Alagon v Entry clearance officer, Manila
| Jurisdiction | Scotland |
| Judgment Date | 12 January 1993 |
| Date | 12 January 1993 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Lord Prosser
M Bovey for the petitioner
Mrs F Reith for the respondent
Cases referred to in the judgment:
Adair v Colville & Son [1926] SC(HL) 51.
Emmanuel v Secretary of State for the Home Department [1972] Imm AR 69.
Sloley v Entry Clearance Officer, Kingston [1973] Imm AR 54.
Watt v Lord AdvocateSC [1979] SC 120.
Donald v Rutherford [1984] SLT 70.
Forsyth v Stoddard [1985] SLT 51.
R v Immigration Appeal Tribunal ex parte Sajid Mahmood [1988] Imm AR 121.
Kirkwood v City of Glasgow District Council [1988] SLT 430.
Suzara Ramos v Immigration Appeal Tribunal [1989] Imm AR 148.
Bain v McConnell [1991] SLT 691.
Spencer v Davey (unreported, CS, 19 November 1991).
West v Secretary of State for Scotland [1992] SLT 636.
Judicial review dismissal of appeal by adjudicator adjudicator had made recommendation for admission outside the rules no appeal to Tribunal representative failed to advise sponsor of right of appeal representative allegedly anticipated Secretary of State would follow adjudicator's recommendation Secretary of State did not do so whether exceptional circumstances such as to allow judicial review of adjudicator's determination albeit not all statutory remedies had been exhausted.
Child one parent settled in the United Kingdom whether that parent shown to have had the sole responsibility for the child's upbringing whether the adjudicator had followed the settled cases in his interpretation of sole responsibility whether on his factual findings, a conclusion that the sponsor had not had the sole responsibility for the child's upbringing could be supported. HC 169 para. 50(e).
The petitioner for judicial review was a citizen of the Philippines, a minor at the date of application for entry clearance to join her mother, settled in the United Kingdom. The application was refused, the entry clearance officer not being satisfied that the mother had had the sole responsibility for the child's upbringing. An appeal was dismissed by an adjudicator: he concluded that the petitioner did not satisfy the rules as to sole responsibility: however he made a recommendation that she be admitted outside the rules. The petitioner's then representative appears to have anticipated that the Secretary of State would follow that recommendation: he did not inform the sponsor of her rights of appeal to the Tribunal. In the event the Secretary of State did not grant the petitioner entry clearance: by the time that decision was known, it was too late for an appeal to be made to the Tribunal.
On application for judicial review it was argued that because the statutory appellate procedures had not been exhausted, judicial review was inappropriate: for the petitioner it was submitted that there were exceptional circumstances justifying, on the authorities, the discretionary remedy of judicial review.
As to the merits of the case it was submitted that on the findings of fact by the adjudicator, the petitioner satisfied the relevant rule, if sole responsibility were interpreted according to the settled cases.
Held
1. The adjudicator did not appear to have applied his mind to the complex issues which arose on the correct interpretation of the phrase sole responsibility in the context of sub-paragraph (e) of HC 169 paragraph 50.
2. Although it was not for the court to substitute its own decision for that of the adjudicator, on the very full factual findings it was demonstrated that the mother had had the sole responsibility for the child's upbringing, as that term had been interpreted in the settled cases. The adjudicator had not stated how he had interpreted that phrase, which he should have done if he were departing from that laid down by the settled cases.
3. There were exceptional circumstances which justified judicial review even though the statutory remedies had not been exhausted. The petitioner was now over-age and could not re-apply for entry clearance: the respondent had by his refusal deprived the petitioner of an entry clearance to which on the facts she was entitled: the right lost went beyond pecuniary loss: there had been a positive recommendation by the adjudicator when dismissing the appeal: the representative had failed to pursue a timeous appeal: in combination those factors brought the case within that exceptional category, following Bain,that made judicial review appropriate.
4. The adjudicator's determination would be reduced and declarator granted that the petitioner was entitled to entry clearance pursuant to paragraph 48(e) of HC 169.
Lord Prosser: The petitioner is a citizen of the Philippines, and lives there. The respondent is the Home Secretary. The petitioner's mother came to the United Kingdom in 1977, and apart from a short visit in 1982 to visit the petitioner in the Philippines, has lived in the United Kingdom since then. She is a person present and settled in the United Kingdom for the purposes of the immigration rules (HC 169). In 1987, the petitioner applied for the entry clearance which would be necessary, under paragraph 48 of those rules, for her to be admitted for settlement, as a relative of her mother. Entry clearance was refused, and the petitioner appealed to an adjudicator against this refusal, in terms of section 13 of the Immigration Act 1971. By a decision dated 1 November 1989, the adjudicator refused her appeal to him. In the present petition, the petitioner originally sought judicial review of both that decision by the adjudicator, and a subsequent decision by the respondent refusing the petitioner leave to enter the United Kingdom. However, since a previous adjourned hearing, the request for review of the respondent's decision has been abandoned, and all that is now sought is review of the adjudicator's decision.
