RO (India) v Entry Clearance Officer

This is an appeal by three sisters with permission granted in court by Ward LJ on 17 June 2008 against a determination of 25 September 2007 by Senior Immigration Judge Eshun. She dismissed the appellant’s appeals against the refusal of entry clearance to join their mother in the United Kingdom. SIJ Eshun’s determination was arrived at on a reconsideration ordered on the respondent’s application by Immigration Judge Batiste on 27 June 2007. Immigration Judge Graham had earlier, on 21 May 2007, allowed the appellant’s appeals. The appellants are nationals of India, respectively born on 15 September 1975, 14 March 1977 and 18 February 1979. Their mother, who having been born in Kenya was a British overseas citizen, entered the United Kingdom in October 1999. Their father, we understand, is deceased. In 2003 the mother acquired British citizenship following the passing of the Nationality, Immigration and Asylum Act 2002. On 12 October 2006 the appellants sought entry clearance in India to join their mother pursuant to paragraph 317 of the Immigration Rules contained in House of Commons Paper 395. That was refused on 20 November 2006 on the ground that the appellants did not fulfil the requirements of paragraph 317, in particular, because all of them were over 18. In addition they had to but could not show that they were living alone in the most exceptional compassionate circumstances.

The immigration judge agreed that they could not demonstrate that condition and also held that the appellants had not shown they were wholly or mainly dependent on their mother. Accordingly she upheld the Secretary of State’s case on paragraph 317. But that was not the end of the matter. The Immigration Judge had to consider the appellant’s case under Article 8 of the European Convention on Human Rights guaranteeing protection of the right to respect for family and private life. On the question whether family life between the mother and daughters existed at all for the purpose of Article 8 she held as follows:

“19.

I have first considered whether there is a family life between the sponsor and the Appellants. I accept that a family life within the meaning of Article 8 does not normally exist between an adult child and its parent however on the facts of this appeal I find after considering the oral evidence of the sponsor that the bonds between the parties are very strong. I find that there is evidence of a relationship of emotional dependency which exceeds the natural bonds of affection which exist between a parent and child of any age. Having determined that there is a family life in existence I have considered whether the consequent interference in that family life caused by the refusal of entry clearance is proportionate and in accordance with the law.”

The next question then was of course whether the refusal of entry clearance would cause a disproportionate interference with the family life found by the judge. The judge noted the history of what has been called the “special quota voucher scheme” before the Act of 2002 which entitled the mother to apply for full British citizenship. This scheme had operated so as to control or regulate the numbers of British overseas citizens entering the United Kingdom from time to time. However, it discriminated against married women such as the appellant’s mother for it prevented them from seeking British nationality when other classes of British overseas citizens might do so. This was accepted as a historic wrong when the 2002 Act was piloted through Parliament. In relation to these appellants, as was submitted to Immigration Judge Graham, the effect was that they were effectively deprived of the opportunity of accompanying their mother to the United Kingdom or seeking entry to join her here until a date when they were all over 18 and much more rigorous conditions in the Immigration Rules applied to them than had they been under that age. The immigration judge after noting the decision of the Immigration Appeal Tribunal in NH (Female BOC’s, exceptionality, Article 8 Paragraph 317) British Overseas Citizens [2006] UKIAT 00085, since upheld in this court ([2007] EWCA Civ 1330), and the House of Lords’ decision in Huang v SSHD [2007] UKHL 1 stated:

“25.

Given the positive decision in NH in factually similar circumstances, and given that there is no need for me to find that the Appellants’ circumstances amount to exceptional circumstances, I find that the interference with this family life is sufficiently serious to amount to a breach of rights protected by Article 8 especially when the change in the legislation which led to this application was stated to ‘correct an historical wrong’. Accordingly I allow this appeal under Article 8.”

