it is not necessary for me to go into the facts in any detail, an outline will suffice. The applicant was born on 20 Janaury 1925, so she is now aged 62, and until a couple of years ago she used to live in a village in West Pakistan. Her only child is Manzoor Hussain, who came to England in 1964. He now lives with his family in Maidenhead, from where he used to send money to his mother from time to time. His mother, the applicant, has been separated from her husband for many years, and before the Adjudicator there was some evidence that in 1963 there was a divorce, but it seems that the husband, or ex-husband, is still alive. The applicant contends that whilst living in West Pakistan, although she had brothers who lived in the same villiage, she was entirely dependent upon the money she received from her son. On 15 May 1983 she applied for entry clearance to enable her to join her son as his dependent mother. On 22 March 1984 entry clearance was refused and that decision was appealed so, as I have said, in October 1984 the matter came before the adjudicator. It is common ground in this case that the relevant Immigration Rule which the adjudicator had to consider is to be found at paragraph 52 of HC 169, which reads as follows: 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 paragraph 46 and 47 and the following conditions are met. They must be wholly or mainly dependent upon the sons or daughter settled in the United Kingdom who have the means to maintain their parents and any other relative who would be admissible as dependents 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 on relatives settled in the United Kingdom. The requirements of paragraph 46 and 47 must be met in any such cases.' The adjudicator held that the paragraph which I have just quoted contemplates two sets of circumstances: "The first includes inter alia widowed mothers who are admissible for settlement if they are wholly or mainly dependent on a child or children settled in the United Kingdom who have the means to maintain them, and if they are also without other close relatives in their own country to turn to. The second set of circumstances is where sons or daughters, sisters, brothers, uncles and aunts of whatever age, whether above or below 65, are living alone in the most exceptional compassionate circumstances, including having a standard of living substantially below that of their own country and are mainly dependent upon relatives settled in the United Kingdom.' If that is a correct interpretation of paragraph 52 then this application falls outside that paragraph because the applicant is not a widow, and a mother travelling alone is only eligible for admission if she is a widow, however great may be her need. The Adjudicator concluded: "I, therefore, have no alternative but to find that, since the appellant is below 65 and is not a widowed mother, she is not eligible for settlement within paragraph 52 of HC 169.' It seems to me if the Ajudicator's reasoning is right it would still have applied even if the applicant had been over the age of 65, and his reference to her being under that age is unnecessary. The matter then went to the Immigration Appeal Tribunal, two members of which agreed with the Adjudicator. They said that paragraph 52 envisages two streams flowing side by side into the United Kingdom. "In the first of these would be widowed mothers, widowers of 65 or over and parents travelling together of whom at least one is aged 65 or over. They must at least be mainly dependent upon sons or daughters settled here and they must be without close relatives in their own country to whom they could reasonably be expected to turn for material help rather than to rely on children settled in the United Kingdom. Furthermore these relatives must be willing to assist them. "The second stream relatives to sons, daughters, sisters, brothers,uncles and aunts of whatever age who are mainly dependent on relatives settled here. They, however, have to pass far more stringent tests than the other group. They have to show that they are living alone, that they are doing so in the most exceptional compassionate circumstances and that they have a standard of living substantially below that of their own country.' Professor Jackson, the chairman of the Immigration Appeal Tribunal, disagreed and, in a carefully worded minority decision, set out his reasons for doing so. They can be summarised as follows: (1) The construction favoured by the majority would admit an aunt or an uncle under 65 but would exclude a parent lviing in similar circumstnaces. That cannot have been what Parliament intended. (2)The rules should not be construed strictly. They should be construed sensibly (see Alexander v Immigration Appeal Tribunal [1982] 1 WLR 1076 at 1080 G). (3) The history of this rule and its predecessors, and of related rules, shows that at one time distressed single parents under the age of 65 upon entry did come within the scope of the Rule (see Rules 40 and 41 of HC 81). Professor Jackson argues that changes of wording made thereafter (a) were not intended to exclude them, and (b) should not be read as having that effect. In this context he refers to what is said in Command Paper 7750 of 1979 by way of introduction to the changes in the wording of the rules which were then proposed and to what was said about these proposed changes by the Secretary of State in Parliament. (4) The rule is ambiguous, and if a purposive approach is adopted single parents under the age of 65 who meet the requirements imposed upon more distant relatives can be brought within it. Both Mr Harris and Mr Nathan argue, and I accept, tht a rule which excludes a single parent or grandparent under the age of 65 but would admit a more distant relative living in identical circumstances is absurd. The construction favoured by the adjudicator and the majority of the Immigration Appeal Tribunal does lead to that result and it should be avoided unless it is inescapable. Next Mr Harris argues that the proper approach to paragraph 52 is not to think, as the majority did in the Immigration Appeal Tribunal, of two streams flowing side by side but of criteria for the admissiblity of parents which are set out in the first three sentences of paragraph 52, and then extended in certain circumstances of hardship to parents who do not meet the initial criteria, and in those circumstances of hardship to other more distant relatives. In support of this constructon Mr Harris, (a) like Professor Jackson, reminds me tht this is an Immigration Rule not a statute, and should be construed accordingly; (b) invites my attention to Rule 53, which begins with these words: "Where a parent has remarried admission should not be granted under the preceding paragraph unless he or she cannot look to the spouse or children of the second marriage for support . . . ' Mr Harris says, with force, if a parent has remarried and if the adjudicator and the majority of the Immigration Appeal Tribunal are right, then the parent cannot be granted admission under paragraph 52, so in order to give effect to the opening words of paragraph 53 a different construction of paragraph 52 has to be adopted. (c) Mr Harris submits that these two paragraphs contemplate three categories of persons seeking admission: first, widowed mothers; fathers who are widowers aged 65 or over; and parents travelling together of whom to least one is aged 65 or over. For them the conditions which have to be met, the hurdles to be overcome, are lowest. Secondly for parents and grandparents in other circumstances who have not remarried, and for more distant relatives, the hurdle is higher. Thirdly, for grandparents who have remarried the hurdle is highest of all. (d) Finally, Mr Harris submits that some assistance can be gained from the sub-heading which precedes Rules 52 and 53, and which reads, "parents, granparents and other relatives'. If anyone from these categories is to be admitted the inference would seem to be that parents come first in the queue. As I indicated at the end of the hearing, I accept the construction of Rule 52 for which Mr Nathan and Mr Harrris contend, and I do so for the reasons spelt out by Mr Harris in support of it. In particular, it seems to me: 1, that the alternative is absurd, and in the area of immigration absurdity should be avoided by purposive construction if at all possible; and 2, it is necessary to construe Rule 52 as counsel contend in order to give effect to the opening of Rule 53. I have not found it necessary to look further at the historical appraoch adopted by Professor Jackson, but it may well be that further support for the construction of Rule 52 which I have found to be correct could be derived from that approach, although I doubt if it would be wise to attach much weight either to the opening remarks of the Command paper or to the observations made by the Secretary of State in Parliament. There are other points set out by Mr Nathan in his skeleton argument which, in the end, it proved unnecessry for him to develop before me and so I do not, therefore, deal with those. For the reasons which I have given this application succeeds. The decision of the Immigration Appeal Tribunal is quashed and the matter will be remitted to that ate for its further consideration.

DISPOSITION:

Application granted

SOLICITORS:

Kidd Rapinet Badge & Co, High Wycombe; Treasury Solicitor

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