[2009] UKAIT 33
- Case title: PV and Others (BOC, maintenance, Article 8)
- Appellant name: PV and Others
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: India
- Judges: Mr R A McKee, Dr R Kekic
- Keywords BOC, maintenance, Article 8
The decision
PV & Others (BOC – maintenance – Article 8) India [2009] UKAIT 00033
ASYLUM AND IMMIGRATION TRIBUNAL
Heard at: Procession House
On: 23rd July 2009
Prepared: 28th July 2009
Before:
Senior Immigration Judge McKee
Senior Immigration Judge Kekić
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
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 31st 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 25th 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 5th September 2006 from a building contractor, Ashcon Ltd, saying that the sponsor had been taken on as a mason/handyman on 27th 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 31st 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 31st 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 25th September 2006 to 5th 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 5th January 2007 he had been working for Ashcon Limited, and from 14th 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 25th September 2006 and 5th April 2007 the sponsor was working for either Ashcon or Vish, grossing about £5,000. But for a short period between 6th January and 13th 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 sponsor was in a position to maintain the appellants without recourse to public funds.”
9. That conclusion is, in our view, clearly erroneous in law. The judge has not factored in any outgoings. In particular, he has not deducted the £800 a month which the sponsor would have to pay in rent for the proposed accommodation, or the £120 per month which, we were told at the hearing, would have to go on Council Tax. Even without those deductions, the judge has calculated that the sponsor’s average income during the six-month period, in the middle of which comes the date of decision, was only £214 per week, and yet he is satisfied without more that this would be sufficient for the sponsor to maintain a wife and four children. Deducting the rent and Council Tax would, of course, leave nothing at all.
10. We shall have to take a fresh decision on maintenance ourselves. There is a difficult problem in doing that, since the respondent’s grounds for seeking a review repeat without demur the judge’s finding that “at the date of the Entry Clearance Officer’s decision, the sponsor received a net monthly income of £1,500.” This is the figure which Mr Patel has used as the base line for his calculation that, despite the deduction of £920 a month, there would still be adequate maintenance for the appellants. Miss Kiss has urged us not to use this inappropriate figure in our own assessment, but Mr Gill and Mr Patel insist upon the adversarial nature of these proceedings and contend that the respondent must be fixed with the £1,500 figure which he himself has accepted in challenging the judge’s determination.
11. At first we favoured the latter contention, but on reflection we think that would be wrong. Even if it is accepted that the sponsor was earning that high figure at the date of decision, it was clearly a most untypical ‘blip’. The average figure, apart from those five weeks around the date of decision, was less than £200 a week net (even factoring in the high earnings for five weeks, the weekly average is £214 net). That the sponsor’s earnings have continued at the lower rate can be seen from his Witness Statement dated 25th March 2008, when he says that he is earning £240 a week with K & K Builders. To form a realistic view of a sponsor’s ability to maintain his dependants, one may well have to look at his earnings over a longer period than just the date of decision and a week or two on either side. What if the sponsor, in the period from 6th January to 13th February 2007, had been out of work instead of doing general building maintenance? It would not be fair to dismiss his appeal because, at the date of decision, he was not working, and to ignore the evidence that for months before and after the date of decision, he was working. Just so, it would be artificial to take a uniquely high figure as the base for calculating the sponsor’s ability to maintain his dependants, ignoring the evidence that his income was at all other times a great deal less.
12. The task of this panel is to determine whether, looking at the sponsor’s circumstances as a whole at the time when the decisions under appeal were taken, he would have been able to maintain his dependants adequately, for a period longer than the two weeks after the date of decision (following which the sponsor began working for Vish Construction Ltd at a much lower wage). Post-decision evidence can be used in an entry clearance case if it sheds light on the circumstances ‘appertaining’ at the time of the decision, and it would not make sense to exclude such evidence if it assists us in making a realistic assessment of the sponsor’s ability at the date of decision to provide adequate maintenance.
13. It does make sense to take the accounting period of 25th September 2006 to 5th April 2007 as a whole, and to use the average net weekly income of £214 as our base line. If we take the sponsor’s monthly income as a rather generous £900 a month, that cuts a swathe through the very careful and thorough calculations which Mr Patel presented to us at the hearing, based as they were on a base of £1,500 a month. Mr Patel’s trump card was the addition to the sponsor’s earnings as a builder of Child Tax Credit and Working Tax Credit which, although included among the ‘public funds’ listed at paragraph 6 of the Immigration Rules, are not counted as impermissible recourse to public funds under paragraph 6B. Miss Kiss reminded us that a new paragraph 6C, inserted on 31st March 2009, does count the receipt of tax credits as recourse to public funds if an application is being made from outside the United Kingdom, and she asked us to infer that this was always implicit in the meaning of paragraph 6B. We cannot accept that invitation. There is nothing in the wording of paragraph 6B to suggest that it only applies to people who are already in the United Kingdom. The insertion of paragraph 6C was done, we apprehend, not to shed light on what paragraph 6B had always meant, but to prevent a large class of applicant from continuing to take advantage of paragraph 6B. Thus, at the date of decision in the instant case, tax credits could be included as (potential) income for the sponsor.