Ordering reconsideration Senior Immigration Judge Batiste observed:

“The Immigration Judge found that the appeals cannot succeed under the Immigration Rules because the appellants, who are fit and healthy, are not financially dependent on the Sponsor; are not living in the most exceptional compassionate circumstances; and are living together in India (ie one brother and 2 sisters who were at the time of the Respondent’s decision aged 27, 29 and 31). On this basis her failure to explain the conclusion in paragraph 19 that there is family life between the Sponsor and the Appellant capable of engaging Article 8 at all, may amount to a material error of law. She may also in her assessment of proportionality have misunderstood and misapplied NH, where the facts were different from this appeal and not similar as stated in the determination. In NH the appellants were wholly financially dependent on the Sponsor, satisfied most of the requirements of the Immigration Rules, and were between the ages of 18 and 25, which is material when considering the BOC issue.”

So it was the matter went before Senior Immigration Judge Eshun. She does not appear to have taken issue with Immigration Judge Graham’s findings as to the existence of a close family tie between the appellants and their mother, although that was before her as a question for consideration. As regards the special quota voucher scheme and the case of NH she said this:

“18.

I agree with the submission made by Ms Aggarwal. In view of the upper age limit of 25 under the voucher scheme the appellants’ appeal cannot succeed. Furthermore, the Immigration Judge misapplied NH. There are no similarities between NH and the appellant’s case. In NH each appellant was found to be wholly or mainly dependent on the sponsor and most of the requirements at paragraph 317 were met whereas in this case the immigration judge found that the appellants do not meet all the requirements of paragraph 317.

19.

In the light of the Immigration Judge’s finding that the appellants do not meet the requirements of paragraph 317, and the fact that the appellants do not meet the requirements in NH, I find that the Immigration Judge..materially erred in law in allowing the appeal under Article 8 by application of NH. In the light of the findings made by the Immigration Judge, I find that the appeals of the appellants cannot succeed after Huang”

The Secretary of State, by Miss Olley of counsel, agrees that the appeal should be allowed and submits that the matter should be remitted to the Tribunal. Miss Olley accepts that the Senior Immigration Judge made an error of law in that she misunderstood the impact of the special voucher scheme. The fact that the scheme imposed an upper age limit of 25 was beside the point. As it is put in a statement of reasons drafted by counsel for the Secretary of State:

“11.

The question is not whether the Appellants would meet the requirements of the Scheme if it were applied today, the question is whether the Appellants would have been eligible for entry under the Scheme if it had applied to the sponsor from the outset, as it should have done. On the facts of this case there is arguably sufficient evidence to give rise to at least the possibility that, had she not been excluded from the scheme, the sponsor would have applied for British citizenship, and sought to move to the UK with her daughters, before any of them reached the age of 25.”

The Secretary of State also suggests that the Senior Immigration Judge may have perpetrated another error in that, as it is put:

“she failed to consider whether or not the evidence in the case was sufficient to establish the existence of family life between the Appellants and their mother.”

Mr Manjit Gill QC for his part certainly accepts, on behalf of the appellants, and indeed it has been earlier asserted in writing, the first of these actual or putative errors of law but he does not accept the second and notes that Senior Immigration Judge Eshun, refusing permission to appeal to this court, herself observed that “the Tribunal did not overturn the facts found by the Immigration Judge.” However Mr Gill’s fundamental point is that Immigration Judge Graham for her part made no error of law, with the consequence that Senior Immigration Judge Eshun had no jurisdiction to interfere with his decision. Such an error was a condition precedent to a substantive redetermination on a reconsideration hearing. On that footing there is nothing to remit to the AIT; the appeal should simply be allowed and Immigration Judge Graham’s decision restored.

In my judgment Mr Gill is right. First Immigration Judge Graham’s conclusions as to the nature of the family tie between the appellants and their mother are not as I see it flawed by any error of law. No Wednesbury challenge to those conclusions could be sustained. Miss Olley this morning has sought to persuade us that paragraph 19 of Immigration Judge Graham’s determination lacked proper reasons. I do not agree. I have cited the paragraph. I note in particular the statement by the judge:

“I find that there is evidence of a relationship of emotional dependency which exceeds the natural bonds of affection which exist between a parent and child of any age.”

