Tribunal decisions

The decision

Asylum and Immigration Tribunal

HT (Special Voucher Holder – dependants) India [2007] UKAIT 00031

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22 August 2006 and 22 January 2007

On 05 March 2007

Before

Senior Immigration Judge Goldstein
Mr G F Sandall

Between

Appellant

and

Entry Clearance Officer - MUMBAI
Respondent

Representation:
For the Appellant:                  Mr O Jibowu, Counsel
For the Respondent:            Miss R Brown, Home Office Presenting Officer

The fact that one is a dependant of a Special Voucher Holder makes no difference to the general principle that when the Special Voucher Scheme was abolished on 5 March 2002, it was an abolition of the scheme in its entirety. Thus dependants of Special Voucher Holders can no longer seek entry clearance to the United Kingdom in that capacity.

DETERMINATION AND REASONS

1.      The Appellant, a citizen of India, has been granted an order for the reconsideration of the determination of Immigration Judge Freestone, who, sitting at Taylor House on 5 April 2005, dismissed the Appellant's appeal against the decision of the Respondent dated 5 September 2002 to refuse to him entry clearance to the United Kingdom as the dependant of his father.

2.      The Appellant's application was considered in accordance with paragraphs 252 and 317 of Immigration Rules HC 395.

3.      The issue for the Tribunal was whether the Immigration Judge made a material error of law, this being an error of law that affected her decision on the appeal.

4.      In that regard, we have been mindful of the guidance of the Court of Appeal in R [2005] EWCA Civ 982, that before the Tribunal can set aside a decision of an Immigration Judge on the grounds of error of law, it has to be satisfied that the correction of the error would have made a material difference to the outcome or to the fairness of the proceedings. Further a finding might only be set aside as an error of law on the grounds of perversity, if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence. The Court of Appeal continued that a decision should not be set aside for inadequacy of reasons, unless the Immigration Judge failed to identify and record the matters that were critical to his decision on material issues, in such a way that the Tribunal was unable to understand why he reached that decision.

5.     Senior Immigration Judge Warr in ordering reconsideration considered that the grounds of application raised arguable issues on the application of the special voucher scheme and whether the case of RM (Special Vouchers – representation) India [2005] UKIAT 00067, (that has since been upheld by the Court of Appeal in Modhvadiya [2005]EWCA Civ 1340, that we drew to the parties’ attention), could be distinguished.

6.      We have observed that the order for reconsideration, 29 June 2005, pre-dated the promulgation of the decision of the Tribunal in PP and SP (paragraph 252 – effect of deletion) India [2005] UKAIT 00141, account of which was properly taken, by the parties’ representatives.

7.      It would be as well to set out the grounds of appeal in support of the application for reconsideration:

‘1.     The Adjudicator accepted that the sponsor in this case held a special voucher and that the rule (paragraph 252 of HC 395), had not been deleted until September 2002 (i.e. after the Appellant had lodged his application).

2.      In fact the application was refused before the abolition of the rule in September 2002. On the premise above, it is wrong for the Respondent and/or the Adjudicator to read into the rules that existed at that time, what Parliament had not included.

3.      It is submitted that the rule was retained to serve the purpose which it served prior to the abolition of the voucher scheme. It is further submitted that the purpose of the rule as it stood can be clearly understood by reading the rules. The particular paragraph clearly refers to the Dependant of voucher holders.

4.      It is therefore submitted that at the time of the application, the sponsor was a voucher holder and the Appellant was his dependant. When the rule became abolished in September 2002 dependants of voucher holders no longer had the privilege to apply under that rule. There is therefore a clear and logical distinction between dependants of special voucher holders before the abolition of the rule and after the abolition of the rule.

5.      The case of RM is clearly distinguishable from the present case as both Appellant and sponsor in RM had not been granted special vouchers, therefore the appellants could not be upgraded to dependants of special voucher holders.

6.      In this particular case, the sponsor had become a special voucher holder before the scheme was abolished. The effect of the abolition in March 2002 was that nobody else could be granted special vouchers.

7.      The abolition never referred to any exclusion of dependants of special voucher holders, otherwise the applicants’ siblings and mother would not have been granted entry clearance as dependents of the sponsor (after April 2002) when they were granted.’

8.      We set out below for the sake of completeness, the Appellant's skeleton argument:

‘1.      The Appellant reiterates his grounds of appeal.

2.      The Appellant will argue that the abolition of the special voucher scheme did not prevent special voucher holders and/or their dependents from enjoying the benefits accorded to them (special voucher holders).   The said benefits include those set out in the Immigration Rules.   The relevant rules in this case are paragraphs 249-252 of HC 395 as it stood up till September 2002.

