Entry Clearance Officer, Mumbai v NH (India)

This is the Home Secretary’s appeal, brought by leave of Moses LJ, against a decision of the AIT (Hodge P and SIJ Batiste) upholding the decision of an adjudicator given under the pre-April 2005 system in favour of Mr Navin Halai (there is no need for anonymity), who had appealed against the refusal of the Mumbai entry clearance officer to grant him entry clearance.

The appeal does not come before us in the best of circumstances. The application to this court for permission to appeal was out of time because the Home Office presenting officers’ unit failed to pass the AIT decision on to the Treasury Solicitor, on whom the AIT had also failed to serve a copy of the determination. Moses LJ enlarged time and granted permission to appeal reluctantly “because it is likely that the conclusion in both cases can be justified”; but he considered that “the implications of the AIT’s approach to the ages of the applicants may be of importance”.

The present case was at that stage one of a pair of cases, unrelated save as to the issue they raised, which were proceeding in tandem until it was realised that an ECO had mistakenly given the other respondent, Mr Paresh Varsani, entry clearance because he or she was unaware of the Home Secretary’s pending appeal to this court. It was fairly accepted, since Mr Varsani had now come and settled here on the faith of the stamp, that it would not be right to continue with the appeal in his case.

Our task – and I would think that of Moses LJ - has been made no easier by the absence from the Home Secretary’s appellant’s notice of anything recognisable as grounds of appeal. Instead of one or more shortly stated propositions which it is intended to make good by argument, the notice of appeal has annexed to it a pair of documents, both settled by the same counsel. The first is captioned “Application for permission to appeal to the Court of Appeal out of time” and runs to 38 paragraphs on eight pages of single-spaced type. The second has the same caption followed by “Skeleton argument of the Secretary of State”. It is largely identical to the first document but runs to a further eight paragraphs and three more pages. The prescribed form of appellant’s notice, at section 6, says:

Mr Halai’s application for entry clearance arose in unusual circumstances. The AIT recounted the formal history:

Behind the personal history lies a fraught political history. It is set out, without dissent on the part of the Home Secretary, by the AIT:

Mr Halai made his application for entry clearance in order to join his mother, who was now a British citizen settled in the UK, in reliance on paragraph 317 of the Immigration Rules:

is related to a person present and settled in the United Kingdom in one of the following ways …

Mr Halai also relied on art. 8 of the European Convention on Human Rights, which is one of the Convention rights scheduled to the Human Rights Act 1998 and which both the Home Secretary and the AIT are required to respect. It provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The adjudicator concluded that, although Mr Halai met the other requirements of paragraph 317 of the Rules, it could not be said that he was living in “the most exceptional compassionate circumstances”.

The adjudicator accordingly recommended sympathetic consideration outside the rules. But this became superfluous when he went on to hold that the refusal of entry was a denial of respect for Mr Halai’s family life which was disproportionate and so unable to be justified under art. 8(2). These were his findings:

The Home Secretary obtained permission to appeal to what was then, under the former two-tier system, the IAT. The single ground on which permission was granted was

By the time the appeal came on the new regime had come into operation, requiring the AIT to treat it as a reconsideration hearing. At that time, however, Rule 62(7) of the AIT (Procedure) Rules 2005 purported to forbid the canvassing of any ground which had not been the subject of the grant of permission. It has since been decided by this court in AM (Serbia) v Home Secretary [2007] EWCA Civ 16 that the restriction was ultra vires, and the Lord Chancellor has accordingly amended the rule to permit the AIT to modify the grounds on which the case is to be argued before them.

Ms Laing has accordingly sought to canvass a further ground which, she submits, the AIT would have allowed her to canvass had Rule 62(7) been in lawful form. Manjit Gill QC, for the respondent, has not objected and we have allowed her to do so. Her further ground relates to the issue of proportionality, which, although it may not have been visible on the face of the grant of permission, was at the centre of the decisions reached at both levels and clearly needed to be addressed. Indeed the AIT, while considering itself bound by Rule 62(7) in its original form, in my view correctly took the grant of permission to have included all issues arising under art. 8.

The AIT concluded that the adjudicator had been entitled to allow the appeal under art.8 and that they would have done the same. Indeed their formal decision was to allow the appeal – necessarily meaning Mr Halai’s appeal against the ECO’s refusal of entry clearance. This raises an initial question for us: is it in the adjudicator’s determination or in the AIT’s or in both that the Home Secretary as appellant must locate an error of law?

