R v. Immigration Appeal Tribunal, Ex parte Joseph

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE JOSEPH

Queen's Bench Division

[1988] Imm AR 329

Hearing Date: 15 February 1988

15 February 1988

Index Terms:

Dependent relative -- the meaning of 'most exceptional compassionate circumstances' -- whether 'most' is mere surplusage -- where the fiscaal element in dependency will predominate. HC 169 paras 51, 52.

Appeal -- to Tribunal -- grounds to be submitted in application for leave to appeal -- whether a mere assertion that a determination is wrong in law is sufficient. Immigration Appeals (Procedure) Rules 1984 r 16(2)(c).

Held:

The appellant was a 27-year-old Mauritian who suffered from epilepsy, who had only ever worked intermittently and all of whose immediate family were settled in the United Kingdom. He was refused entry clearance for settlement as a dependent relative. An adjudicator found that he was not living (as the rules required) in the "most exceptional compassionate circumstances". He found he had no close relatives to whom he could turn in Mauritius, but concluded that he was not wholly or mainly dependent on relatives in the United Kingdom. Application for leave to appeal to the Tribunal was refused: the grounds in support of that application merely stated, "The determination is wrong in law. Further grounds will follow" -- but no further grounds were submitted. The Tribunal nevertheless considered the application on its merits and refused leave because after consideration it concluded that the determination of the adjudicator disclosed no misdirection in law or wrong exercise of discretion. On application for judicial review it was submitted that in the phrase "most exceptional compassionate circumstances", "most" was mere surplusage. The adjudicator had adopted the wrong approach. In considering dependency he had erred by concentrating on assessing the financial dependency of the applicant on the sponsor, instead of taking a broad humanitarian approach. Held: 1. In the phrase "most exceptional compassionate circumstances", "most" was not mere surplusage -- as a qualifying word it was clearly important. 2. On the facts of the case the applicant at the material time could not be mainly dependent on relatives settled in the United Kingdom other than in a fiscal sense. Obiter, No proper grounds whatsoever were placed before the Tribunal when the appeal was lodged. Had the Tribunal dismissed the application "on the basis that no grounds of appeal had ever been placed before it of a character which called for its proper determination", the applicant's position before the Court "would have been impossible".

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Bastiampillai [1983] Imm AR 1: [1983] 2 All ER 844. Immigration Appeal Tribunal v Swaran Singh and ors [1987] Imm AR 563 [1987] 1 WLR 1394.

Counsel:

A Riza for the applicant; J Laws for the respondent PANEL: Kennedy J

Judgment One:

KENNEDY J: This is an application for judicial review of the decision of the Immigration Appeal Tribunal arrived at on 7 March 1986 when it refused leave to appeal from a decision of an adjudicator arrived at on 3 December 1985. The background to this matter, very briefly, is that the applicant, who was born on 28 November 1955 is a native of Mauritius. He lived there fro some time with his family and eventually all of the members of his family, both his parents and his brother and sisters, emigrated to the United Kingdom, where his father had a right to stay. By 1981 the applicant was the only member of the family still in Mauritius. He suffers from the disadvantage of being an epileptic and it is the wish of the applicant and his family that he should be re-united with his family in this country. In those circumstances from time to time he has sought entry clearance. The first application was made as long ago as 1973 but that application was withdrawn. The first real application which went to a decision was made on 26 June 1977. That decision went against the applicant and he began the process of appeal but the appeal was withdrawn. So I come to 1981 when he made a further application. In furtherance of that application he was interviewed on 24 September 1982 and on 6 May 1983 his application was refused, by an entry clearance officer after consultation with the Home Office. He entered an appeal against that refusal on 27 June 1983 and that is how his case came to be before the adjudicator on 3 December 1985 The material immigration rules which the adjudicator had to consider are paragraphs 51 and 52 in HC 169. As Mr Riza points out, they come into existence by virtue of the general statutory provision in section 1(4) of the Immigration Act 1971 which requires the Secretary of State to provide rules relating, amongst others, to dependants. Paragraph 51 provides that children aged 18 or over must qualify for settlement in their own right unless there are the most exceptional compassionate circumstances, in which cases their cases should be considered under paragraph 52. I need not be concerned with the rest of paragraph 51. Paragraph 52 is initially directd to elderly relatives of persons settled in the United Kingdom. It provides that such persons 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. The paragraph then goes on: "This provision should not be extended to people below 65 . . . 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" -- I can ignore those words now in the light of a recent decision -- "but may in such circumstances be extended to" -- in this case "sons" is the only relevant words -- "of whatever age who are mainly dependent upon relatives settled in the United Kingdom." So those were the two rules which the adjudicator had to consider. They posed for his consideration first the question whether or not in the present case there were shown to be the most exceptional compassionate circumstances because unless such circumstances were shown to exist, this applicant, being over the age of 18 would have to qualify for settlement in his own right and it is not contended by Mr Riza that on this application he could do so. In this context it is relevant to look at the way in which the adjudicator approached this determination. It is a substantial determination. It extends over no less than ten pages of typescript. In the course of his determination and the reasons which he gives for it, the adjudicator reviewed the history of the whole matter including the earlier applications made by the applicant to enter the United Kingdom. In the course of that review he alluded to a number of factors. I look at page 12 in the bundle for example. There the adjudicator was dealing with an interview in 1982. He said: "When he was interviewed in July 1982 the appellant claimed that he had worked in 1972 -- 73 only, since when he had not worked because he was ill. He was re-interviewed in September 1982 and told the Entry Clearance Officer that he had not mentioned his illness in 1976 or 1977 because he was 'not all that ill then.'" The adjudicator goes on to refer to what is the occupation of the appellant before him as it appeared on the passport. He was described as a "Caterpillar mate". He investigated in the succeeding paragraph the extent to which this appellant had been employed. Further down he deals with his epilepsy. "The sponsor now says" -- and of course we are dealing here with the situation as it appeared at that time -- "that the appellant has suffered from epilepsy since his early teens, perhaps since the age about 12, and because of his fits he lost his job as a Caterpillar assistant; he has been unable to find work since then." Then the adjudicator goes on to deal with the medical evidence and cites verbatim a part of that evidence where the examining medical officer reported: "'No abnormality except that the patient is an epileptic and has fits; are well controlled on anticonvulsant; see photocopy of a letter from a psychiatrist.' The report ends: 'Must be under constant medical supervision for management of grand mal (epilepsy).'" I cite those passages from, as I say, a lengthy determination merely to underline what is evident to anyone who reads it, namely that the adjudicator clearly did have regard to the detail of this application; to the work history of the applicant so far as he was able to ascertain it; to the applicant's medical history so far as he was able to ascertain it (which comes into the picture from time to time in the adjudicator's review); and to the means available to the applicant so far as he was able to ascertain that, eg at the bottom of a page citing from a report prepared in 1984 the