R v Immigration Appeal Tribunal, ex parte Bastiampillai
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1983 |
| Date | 28 January 1983 |
| Court | Queen's Bench Division |
Queen's Bench Division
Glidewell J
I. A. Macdonald for the applicants.
J. Laws for the respondent.
Cases referred to in the judgment:
R v Immigration Appeal Tribunal ex parte KotechaUNKWLR [1983] 2 All ER 289, [1983] 1 WLR 487, [1982] Imm AR 88, CA.
R v Immigration Appeal Tribunal, ex parte Tong [1983] Times 8 December.
Associated Provincial Picture Houses v Wednesbury CorporationUNKELR [1947] 2 All ER 680, [1948] 1 KB 223, CA.
Practice and procedure Admissibility of evidence of facts occurring after Secretary of State's decision Immigration Act 1971, s. 14.
Dependent parents What constitutes whole or main dependence upon children settled in the United Kingdom Primary meaning of and weight to be given to financial and emotional dependence respectively Standard of maintenance required when considering whether applicants had other close relatives in their own country to turn to HC 394 para 48.
The first applicant came to the United Kingdom in 1973, and was joined by his wife and fellow applicant, also a citizen of Sri Lanka, two or three years later. In 1976 he was granted a work permit as a trainee accountant. Subsequently to his arrival but before the final expiry of his work permit on 1 June 1979 the applicants' three children settled in the United Kingdom, and on 31 May 1979 the applicants applied for the time limit on their stay to be removed on the ground of their being wholly or mainly dependent upon a married daughter with whom they lived rent free. The application was refused on 12 March 1980, the applicants' right of stay expired on 4 April 1980 and on 30 March 1980 the first applicant ceased work as a result of the refusal to renew his work permit: thereafter his only income was a very small pension from Sri Lanka. The appeal to an adjudicator against the refusal of their application for removal of conditions of stay was adjourned to enable them to make a fresh application in the light of their changed financial circumstances: this application, of 14 April 1981, was also refused on 5 June 1981, and as it had been made after the expiry of the applicants' limited leave of stay there was no right of appeal against the decision. The appeal against the earlier refusal was dismissed by the adjudicator and the Immigration Appeal Tribunal on 6 October 1981 and 14 May 1982 respectively. The present application was for judicial review seeking three orders of certiorari: (i) to quash the determination of the adjudicator; (ii) to quash the determination of the Immigration Appeal Tribunal and (iii) to quash the decision of the Secretary of State dated 5 June 1981.
Held: (i) The application of 14 April 1981 was a fresh or second one, and since the applicants' permitted stay had expired on 9 April 1980 no appeal against its refusal lay under section 14 of the Immigration Act 1971.
(ii) The adjudicator and the Immigration Appeal Tribunal were correct in refusing to take into consideration the change in the applicants' circumstances which had arisen subsequently to the Secretary of State's refusal of 12 March 1980.
(iii) The rule contained in paragraph 48 of HC 394 was primarily concerned with financial dependence, but where doubt arose as to whether there was main financial dependence other forms of dependence might tip the balance. If emotional dependence were to be taken into account it must mean more than the normal love and affection of a united family. Here the adjudicator was perfectly entitled to take the family as a good example of a happy, united one and therefore he was not in error in avoiding reference to the matter in dealing with the appeal.
(iv) Whilst the Secretary of State's decision on the application of 14 April 1981 was discretionary it was reviewable since two of the three matters he took into account in coming to his decision were direct quotations from paragraph 48 of HC 394. With reference to the phrase without other close relatives in their own country to turn to, such a relative need not be one who was equally able and willing to maintain the applicant as was a child in the United Kingdom, but one with the ability to assist by way of providing a home or financial support so as to make it reasonable to expect the applicant to depend on that relative rather than a child or children in the United Kingdom. It was not clear whether the Secretary of State regarded the words cited above in that way. In concluding that he was not satisfied that the applicants were wholly or mainly dependent upon their children settled in the United Kingdom the Secretary of State had overlooked the material consideration of the change of circumstances in March 1980 when the first applicant ceased work.
Glidewell J: This is an application on behalf of Mr and Mrs Bastiampillai for judicial review. The application seeks three orders: first, an order of certiorari to quash a determination of an adjudicator, Mr Housden, of 24 September 1981 dismissing an appeal to him by the applicants against the refusal of the Secretary of State to grant indefinite leave for them to remain in the United Kingdom; secondly, an order of certiorari to quash a determination of the Immigration Appeal Tribunal dated 14 May 1982 dismissing an appeal by the applicants against the decision of the adjudicator to which I have just referred; and thirdly, an order of certiorari to quash the decision of the Home Secretary himself dated 5 June 1981 refusing to grant the applicants indefinite leave to remain in the United Kingdom.
Mr and Mrs Bastiampillai are citizens of Sri Lanka. Mr Bastiampillai is now 69 years of age and his wife is just 58. He came to the United Kingdom in 1973 and she came, I think, two or three years later. In 1976, Mr Bastiampillai was granted a work permit to work as a trainee accountant. That permit and consent for him to stay in the United Kingdom were renewed from time to time until 1979. The consent to stay in the United Kingdom expired on June 1979. According to the applicantI shall refer to Mr Bastiampillai as the applicant because in essence the whole of this matter depends upon his positionoriginally when he came to this country he intended at the end of his period as a trainee accountant to return to Sri Lanka. However, between the time he arrived and 1979 or certainly by 1980 all three children of these two applicants had come to the United Kingdom and all three of them are now settled in the United Kingdom. Bernadette, who is now Mrs Weerasinghe, came here in 1974. Chrisantas, who is the youngest of the three, came here in 1977. Aimee, who is Mrs Sukumar, came here in 1979.
On 31 May 1979 the applicant wrote to the Under Secretary of State for the Home Office applying for the time limit on the stay in this country of himself and his wife to be removed. The basis of the application was that they were living by that time with Bernadette (Mrs Weerasinghe) and her husband, that they were to a large extent dependent upon her and that they wished to be allowed to remain in that capacity. The effect of the Immigration (Variation of Leave) Order 1976 is that permission for the applicants to stay in the United Kingdom did not expire as it would otherwise have done on 1 June but was extended as a result of that application being made until the Secretary of State made his decision upon it and for a further 28 days thereafter.
The Secretary of State duly made his decision, which was to refuse the application, on 12 March 1980. The 28 days thereafter and thus the permission for Mr and Mrs Bastiampillai to stay in the United Kingdom...
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