It is not altogether clear what the AIT took their role to be. If they were conducting the first stage of a reconsideration under the new regime, the single issue before them was whether the adjudicator had made an error of law. If they found that he had not – and that is what they found – it was the end of the Home Secretary’s appeal. But they also went on to evaluate the case for themselves and to reach, on clearer and stronger grounds, the same conclusion as the adjudicator. In the result they concluded (§31) that the adjudicator had been:

In the end, however, it does not matter. What the AIT has done is set out in compelling detail why it was right in fact as well as permissible in law for the adjudicator to decide in Mr Halai’s favour. In the light of this counsel agree that we should treat the AIT’s decision, as the AIT appear to have treated it, as a rolled-up determination both of the threshold question whether the adjudicator had made any error of law and, contingently, of the substantive question whether the appeal was well-founded.

As developed, therefore, Ms Laing’s grounds have been these:

The adjudicator erred in finding that refusal of entry clearance would breach art. 8(1).

Alternatively, in applying art. 8(2) the adjudicator made a legally inadequate assessment of proportionality.

Had the AIT found these errors of law to have occurred, as they should have done, the determination which they would have substituted (and indeed purported to substitute) was vitiated by equivalent errors.

The section of the AIT’s determination headed “Conclusion” deserves to be set out in full:

Ms Laing submits that the adjudicator erred in law in regarding art. 8(1) as engaged at all. But her principal point, that refusal of family reunion is unable in principle to constitute a breach of art. 8(1), is answered by the decision of the European Court of Human Rights in Sen v The Netherlands (2003) EHRR 81. The Dutch government had in fact conceded the existence of family life between a couple and their child who had never lived with both of them. But the court itself added:

Next, and alternatively, Ms Laing submits that, in finding it “quite clear that there exists family life between the appellant on the one hand and the sponsor and her family in the United Kingdom on the other”, cast his net impermissibly wide. There was simply no evidence that Mr Halai had ever had anything to do with his mother’s relatives in this country.

This, while true, is not quite the point. The point is the one the adjudicator went on to make in §4.8 (see above): that an extended family, of which Mr Halai was a member, had been finally able to reassemble in this country, but that Mr Halai, now aged over 18, had found himself excluded from it. As Mr Gill puts it in his skeleton argument, families like this had been prevented for over 30 years from settling in the country of which some or all of their members once were, and are now again, citizens.

Ms Laing next relies on the decision of this court in Mahmood (ante) for the proposition that, at least if the content of Mr Halai’s family life is reduced to his relationship with his mother, there was no insurmountable obstacle on the evidence before the adjudicator to its resumption in India, and therefore no interference with it by the refusal of leave to enter. The passage she relies on, which is in the judgment of Lord Phillips MR at §55(3), relates to the proportionality of interference under art. 8(2). But if one were to transpose it to the question which arises under art. 8(1) of interference with family life, it seems to me in the present context unarguable that keeping a son from joining his mother is any the less a want of respect for family life because the mother could instead join the son. In many cases it may well be relevant to show that, because there is no insurmountable obstacle to it, it is proportionate under art. 8(2) to expect the family member to go abroad in order to join or remain with the applicant. But the question has always to be answered in terms of art 8 and its jurisprudence (see Husna Begum v ECO, Dhaka [2001] INLR 115, §21, per Pill LJ), and that in my view is what was done here by the adjudicator in relation to a fact situation which displayed few of the features familiar in removal cases.

If I am wrong about this and the adjudicator’s decision that there was an interference with family life sufficient to engage art. 8(1) does not stand up in law, then I am in no doubt that the AIT’s decision does. It is to be found at §31-32 (see above), and, while brief, makes it clear that this was a dependent son who had been living with and accommodated by his parents until they moved to the UK – the mother by right - in the expectation, or at least the hope, that he would be allowed to join them.

I do not consider that more was required to engage art. 8(1). The appeal turns, therefore, on art. 8(2).

The adjudicator, sitting as he was in December 2004, had not become distracted by the search for exceptionality. His decision – see §4.9 set out under §10 above - was expressed entirely in terms of proportionality:

The subsequent path of deviation and return is well known. It is described in the decision of this court in AG (Eritrea) [2007] EWCA Civ 801, §18-25. The upshot is that the sole crucial test under article 8(2) is proportionality. That it is likely only in exceptional cases to favour entrants to the United Kingdom is a consequence and not a condition of the test. The AIT, however, considering itself bound to look for some truly exceptional feature of the case justifying departure from the Immigration Rules, found a set of such features and spelt them out in cogent detail.