adjudicator quotes: "According to Mario himself, he is obtaining approximately @10 per week from his father, which is his only source of maintenance. It has not been possible for him to find a light job, appropriate to his health condition. He tells me" -- and here of course he is quoting the person who prepared the report -- "he has had very little work experience during his adolescence, but could not recollect and specify the period." The adjudicator also addressed himself to the question of who there was in Mauritius to whom this applicant could turn. On page 15 he speaks of occasional visits (again quoting from the report prepared in 1984 by a senior probation officer) by a girlfriend, but apparently a lack of visits, for example, from his own relatives. And he speaks of the connection that obviously did exist between this applicant and his family in the United Kingdom. Reading the adjudication and the reasons as a whole, as indeed I must, it seems to me that the adjudicator did address himself to all the sort of matters which it would be relevant for him to consider if he were to apply his mind to the question to which he must apply it by virtue of the provisions of paragraph 51 of the rules namely whether in this case there are the most exceptional compassionate circumstances such as to relieve this applicant from the obligation of qualifying for settlement in his own right. On page 17 the ajudicator says in relation to those words which appear in paragraph 51 that, "This is a phrase calculated to exclude almost every imaginable case." For myself I can well see why he said that because, as Mr Laws pointed out during the course of argument, here there have to be not only compassionate circumstances, and not only exceptional compassionate circumstances but, in the words of the rules "most exceptional compassionate circumstances". The adjudicator, having said as I have just indicated, went on to allude to the features which he had reviewed in the earlier part of the adjudication. He said: "The appellant is said to be healthy apart from his epilepsy." He clearly had regard to that serious condition. He was aged 27 at the date of the decision of the entry clearance officer. "I bear in mind" -- says the adjudicator -- "the fact that all the members of his immediate family have emigrated to Europe and that he feels isolated." Then he refers to the report (part of which I have referred to already) speaking about his feelings in joining his parents. "On the other hand" -- says the adjudicator -- "the division of families is inevitable if some of the members of them are over the age of 18." He goes on to refer to the other factors which he considers have to be taken into consideration -- that this relatively young man is suffering from epilepsy, and that he has been left alone in the island of Mauritius by the other members of his family. At the end of that paragraph the adjudicator observes that in migrating to the United Kingdom the other members of the family have in fact created the conditions for the appellant of which he now complains; that he is cut off from his family. That, as Mr Laws says, is unquestionably the fact. Looking at the adjudication as a whole, I find it impossible to say that this adjudicator erred in law in the way that is contended in his approach to that test which he had to consider in paragraph 51. Clearly he had regard to the ability of the applicant to work; to his illness -- he refers to each of them -- clearly he had regard to his resources; clearly he had regard to the extent to which he was able to call upon the friendship and support of others and clearly he had regard to the existence of the strong tie with the United Kingdom. All of those matters are expressly referred to in the body of his adjudication. Against that background I look to see what is said in the grounds upon which relief is sought. The third and fourth grounds are the material ones in relation to this aspect of the case. It is said: "The adjudicator's approach to the question of whether there were the most exceptional compassionate circumstances was irrational in that he ignored all the factors that made this appellant's case exceptional viz, his epilepsy, the fact that all his family were here and the various attempts over the years to bring him over; and took into account an immaterial factor viz, 'that his family have created the conditions for the appellant of which he now complains.'" It seems to me, looking at this adjudication as a whole, as I must, that ground is simply not substantiated. In the fourth ground: "It is submitted that the adjudicator's approach to the test of 'the most exceptional compassionate circumstances' and paragraph 52 was erroneous. It is submitted that the phrase was not calculated to exclude every imaginable case as the Adjudicator held." He did not so hold. The qualifying word is clearly important. In ground four it is said: "The proper approach it is submitted is first to consider whether there are compassionate circumstances. Secondly, to consider whether there are any aggravating features such as to make them exceptional. If, then looked at in the round, the position is in truth exceptional, then it is submitted the word 'most' is surplusage." I cannot regard it is surplusage. It seems to me to add significantly to the other words which appear in the rule. Accordingly, in my judgment, this adjudicator was entitled to find as he did, that this appellant before him had not demonstrated that there were the most exceptional compassionate circumstances such as to take him outside the ambit of rule 51 and into the ambit of rule 52. That really is enough to dispose of this case because unless the applicant can get