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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sayania v Immigration Appeal Tribunal & Anor [2001] EWHC Admin 390 (5th April, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/390.html Cite as: [2001] EWHC Admin 390

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SAYANIA v. IMMIGRATION APPEAL TRIBUNAL v. SECRETARY OF STATE FOR HOME DEPARTMENT [2001] EWHC Admin 390 (5th April, 2001)

Case No: CO/3136/2000

Neutral Citation Number: [2001] EWHC Admin 390

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 5^th April 2001

MR JUSTICE STANLEY BURNTON:

1. In these proceedings the Claimant seeks an order to quash the decision of the Immigration Appeal Tribunal dated 17 May 2000 refusing her leave to appeal against the decision of the Special Adjudicator dated 29 March 2000 rejecting her appeal against the Secretary of State for the Home Department's refusal of her application for indefinite leave to enter the UK under Rule 317 of the Immigration Rules. The sub-paragraph of Rule 317(i) relied upon by the Claimant is (f).

2. This case is concerned with the interpretation and effect of, in particular, that sub-paragraph of that Rule. So far as is relevant, Rule 317 is as follows:

317 The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:

(i) is related to a person present and settled in the United Kingdom in one of the following ways:

(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and

(ii) is joining or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and

(iv) can, and will, be maintained and accommodated adequately, together with any dependants, without recourse to public funds in accommodation which the sponsor owns or occupies exclusively; and

(v) has no other close relatives in his own country to whom he could turn for financial support; and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.

3. The argument before me centred on the requirement in subparagraph (f) that the applicant over the age of 18 for indefinite leave must live alone "in the most exceptional compassionate circumstances".

4. The Claimant is a British Overseas Citizen. She was born on 13 December 1971. Her mother was born in Uganda. She was a special voucher holder; she emigrated and now lives in the United Kingdom. At the date of her application for indefinite leave, the Claimant was over the age of 18. She therefore sought indefinite leave under Rule 317. Her application was rejected by the Entry Clearance Officer in Bombay, ultimately on the grounds that he was not satisfied that the Claimant was living alone outside the United Kingdom in the most exceptional compassionate circumstances, or that she was financially wholly or mainly dependant on a relative present and settled in the United Kingdom.

5. On her appeal to the Adjudicator, the evidence for the Claimant was given by her mother. She had been born in Uganda in 1939, but had gone to India forty years ago, i.e., in about 1960. Her husband had died in 1995. Of her three daughters, the oldest had died and another was married and lived in India. The Claimant lived in Ankleswar. She was not well educated. The findings of the Ajudicator, in an unusually short determination, were as follows:

From the record of the sponsor's interview in 1996, it appears clear that she stated that the appellant worked. She now says that she was speaking about another daughter. I do not accept this. There is a series of questions which are concerned with the Appellant. There is no question whatever for the sponsor to have supposed that anyone else was being referred to. Moreover the sponsor said, at the hearing of a previous appeal, that the Appellant worked. I am consequently unable to accept her as wholly credible. It is probable that the Appellant is not in good financial circumstances. She is receiving some money from abroad. I am prepared to accept that she is mainly dependant upon this money and thus on her relatives in the United Kingdom. She lives alone. Her sister died suddenly. I have no doubt that these are circumstances which can be described as "compassionate". However, she has to show that she is living in circumstances which can reasonably be called "most exceptional compassionate circumstances". I take account of the fact that she receives money from the United Kingdom. I do not find that the evidence is such that she meets the stringent requirements of the Rule.

6. The Immigration Appeal Tribunal refused leave to appeal on the basis that the Adjudicator "quite properly did not find that (the Claimant's) circumstances were most exceptional compassionate circumstances".

7. Doctor Juss, on behalf of the Claimant, submitted that the Ajudicator, and similarly the Immigration Appeal Tribunal, had applied a mistaken, and too stringent, test. He submitted that in the light of Article 8 of the European Convention on Human Rights either the test "of the most exceptional compassionate circumstances" must be liberally and flexibly interpreted or applied, or it is ultra vires. He emphasised that the test must not be so stringent as to negate the right conferred by sub paragraph (f) for the relatives mentioned in it to receive indefinite leave to enter. The Rule, he argued, is a rule of humanity, and must be humanely applied.

8. In the course of her evidence the Claimant's mother had stated that the Claimant lived alone, was very scared, had lost weight and cried a lot. Doctor Juss criticised the Adjudicator's determination for having omitted any reference to this evidence. He submitted that this vitiated the decision of the Adjudicator and equally of the Immigration Appeal Tribunal.

9. He submitted that this evidence was relevant to the assessment of the circumstances of the Claimant, and since it appeared that he had omitted to take it into account, his decision was vitiated as was that of the Immigration Appeal Tribunal.

10. I shall deal first with the issue as to the effect and validity of Rule 317 (i) (f) and its compatibility with the European Convention on Human Rights.