14. Mr Patel’s initial calculations were designed to show that at least the sponsor, his wife and the two minor children could easily be maintained on the sponsor’s earnings plus those benefits which did not count as recourse to public funds. He also endeavoured to show that Sushila could be squeezed in as well, although he acknowledged that it would be difficult get Manish in without calling upon other sources of money. To the sponsor’s monthly income of £1,500 Mr Patel added Child Benefit (which, although a ‘public fund’, the Home Office has long disregarded) and Tax Credits to yield a total monthly income of £2,115, from which he subtracted £800 rent to leave £1,315 disposable income for Mr and Mrs Varsani and their two minor children. It was later realized that Council Tax should also be deducted, leaving £1,195. But if we take the sponsor’s monthly earnings as £900 rather than £1,500, the disposable income shrinks to £595.
15. In KA & ors (adequacy of maintenance) Pakistan [2006] UKAIT 65, Mr Ockelton confirmed that what a comparable family would receive on Income Support should be the benchmark of ‘adequacy’ under the Immigration Rules, and Mr Patel did indeed provide a table showing that, during the year 2006-2007, a couple with two minor children on Income Support would have been entitled to allowances and premiums totalling £855 per month. That is some £260 a month more than the sum available to the sponsor, his wife and the two minor children after deduction of housing costs. The sponsor would have enough for himself and his wife alone, but presumably she would not wish to leave the children behind.
16. Is there any way, looking at the time of the decision, in which more income could have been generated? Several ways have in fact been suggested, and we shall look at these now. First, because the entire family is vegetarian, and none of its members smoke or drink, it is said that they can subsist comfortably on less money than the average British family, indeed on less than what they would get on Income Support. That argument has been roundly rejected in cases like KA (Pakistan), Uvovo and Momotaz Begum, and we see no reason to depart from the stance taken by the Deputy President. There must be an objective benchmark of adequacy, and it will not do for appellants to argue that they can live on less than what the Government considers to be subsistence level for British residents.
17. Secondly, while none of the children said in their Visa Application Forms that they would be taking employment, the sponsor’s wife indicated that she did intend to work in the UK, although when asked to be more specific, she replied “NOT DECIDED”. She is illiterate and speaks no English, but the sponsor insists that his wife will be able to find work as a cleaner when the family move into their proposed accommodation in Wembley. Inability to speak English will not be a barrier, he says, because there are many Gujerati speakers in the area. We can certainly take notice of the fact that there is a large Asian population in the vicinity of Harrow and Wembley, but we do not think that, on its own, this makes it more likely than not that Premila Varsani will find work within a short time. Nothing has been put forward by way of a job offer, and while job offers are often, it is true, treated with some scepticism, we have nothing more to go on than a vague assumption that cleaning work will be available.
18. There is now an offer of ‘third party support’. In a statement dated 8th April 2008, the sponsor’s brother-in-law, Valji Kanji Patel, with whom the sponsor has been living in Hendon, confirms that he and his wife will support the appellants financially once they are here, if the need should arise. Apart from the problem that third party support may not have been in contemplation at the date of decision, the Immigration Rules have been interpreted in AM (Ethiopia) [2008] EWCA 1082 as prohibiting reliance on such support. We understand that AM has gone up to the House of Lords (or, shortly, the Supreme Court), but we are currently bound by it. Mr Gill points out that third party support was specifically allowed under the Special Voucher Scheme for the maintenance of voucher holders and their dependants, but while that may be relevant to the Article 8 aspect of the appeal, it cannot affect the application of paragraphs 281, 297 and 317 of the current Immigration Rules.
19. The sponsor says that the five-roomed house which he has available for his family in Wembley is big enough to sub-let one of the rooms. But we do not know whether the owner of the property, Laxmi Devji Hirani, would be willing to allow this. Indeed, we do not know whether the property is still available. On 29th August 2006 Mrs Hirani wrote that she wished to let 6, St James Garden “to Bhanji for about a year at a rent of £800 per calendar month.” One of the problems with focusing on the date of decision, as one must do in entry clearance cases, is that circumstances may well have changed in the meantime. It seems unlikely that Mrs Hirani would keep her property empty year after year, if she could find other tenants for it. But that does not affect the present appeals. What is relevant is that, at the date of decision, there was no hint that part of the accommodation into which the family would move after their arrival would then be sublet to a paying tenant. The sponsor’s other gambit is that the family could actually live in smaller, cheaper accommodation. But that was not in contemplation at the date of decision either.
