PV & Others (BOC – maintenance – Article 8)

JurisdictionEngland & Wales
JudgeSenior Immigration Judge McKee
Judgment Date28 July 2009
Neutral Citation[2009] UKAIT 33
CourtAsylum and Immigration Tribunal
Date28 July 2009

[2009] UKAIT 33

ASYLUM AND IMMIGRATION TRIBUNAL

Before:

Senior Immigration Judge McKee

Senior Immigration Judge Kekic

Between:
PV
SV
MV
MV
BV
Appellants
and
Entry Clearance Officer, Bombay
Respondent
Representation:

For the appellants: Manjit S. Gill, QC and Jay Patel, instructed by Stanley & Co.

For the respondent: Miss Zsuzsanna Kiss, Senior Presenting Officer

PV & Others (BOC — maintenance — Article 8) India

The “historical wrong” righted by the insertion of section 4B of the British Nationality Act 1981 does not entitle a beneficiary of that section or members of his family to raise Article 8 arguments on a basis that would not succeed in other cases.

DETERMINATION AND REASONS
1

This is the reconsideration of an appeal (more precisely, five appeals) against the refusal on 31 st January 2007 of entry clearance for the five appellants to join their sponsor, Mr Bhanji Karsan Varsani, in the United Kingdom for settlement. The first appellant, Premila, is the sponsor's wife, and the other four are their children. The oldest, Sushilaben, was born in December 1985, and was just over 21 at the date of decision. Manishkumar was born in September 1988, and so had just turned 18 when his application for entry clearance was submitted in December 2006. Meena was born in November 1990 and Bharat was born in August 1992, and so were minors at the dates of application and decision. They all live together in the family house at Mankuva, a village in the state of Gujarat, the nearest town to which is Bhuj. They were all born in, and are citizens of, India.

2

Premila and the two minor children were refused entry clearance on the basis that there would not be adequate maintenance and accommodation for them, while the two older children were refused on the additional basis that they would not be living alone in the most compelling and compassionate circumstances (misquoting paragraph 317(i)(f) of the Immigration Rules, which refers to ‘the most exceptional compassionate circumstances’). Surprisingly for a settlement case, the AIT-2 appeal forms indicated that an oral hearing was not requested, while the grounds of appeal were exiguous and formulaic. Despite this unpromising start, when the appeals came before Immigration Judge Gillance in September 2007 for determination ‘on the papers’, he allowed them all. He was satisfied that there would be adequate maintenance and accommodation for all five appellants, and that in Sushila's case, she would, as a young unmarried Hindu woman, be living alone in the most exceptional compassionate circumstances.” In Manish's case the judge did not think that the requirements of rule 317(i)(f) could be met, but he allowed all five appeals additionally on human rights grounds, principally because the sponsor had been a British Overseas citizen and in NH (female BOCs, exceptionality, Art 8, para 317) India [2006] UKAIT 85 Hodge J had shown that even the overage children of former British Overseas citizens might have a good claim to be admitted under Article 8 because of the “ historical wrong” of their mothers' exclusion in the past.

3

A review was sought on behalf of the respondent, it being alleged that the judge had erred in supposing either that the appellants could be adequately maintained on the sponsor's income, or that their circumstances engaged Article 8 of the European Convention. Reconsideration was ordered by Senior Immigration Judge Waumsley in October 2007, but when the ‘first stage’ of the reconsideration came before SIJ McKee in April 2008 it was decided to adjourn the case in the hope of convening a panel chaired by the President. Mr Gill wished to argue that the principles which he had advanced in NH, and which had been adopted by Mr Justice Hodge in respect of female ‘BOCs’ who had been unable to apply for Special Quota Vouchers, could be extended to BOCs more generally and could facilitate the admission of their dependants on Article 8 grounds. The case came before SIJ McKee again in August 2008, when it was confirmed that Hodge J was prepared to chair a Presidential panel with a view to ‘reporting’ the outcome. Shortly afterwards, however, the President fell gravely ill, and in the end the best course seemed to be for the matter to come before SIJ McKee and a colleague, who would decide whether there had indeed been a material error of law in Immigration Judge Gillance's determinations, and who would if necessary undertake a ‘second stage’ reconsideration of the appeals.