The first question is whether the adjudicator’s determination on proportionality, which I have set out above in full, is legally adequate. Ms Laing submits that it does not meet the minimum standard set out by this court in AG (Eritrea), §34-37. This passage (which I will not set out in full) can be encapsulated in a case like the present one in the question whether, having regard to the need to balance the interests of the individual with those of society, the particular measure is a more drastic interference with the primary convention right than is necessary for the maintenance of lawful, fair and consistent immigration controls. It concludes (§37):

Since that decision was handed down, the House of Lords in AH (Sudan) [2007] UKHL 49 has stressed that appellate courts should not pick over AIT decisions in a microscopic search for error, and should be prepared to give immigration judges credit for knowing their job even if their written determinations are imperfectly expressed . This is no more than a paraphrase of a decision which, I respectfully think, is intended to lay down no new principle of law (cf, for example, Retarded Children’s Aid Society v Day [1978] IRLR 128, §19, per Lord Russell) but to ensure that appellate practice is realistic and not zealous to find fault. Their Lordships do not say, and cannot be taken as meaning, that the standards of decision-making or the principles of judicial scrutiny which govern immigration and asylum adjudication differ from those governing other judicial tribunals, especially when for some asylum-seekers adjudication may literally be a matter of life and death. There is no principle that the worse the apparent error is, the less ready an appellate court should be to find that it has occurred.

In the light of these principles of law and of practice, I am disposed to accept Ms Laing’s submission that the adjudicator’s decision on proportionality does not pass muster. While it culminates in §4.9, that is not where the entirety of the reasoning is to be found: the two preceding paragraphs paint a fuller picture of the merits of the particular case. But, although the first paragraph of the determination does give a short legal account of the changes over time in mother’s status, there is nothing in the determination as a whole which suggests that this was regarded by the adjudicator as a case involving more than a dependant son, now aged over 18, who was being prevented from joining his mother who had settled here in virtue of a recently granted right of abode. There would have to be an intelligible reason, and none is given, why this would not be a perfectly proportionate exercise of immigration controls.

It follows that the AIT ought to have found an error of law in this regard in the adjudicator’s determination. They were therefore right to go on, as in the event they did, to consider for themselves the question of proportionality.

The AIT’s decision on art 8(2) is altogether fuller and more cogent. As can be seen (§37) they had well in mind the formula contained in art. 8(2) itself. But their decision is couched, as most decisions were in the period between the judgment of this court and that of the House of Lords in Huang, in terms of exceptionality. Ms Laing does not contend that it must fall without more because the wrong test has been used. She is right, in my judgment, to adopt this approach.

In AG (Eritrea) this court, in the last part of §37, pointed out that, despite the corrected course now set by the House of Lords’ decision in Huang, there would be many cases where a mistaken focus on exceptionality did not create a viable appeal because on no view could the facts have been held to make removal disproportionate. The present case, most unusually, presents the obverse situation: the focus on exceptionality, albeit mistaken, produced a finding in the intending entrant’s favour. The question, accordingly, is whether a focus on proportionality could possibly have worked against him.

It is no doubt possible to construct a situation in which this might happen, but there seems to me to be no way in which it could have done so, or could now do so, in the present case. What in the AIT’s judgment made the case exceptional was a series of factors which in combination had the effect of making it, in their judgment, entirely wrong to prevent Mr Halai from joining his parents here. Everything apart from his age pointed, in their view, to its being an unacceptable use of otherwise proper immigration controls. Such a finding is, in all except its vocabulary, a finding that the exclusion of Mr Halai was disproportionate and therefore – in terms of art. 8(2) – unnecessary in a democratic society.

I return therefore to Ms Laing’s case. It is that the AIT, in bringing into account the legal, political and moral history of the mother’s, and hence her son’s, relationship with the United Kingdom, took a legally irrelevant set of matters into account. Whatever the mother’s status was at any moment in the past, it was the product of primary legislation on which neither the AIT nor any other tribunal of law is entitled to sit in judgment. None of the legislation or policy which has made amends has been retrospective. The mother’s changing status is a neutral datum line upon which any form of adjudication or evaluation is impermissible. The effect of a decision such as the AIT’s is, Ms Laing submits, simply to get round the immovable fact of legislation.

Within her larger critique of the AIT’s determination, Ms Laing founds on one particular matter: its reference towards the end of §33 to the Home Office’s 1998 policy of allowing DNA evidence to reverse its refusals of entry to applicants up to the age of 25. DNA, she says, does not have anything to do with this case. The AIT did not imagine it did. What they were noting was that, as was also shown by the initial SQV scheme, there is no legal magic in a cut-off age of 18. At the time of their decision Mr Halai was still only 21.

Mr Gill, in a substantial skeleton argument on which we have not needed to hear him in detail, sets out over several pages the political and legal history of the United Kingdom’s treatment of the East African Asians, from their initial status as citizens of the United Kingdom and Colonies with a full right of abode, through the severance of the link in 1968, the subsequent quota scheme and the 1994 rule-change, to the final legislative restoration in 2002 of something like their original status with corresponding rights. It would be wrong to make our own appraisal of this. That – provided it was legally relevant - was for the AIT, and they have done so.