11. In R v The Secretary of State for the Home Office Department, ex parte Mahmood [2000] All ER (D) 2191, the Court of Appeal considered the decision of the Secretary of State to refuse to allow Mr Mahmood to remain in this country as the husband of a British Citizen. Mr Mahmood had contracted his marriage after the commencement of enforcement action to secure his removal from the United Kingdom. Paragraph 8 of the policy document known as DP3/96, was as follows:

Where a person marries after the commencement of enforcement action removal should normally be enforced. The criteria set out in paragraph 5 do not apply in such cases. Paragraph 284 of the Immigration Rules makes it clear that one of the requirements for an extension of stay as the spouse of a person present and settled in the United Kingdom is that `the marriage has not taken place after a decision has been made to deport the applicant or he has been recommended for deportation or has been given notice under s.6(2) of the Immigration Act 1971' [sc. which relates to illegal entrants]. Marriage cannot therefore in itself be considered a sufficiently compassionate factor to militate against removal... The onus is on the subject to put forward any compelling compassionate factors that he/she wishes to be considered which must be supported by documentary evidence. Only in the most exceptional circumstances should removal be stopped and the person allowed to stay.

12. It can be seen that the policy stipulated that the relationship of marriage alone could not in itself be considered a sufficiently compassionate factor to militate against removal. The underlined words in the last sentence of paragraph 8 of the policy statement are similar to those found in Rule 317.

13. The Court of Appeal upheld the decision of the Secretary of State to deport Mr Mahmood notwithstanding that he and his wife had two young children in this country, and that his deportation to Pakistan would have a substantial financial effect on his family if they were to remain in this country. The Court upheld the decision of the Secretary of State in that case as necessary in the interests of an orderly and fair control of immigration.

14. The Court of Appeal in Mahmood did not suggest that the policy of the Secretary of State was unlawful, or ultra vires, not withstanding its requirement of the most exceptional circumstances to justify departure from the general rule of deportation.

15. The judgment of the Court of Appeal in Mahmood, and the validity and effect of DP3/96, were considered by a different Court of Appeal in R v the Secretary of State for the Home Department, ex parte Isiko (unreported, 20 December 2000). The Court of Appeal in Isiko approved the approach taken by the Court of Appeal in Mahmood. In Isiko, the Court of Appeal expressly held that the policy contained in paragraph 8 of DP 3/96 was lawful.

16. It follows from the judgments in Mahmood and Isiko that where an administrative decision made pursuant to a formal governmental policy affects a fundamental human right, the Court's review of that decision involves a two-stage approach. First, the Court will examine the policy applied by the decision-maker, to determine whether it is compatible with the Convention and otherwise lawful. Secondly, the Court will consider whether the application of the policy in the case before it would involve a disproportionate response to the matter in question: see paragraph [15] of the judgment in Isiko.

17. For present purposes I shall follow the same approach, notwithstanding that the decision in this case was made pursuant to delegated legislation rather than pursuant to a policy statement. There may be a significant difference between a policy statement and delegated legislation. Delegated legislation may dictate a decision by the decision maker, leaving no room for discretion or for the decision maker lawfully to depart from it. That is not the case in relation to a policy statement. Where a decision is dictated by delegated legislation, if the legislation is valid, there may not be room for the second inquiry which is appropriate to a decision made pursuant to a policy statement. However, in the field of immigration, where generally the Secretary of State retains an ultimate discretion, it may make little if any difference that the decision challenged is made pursuant to the Immigration Rules rather than pursuant to a policy statement.

18. In my judgment, I could not, consistently with the decisions of the Court of Appeal in Mahmood and Isiko, hold that Rule 317 of Immigration Rules is inconsistent with Article 8. The policy behind Rule 317, and in particular the requirements contained in sub-paragraph (f), seems to me to be obvious. Adult relatives can in general and consistently with the demands of humanity and the right to respect for his or her and his or her UK-resident relatives' family life be required to continue to live abroad, unless they have a very real need to live with their UK relatives. Rule 317, like Paragraph 8 of DP 3/96, is justified as being "necessary in the interests of an orderly and fair control of immigration": Mahmood at paragraph [67]. Similarly, in my judgment there is no other ground for striking down Rule 317(i)(f) as ultra vires. If Paragraph 8 of policy statement DP 3/96, admitting of exceptions "only in the most exceptional circumstances", is lawful, so must be Rule 317, which in sub-paragraph (f) includes an almost identical restriction on exceptions from the general rule.

19. I turn to the question of the interpretation of the test in question in the present case. Doctor Juss sought to distinguish the present case from Mahmood, on the basis that in that case the claimant had entered this country unlawfully, whereas the present claimant is seeking lawfully to enter, and that in Mahmood the marriage was contracted with knowledge of the enforcement proceedings against the claimant, who was a illegal entrant. On the other hand, Miss Whipple pointed out that separation of the claimant and her mother in the present case had resulted from their choice when they left East Africa.

