AP (India) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice McCombe,Lady Justice King |
| Judgment Date | 13 February 2015 |
| Neutral Citation | [2015] EWCA Civ 89 |
| Docket Number | Case No: C5/2013/2659/AITRF |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 2015 |
[2015] EWCA Civ 89
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE DAWSON
OA 07631 2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lord Justice McCombe
and
Lady Justice King
Case No: C5/2013/2659/AITRF
Mr Manjit Singh Gill QC (instructed by Messrs Markland & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 28 January 2015
The sponsor is a British citizen. He was registered as such on 7 September 2009, was issued with a passport on 5 October 2009, and entered the United Kingdom for settlement on 25 December 2009. He has a wife and two children, a son Arjun born on 28 June 1992 and a daughter, Urvi, born on 8 August 1996. They are all citizens of India.
In 2010, just two weeks before his eighteenth birthday, Arjun sought entry clearance to join his father under paragraph 297 of the Immigration Rules then applicable. At that time he was living with his mother, sister and other relatives in India. In order to satisfy the terms of the rule it had to be shown that the father had sole responsibility for his son; alternatively, that there were serious and compelling family or other considerations which made his exclusion undesirable. The entry clearance officer refused entry on the grounds that the conditions were not met. Immigration Judge Kebede rejected the appeal. He did not accept that the father had sole responsibility; the evidence clearly pointed to both parents sharing responsibility. Nor were there any serious or compelling family or other circumstances to warrant his being granted leave to enter since he was living perfectly well with his mother in India. The judge also considered Article 8 but concluded that any interference with family life between father and son was proportionate.
Subsequently, in 2012 the sponsor's wife and both children applied together for entry clearance to join him in the UK. By this time the son was no longer a minor. Their situations were covered by different immigration rules; the wife had to satisfy the conditions in paragraph 281; the daughter, as a minor, paragraph 297; and the son, paragraph 317. The entry clearance officer rejected all their applications because he was not satisfied that the appellants would be adequately maintained and accommodated without recourse to public funds. That was a condition common to each of these rules. The wife was refused entry on the additional ground that she did not have an English language test certificate, as paragraph 281 requires. The son was rejected on the additional ground that he did not satisfy the condition in paragraph 317 of living alone outside the UK "in the most exceptional, compassionate circumstances". The daughter, being a minor, did not have to satisfy this requirement.
Each appealed the rejection to the First Tier Tribunal (Immigration and Asylum Chamber) ("FTT"). Immigration Tribunal Judge Beach, after hearing evidence from the sponsor and considering a letter from his landlord, concluded that there was adequate accommodation and maintenance available to the sponsor. That finding was sufficient to allow entry clearance for the daughter. It was not sufficient for the wife because she still had to overcome the hurdle of not having the relevant test certificate. However, by the time the case came before the judge she had obtained it. Strictly that was irrelevant because in entry clearance cases, as an exception to the usual rule, the appeal has to be determined on the basis of the facts as they were before the entry clearance officer: section 85(5) of the Nationality, Immigration and Asylum Act 2002. So she could not be said to qualify under the rules although if she were to make a fresh application, it would inevitably succeed. In the circumstances, when considering the claim under Article 8, the judge realistically concluded that it would be a disproportionate interference in family life if she were required to make a fresh application with the costs and delays necessarily involved in that course of action. Accordingly he allowed her appeal on Article 8 grounds.
However, he reached a different conclusion with respect to the son. His circumstances were as follows. He was living in the family home with his mother and sister. He received financial support from his father who had indicated that this would continue even if his son were not to be granted entry clearance into the UK. In addition the son could remain in the family home. He was at the time undertaking studies in India. In these circumstances the judge unsurprisingly concluded that he did not satisfy the condition in paragraph 317 of living alone in the most exceptional, compassionate circumstances. There is no appeal against that conclusion.
The judge went on to consider Article 8. He accepted that there was a family life established in India between the son and his mother and sister; and also some form of family life, albeit more limited, with the father. The judge also accepted that the separation of the son from the rest of his family would constitute an interference with that family life sufficient to engage Article 8. The question was whether the interference was in the circumstances proportionate. The judge concluded that it was and set out his reasons as follows (para 31):
"… The 2 nd Appellant is an adult in full time education. He is continuing his studies and will continue to receive financial support. The 2 nd Appellant is male and will not therefore be left in India as an unaccompanied female. There is a family home in which he can remain whilst he completes his studies and considers his options for the future. It will of course be a wrench to the Appellants to be separated as a family unit but I bear in mind that the 2 nd Appellant is a young adult male who will be making his own way in the world given his age. The family can remain in contact by telephone and other forms of communication and they can also visit each other. As the 2 nd Appellant grows older he would necessarily sever some ties with his family in any event given that he is currently undertaking postgraduate studies and will no doubt be considering forming his own life. In all these circumstances, whilst I have some sympathy with the circumstances of the Appellants, I find that the decision to refuse the 2 nd Appellant entry clearance is a proportionate decision."
The appeal to the Upper Tribunal
The appellant appealed to the Upper Tribunal by leave of Immigration Tribunal Judge Beach. Three grounds of appeal were advanced but the judge refused leave on the first ground. This alleged that the FTT judge had wrongly taken into account matters which occurred after the relevant date, namely the date of the decision by the entry clearance officer. This is a reference to the observation of the judge that the appellant would be making his own way in the world, carrying the implication that this would be in the relatively near future.
The second ground was that the judge had not given proper consideration in the proportionality assessment to the fact that the appellant had been affected by what is described as the British Overseas Citizen ("BOC)" policy, a policy which created historic injustice which the appellant alleged operated to his detriment in this case. In summary terms this was a policy where successive British governments had, on racial grounds, removed the unrestricted right of entry from certain British subjects of East African origin, only to restore it some thirty five years later. I set out this history in more detail later in this judgment. Counsel accepted before the Upper Tribunal that this had not been identified as a ground of appeal before the FTT, although it had been mentioned in the course of submissions. Not surprisingly in the circumstances, there was no reference to it at all in the FTT's decision.
The third ground was that insufficient account had been taken of the adverse effect which the separation would have on the mother and sister. The submission was that the case of Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 requires that the rights of all family members should be taken into account, and this was not done.
Before the Upper Tribunal, counsel confirmed that he was not pursuing the first ground. In fact, however, he does appear to have run the argument that the judge was not entitled without any evidence to conclude that the appellant would be making his own way in the world, because Upper Tribunal Judge Dawson specifically dealt with it. He held that it was a legitimate inference for the FTT to draw and was relevant to the impact which the separation would have on the other family members.
As the judge observed, counsel chose to run the other two arguments together and he did not pursue the historic injustice point with any real enthusiasm. The principal ground on which counsel relied was the third ground. The judge did nevertheless, deal specifically with the historic injustice ground which he rejected for the following reasons:
"18. It is relevant that the appellant before me unsuccessfully appealed against the decision refusing him entry clearance when he was a minor. The judge would have been aware of the earlier unsuccessful decision as it is incorporated in the decision under appeal. There was no evidence before him of any significant disadvantage suffered by the appellant and his family...
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