Patel v Entry Clearance Officer
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Longmore,Lord Justice Aikens |
| Judgment Date | 25 January 2010 |
| Neutral Citation | [2010] EWCA Civ 17 |
| Docket Number | Case Nos: C5/2009/0965, C5/2009/1759 & C5/2009/1908 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 2010 |
[2010] EWCA Civ 17
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Before: Lord Justice Sedley
Lord Justice Longmore
and
Lord Justice Aikens
Case Nos: C5/2009/0965, C5/2009/1759 & C5/2009/1908
OA/31309/2008,OA/24035/2008 & OA/24042/2008,OA/47388/2008 & OA/47387/2008
Mr Manjit Gill QC and Mr Nazir Ahmed (instructed by Messrs Sultan Lloyd) for the Appellants
Ms Kate Olley (instructed by Treasury Solicitor) for the Respondent
Hearing date: Monday 23 November 2009
Lord Justice Sedley:
These three appeals concern refusals of entry clearance by the Mumbai entry clearance officer (an alter ego of the Home Secretary). What links the cases and distinguishes them from other entry clearance cases is that they concern members of the families of individuals who have only recently secured the British nationality which was taken away by the Commonwealth Immigration Act 1968.
The historical context
How the present situation arose was described by the IAT in NH (India) [2006] UKAIT 00085 and adopted on appeal by this court [2007] EWCA Civ 1330:
13. Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1 st 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 1 st January 1973. It introduced the concept of a right of abode. On 14 th 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.
14. 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 1 st Edition 1983 pg.248 and 2 nd Edition 1987 pg.286).
15. 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 5 th March 2002. There were approximately 500 applications per year at that stage.
16. 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 30 th 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.
17. 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 5 th 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.”
These cases
(1) Patel
Riddhiben Patel's mother, who was born in 1958, was a British Overseas Citizen. In that capacity she entered the United Kingdom in 2007, registered as of right as a British citizen and in September of that year received a British passport. In March 2008 her husband and daughter applied for entry clearance to join her. The following month the Mumbai entry clearance officer (ECO) granted the husband entry clearance but refused it to their daughter Riddhiben, who at that date was 24 years old.
Her appeal to the AIT succeeded under paragraph 317 of the Immigration Rules. The immigration judge therefore did not go on to determine the appeal under ECHR art. 8. On reconsideration, the paragraph 317 finding (based on exceptional compassionate circumstances) was overset; the art. 8 claim was also dismissed. It is not now sought to resurrect the paragraph 317 case, but it is both submitted and conceded that the adverse art. 8 decision is flawed and cannot stand, in essence because the immigration judge gauged the issues as at the time of the hearing rather than as at the time of the ECO's decision. What remains in issue is whether the appeal now requires remission or can be determined by this court.
(2) Modha
Pallaviben and Shital Modha's father is the son of a British citizen. In that capacity he applied in 2000 to the British High Commission for a passport. There was a delay for which responsibility remains in dispute, but in October 2006 the father obtained a British Overseas Citizen's passport and the following March was recognised as a British citizen. He entered the UK two months later. In January 2008 his wife and their two daughters, the appellants, then aged 26 and 20, sought entry clearance in order to join him. In March of that year the mother was granted entry clearance but the daughters were refused.
Their appeals to the AIT under art. 8 were dismissed both initially and on reconsideration. It is contended that in their case, as in the first case, evidence postdating the ECO's decision was taken into account. It is also contended that the separation caused by the differential grants of entry clearance was erroneously treated by the AIT as a voluntary choice severing family life.
(3) Odedara
Ramaji and Liluben Odedara are brother and sister. Their father applied as long ago as 1992 to the High Commission in Mumbai for a British Overseas Citizen's passport, but – for reasons which are in dispute – did not receive it until 2006, when he registered as a British citizen. Meanwhile, in 2004, he had entered the UK and settled here. In 2007 his wife was given entry clearance and joined him here. But the two children, then aged 27 and 23, were refused entry clearance.
Their appeals to the AIT under art. 8 failed both initially and on reconsideration. The principal ground was that the refusal involved no significant interference with family life. The special historical context was not argued.
The ECO's decisions
The three ECO decisions we have in the papers before us are in almost identical terms. Having dealt at some length with what are evidently the paragraph 317 issues –compassionate grounds for admission – they deal with the important art. 8 question as follows:
“I have also taken account of article 8 of the Human Rights Act [sic]. I consider that refusing this application is justified and proportionate in the exercise of immigration control. I do not believe refusing this application will interfere with family life, for the purposes of article 8(1), as you can continue to enjoy that in India [or which you can enjoy in India].”
If the evidence before us is representative, this is boiler-plate decision-making. It fails to engage in any meaningful way with the issues raised by the application. It is also illogically organised. Until it is established that refusal of clearance will involve a significant disruption of an applicant's family life, article 8 of the Convention (not of the Human Rights Act) has no application. It is only if and when the character and extent of such a disruption is established that its proportionality can be gauged. Such decision-making has the unfortunate effect of suggesting that the decision-maker does not fully understand his or her task.
Righting the wrong
For the appellants Patel and Modha, Manjit Gill QC submits that cases such as these, in which family reunion in the UK is sought after more than three decades in which lawful settlement here was improperly barred, constitute a special category in which the presumption should be in favour of reconstituting families which ought to have had an unfettered...
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