NH (India) v Entry Clearance Officer, Mumbai
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Rimer,Lord Justice Pill |
| Judgment Date | 13 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1330 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2007 |
| Docket Number | Case Nos: C5/2007/1097 & C5/2007/1097(A) |
[2007] EWCA Civ 1330
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Sedley and
Lord Justice Rimer
Case Nos: C5/2007/1097 & C5/2007/1097(A)
Ms E Laing (instructed by the Treasury Solicitor) for the Appellant
Mr M.S Gill QC and Mr J Patel (instructed by Messrs Aman) for the Respondent
Hearing date: Friday 23 November 2007
Background
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:
“Please state, in numbered paragraphs, on a separate sheet attached to this notice and entitled 'Grounds of Appeal' … why you are saying that the judge who made the order you are appealing was wrong.”
It then asks the intending appellant to indicate whether “the arguments (known as a 'Skeleton Argument') in support of the 'Grounds of Appeal'“ are attached or will follow. It is not too much to ask that counsel, like the rest of the world, should understand and follow these straightforward directions and that solicitors should not lodge documents that do not comply with them.
History
Mr Halai's application for entry clearance arose in unusual circumstances. The AIT recounted the formal history:
7. The Appellant's maternal grandfather was registered in Kenya as a British subject and a citizen of the United Kingdom and Colonies in 1957. The Appellant's mother, the sponsor, was born in Nairobi on 14 th October 1959 and was then a citizen of the United Kingdom and Colonies (CUKCs). The sponsor married the Appellant's father an Indian national in 1975. They have four sons. The oldest born in 1976 now lives in the Seychelles; the second son born in 1978 lives in Muscat; the third son born in 1980 lives in India. The Appellant, their fourth son, was born on 6 th May 1985.
8. On 27 th July 1998 the Appellant's mother obtained her British overseas citizen passport. In August 2003 the sponsor applied for a British passport. She was registered as a British citizen with full rights on 9 th September 2003. Her passport was available in October of that year. She returned to India to support the entry clearance application of the Appellant and her husband, his father. On 5 th May 2004, the Appellant and his father, together with the sponsor, were interviewed by the entry clearance officer in Mumbai. Entry clearance was refused for both the Appellant and his father.
9. On 17 th May 2004 the sponsor returned to the United Kingdom. A notice of appeal was filed for both the Appellant and his father on 27 th May 2004. The appeals were reviewed. The Appellant's father was granted a visa to settle in the United Kingdom as a dependent spouse of the Appellant's mother on 23 rd October 2004. The review of the Appellant's appeal changed nothing and his appeal was heard before an Adjudicator in December 2004.
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:
Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1st January 1950. They each, when born, became citizens of the United Kingdom and Colonies by birth (CUKCs). Their rights to settle in the UK were restricted by the Commonwealth Immigration Act 1968. The Immigration Act 1971 came into force on 1st January 1973. It introduced the concept of a right of abode. On 14th December 1973 the European Commission on Human Rights decided the East African Asians case. It decided that the Commonwealth Immigration Act 1968 was racially discriminatory. The UK Government entered into a friendly settlement. A Special Quota Voucher Scheme (SQV Scheme) was introduced to benefit citizens of the United Kingdom and Colonies whose rights had been restricted by the 1968 Act. But it could not assist either of the two sponsors since married women who were not heads of households were excluded from the Scheme.
The Special Quota Voucher Scheme had been introduced from 1968 to assist both CUKCs and subsequently British Overseas Citizens (BOCs). Each of the two sponsors had qualified as BOCs under the provisions of the British Nationality Act 1981. The SQV Scheme was outside the Immigration Rules. It allowed persons latterly BOCs who had no other citizenship and were under pressure to leave their country of residence and had nowhere else to go to settle in the UK. The numbers entitled to come to the UK were limited by quota rules. From 1975, 5,000 vouchers per year were issued. Waiting lists were always long. By 1987 those applying under the quota were expected to wait more than five years (Macdonald Immigration Law and Practice 1st Edition 1983 pg.248 and 2nd Edition 1987 pg.286).
Importantly the SQV Scheme was only available to heads of household and to their dependents. Such heads of household were defined for the purpose of the scheme as “men who have reached their 18th birthday; women over 18 who [are] … single, widowed, divorced [or] married to a man who is incapable of fulfilling the role of head of household for medical reasons, e.g. severely physically or mentally handicapped. (This includes a woman whose marriage may have been not valid in English law but which exists in fact, and a woman who is living in a permanent association with a man)“. The scheme was therefore applied in a manner which discriminated between men and women on the grounds of marital status. The scheme was abolished on 5th March 2002. There were approximately 500 applications per year at that stage.
Section 12 of the Nationality, Immigration and Asylum Act 2002 amended sections 4 and 14 of the British Nationality Act 1981. The effect was to entitle certain British Overseas Citizens to be registered as British citizens from 30th April 2003. This applied to those who hold no other nationality and who had not renounced any other nationality. The mothers of both the Appellants qualified for British citizenship for the first time as a result of this amendment. They were adversely affected by the “anomaly” referred to in the next paragraph.
The context of this legislative change is of importance in these cases. The then Home Secretary said in a parliamentary debate on the Nationality, Immigration and Asylum Bill in the House of Commons on 5th November 2002 in relation to the changes made which subsequently enabled the mothers of the two Appellants to obtain British citizenship:
“We are talking here about righting an historical wrong, in terms of what happened back in the late 1960s and early 1980s in regard to British overseas citizens … [who] found themselves in an anomalous situation … I wish to put right that anomaly for British overseas citizens.”
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:
“The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the … other dependent relative of a person present and settled in the United Kingdom are that the person:
(i) is related to a person present and settled in the United Kingdom in one of the following ways …
(f) the son… over the age of 18 living alone outside the United Kingdom in the most exceptional compassionate circumstances and...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2019-06-20, DA/00253/2015
...present cases). Further the appeal court should not undertake a "microscopic search" for error: NH(India) v Entry Clearance Officer [2007] EWCA Civ 1330 at Finally, the error of law must be material, in the sense that it might (rather than must) have made a difference to the outcome before ......
-
Pun and Others (Gurkhas—Policy—Article 8) Nepal
...of the Tribunal in NH (female BOCs, exceptionality, Art 8, para 317) India [2006] UKAIT 85, and subsequently approved in NH (India) [2007] EWCA Civ 1330. But it was acknowledged by same Home Secretary that it had been wrong to prevent Gurkhas from settling here with their families in the pa......
-
AA (Uganda) v Secretary of State for the Home Department
...46 I prefer with respect the more limited view taken by this court of the effect of AH(Sudan) and of Baroness Hale's comments, in ECO Mumbai v NH(India) [2007] EWCA Civ 1330. Sedley LJ (with the agreement of the other members of this court) said: “… the House of Lords in AH (Sudan) [2007] U......
-
R (Gurung and Others) v Secretary of State for the Home Department
...disproportionate." 29 We should refer at this stage to two of the BOC cases mentioned by the UT in their determination. In Entry Clearance Officer, Mumbai v NH (India) [2007] EWCA Civ 1330, this court considered what weight should be given by a decision-maker to an historic immigration wron......
-
The curious case of marriage/civil partnership discrimination in Britain
...(2003) 36 EHRR 43 (re contact);McGibbon v McAllister [2008] CSOH 4 [19] (locus standi); Entry Clearance Officer, Mumbaiv NH (India) [2007] EWCA Civ 1330 [15] (immigration).62. Hawkins [2011] UKEAT 0302_11_1303 [12] and fn 4. Mrs Hawkins did not have sufficientcontinuity of employment to cla......