In my judgment, while what was done at each stage was undoubtedly the product of primary legislation and of executive powers duly exercised, the historical and moral dimensions of the laws which took away and then, following some remedial acts of executive discretion, finally restored to Mr Halai’s family a right of a most fundamental kind – the right to belong – were, exceptionally, perhaps even uniquely, a legitimate part of the picture which the AIT formed in deciding whether the exclusion of Mr Halai was consistent with art. 8(2). They were entitled to conclude that it was not, and in particular that, but for a historic injustice which was now acknowledged, the mother would have been able as of right to bring her youngest son here with her years ago.

This answers, in my judgment, the single element of the case which persuaded Moses LJ to grant the Home Secretary permission to appeal. For the rest, what in the AIT’s view made Mr Halai’s exclusion wholly exceptional ineluctably made it disproportionate. Proportionality, in the jurisprudence of the ECHR on art. 8(2), is the yardstick of what is necessary in a democratic society; and a democratic society is one which observes the rule of law, not merely of laws.

I would therefore dismiss this appeal.

I have had the advantage of reading in draft the judgments of Sedley and Pill L.JJ. I agree with both judgments and would also dismiss the appeal.

I agree that the appeal should be dismissed and that the appellant should be granted entry clearance.

The appellant’s maternal grandfather was registered in Kenya as a British subject and a citizen of the United Kingdom and Colonies. His mother, the sponsor, was born in Nairobi in October 1959 and was a citizen of the United Kingdom and Colonies. Until 1968, the sponsor would have had a full right of abode in the United Kingdom. She married the appellant’s father, an Indian national, in 1975. They had four sons of whom the appellant, born on 6 May 1985, is the youngest.

The sponsor’s right to settle in the United Kingdom was restricted by the Commonwealth Immigrants Act 1968. A Special Quota Voucher Scheme (“SQVS”) was set up but the sponsor was not permitted to apply to settle in the United Kingdom because she was female and not head of a household. As the Tribunal put it, at paragraph 34:

That last expression is from the speech of the then Home Secretary in the House of Commons on 5 November 2002 when moving acceptance of a House of Lords amendment to the Bill which led to the 2002 Act. On another occasion, the Home Secretary, referring to British overseas citizens in the sponsor’s position stated: “we have a moral obligation to them going back a long way and it is unfinished business”.

The sponsor applied for a British passport and was registered as a British citizen with full rights on 9 September 2003. Having exercised her right to enter, she returned to India to support the entry clearance applications of her husband and the appellant. Her purpose was to restore family life and to do so in the United Kingdom. Her husband was granted a visa to settle in the United Kingdom as a dependent spouse in October 2004. Had the respondent still been under 18 years of age, he would have been entitled to enter under the Rules. He was refused entry as being outside the Rules, thereby defeating the sponsor’s purpose. The appellant was not much over 18. He was fully dependent on the sponsor who could accommodate and maintain him adequately without recourse to public funds. Under the former SQVS, the upper age limit had been 25. He was living alone when the application was made.

The Tribunal found, and were entitled to find, that there “was and is a strong family life”. That had existed in India. The relationship between sponsor and appellant was, of course, of long standing, having commenced at the appellant’s birth. It was temporarily disrupted by the decision of the sponsor, when eventually allowed to do so, to exercise her right of abode in the United Kingdom. She acted promptly and made prompt attempts to restore family life in the United Kingdom. The refusal of entry clearance to the appellant defeated that aim. The Tribunal stated: “The foundation of any entitlement to come to the UK had been prevented by racially discriminatory earlier legislation” (paragraph 34).

Entry is sought under Article 8 of the Convention. I agree with the Tribunal that “the assessment of what is necessary in a democratic society in Article 8 terms should involve a consideration of all the circumstances including the previous history of any wrongful act and an understanding of how the Convention rights have to be enforced” (paragraph 37). I also agree with their statement: “We regard this history and context as of the utmost relevance” (paragraph 37).

I do not accept the submission of Miss Laing, on behalf of the appellant, that the possibility of the sponsor returning to India to join her son there is in the circumstances a crucial factor in determining the United Kingdom’s obligations under Article 8. The sponsor had only recently exercised the right, which she should have enjoyed years earlier, to enter the United Kingdom. Nor do I accept Miss Laing’s submission that the decision to limit the relevant right of entry to children under 18 prevents the Tribunal from making its own Article 8 assessment on the facts of the particular case.

In the circumstances, the Tribunal was entitled to hold that the appellant’s right to respect for his family life under Article 8 of the Convention had been breached. They were entitled to hold that the refusal of entry clearance was disproportionate and involved a breach of the United Kingdom’s obligations under the Convention.