himself within the ambit of rule 52 it is not necessary to consider his other grounds upon which he seeks relief. But as I have been addressed in relation to them I shall attempt briefly to deal with them. In grounds one and two of the grounds upon which relief is sought it is said: "The adjudicator failed to ask himself the vital question in this case namely whether the appellant was mainly dependent. It is submitted that on the evidence the appellant was at the very least mainly dependent on his family here, and that such a dependence as found by the adjudicator indicated that it was not out of choice. "Alternatively," (it is said) "the word necessary does not appear in paragraph 52 of HC 169. It is, therefore, submitted that each case must be looked at in the round in order to exclude only those whose dependence is not genuine; and not, as in this case the epileptic son of a family of 9 all of whom are settled here and where he has been trying to come to the UK since 1973." In relation to this aspect of the case it is important to recognise that the adjudicator did find in favour of the appellant on another though related aspect of rule 52. He found (and I am looking now at page 17 of the bundle before me), "that there are no relatives in Mauritius who are both able and willing" -- to look after the appellant -- "and to whom he could turn." So that much was a finding which the appellant had in his favour. But of course that does not deal directly with the question of dependency because he had also to show, if he was to get himself within the ambit of rule 52, having overcome the question of exceptional compassionate circumstances, that he was mainly dependent upon relatives settled in the United Kingdom. As to that the adjudicator was not prepared to find that he was. Mr Riza submits that the adjudicator arrived at his decision in relation to that aspect of the matter by virtue of a misunderstanding of what dependency really means in this context. It is not something which he submits is exclusively financial and that the approach would which should properly be adopted is an approach which shows a genuine humanitarian concern for the applicant and is not simply concerned, for example, with his ability to work. He submits that here, as can be seen fo example at the top of page 12, the adjudicator focused far too much upon the ability of the applicant to earn his own living. Mr Laws, on behalf of the respondent, submits that in at any rate most circumstances the question of dependency in this context must be related to financial dependency; that "dependent" in the sentence in which it appears in paragraph 52, in particular where it first appears, is clearly related to money because when dealing with elderly parents that paragraph reads 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." So clearly the sentence is concerned with money. He submits that in that sentence the words "wholly or mainly" would be odd if they related only to emotion or if they related as much to emotional support as to financial dependence, and that when one comes to look at the latter part of paragraph 52 where the dependence has to be "mainly" -- the word "wholly" having gone -- the point is still valid, that dependence on the face of it must be fiscal. Furthermore, Mr Laws submits that the other considerations, such as emotional dependency, are perfectly adequately provided for by the rest of the rule and in particular by that part of the rule to which I have already referred where the rule invites consideration of whether or not there are other close relatives in the country in which the applicant is living to which he or she can turn. Mr Riza submits that his interpretation of this rule which goes to many matters other than financial matters, is supported by, in particular, a recent decision of the Court of Appeal in Swaran Singh. By way of introduction to that decision he invited me to consider an earlier decision in Bastiampillai, a decision of Glidewell J (as he then was). In that case some consideration was given to the question whether or not dependence should be regarded as purely fiscal. That was a case where two elderly parents were wanting to stay in the United Kingdom with their children and so the factual background was very different from that with which I am concerned. It was accepted in that case that a degree of emotional dependence was relevant. "Counsel for the Secretary of State," -- the learned judge said at page 851B -- " . . . agrees that in appropriate circumstances it was right for the Secretary of State, and thus an adjudicator on appeal, to take emotional dependence into account. But he says that it is very much a subsidiary matter, that is to say subsidiary to financial dependence. The rule, he argues, is essentially concerned with persons likely to be financially dependent and if emotional dependence is to be taken into account it must mean something more than ordinary family affection. With that I agree." Mr Laws, in the course of his submissions to me, invited my attention to the other parts of the decision in Bastiampillai which revealed exactly what was in issue in that case and it is important to realise that its factual background was very different from the factual background with which I am concerned; indeed in the end it turned on a fairly narrow factual point. From that decision I turn to the decision on which Mr Riza places much more reliance, which is that of R v Immigration Appeal Tribunal, ex parte Swaran Singh [1987] 1 WLR, 1394. That was a case of parents wanting to join their children and in that case the situation as found by the adjudicator was the reverse of that with which I am concerned because there the