R v Immigration Appeal Tribunal ex parte Sajid Mahmood
| Jurisdiction | England & Wales |
| Judgment Date | 29 October 1987 |
| Date | 29 October 1987 |
| Court | Queen's Bench Division |
Queen's Bench Division
Roch J
S Hussain for the applicant
G Sankey for the respondent
Cases referred to in the judgment:
Imambandi and ors v Mutsaddi and ors [1918] Ind App 73.
Sloley v Entry Clearance Officer, Kingston [1972] Imm AR 54.
Alexander v Immigration Appeal TribunalWLR [1982] Imm AR 50, [1982] 1 WLR 1076.
R v Immigration Appeal Tribunal ex parte Forjor Uddin and anr [1986] Imm AR 203.
Children admission where only one parent is settled in the United Kingdom sole responsibility for the child's upbringing factors to be taken into account factors that will not be conclusive. HC 169 para. 50(e).
Judicial review was sought of the determination of the Tribunal allowing the appeal of the visa officer, Islamabad against a determination of an adjudicator who had found that the sponsor had had the sole responsibility for the upbringing of the applicant. The sponsor was the legal guardian of the applicant and it was common ground that he had supported him financially. The sponsor had divorced the applicant's mother. For sometime after the divorce the applicant lived with his mother: he then went to live with his paternal grandmother, the mother that is, of the sponsor. The Tribunal had concluded that from that time the paternal grandmother and a paternal uncle had shared, with the sponsor, the responsibility for the applicant's upbringing.
Before the Court it was pleaded that the Tribunal had erred in its interpretation of the relevant rules: the Tribunal had also been unfair and in breach of natural justice.
Held
1. There was no evidence of unfairness: it was clear that the applicant had been given a full and fair hearing.
2. Following ex parte Forjor Uddin it was not necessary to show that the sponsor parent had had sole responsibility for the child's upbringing throughout its life, only for a not insubstantial period.
3. While financial support and legal guardianship were factors to be taken into account, they were not conclusive in favour of an applicant.
4. It was proper for the Tribunal, in reviewing the facts not only to look at the role played by the parents but also at the part played in the child's upbringing by others.
5. Nevertheless, the fact that others had played a part in the day to day care of a child would not be fatal to an application.
6. The approach by the Tribunal in Sloley was correct: each case would depend on the facts but the evidence must be such that it can fairly be said that the parent sponsor had remained ultimately in sole control of the child's upbringing.
7. On the facts as found, in this case the Tribunal's decision was not open to challenge and it had not misdirected itself in law.
Roch J: The applicant, Sajid Mahmood, a minor, applies through his father, Farzand Ali, for an order of certiorari to bring before this Court and quash the determination of the Immigration Appeal Tribunal dated 12 December 1985, which reversed the Adjudication Determination dated 3 July 1985, which in turn had allowed the applicant's appeal from a decision of an Entry Clearance Officer refusing the applicant entry clearance into the United Kingdom.
The family background of the Applicant
The applicant is now 17 years of age, having been born on 11 January 1970 in Pakistan. The applicant's father is Farzand Ali who lives at 8, Durbar Road, Luton, and who is settled in the United Kingdom.
Farzand Ali first came to the United Kingdom in 1961 and shortly thereafter became a British citizen. In October 1967 Farzand Ali married Zarda Begum in Pakistan. Zarda Begum was Farzand Ali's second wife, his first wife having died. Following the marriage Farzand Ali returned to the United Kingdom alone. In March 1969 Zarda Begum joined Farzand Ali in the United Kingdom. In August 1969 Farzand Ali and his wife returned to Pakistan and in January 1970 Zarda Begum gave birth to the applicant. Prior to the applicant's birth, Farzand Ali had returned to the United Kingdom.
Farzand Ali's next visit to Pakistan was in September 1974 and that visit lasted some ten months. During that visit he divorced Zarda Begum in March 1975. Following the divorce Zarda Begum went to live with her parents and as the appellant was five years old he went with his mother.
Farzand Ali returned to the United Kingdom in July 1975. His next visit to Pakistan was in March 1977 and lasted one year. During that year Farzand Ali lived with his mother, that is to say the applicant's paternal grandmother, whilst the applicant continued to live with his mother, Zarda Begum.
There was a conflict between the account which Farzand Ali gave to the adjudicator and the accounts given by the applicant and the applicant's paternal uncle, Farman Ali...
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