3.      The Appellant will argue that the rules continued and remained applicable until (they were) abolished.   The said rules remained in force when the Appellant applied on 15 April 2002.

4.      The Appellant will argue that the provisions of the IDI (Feb 05) in paragraphs 1.2, 3 and 3.2 are relevant to and consistent with his claim as a dependant.

5.      The Appellant will respond to paragraph 21 of the Adjudicator's determination thus;

The IDI guidance is clear that where there were pending applications under the scheme, then would be holders and their dependants were to be treated in accordance with the previous practice that had existed before the abolition of the scheme. See notes to paragraph 1.2 of the guidance.

6.      The Appellant will submit that the benefits were to be given to applicants for vouchers whose applications had been lodged before the abolition of the scheme in March 2002.

   The Appellant will submit further that his sponsor had already obtained the voucher. The Appellant will submit further that the notice of abolition clearly states that in the interim the guidance on special vouchers in the instructions would continue. The Appellant will argue that the interim period was between the time of abolition of the scheme and abolition of the rules.

The Appellant will argue that it would be anomalous and unintended by Parliament (or indeed the Secretary of State,) that those whose voucher applications were yet to be decided should be able to confer the benefits to their dependants whilst those whose vouchers had been issued earlier (as in the Appellant's father’s case) would not be able.

7.      The Appellant submits that his case is in all respects different from RM where the sponsor had not lodged a voucher application before the abolition. The Adjudicator accepted the application in RM was only lodged on 26 November 2002. This was at a time when the voucher scheme had been abolished and the interim period had elapsed with the abolition of the relevant rules. This case of RM clearly is distinguished from the current case.’

9.      The Appellant, born on 5 March 1983, applied for an entry clearance or a Certificate of Entitlement to the Right of Abode to the United Kingdom as the dependent of his father, but the Entry Clearance Officer was not satisfied that he was living outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependant financially on relatives settled in the United Kingdom. In addition he was not satisfied that the Appellant had no other close relatives in his own country to whom he could turn for financial support.   His application was therefore refused under Immigration Rule 317 of HC 395.   The Appellant had applied along with his mother and brother. The Appellant's mother was interviewed on 5 September 2002 and the Appellant's application was refused the same day.

10.    The Appellant at the date of decision was aged nineteen years. His application was considered in accordance with paragraphs 252 and 317 of HC 395.

11.    In his Explanatory Statement the Entry Clearance Officer explained:

‘I interviewed the Appellant's mother (see Appendix 4) who stated that she and the whole family had first gone to the United Kingdom in 1992 and as evidence of this produced thereof passports (see Appendix 5).   The Appellant had been granted indefinite leave to remain in the United Kingdom on 17.04.92 and had left the United Kingdom on 12.07.92.    It was apparent that the Appellant had not returned to the United Kingdom since this date.

Mrs Tank stated that her husband had also returned to India with the family unit and had not gone back to the United Kingdom until about two years ago. During this time Mrs Tank stated that the whole family had stayed in the same house as her husband’s parents, his two brothers and two sisters and had remained in the same property after his return to the United Kingdom. She stated that the family in India was supported from the joint family power loom business, and agreed that since her husband had returned to the United Kingdom, her financial support had come from this business.   She added that she was well looked after here and confirmed that her husband had not sent any money from the United Kingdom for the support of his family.

Mrs Tank confirmed that the Appellant still lived with his paternal grandparents, his two paternal uncles, their wives and their respective seven children. She confirmed that they had very good relations with all her husband’s brothers and their families. She added that all the children considered themselves to be brothers and sisters rather than cousins.

Mrs Tank stated that the Appellant was a second year student on a Bachelor of Mechanical Engineering course. However she stated that she did not know the name of the college and was unable to provide any evidence of his studies. It was apparent that the Appellant's uncle, his father’s brother, paid the education fees and that the father in the United Kingdom made no financial contribution.

I now looked at the application as a whole. I noted that the Appellant’s father had initially gone to the United Kingdom as a Special Voucher Holder and I am aware that this scheme was abolished in 05.03.02.   The concessions relating to dependent children state inter alia that:

“Dependant children (i.e. those who are unmarried and unemployed) …, who are under the age of twenty-five when the parent receives a voucher, may be granted an entry clearance to join the UKPH heads of household who are present and settled in the United Kingdom or who are being admitted for settlement.”

I am not satisfied that, given the complete lack of financial support from his father in the United Kingdom, that the Appellant was dependant on his father and therefore qualified for consideration under paragraph 252 of HC 395.

In these circumstances and in view of the fact that the Appellant was over the age of eighteen years, I now considered the application in accordance with paragraph 317 of HC 395. Given all of the above, I was not satisfied the Appellant was living alone outside the United Kingdom in the most exceptional compassionate circumstances and was mainly dependant financially on relatives settled in the United Kingdom. In addition, I was not satisfied that the Appellant had no other close relatives in India to whom he could turn for continued financial support.

