R v Immigration Appeal Tribunal, ex parte Manshoora Begum

JurisdictionEngland & Wales
Judgment Date10 July 1986
Date10 July 1986
CourtQueen's Bench Division
CO/178/85

Queen's Bench Division

Simon Brown J

R
and
Immigration Appeal Tribunal ex parte Manshoora Begum

A Riza for the applicant

N Pleming for the respondent

The following cases are referred to in the judgment:

Kruse v JohnsonELR [1898] 2 QB 91.

Entry Clearance Officer, Nairobi v Seth [1979–80] Imm AR 63.

R v Immigration Appeal Tribunal ex parte ShaikhWLRUNK [1981] 1 WLR 1107: [1981] 3 All ER 29.

R v Immigration Appeal Tribunal ex parte Alexander [1982] Imm AR 50.

R v Secretary of State for the Environment ex parte Nottinghamshire County CouncilWLRUNK [1986] 2 WLR 1: [1986] 1 All ER 199.

Timol (unreported) (2887).

Patel (unreported) (3998).

Dependent relative — whether the requirement in paragraph 52 of HC 169 that an applicant's standard of living had to be substantially below that of his own country was reasonable — whether it was ultra vires the enabling statutory power. Immigration Act 1971 ss. 1(4), 3(2); HC 169, para. 52.

Interpretation of immigration rules — the principles to be applied.

The applicant for judicial review was a single lady, aged 48. She was a citizen of Pakistan. She had been disabled since birth and was financially dependent upon her brother, settled in the United Kingdom. She applied for admission under paragraph 52 of HC 169. Her application was refused. Her appeals were dismissed by an adjudicator and the Tribunal. Before the Tribunal the appeal failed because the Tribunal concluded that she did not have a standard of living substantially below that of her own country, as laid down in the relevant rule. In coming to that conclusion the Tribunal (following the majority of earlier Tribunal decisions) held that it was bound to take account of the support given to the appellant by her brother in the United Kingdom. By the time the case reached the High Court, other later Tribunal decisions, adopting a different approach had been published and were considered by the Court. Counsel for the applicant submitted that, following the later Tribunal decision in Patel, no account should be taken of remittances from the United Kingdom in assessing the relative standard of living of an applicant for admission under paragraph 52 of HC 169.

Held:

1. The Tribunal's interpretation of paragraph 52 of HC 169 in dismissing the appeal was correct. ‘Ingenious though their approach was, and admirable the purpose to which it was directed’ the Tribunal approach in Patel was ‘wholly unsustainable.’

2. However, the requirement in the rule was unreasonable and ultra vires the enabling statutory power in the Immigration Act 1971. It was accordingly invalid.

3. The case would be remitted to the Tribunal for consideration as though that requirement were not contained in the rule.

Simon Brown J: By this motion the applicant, a Pakistani lady of 48 years of age, seeks to quash a decision of the Immigration Appeal Tribunal dated 8 November 1984, upholding earlier adverse determinations by an adjudicator and the Secretary of State against her application under paragraph 52 of the Immigration Rules HC 169, for entry clearance to settle in the United Kingdom as the dependent relative of her British brother.

This motion raises in sharp form an important issue upon the proper approach to paragraph 52. In a sentence, it concerns the requirement within that paragraph that dependants such as this applicant must show that they have ‘a standard of living substantially below that of their own country’. This is an issue which has divided opinion among the independent appellate authorities. Indeed, it has produced various inconsistent tribunal determinations. The point has not previously fallen for decision by the courts.

At the outset of this judgment it is convenient to recite those sections of the Immigration Act 1971 which provide for the Immigration Rules, paragraph 52, and parts of other paragraphs of the rules which come into play. Section 1(4) of the Act provides:

‘The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.’

Section 3(2) provides:

‘The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).’

Insofar as it is relevant, paragraph 46 of the rules governs the admission for settlement of the dependants of a person who is present in the United Kingdom and settled there. It provides:

‘that person must be able and willing to maintain and accommodate his dependants without recourse to public funds in accommodation of his own or which he occupies himself…’

Paragraph 47 provides:

‘In addition, a passenger seeking admission as a dependant under this part of the Rules must hold a current entry clearance granted to him for that purpose.’

Paragraph 52, under the cross-heading ‘Parents, grandparents and other relatives’ provides:

‘Widowed mothers, fathers who are widowers aged 65 or over and parents travelling together of whom at least one is aged 65 or over should be admitted for settlement only where the requirements of paragraphs 46 and 47 and the following conditions are met. They must be wholly or mainly dependent upon sons or daughters settled in the United Kingdom who have the means to maintain their parents and any other relatives who would be admissible as dependants of the parents and adequate accommodation for them. They must also be without other...

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