The petitioner was born on 13 October 1969. At the date of her application, she was thus under the age of 18 years, although she ceased to be so in October 1987. She was and is unmarried. In the circumstances, the relevant paragraph of the immigration rules setting out the conditions for admission for settlement was paragraph 50. It was common ground between the parties that none of these conditions required consideration other than conditions (e) and (f). The adjudicator's refusal of the appellant's appeal to him, like the prior refusal appealed against to him, turned upon the requirements of these two conditions.
Condition (e) provides for admission for settlement if one parent is settled in the United Kingdomand has had the sole responsibility for the child's upbringing. Condition (f) provides for admission for settlement if one parentis settledin the United Kingdom and there are serious and compelling family or other considerations which make exclusion undesirable
In relation to condition (f), counsel for the petitioner did not submit that upon the material available to the adjudicator he was inevitably bound to hold that the condition was met. He did not seek a declarator that it had been met. But he submitted that the adjudicator's decision revealed a failure to consider certain relevant material, which would justify my quashing the decision, and thus making a new decision, based on all the relevant material, possible. However, the submissions in relation to condition (e) were more fundamental. It was submitted that the adjudicator's decision showed that he had in essence asked himself the wrong question, when considering whether the petitioner's mother had had the sole responsibility for her upbringing. That made it appropriate to quash the decision, and prima facie would make it appropriate for the correct question to be considered by the same or another adjudicator. However, it was submitted that upon the facts found by the adjudicator, it was evident that no reasonable adjudicator could fail to hold that condition (e) was satisfied. That being so, it was possible for me, at this stage, to issue a positive declarator to the effect that the petitioner was entitled to entry clearance for settlement in the United Kingdom in terms of paragraph 50(e), without any need for further procedure in respect of that condition, or in relation to condition (f), which in the circumstances would no longer matter.
On behalf of the respondent, it was submitted in relation to condition (f) that it did not appear that the adjudicator had omitted to consider any relevant material. As regards condition (e), the contention for the respondent was that the adjudicator could not be said to have asked himself the wrong question, and that there was thus no ground for quashing his decision in that respect. Moreover, even if the decision required to be quashed, it was submitted that the matter remained one for an adjudicator. An argument to the effect that it would be incompetent for me to issue the declarator sought was abandoned between the original hearing and the resumed hearing, so that in the event, it was accepted on behalf of the respondent that the declarator sought could be granted and would indeed be appropriate if I were of the view that no reasonable adjudicator could have failed to hold, on the material before him, that condition (e) was satisfied. It was however still contended that I should not reach that view, and accordingly should not issue the declarator.
In addition to these issues between the parties as to the adjudicator's alleged errors, and the appropriate consequences if they were established, there was however a further issue between the parties, which may be seen as more fundamental and in a sense preliminary. In terms of section 20 of the 1971 Act, any party to an appeal to an adjudicator may, if dissatisfied, appeal to the Immigration Appeal Tribunal. This right of appeal is expressly subject to any requirement of rules of procedure as to leave to appeal. The Immigration Appeals (Procedure) Rules 1984 provide at...
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TD (paragraph 297(I) (e): 'Sole responsibility') Yemen
...Mr G Russell, Home Office Presenting Officer, for the Secretary of State. Cases referred to: Alagon v Entry Clearance Officer, Manila [1993] Imm AR 336 Cenir v Entry Clearance OfficerUNK [2003] EWCA Civ 572 DR (Immigration RulesRule 297 (e): sole responsibility) Philippines [2003] UKIAT 001......
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TD (Paragraph 297(i))
...House of the Court of Session does, however, contemplate a different outcome in exceptional circumstances. In Alagon v ECO, Manilla [1993] Imm AR 336 the appellant sought entry clearance to join his mother in the UK shortly before his eighteenth birthday. His mother had come to this country......
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Alexey Pallovich Buydov v Entry Clearance Officer, Moscow
...R (Philippines) v SSHD [2003] UKIAT 00109, discussed at [38]. On the other side of the factual dividing line was Alagon v ECO, Manila [1993] Imm AR 336, discussed at [39]. There the parent remaining in the country of origin, although he occupied the same house as the child, which belonged t......
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Upper Tribunal (Immigration and asylum chamber), 2006-05-24, [2006] UKAIT 49 (TD (Paragraph 297(i)(e): sole responsibility))
...House of the Court of Session does, however, contemplate a different outcome in exceptional circumstances. In Alagon v ECO, Manilla [1993] Imm AR 336 the appellant sought entry clearance to join his mother in the UK shortly before his eighteenth birthday. His mother had come to this country......