In these circumstances, I refused the application and served the Appellant Form APP 200, which set out the reasons for the refusal and explained the right to appeal.

On 3.03.2002 Form 2, Notice of Appeal (Overseas) was received at this office. I have looked at the application in the light of the grounds of appeal however I am not minded to alter the original decision.’

12.    The appeal first came before us on 22 August 2005, when Mr Jibowu helpfully confirmed that no challenge was raised to the reasoning behind the refusal of the Appellant's application for entry clearance under paragraph 317 of HC 395 and that the only outstanding issue therefore related to paragraph 252. The provisions of the paragraph 252 are as follows:

‘The requirements for indefinite leave to enter the United Kingdom as the spouse or child of a Special Voucher Holder are that the person concerned:

(i) is in possession of a valid United Kingdom entry clearance for settlement to the United Kingdom in this capacity; and

(ii) can and will be maintained and accommodated adequately by special voucher holders without recourse to public funds.’

13.    It is not in dispute, that the Appellant's father acquired a special voucher at some date in the 1990s and further that the Appellant's mother obtained entry clearance to the United Kingdom in 2002.

14.    We have noted that the special voucher scheme was devised to permit but also to control, entry into the United Kingdom of Ugandan Asians and their families.   It was originally outside the Immigration Rules.

15.    The Scheme was abolished on 5 March 2002 when in a written answer in the House of Commons, Angela Eagle, the Minister of State, explained the thinking behind the abolition of the scheme as follows:

‘Angela Eagle: The Special Voucher Scheme was introduced in 1968 in recognition of the specific hardship being suffered at that time by British Overseas Citizens (BOC) passport holders and their dependants, who were under political pressure to leave their countries of residence in East Africa, but who held no other citizenship and had nowhere else to go. Several thousand BOCs and other United Kingdom passport holders took advantage of the scheme and settled in the United Kingdom in the 1970s and 1980s.

However, the world political situation has now changed and BOCs are no longer under threat of expulsion . They have, over the intervening years, either settled with their families in the new independent East African countries or, alternatively, some have moved with their families to India. Their families have now grown up and have families of their own.

There are relatively few applications for special vouchers these days and those who do apply are not being pressured to leave the country in which they reside. The scheme no longer serves the purpose for which it was set up.   The Government have therefore decided that the time has come to abolish the Scheme, with immediate effect. No new applications for special vouchers will be considered.’

16.    As noted, by the Tribunal in RM, this statement demonstrated that the scheme had been wound up and new applications were not accepted because the scheme was thought to have achieved its purpose.

17.    We were provided with the copy of the Immigration Directorate’s Instructions (IDI’s) Chapter 7 Section 2 ‘ ‘Holders of Special Vouchers’. We set out below paragraphs 1.2, 3 and 3.2 to which the Appellant's skeleton argument refers:

‘1.2    ABOLITION OF THE SPECIAL VOUCHER SCHEME
The Government announced the abolition of the Special Voucher Scheme on 5 March 2002, with immediate effect. Entry Clearance Posts Overseas have not accepted any new applications for special vouchers as from 6 March. As Posts will consider applications received before the abolition of the scheme in the usual way, there may be a delay before the issue of vouchers ceases. In the interim, the guidance on Special Vouchers in the IDIs will continue to apply.

3.      INDEFINITE LEAVE TO ENTER AS A DEPENDANT OF A SPECIAL VOUCHER HOLDER.
Paragraph 252 in Part 7 of HC 395 has only two requirements to be met by a person seeking indefinite leave to enter as a dependant of a special voucher holder. These are that he/she:

Holds an entry clearance for settlement in this capacity; and
can and will be maintained and accommodated adequately by the special voucher holder without recourse to public funds.

There are, however, a number of concessions outside the Rules affecting dependants of special voucher holders who are settled or coming here for authorised settlement in the United Kingdom.   Under these concessions the maintenance and accommodation requirement should not be applied rigorously. For example, if it is clear that the voucher holder is not able to support and accommodated his dependants but there are other family in the United Kingdom who would be willing and able to, the application(s) may be granted. If, however, it is clear that the dependants of the voucher holder will have recourse to public funds from the outset, applications should be refused or deferred until such time as the voucher holder is able to provide sufficient support and accommodation, i.e. has obtained work and found suitable accommodation.

In any case, where a spouse or dependant seeks to join such a person for settlement and it is not obvious from the outset that the applicant is admissible under the Rules, reference should be made at the earliest opportunity to AEAD Group No. 5, via Passenger Casework Section.