20. Then there are the sponsor’s savings. He opened a Halifax account in August 2006, and on 26th August it held a balance of £4,100. At the date of decision it stood at £3,200, and over the next few months it fluctuated between £3,000 and £4,000. We do not think that savings at that level would have been enough to bring the family past the threshold of adequacy at that time, although we acknowledge that by 2008 the sponsor had accumulated a great deal more in his Halifax account. The air fares alone would have made a large dent in £3,000 or £4,000.
21. Perhaps the sponsor’s strongest argument is that the family home in Mankuva is, according to a valuation carried out by a registered valuer in June 2008, worth some 9 lacs rupees, which is more than £10,000. If all the family were to move here, the house could be sold, or rented out. We think it is a fair assumption that, if all the appellants had been issued with entry clearance in January 2007, the sponsor would have wanted to sell or rent out the family home, even if this was not something which was put to the Entry Clearance Officer. The trouble is, while we know how much the house was worth a year later, we do not know how much demand there was for residential property in Mankuva in the early part of 2007, and how easy it would have been to find a buyer or, failing that, someone to rent it. Perhaps the property market was booming in Cutch at that time, but we just do not know. The house was not on the market at the date of decision, and we do not know how long it would have taken for a sale to be completed after the occupants had moved to this country, where the sponsor would not have had enough money to maintain them adequately prior to the proceeds of sale coming into his hands.
22. It may seem harsh that we have run through a list of various alternative sources of finance for the appellants, and found them all wanting. The basic difficulty for the sponsor is that, while he continues to live rent-free with his sister and brother-in-law, he can build up savings and send remittances home, even when he is only earning £214 a week (rising to £240 last year). To maintain and accommodate a wife and four children in their teens and twenties is quite a different story. These appeals went askew at the outset when the immigration judge failed to make a proper assessment of the sponsor’s ability to maintain the appellants, while the respondent’s grounds for seeking a review added to the confusion by fixing on a wholly unrealistic impression of the sponsor’s available income. We are not unsympathetic to the dilemma in which the sponsor finds himself, having come to this country in fulfilment of a long-cherished ambition, only to find that he cannot bring his wife and children to join him. But we can only allow these appeals under the Rules if there would have been adequate maintenance for the appellants at the time of the decision. By our reckoning, the sponsor could have maintained himself and his wife adequately, but not the children.
23. We turn now to Mr Gill’s alternative argument that, even if the strict requirements of the maintenance rules, as currently understood, cannot be met by all the appellants, the historical wrong done to British Overseas citizens and their families has affected this sponsor and these appellants so badly that it would be wholly disproportionate now to keep them apart, and indeed there is no legitimate public end to be served by doing so. Immigration Judge Gillance allowed the appeals under Article 8, and we are invited to find that he made no error of law in that aspect of his determination. One of the respondent’s criticisms is that he did not explain why the two adult children could be said to enjoy family life with the sponsor in terms of Article 8, but we can say at once that Manish and Sushila have remained in the same household as their mother and two younger siblings, and have remained financially and emotionally dependent on the family unit headed by the sponsor. At the date of decision, Manish was no older than the appellant in NH (India), who was found to come within Article 8. In the words of Lady Justice Arden in Kugathas [2003] EWCA Civ 31, “something more exists than normal emotional ties” between the two overage children and the sponsor.
24. The other main criticism is that the judge found the sponsor to be “in the same situation as the two female sponsors in the case of NH”, when in fact their circumstances were very different. True it is that the leading cases in this area – NH (India) [2007] EWCA Civ 1330, RO (India) [2008] EWCA Civ 1525 and JB (India) [2009] EWCA Civ 234 – have all concerned British Overseas citizens who were married women and who, because of their marital status, were unable to apply for the Special Quota Vouchers which would have enabled them to come to the United Kingdom with their families at a time when their children had not become overage. As a man and the head of a household, the sponsor here did not labour under this disability, and it has to be said that nowhere in his determination does the judge show any appreciation of the different problems which this sponsor faced. He does not seem to be aware of the sponsor’s history, saying for example that the sponsor “was registered as a British citizen on 5 September 2006 and thereafter came here and obtained work and applied for his family to join him.” In fact, the sponsor was already here when he registered as a British citizen. To say that “in principle” the sponsor is in the same situation as female sponsors who were ‘BOCs’ is, in our view, self-evidently not so, although Mr Gill would contend that all BOCs were victims of an historical wrong. We think it necessary, however, to examine the circumstances of the BOC sponsor in any particular appeal, to see how being a BOC might affect the Article 8 assessment. It will not do to assume, as the judge did here, that the children of any BOC sponsor must per se have a strong case under Article 8.