20. I do not consider it very fruitful to compare the circumstances of this case with those of Mahmood, given the great difference in the relevant facts. The real question is whether the circumstances of the Claimant in the present case may properly be described as "the most exceptional compassionate circumstances". Doubtless, as Doctor Juss contends, the words are to be humanely applied, and they must not be applied so as to negate the existence of the exception for which they appear to provide. Subject to that, however, they are to be given their ordinary meaning. I see nothing in Article 8, or in any other matter relied upon by Doctor Juss, to require the Court to do extreme violence to the phrase in question, and the judgments in Mahmood and in Isiko do not so indicate either. I do not think that the decision in R v Offen [2001] 1 WLR 253 leads to a different conclusion.

21. I say "extreme violence" because, in my judgment, the circumstances of the Claimant fall considerably short of "the most exceptional compassionate circumstances". Doctor Juss relied on the Claimant's need for money to be remitted from the United Kingdom. I do not find that circumstance of great significance. It seems to me that the circumstances of the Claimant would be more compassionate if her family in the United Kingdom were unable to remit money to her in India. Moreover since financial dependency is a separate requirement under sub paragraph (f), "the most exceptional compassionate circumstances" must require something more than financial dependency.

22. So far as the failure of the Adjudicator to refer to the evidence that the Claimant was "very scared" and had "lost weight and cried a lot", if it was accepted by the Adjudicator, it is not such as could have brought the Claimant's circumstances within the requirement of "the most exceptional compassionate circumstances". There was no medical evidence before him. If, therefore, the Adjudicator failed to take this evidence into account, that failure was immaterial. In my judgment, those facts, even if added to the facts as found by the Adjudicator, could not possibly justify a finding that the Claimant's circumstances were "the most exceptional compassionate circumstances".

23. For similar reasons, I do not accept that the decision of the Secretary of State to maintain the Claimant's exclusion from the UK offends the principle of proportionality. There is substantial objective justification for both Rule 317 and its application in this case, namely that referred to in paragraph [67] of Mahmood.

24. It followed that there was no ground for quashing the decision of the Immigration Appeal Tribunal.

MR JUSTICE STANLEY BURNTON: I gave my decision at the end of the hearing in this case and the judgment that has been distributed, sets out the reasons for the decision I came to.

MR JUSS: My Lord, I am guilty of not having communicated one minor error. There is only one correction and that is at paragraph 12. "I suspect that it can be seen that the policies".

MR JUSTICE STANLEY BURNTON: How does that paragraph begin?

MR JUSS: It begins "can be seen that the policy". I suspect it means, or should read, "can be seen".

MR JUSTICE STANLEY BURNTON: This looks like the wrong version of the judgment.

MR JUSS: That is paragraph 11 in the judgment just given to me.

MR JUSTICE STANLEY BURNTON: Something has gone wrong. Mr Juss, if you look at paragraph 4 of the draft copy, the copy that went out by fax, how does paragraph 4 begin?

MR JUSS: "she was born on 30th December 1971".

MR JUSTICE STANLEY BURNTON: The next sentence?

MR JUSS: "Her mother was born in Uganda".

MR JUSTICE STANLEY BURNTON: Does it refer to her mother being a voucher (?) holder?

MR JUSS: The first sentence says, she was a special vaga (?) holder.

MR JUSTICE STANLEY BURNTON: Yes, I am afraid what has been photocopied for distribution is an earlier draft so something has gone wrong. How does the paragraph you want to correct begin?

MR JUSS: In the draft just handed to be a moment ago, that would be paragraph 11.

MR JUSTICE STANLEY BURNTON: It should say, "can be seen".

MR JUSS: I thought it should read, it "can be seen".

MR JUSTICE STANLEY BURNTON: I am sorry. I did not review this when it went from draft to final and I think what has happened is an early draft has been taken instead of the final version. I shall arrange for a corrected draft. I think the only corrections I am aware of are to paragraph 4 and to that paragraph.

MR JUSS: My Lord, the only other matter is the court pays me the tribute of recognising my academic credentials. I would appreciated if I stuck with Mr Juss rather than Dr Juss.

MR JUSTICE STANLEY BURNTON: Does that occur in the text as well?

MR JUSS: Yes, in the text as well.

MR JUSTICE STANLEY BURNTON: It was not intended to be pejorative. I hope you have better luck before me next time.

MR JUSS: My Lord, I am instructed to apply for permission to appeal to the Court of Appeal.

MR JUSTICE STANLEY BURNTON: Again, it seems to me that in the light of Court of Appeal authority, the decision I made was inevitable. You can go to the Court of Appeal with this as soon as you have the proper copy. If they disagree with me then they will, if they think it is arguable, grant your appeal.

MR JUSS: My Lord, may I have the appropriate legal aid assessment?

MR JUSTICE STANLEY BURNTON: Yes, thank you very much.