Note:
Only dependants who apply at the same time as would-be voucher holders, or within a reasonable time afterwards, may benefit from these concessions. A list of other concessions is continued in the Special Voucher Guidance Notes at Annexe C.

3.2     INDECS
SWO- Wife Special voucher holder
SEO-Child – Under Twenty-five of special voucher holder
SH-Husband or husband of special voucher holder.’

18.    The Immigration Judge was clearly referred to these passages by Mr Jibowu when he appeared before her and to which the Immigration Judge referred in her determination.

19.    The Immigration Judge noted Mr Jibowu’s contention, that she could consider the Appellant's application under paragraph 252, in that although the scheme for people to apply for Special Vouchers had been abolished, applications for those who would benefit from the Special Voucher Holder privilege, continued until the rules were deleted in September 2002.

20.    The Presenting Officer before the Immigration Judge, relied on RM in which Mr Justice Ouseley had considered the issue and at paragraph 5 of that determination stated as follows:

‘The scheme was ended on 5 March 2002; and no new applications were accepted after that date. The relevant paragraphs of the Immigration Rules, 249 to 254, remained in force to cover those who had been granted a voucher but had not yet entered the United Kingdom and those whose applications were undecided at that date. Those paragraphs were deleted with effect from 18 September 2002 in a Statement of Changes presented in August 2002.’

21.    The Immigration Judge did not agree with Mr Jibowu, that RM could be distinguished, because the sponsor in RM was not a special voucher holder. She continued at paragraph 15:

“15. I accept that the sponsor in the appeal before me is a special voucher holder and the one in RM is not.   However it is clear that when the Tribunal considered the date of the application which was 26 November 2002, it was on the assumption of possible entitlement to entry clearance as dependants of a special voucher holder.

16. In the case of RM, the appellants relied on a statement from the Secretary of State in April 2002 in a debate on a Nationality, Immigration and Asylum Bill 2002 which is noted in paragraph 13 of the determination as follows:

“In recognition of the fact that the old special quota scheme had ceased to be used for the purpose for which it was originally designed, we abolished it. I will examine the possibility of an alternative arrangement for British Overseas Citizens who have no other nationality but who, under the existing complex historical circumstances, are not able to enter the country. It would be right for us to do that, as we have a moral obligation to them going back a long way and it is unfinished business.”’

22.    The Immigration Judge noted that in RM the Tribunal at paragraph 24, considered the House of Commons written answers to which we have above referred and subsequent statements of the Home Office, in order to place their meaning into their proper context.   The Immigration Judge noted that at paragraph 33 of RM the Tribunal stated as follows:

‘There is no argument that when the Scheme was ended, neither the sponsor nor the Appellant were special voucher holders or had an application undetermined. The clear purpose of the ending of the scheme was to stop further applications by those who might otherwise succeed. (Our emphasis).’

23.    The Immigration Judge found that the Appellant failed in his application, because the scheme was abolished by the time he made his application. She continued at paragraph 21 of her determination:

‘I do not accept that it was only abolished for applications for Special Vouchers and not for dependants of those who are already Special Voucher Holders. From the IDIs and the case of RM it is clear that no new applications under the scheme for either Special Vouchers or for their dependants were being considered after 5 March 2002 and that the reasons for the guidance still continuing was only to deal with those applications that were already in the system on that date. ‘

24.    The Immigration Judge found, that the Appellant could not succeed in his appeal against the refusal under paragraph 317 or under Article 8 of the ECHR.   Those latter findings are of course not under challenge in the context of the instant appeal.

25.    We have concluded that the determination of the Immigration Judge does not disclose a material error of law. We shall now give our reasons for so finding.

26.    At the hearing on 22 August 2006, and in providing the parties’ representatives with copies of the judgment in the cases above referred, we drew to their attention that Richards LJ who gave the leading judgment in Modhvadiya, stated inter alia, at paragraphs 22 as follows:

‘Let me deal also with the next contention, which is that, notwithstanding its deletion, paragraph 252 applies to the applicant's case because they had a pre-existing right to rely on that paragraph by virtue of the fact that their mother received or was entitled to a Special Voucher. Even if she had received or been entitled to a Special Voucher it seems to me that the applicants could not rely on paragraph 252 itself, given that that had disappeared completely from the Rules by the time of their application. Whatever the position might have been if they had applied in time, they were too late. The scheme had gone by the time they applied; it had been closed in March 2002 for new applicants and had remained in force until September 2002 to deal with outstanding cases, but thereafter it had ceased to exist altogether.’