4

Copious documentary evidence has been adduced for this reconsideration, and we have had the benefit of very skilful advocacy and arguments on both sides. The case is a complex one, requiring an appreciation of how Britain's colonial past continues to impinge upon the present, and how the retreat from Empire created different classes of British national, some without a right to reside in the mother country. But we shall deal first with the respondent's challenge to Immigration Judge Gillance's finding that there was adequate maintenance available to the appellants at the date of decision. (In AS (Somalia) [2009] UKHL 32 the House of Lords has confirmed that section 85(5) of the 2002 Act does compel the AIT to consider only the circumstances obtaining at the date of decision in an entry clearance case, even when human rights are in issue.) As we shall see, the question of maintenance is not straightforward in the present case.

5

If the sponsor's wife and two younger children could have been adequately maintained at the date of decision, then their appeals succeed under paragraphs 281 and 297 of HC 395 respectively. The respondent has not challenged IJ Gillance's finding that Sushila would be living alone in the most exceptional compassionate circumstances, so if she too could have been adequately maintained, then her appeal would succeed under paragraph 317. On the other hand, there has been no challenge to the judge's finding that Manish would not be living alone in the most exceptional compassionate circumstances, so his appeal – even if adequate maintenance had been available – could not succeed under the Rules, and he would have to rely on Article 8. Of course, the judge did allow his appeal under Article 8, as he did with the other four appellants too. But if those four succeed under the Rules, there will be no need in their case to examine the “ historical wrong” done to British Overseas citizens, which has loomed large in Mr Gill's submissions, and which prompted IJ Gillance to allow the appeals under Article 8.

6

An unusual feature of this case is that the sponsor was unable to satisfy the British authorities that he was a British Overseas citizen until he came here as a visitor and, in June 2006, obtained a ‘BOC’ passport. He then set about registering as a full British citizen and making arrangements for his dependants to join him. Thus it was that he signed a ‘Sponsorship Statement’ on 25 th August 2006, in which he said that he was living rent-free with his sister at an address in London NW4, but had arranged for his family to live in a five-roomed house in Harrow when they arrived. He was earning about £200 a week as a mason, and had £4,000 in the Halifax Bank. This letter was before IJ Gillance, as was a letter dated 5 th September 2006 from a building contractor, Ashcon Ltd, saying that the sponsor had been taken on as a mason/handyman on 27 th August at a wage of £200 per week. This was also the weekly income given in the Visa Application Forms. On the other hand, during her interview at the Deputy High Commission on 31 st January 2007, Premila had given her husband's income as £1,500 per month, rather than the £200 per week which appeared on her Visa Application Form, and the judge examined the sponsor's accounts to see whether, as at 31 st January 2007, the figure quoted by Premila at interview was accurate.

7

An Appellant's Bundle had been provided for the appeal, including lengthy written submissions by an advocate in Bhuj. In the bundle there are accounts prepared for the sponsor by L.P. Patel & Co., which show that during the period 25 th September 2006 to 5 th April 2007 the sponsor, who is described therein as a self-employed general builder, earned a gross income of £7,752 (£5,997 net). Until 5 th January 2007 he had been working for Ashcon Limited, and from 14 th February 2007 he worked for Vish Construction Ltd, and there are photocopies in the bundle of Tax Payment Vouchers issued by both firms. His gross earnings with Ashcon were £2,800, with £504 deducted in tax, while his gross earnings with Vish were £2,193, with £395 deducted in tax. For most of the period between 25 th September 2006 and 5 th April 2007 the sponsor was working for either Ashcon or Vish, grossing about £5,000. But for a short period between 6 th January and 13 th February he is said to have earned £2,759 doing General Building Maintenance (Residential). No tax was paid on this sum, and there is no evidence for it in the accounts, unlike the documents from Ashcon and Vish. Where this work was done, why the sponsor was paid so much for it, and why he reverted to much lower paid work, are not explained. Yet the judge found that [t]his supports the assertion by the First Appellant that he was earning at the date of decision around £1,500 per month.”

8

We are very doubtful that the sponsor enjoyed a five-week period ~ coincidentally, just around the date of decision ~ when he earned over £550 a week free of tax, when for the rest of the accounting period he was grossing little more than £200 a week, and paying tax on that. IJ Gillance calculates, from the total income set down by L.P. Patel & Co., that the sponsor's average weekly income, even including the high earnings during the five-week ‘blip’, came to no more than £277 gross, and £214 net. Having made that calculation, the judge simply concludes, I am satisfied the...

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