KP (Para 317: mothers-in-law)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 06 December 2006 |
| Neutral Citation | [2006] UKAIT 93 |
| Court | Asylum and Immigration Tribunal |
| Date | 06 December 2006 |
[2006] UKAIT 93
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Gill
KP (Para 317: mothers-in-law) India
(1) A mother-in-law is not within the wording of paragraph 317, and there is no requirement to read that paragraph as applying to mothers-in-law. The Immigration Rules can lawfully distinguish between different relationships. R (Carson) v SSWPapplied. (2) Before s 3 of the Human Rights Act 1998 comes into play, a claimant must establish that the rule as expressed is inconsistent with a Convention right. (3) Counsel appearing before a specialist Tribunal should be prepared to inform the Tribunal about cases he cites that are outside the Tribunal's usual field.
The appellant is a citizen of India, born on 2 October 1937. This is the reconsideration of her appeal against the decision of the respondent on 7 October 2004 refusing to vary her leave in order to allow her to remain in the United Kingdom for settlement.
The appellant, a widowed lady with family in England and India, came to the United Kingdom on 13 March 2004 with entry clearance. She obtained six months leave to enter in order to visit her son and daughter-in-law. A few days before the end of her leave, she applied to remain for settlement, with her son as sponsor. The application was refused, as we have said, on 7 October 2004. The grounds of refusal were that the respondent was not satisfied that the appellant was financially wholly or mainly dependent on the sponsor, or that she had no other close relatives in her own country to whom she could for financial support. We should point out, in view of subsequent events, that those grounds were a comment on the financial position, not on the status of the sponsor. The appellant appealed. Her notice of appeal is dated 12 October 2004. The grounds are simply as follows:
“ The Secretary of State's decision is not in accordance with the Immigration Rules” and “The applicant's has emotional ties in the UK with her relatives”.
By the time of that notice, the sponsor was very ill. We do not know whether his illness was diagnosed before or after his mother arrived in the United Kingdom, but by as early as 4 August 2004 his doctor wrote that he was suffering from a neuro-endocrine tumour of oat cell type with metastatic disease involving his liver. He was receiving chemotherapy, which was expected to continue for some time. No mention of the sponsor's illness was made in the appellant's application or her appeal. Indeed, the application was firmly based on an assertion that the sponsor was receiving net pay of £2,600 per month, and had an additional household income of £962 a month from his wife's work.
The appellant's son, her sponsor for the purposes of her application, died on 19 May 2005. That was, of course, during the currency of the present appeal. On 9 September 2005 the appellant made a further application for her leave to be extended. This time she named her daughter-in-law, her late son's wife, as her sponsor. The sponsor's net pay was given as £1,100 per month, with additional household income of £1,872.12 from a pension. In the course of the application the appellant refers to the death of her son and the support provided by her daughter-in-law and grandchildren in the UK: she says that her son in India “is not willing to help me financially and he is very unhelpful to me at me time of needs”.
Section 3C of the Immigration Act 1971 , as inserted by s118 of the 2002 Act, provides that, where an application for further leave is made during the currency of existing leave, the leave continues until determination of the application and any subsequent appeal. Sub-Sections 4 and 5 are as follows:
“ (4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section
(5) But sub-section (4) does not prevent the variation of the application [that was made in time].”
What was in form a second application by the appellant was therefore considered as a variation of the original application.
On 23 January 2006 the respondent issued an expanded Explanatory Statement containing the following passage.
“ 4.3 The Secretary of State has carefully considered the further grounds, however, the Secretary of State remains satisfied that the appellant would not be living alone in the most exceptional compassionate circumstances and that she did not have close relatives in her country to whom she could turn for financial support.
4.4 Furthermore, the Secretary of State notes the appellant has visited the United Kingdom on several occasions and sees no reason why she cannot continue to do so. Moreover, the relationship between her daughter-in-law and grandchildren could be maintained from overseas. The Secretary of State remains satisfied that the appellant circumstances is not of a compelling enough nature to grant the appellant indefinite leave to remain in the United Kingdom.
4.5 The Secretary of State is not persuaded to reverse his decision.”
The appeal came before an Immigration Judge on 20 March 2006. He heard oral evidence from the appellant and from her daughter-in-law. He had before him a witness statement by the appellant and the submissions made at various stages on her behalf by her representatives. There was little documentary evidence relating to the financial consequence of the appellant's son's death. It was asserted that the appellant's daughter-in-law had available to her a sum of £60,000, representing her husband's “life savings”, but the only evidence of that was a letter from the bank, addressed after the husband's death to both husband and wife, confirming the amount of the balance.
At the hearing, the Presenting Officer, readily acknowledged that, because the appellant is over 65 years old, the reference in the latest Explanatory Statement to “most exceptional compassionate circumstances” was inappropriate. There is no requirement to prove such circumstances in a case of the appellant's age. He indicated, however, that in his view the real problem now was that the relationship between the appellant and the proposed sponsor, her daughter-in-law, was not one which would allow the daughter-in-law to sponsor the appellant for settlement within the Immigration Rules. The Immigration Judge said that he would hear submissions on that after taking the evidence. He did so. He agreed with the Presenting Officer. He therefore found that the appellant could not meet the requirements of the Immigration Rules, and made no further findings on whether she would have been able to do so if her daughter-in-law could have been her sponsor. We do not criticise him for that, but it is important to note that no concession had been made as to the original and continuing reasons for refusal, which were that the respondent was not satisfied that the appellant was wholly or mainly financially dependent on her sponsor or that she had no close relatives in her own country to turn to for financial support. We do not read the subsequent reasons, provided in the supplemented Explanatory Statement, as superseding those reasons, which clearly, remained relevant to the substantive decision: they merely supplement those reasons in answer to a new application made on a new basis.
Having decided that the appellant could not succeed under the Immigration Rules, the Immigration Judge continued his determination as follows:
“ 14. … the appellant therefore has to seek to rely on Article 8 of the European Convention on Human Rights.
15. In order to satisfy Article 8 of the European Convention on Human Rights I have to be satisfied that the appellant has established a family life in the United Kingdom. At the date of the hearing the appellant had been in the United Kingdom for approximately 2 years. She is an adult and lived with her son and daughter-in-law and their family. Unfortunately her son is now deceased and she is living simply with her daughter-in-law and her family. There is nothing truly exceptional in the appellant's relationship to her daughter-in-law and her family It is no more than a normal relationship of mother-in-law/daughter-in-law and grandparent/grandchild with the one exception that clearly the appellant and her daughter-in-law are able to support and console each other in relation to the death of the appellant's son Chakarworti Singh Parmar who died on 19 th May 2005 but the appellant lived with her son, a Police Officer, and his wife and family in India before she came to the United Kingdom as a visitor.
16. There appears to be no particular reason why she could not return to her son's home from where she came in India. Although there may have been some difficulties between the appellant and her daughter-in-law, these do not appear, from the evidence before me, to have been particularly severe and if this was the case, it tends to suggest that the appellant obtained a Visa whilst planning to come to the United Kingdom for settlement. Alternatively, if the appellant was not intending to settle in the United Kingdom when she made her visit then if returned she would go back to the existing situation in India, which is as it was when she came to the United Kingdom, this is evidenced by the appellant's letters. These circumstances appear not to have altered. As far as the appellant's health is concerned, she states that she suffers from Arthritis and depression. There is no medical evidence to support the appellant's claimed health problems. I am not therefore prepared to accept that the...
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