27.    His Lordship continued at paragraph 23 as follows:

‘In so far as the applicants still rely on the legitimate expectation argument to the effect that they were entitled to be treated in accordance with the terms for the special voucher concession, even if the scheme itself had disappeared, it could no longer be invoked, again I consider the argument to lack any real prospect of success.   In part I think it is the argument rejected for sound reasons by the Tribunal [in RM], but in so far as it relies on the additional materials and submissions placed and developed before me, in my judgment they give it no greater substance. I do not consider anything that occurred in judicial review proceedings could give the scheme continuing force after it had been deleted from the Rules, or would give the children of the judicial review claimants any equivalent rights through the operation of the doctrine of legitimate expectation or otherwise.’

28.    In drawing the parties’ attention to the decision of the Tribunal in PP and SP, (that was reported as regards the effect on deletion of paragraph 252 of the Immigration Rules on applications made before the date of deletion but not decided until after the date of deletion), it was said at paragraph 22 inter alia:

‘As Mr Ahmed properly acknowledged before us, when paragraph 252 was deleted from the Immigration Rules, there were no transitional provisions dealing with the position of individuals, such as the appellants, who had applied for entry clearance under that paragraph prior to the date of deletion but whose applications were not decided until after the date of deletion.’

29.    Mr Jibowu properly reminded us, that the Appellant in the instant appeal had applied after the announcement of the abolition for the Scheme but was refused some two weeks before the date of deletion.

30.    We reminded Mr Jibowu of the observation of Richards LJ, that the scheme had only remained in force until September 2002 ‘to deal with outstanding cases but thereafter has ceased to exist altogether’.

31.    Mr Jibowu submitted that the reference to the fate of paragraph 252 as described by Richards LJ at paragraph 22, only related to applications for a special voucher and not to applications within that period by dependants of existing special voucher holders. He maintained that voucher holders were still entitled to gain the benefit of their voucher by extending it to their dependants for the purposes of an entry clearance application.   The Rule in its entirety was not deleted until September 2002 and the Appellant made his application in April 2002.

32.    We do not agree with Mr Jibowu’s interpretation of His Lordship’s findings at paragraph 22 of Modhvadiya, who was dealing with the contention that notwithstanding the “deletion” of the Rule, paragraph 252 continued to apply to a person who had a pre-existing right to rely on that paragraph ‘By virtue of the fact that their mother received or was entitled to a special voucher’, (Our emphasis). His Lordship was considering inter alia, (see also e.g. paragraph 6 of the judgement), the contention, that the consequence of various Government statements, gave rise to a legitimate expectation that the Tribunal (in RM), should as a matter of substance, have given effect to, namely, “that the children of those who were or should have been special voucher holders, should have been permitted to enter as if the changes in the Rules and the scheme had not been made”.(Our emphasis). His Lordship considered that argument to “lack any real prospect of success”. In part it was “the argument rejected for sound reasons by the Tribunal” and the additional material and submissions placed and developed before him, gave it “no greater substance”.

33.    Indeed, at paragraph 22 of his judgement, his Lordship continued: ‘Even if she, [the Sponsor] had received or been entitled to a special voucher’ (Our emphasis), applicants could not rely on paragraph 252 itself, because it had disappeared completely from the Rules by the time of their application. Had such applicants applied in time it would be a different matter, but in the event they were too late. We are mindful in that regard, that this Appellant made application after the scheme had been closed in March 2002 to new applicants and that it only remained in force until September 2002 to deal with outstanding cases. This scheme had gone by the time the Appellant in the instant appeal applied”.

34.    It was Mr Jibowu’s contention, having taken us through the passages in the IDI to which we have referred, that they implied recognition, that dependants of existing Special Voucher Holders, notwithstanding the abolition of the Rule, were still entitled to have their applications considered.     Miss Brown maintained that the IDI at 1.2 was clear as to the abolition of the scheme entirely. There were to be no applications for vouchers from 6 March 2002, the only exception being applications that were still to be considered having been received before the abolition of the Rule up until September 2002 when the Rule would be deleted.

35.    Miss Brown maintained that it therefore did not relate to dependants of special voucher holders. She informed us that she had checked the position with Alison Bennett of the Managed Migration Strategy and Decision Department who had confirmed the position.

36.    Miss Brown accepted however, that it was not appropriate for her to give evidence about the matter as she was relating third hand what she had been told by someone else. She had however, been told that the abolition of the scheme meant that it was not available or amenable to subsequent applications by dependants of special voucher holders.

37.    It was at this point in the hearing, that the parties agreed with us that for the Tribunal to make a proper decision on the matter, it was necessary to have a statement from the appropriate Officer of the relevant Home Office Department concerned. Further, as regards the matters referred to in the IDI, it was necessary that the statement should provide clarification as to the responsibilities of ‘AED Group 5’, with regard to such applications. We thus adjourned the hearing part–heard, to the first available date after 15 November 2006, (having been informed by Miss Brown, that the reality of the situation was that she was unlikely to obtain all the information necessary earlier than six to eight weeks), for such further evidence to be obtained and we made appropriate directions.

