R v. Secretary of State for the Home Department, Ex parte Roberts

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ROBERTS

Queen's Bench Division

[1994] Imm AR 504

Hearing Date: 14 June 1994

14 June 1994

Index Terms:

Dependent relative -- application for variation of leave by brother to look after sister and husband -- refused under dependent relative rules -- whether on a true interpretation of the rules, any immigration rule was applicable. Immigration Act 1971, s 19(2); HC 251 paras 52, 56, 139.

Held:

The applicant for leave to move for judicial review was a citizen of Jamaica. He had been admitted to the United Kingdom as a visitor. He sought variation of leave to remain indefinitely, in order to care for his sister and her husband. The application was considered by the Secretary of State under the dependent relative rules and refused. Appeals were dismissed by the appellate authorities. On application for leave to move for judicial review it was argued that the application did not fall to be considered under the dependent relative rules: there was no immigration rule that covered the case: following Prajapati the appellate authorities ought to have reviewed the exercise by the Secretary of State of his discretion. Held 1. The application was properly considered under the dependent relative rules. 2. It followed that it was not a case in which there was no applicable immigration rule, and Prajapati had no relevance to the proceedings before the appellate authorities.

Cases referred to in the Judgment:

Kanchanlal Prajapati v Immigration Appeal Tribunal [1981] Imm AR 199 (QBD): [1982] Imm AR 56 (CA).

Counsel:

L Daniel for the applicant; R Tam for the respondents PANEL: Popplewell J

Judgment One:

POPPLEWELL J: This is an application for leave to judicially review the decision of the Immigration Appeal Tribunal dated 21 February 1994. In effect it is to challenge the decision of the adjudicator who decided that there was a rule governing the applicant's position and that, accordingly, the adjudicator had no jurisdiction to consider whether the Secretary of State's discretion should have been exercised differently. The applicant is a Jamaican national who entered the United Kingdom as a visitor in April 1991. In September 1991 an application was made on his behalf for indefinite leave to remain in the United Kingdom to care for his sister and her husband. That was refused by the Secretary of State. The relevant provision, section 19(2) of the Immigration Act 1971, reads as follows: "For the purposes of subsection (1)(a) above the Adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the Appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so." In this case which has been well argued before me, the question which arises is whether there are rules governing this case. The applicant submits that there are not. In the light of the decision in Prajapati [1981] Imm AR 199 (Forbes J) and [1982] Imm AR 56 (CA), if there are not any rules then the adjudicator has misdirected himself and so has the Tribunal. The Secretary of State submits that the rules governing this case (this being an application by a brother to remain to look after a sister) are firstly rule 139 which reads as follows in its material part: "Applications for variations of leave to enter or remain with a view to settlement may also be received from persons given leave to enter or remain otherwise than for the purposes set out above, but permission in such cases has to be limited to close relatives of persons who are settled in the United Kingdom." The relevant rules are 52 and 56. Rule 52 reads: "This paragraph and paragraphs 53 to 57 cover the admission under this Part of other relatives of a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement or given a limited leave with a view to settlement." Rule 56 reads as follows in its material part: "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, 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." In my judgment those two rules do apply. The applicant does not come within them. Accordingly, the decision in Prajapati is irrelevant to this matter. The adjudicator was right and so was the Tribunal. Accordingly, I shall not grant leave. If leave were granted, it would be doomed to failure.

DISPOSITION:

Application refused

SOLICITORS:

Wilson & Co, London N17; Treasury Solicitor

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