adjudicator found that there was a dependency but that the applicant had relatives in his own country to turn to. The Immigration Appeal Tribunal refused leave to appeal from that decision and the matter then went to Simon Brown J who found in favour of the applicant. At page 1397 Dillon LJ, who was giving the leading judgment in the Court of Appeal with which the two other members of the court agreed, dealt with this aspect which in that case was under appeal. He dealt with the question what amounted to dependence. "What is it? In the judgment under appeal Simon Brown J took it as a principle now firmly settled and entrenched in this area of law that what the applicant has to turn to the other close relative for is the provision of a home or financial support, which that relative will be able and willing to provide. All that the phrase seeks to achieve is, on that view, that, even though the applicant is in fact wholly or mainly supported financially by his child in this country, he cannot claim settlement here under the rule if he has another close relative in his own country who would be able and willing to provide him with a home and financial support if turned to. In other words, as Mr Kadri put it in argument, the elderly parent's dependency on the child in this country must, if he is to be allowed to settle here, be a dependency of necessity, and not a dependency of choice . . .". Then the learned LJ referred to the decision of Glidewell J and at the foot of the page he said: "But it does not follow that a general rule must be deduced from the facts of that case" -- (the case in which Glidewell J had been concerned) -- "That the rule" -- (that is rule 52) -- "is only concerned with elderly parents who have other close relatives to turn to for a home or financial support. Indeed, I doubt whether Glidewell J intended to lay down a universal rule. In my judgment, all the parents' circumstances shuld be taken into account including the financial or other support being received from the parents' child or children settled in the United Kingdom or from any other close relative." It is not necessary for present purposes for me to cite any more. Applying that decision to the circumstances of the present case does not seem to me to lead to any conclusion which is critical of the approach adopted by the adjudicator here. Here I am concerned with the son of a family who has been left behind in Mauritius when the whole of the rest of his family have moved to the United Kingdom. The adjudicator has found that in Mauritius that son who has been left behind does not have any other close relative to turn to for the sort of needs to which Dillon LJ referred in the case which I have just cited. But when it comes to considering whether he was mainly dependent at the time when the entry clearance officer was taking a decision and thereafter upon relatives settled in the United Kingdom, it seems to me that in the circumstances of this case the only form of dependency which could exist in reality was a financial dependency supplemented, to some small extent, by the ordinary emotional affection which one would imagine would exist between a son in Mauritius and a family in the United Kingdom which itself would be fed by no doubt letters and perhaps the occasional telephone call. This is not the sort of situation as was envisaged in the Swaran Singh case where one might get a relative nearby who could come to the aid of the applicant in time of need. In fact he could not be mainly dependent at the material time upon relatives settled in the United Kingdom other than in a fiscal sense. That was the approach adopted by the adjudicator in deciding this case. Upon the facts of this case it seems to me that was the right approach, so had it been necessary for me to consider the second of the two legs of this appeal I would have found in favour of the respondent on that leg also. But as it is this appeal fails on the first leg because the applicant has been unable to show that the adjudicator was wrong in his approach to the question of whether or not there were the most exceptional compassionate circumstances. Accordingly in my judgment the Immigration Appeal Tribunal was right in its conclusion that this adjudication does not disclose any error of law. Before I part with this case it is right to say this. No proper grounds whatsoever were placed before the Immigration Appeal Tribunal when the appeal was lodged. All that was placed before the Tribunal were the grounds which read: "The determination is wrong in law. Further grounds will follow." No further grounds ever did follow. Had the Immigration Appeal Tribunal dismissed the application for leave to appeal on the basis that no grounds of appeal had ever been placed before it of a character which called for its proper determination, it seems to me that the applicant's position in this court would have been impossible. In fact the Immigration Appeal Tribunal, without having the benefit and assistance of proper grounds of appeal, did express the view that the determination of the adjudicator disclosed no misdirection in law or wrong exercise of discretion. Mr Laws was content to see the case go forward and to argue the case on behalf of the Tribunal on the basis that that finding could in fact, as it has been, be supported. I say that only as an indication that if in another case the Tribunal were to refuse leave, there being no proper grounds of appeal, simply on the basis that there were no proper grounds of appeal I do not see how -- in the normal case -- an applicant could hope to succeed by way of judicial review.

DISPOSITION:

Application dismissed

SOLICITORS:

Bernard Sheridan London WC1; Treasury Solicitor