38.    At the resumed hearing on 22 January 2007, the Tribunal and the parties had the benefit of a comprehensive witness statement from Alison Bennett, the Assistant Director of the Managed Migration Strategy and Review Directorate.

39.    We find that Miss Bennett’s statement has only but served to reinforce our findings.

40.    Miss Bennett was clear, that she made the statement in response to the request to the Tribunal for further advice about the Special Voucher Scheme and she began by pointing out, that she intended to describe the background to the scheme, its eligibility, the decision to abolish the scheme and the position of dependants of special voucher holders between 5 March 2002 and September 2002.   It is right that we should set out the remainder of her detailed and most helpful statement in full:

‘Background
The special voucher scheme was introduced in 1968 in recognition of the specific hardship being suffered at that time by United Kingdom passport holders (UKPH) and their dependants, who were under political pressure to leave their countries of residence in East Africa, but who held no other citizenship and had nowhere else to go.   Under the scheme, heads of household could apply for vouchers to come to the UK for settlement with their families. Several thousand British Overseas Citizens and other UK Passport holders took advantage of the scheme and settled in the UK in the 1990s and 1980s.

United Kingdom Passport holders (UKPH) are generally persons of Asian origin who derived British Overseas Citizenship (formerly citizenship of the United Kingdom and Colonies, CUKC) from or residence in a former British dependency in East or Central Africa.   When those countries became independent, many of the residents of Asian origin automatically acquired citizenship of the new states or did so by registration within a prescribed period. Many, however, did not acquire local citizenship and retained their citizenship of the United Kingdom and Colonies after independence.

The term UKPH also includes:

‘British protected persons (BPPs) most of whom derived their status from a connection with former British Protectorates or former Trusts Territories but have not become citizens of these countries;

British subjects born before 1 January 1949 who had that status by reason of their connection with former British India but who had not become citizens of India or Pakistan when those countries became independent (usually, in the case of persons of Asian ethnic origin, because they were not living in one for those countries at that time).     In 1980, it was estimated that there were at least 50,000 persons in this situation.

Eligibility
UKPHs, who held no other citizenship and who have nowhere else to go but the UK, who are heads of household, who are under pressure to leave their countries of residence and who intend to settle in the UK, were eligible for the voucher scheme, provided that they were :

BOCs, BPPs and British subjects of Indian Subcontinent origin resident in an East African country with its own quota’

BOCs, BPPs and British subjects of Indian Subcontinent origin resident in India with an East African connection;

BOCs, BPPs and British subjects of Indian Subcontinent origin resident in the rest of the world who have an East African connection and are under pressure to leave their country of residence.

Vouchers were issued on the basis of the applicant's circumstances at the time one became available. Thus an applicant who took on another citizenship after applying for a voucher would not be eligible, nor would a single woman who married before receiving the voucher, unless she qualified as head of the household.

East African Connection
An East African Connection covers UKPHs who have been resident in Kenya, Uganda, Zambia, Malawi, or Yemen, provided that they are:

UKPHs who acquired British nationality by birth or registration in any of these countries;

UKPH children born to those above; or

UKPHs who have at any time been settled in any of the listed countries, regardless of when they left.

Pressure to leave
At some time it was decided that all UKPH residents in an East African country or resident in India with an East African connection, would automatically be considered to meet the pressure to leave criterion. Otherwise, an applicant will generally not be considered as eligible and will become so only where he is under pressure to leave his country of residence if he has no unqualified right of entry to any other country and:

He is about to be deported;

His residence permit has expired or been cancelled and there is no possibility of his obtaining a further extension; or

He has a standard for living substantially below that of his country of residence as a direct result of restriction on trade, residence or employment which apply to non-citizens generally or to UKPHs in particular.

Head of Household
For the purpose of this scheme, heads of household are :

Men over the age of eighteen;

Women over the age of eighteen who are eligible, widowed or divorced; or

Women over the age of eighteen married to a man who is incapable of fulfilling the role of head of household for medical reasons; or

Dependant children, who are unmarried and unemployed, between the ages of eighteen and twenty-five, if their parents have not applied for vouchers and if they intend to come to the UK for settlement without their parents.

Intention to settle
Vouchers will only be issued to applicants who intend to settle permanently in the UK.   They should not be issued if the applicant intends to use the voucher simply as a fall-back “escape route” and proposes to continue business in his country of residence, or to leave his dependants here to become a burden on public funds.