That is the reasoned basis for the finding. It is true she does not describe or narrate the evidence but that would be in effect to give reasons for reasons. Secondly, Immigration Judge Graham in my view correctly perceived the true significance of the voucher scheme. Its operation prevented or may have prevented an earlier application by the appellants to join their mother in the United Kingdom. Thirdly, there is no error of law in Immigration Judge Graham’s reference to “the positive decision in NH in factually similar circumstances” -- paragraph 25 of her determination. Of course, there were factual differences between the two cases but Mr Gill is surely correct to submit that the principal feature of that case and this was the holding that an immigration judge was entitled to give considerable weight to the historical wrongs done to British overseas citizens. This is how it is put at paragraph 11 of Mr Gill’s supplementary skeleton argument:

“The central feature about NH (which is common to this case) is that the Asylum and Immigration Tribunal, in a determination upheld by the Court of Appeal, held that in assessing whether a refusal to allow adult children to join a former CUKC/BOC who was now settled in the UK (indeed, in that case, as here, a person who is now a British citizen) breached the right to family life. An immigration judge was entitled to give very considerable weight to the historical discrimination against ‘East African Asians’, the barriers created in terms of their ability to come and settle in the UK with their children, and the subsequent recognition by the UK Govt that those historical wrongs needed to be undone.”

I may break off there. Mr Gill notes the reference in the judgment of my Lord, Sedley LJ, in NH at paragraph 47. With respect I need not read it out. In those circumstances as I have said I would accept Mr Gill’s overall submission that there was no error of law in Immigration Judge Graham’s decision. I should observe that Miss Olley this morning also sought to persuade us that in dealing with proportionality Immigration Judge Graham did not properly follow the reasoning of the House of Lords in Huang. There is no reference in paragraph 25 of her decision to the likely infrequency of cases in which a disproportionate effect will be found to be the consequence of a removal prima facie in breach of Article 8. I do not agree that there is any such flaw in paragraph 25. It is to be noted that the so-called “exceptionality test” laid down in this court in the Huang case was expressly disavowed in their Lordships’ House and the reference to the number of cases in which disproportionality is likely to arise is not offered by way of a legal test or criterion but rather as a description or prediction of the number of cases where disproportionality might be found.

For all those reasons I would allow this appeal and would hold there is nothing to remit to the AIT.

I agree and add simply a word in support of my Lord’s last observations. Miss Olley has sought in argument today to add to the grounds on which reconsideration was ordered and albeit on untenable grounds succeeded, a submission that Immigration Judge Graham failed to apply a “small minority” test in applying Article 8(2). This argument, which resurfaces periodically in this court, is a false extrapolation from the decision of the House of Lords in Huang which made it clear that there is no test of exceptionality under Article 8(2). The question in each case is whether removal or deportation or exclusion is proportionate. In cases such as AG (Eritrea) [2007] EWCA Civ 801 this court has expressed the expectation that it will only be in a minority of cases that the application of the law and the Rules will be held to be disproportionate. It has been sought by Miss Olley, and if I may say so by other counsel too, to elevate this expectation into a test almost indistinguishable from an exceptionality test. In my view this practice should stop. It misleads immigration judges and gives rise to arguments which are a distraction from the sometimes complex business of gauging the proportionality of removal or exclusion once a potential interference with family or private life has been established.

In the present case, for the reasons given by my Lord, the challenge to Immigration Judge Graham’s adequately reasoned decision ought not to have succeeded and this appeal, I agree, ought accordingly to be allowed.

I agree also. I only add that Immigration Judge Graham heard evidence from the mother and was fully entitled to make the findings which he did in paragraph 19. I also agree that it is plain from a reading of paragraph 20 of the decision of the House of Lords in Huang that the reference to a small minority of claimants is not a legal test, as is absolutely clear from the final sentence of that paragraph.