Abolition of the Scheme
The special voucher scheme was abolished on 5 March 2002 and the Government announced that no new applications for special vouchers would be considered. Paragraphs 249-254 of the Immigration Rules (HC 395) were later removed from the Immigration Rules on 18 September 2002 which was the earliest opportunity after the announcement of the abolition of the scheme.

There was no specific mention for the position of dependants of special vouchers in the annoucement to Parliament. However, dependants of special voucher holders came within the remit of the scheme and consequently the abolition of the scheme was intended to include the abolition of the provision for dependants of special voucher holders.   And thus, from 5 March 2002, there was no longer provision for dependants of special voucher holders to come t the UK on that basis. All applications submitted after 5 March 2002 should therefore have been refused.

AEAD Group 5 considered all referred entry clearance applications, including referred applications for special vouchers and their dependants. This would usually include applications which required consideration outside the Immigration Rules. For example where compassionate or exceptional circumstances had been raised. In addition, specific entry clearance posts were advised to refer all special voucher applications to the Home Office (i.e. AEAD Group 5).

Annex C to Chapter 7 of the Immigration Directorate Instructions, the “Special Voucher Guidance Notes” is no longer available but from my recollection this set out the criteria and eligibility for the scheme which I have included above.’

40.    Mr Jibowu in response to Miss Bennett’s statement, began by observing, that those who applied under the Special Voucher Scheme before 5 March 2002 were entitled to (if their applications were successful) to seek entry clearance and indefinite leave to remain in the United Kingdom.     He maintained that it would not serve any purpose at all, if those who had applied before 5 March 2002, were granted vouchers on 6 March 2002 and were allowed to pursue their entry clearance for indefinite leave to remain in the United Kingdom with their dependants, whilst a person who obtained a voucher on 4 March 2002 was precluded, because the Rule only applied to applications that were still pending. Mr Jibowu maintained that the fact of the voucher itself was the condition precedent to any entry clearance or an application for indefinite leave to remain.

42.    Mr Jibowu referred us to the decision of the Tribunal in PP and SP, the background of which was that on 17 April 2002, the appellants made separate applications to the Respondent for entry clearance to come to the United Kingdom as the children of a Special Voucher Holder, namely their mother, and it was not in dispute between the parties, that she had been granted a special voucher in 1996 or 1997 and had entered the United Kingdom pursuant to the terms of that voucher on 26 April 1997.

43.    At paragraph 4 of PP and SP, it was noted that the appellants’ applications were under paragraph 252, that the Tribunal described as ‘still in force at that time ,,,’.

44.    Mr Jibowu submitted, that it was therefore clear to the Tribunal in that case and was thus clear in terms of the instant appeal, that insofar the Appellant's application was concerned, it was still applicable.

45.    Mr Jibowu continued:

‘I say the rules were retained and not deleted, so that those who had satisfied the condition precedent, namely the grant of a voucher, could then go on to make their application for indefinite leave to remain after 5 March 2002.’

46.    Mr Jibowu referred us to paragraph 249 that, he contended, was clear as to the requirements for indefinite leave to enter as the holder of a special voucher where the person concerned was a British Overseas Citizen and in possession of such a voucher. As such, the special voucher was in effect an entry certificate which entitled the holder to entry clearance upon arrival in the United Kingdom without the need to make a further application. He maintained that if that was so, then there would be no point in retaining the Rule, that those with vouchers and their dependants would be required to make a specific application for entry clearance to the United Kingdom.

47.    With respect to Mr Jibowu, we find that he did not consider the provisions of the Rules within their proper context. Paragraph 252 was clear, that the requirements for indefinite leave to enter as inter alia, the child of a Special Voucher Holder were that the person concerned:

‘(i) (was) in possession of a valid United Kingdom entry clearance for settlement in the United Kingdom in this capacity; and

(ii) (could) and (would ) be maintained and accommodated adequately by the special voucher holder without recourse to public funds’

48.    It is thus apparent, that paragraph 252, called upon the dependant of a Special Voucher Holder to make a specific application for entry clearance, so as to satisfy those requirements.

49.    We would agree with Miss Brown, that Miss Bennett’s statement only but served to reinforce Miss Brown’s submissions that she began before us at the hearing on 22 August 2006.

50. It is clear that the Special Voucher Scheme was abolished on 5 March 2002.   The announcement of the abolition was equally applicable to the dependants of Special Voucher Holders.

51. As Miss Bennett clarified in her statement, although there was no specific mention of their position in the announcement to Parliament, dependants of Special Voucher Holders came within the remit for the scheme. Consequently the abolition of the scheme encompassed the abolition of the provision for dependants of Special Voucher Holders. There was thus from 5 March 2002, no longer provision for such dependants to come to the United Kingdom on that basis. Special Voucher Holders and their dependants were covered by the same scheme. That scheme was abolished in its entirety.

52. We find that Miss Bennett’s statement, clarifies that it was the intention and indeed the case, that when the scheme was abolished on 5 March 2002, it was abolished for everyone and there was no longer any provision by which dependants of Special Voucher Holders could seek entry clearance to the United Kingdom in that capacity.

53. Indeed, Miss Bennett in her statement, referred to the provisions of paragraphs 249 to 254 of the Immigration Rules HC 395 that were later removed on 18 September 2002, that being ‘the earliest opportunity after the announcement of the abolition of the scheme’.

54.    Paragraphs 249 to 254 did not, as Richards LJ concluded in Mohdvadiya, provide applicants who made applications after the abolition of the scheme in March 2002 with any legitimate expectation that they were entitled to be treated in accordance with the terms of the special voucher concession even if the scheme itself had disappeared. His Lordship endorsed the views of the Tribunal in RM, in that regard. He was clear that there was nothing within the additional material and submissions placed and developed before him that in his judgment, demonstrated that:

‘ . the scheme [had] continuing force after it had been deleted from the Rules or could give the children of the judicial review claimants any equivalent rights through the operation of the doctrine of legitimate expectation or otherwise’.

55.    We would thus agree with Miss Brown, that the announcement on 5 March 2002 as reflected in the IDIs, was an abolition of the scheme in its entirety. No further appeals after 5 March 2002 would be entertained or considered by the Secretary of State or Entry Clearance Officer for entry to the United Kingdom on the basis of the Special Voucher Scheme and that applied equally, to voucher holders themselves seeking entry clearance on that basis or dependants of Special Voucher Holders seeking such entry clearance.

56.    It is apparent to us, that between 5 March 2002 and the deletion of the relevant rules on 18 September 2002, that only those whose applications had been made prior to 5 March 2002 and which were still outstanding on that date, remained to be considered.

57.    The guidance as to how to deal with any application received after 5 March 2002, was that new applications would not be accepted by Entry Clearance Officers, and that applied to voucher holders themselves or their dependants.

58     We are satisfied that Miss Bennett’s statement, sets out and confirms the position and clearly indicates the Secretary of State's position, that no applications from dependants of Special Voucher Holders would be considered after 5 March 2002 if they had not applied before that date.

59.    We thus reject Mr Jibowu’s assertion that in fact the Rules remained in force implicitly to applications made after 5 March 2002 under those provisions and continued to be considered. Indeed, the relevant IDIs demonstrate that this was not the case.

60. We were unpersuaded by Mr Jibowu’s attempt, to draw a distinction between the manner in which dependents would be treated and the way in which special voucher holders would be treated until the deletion of the rules on 18 September 2002. We agree with Miss Brown, that if Mr Jibowu’s assertion that the Rules remained in force for dependants, but not for special voucher holders themselves were correct, then with respect to him, it would make no sense that the abolition of the scheme, though relevant to voucher holders, was not relevant to their dependants.

61.    The Tribunal in RM was clear that the scheme was abolished on 5 March 2002 and although the rules for Special Voucher Holders themselves stayed until September 2002, there was no basis on which applications after 5 March 2002 could be considered unless these provisions equally applied to dependants for Special Voucher Holders.

62.    As Miss Brown rightly clarified, it was in consequence, that the Respondent's Notice of Decision, dated 5 September 2002, confined itself to whether or not the Appellant met the requirements of paragraph 317 of HC 395. Indeed that was in the circumstances, the only basis under which this Appellant‘s application could have been considered

63.    Miss Brown accepted that some misunderstanding had arisen, in that within the Explanatory Statement, it was stated on page 1, that the Appellant's application was refused under paragraph 317 and no mention was made to the Appellant's application under paragraph 252, when strictly speaking, there should have been. Nonetheless we would agree that the subsequent Notice of Decision made the position absolutely clear.

64.    For the above reasons, we are satisfied that the Immigration Judge was right to reject the contention that there remained provision for dependants of special voucher holders to come to the United Kingdom after the announcement of the abolition of the scheme on 5 March 2002. As Immigration Judge Freestone noted at the conclusion of her determination, the Tribunal in RM observed at paragraph 44 of their determination that:

‘… the Rules cannot be interpreted as if they still contain Rules which have been removed from them, simply because they at one time, provided a basis for someone to come who now cannot do so.” The Rules would effectively be variously frozen as at the time preferred by applicants.’

65.    We are satisfied that the Immigration Judge made no error of law in arriving at that conclusion and there is therefore no arguable basis for interfering with her decision.

Decision
66.    The original Tribunal did not make a material error of law and the original determination of the appeal shall therefore stand.

Signed                                                                         Date
Senior Immigration Judge Goldstein