25. Accordingly, we find an error of law in the Article 8 aspect of the determination, and we must proceed to take a fresh decision ourselves. To do this, we must recite the sponsor’s family history, which is contained in a long Witness Statement and supplemented by many photocopied documents. There is no reason to doubt that this history is largely accurate, although at some points Mr Gill and we draw different inferences from it. Mr Gill, who has established himself as the leading advocate in this ‘niche’ area of immigration law, made lengthy and persuasive submissions to us, and we trust he will forgive us if we do not attempt to summarize them.
26. We begin in 1908, when the sponsor’s father was born in the village of Mankuva. He was a subject of the Maharajah of Cutch, and was thus a British Protected Person. Like many impoverished Gujarati men in the 1930s, he went to seek work in British East Africa, and for many years he divided his time between Kenya and Cutch. In 1940 the sponsor’s father and mother were married in Mankuva, at a time when the registration of marriages was unknown in that part of the world. Several children were born to the couple, but they all, like their mother, stayed in Mankuva. Their father never brought any of his family to Kenya.
27. In 1953 the sponsor’s father registered in Nairobi as a Citizen of the United Kingdom and Colonies (‘CUKC’), and any children born to him thereafter were CUKCs by descent. Although India, certainly since 1955, has not permitted dual nationality, the sponsor’s father does not seem to have had any problem travelling between India and Kenya until 1971. In August of that year he approached the British High Commission in Nairobi to renew his CUKC passport, and it was endorsed with the observation “HOLDER IS SUBJECT TO CONTROL UNDER THE COMMONWEALTH IMMIGRANTS ACT.” That, of course, was the notorious 1968 Act who deprived non-patrial CUKCs of the right to come and live in the United Kingdom. Those advising the sponsor have taken this endorsement to mean that the sponsor’s father had applied to migrate to the UK, and was told he could not, because of the 1968 Act. But this view is contradicted by an endorsement on the next page of the passport, dated 27th August 1971 : “THIS IS TO CERTIFY THAT THE HOLDER OF THIS PASSPORT IS A CITIZEN OF THE UNITED KINGDOM AND COLONIES WHO IS ENTITLED TO AN ENTRY CERTIFICATE TO TRAVEL TO THE UNITED KINGDOM AND HE WILL BE ISSUED WITH SUCH AN ENTRY CERTIFICATE ON APPLICATION TO THE NEAREST BRITISH GOVERNMENT REPRESENTATIVE.” Far from being told that he could not migrate to the ‘mother country’, the sponsor’s father was told he could travel any time. Why did he not avail himself of the opportunity? Perhaps he could not afford the fare. At any rate, he decided instead to return to India, and on 30th August 1971 his British passport was stamped with a visa at the Indian High Commission in Nairobi, valid for a single journey to India, and for a stay of six months. The sponsor’s father was given permission to land at Bombay on 24th September 1971, and for the rest of his life (he died in 1973) he stayed (indeed, it would seem, overstayed) in his native village of Mankuva.
28. The sponsor himself was born in Mankuva in 1964. During the 1970s his mother made some attempts to get the British consular authorities in Bombay to recognize her children as British, but she could not produce any marriage certificate as proof of their legitimate birth to a CUKC father. Affidavits from two witnesses to the marriage might, it seems, have done the trick, but she could only find one (and he has since died). In 1981 the sponsor, who was still 17, asked the Deputy High Commission in Bombay for a British passport, and the application was passed to the Home Office, but was rebuffed because of a lack of documentary evidence. For the next twenty years the sponsor got on with his life in Mankuva, marrying and having children, but in 2002 and 2003 he renewed his application for a passport. A statutory declaration could have been substituted for his parents’ non-existent marriage certificate, but the Consular Section also demanded “first class documentary evidence” dating from the sponsor’s early years, which again the sponsor could not produce. In 2004 an advocate in Bhuj (who was also involved in preparing the sponsor’s appeal in 2007) advised him to travel to the UK and try there to establish his claim to British nationality. So the sponsor applied for a visa to visit his niece in the UK. This was refused, but the sponsor was successful on appeal, and in April 2006 he arrived on these shores.
29. Events then moved quickly. In May the sponsor found two elderly Gujeratis in West Ham who agreed to make statutory declarations that they had been present at his parents’ wedding. Armed with these declarations, the sponsor obtained a British Overseas citizen’s passport in June, and by September he had registered as a full British citizen under section 4B of the 1981 Act. We have no doubt that the primary purpose of the sponsor’s visit was not to see his niece but to obtain recognition of his British nationality. We can hardly hold that against him, as he was getting nowhere with his applications in India. The question we must ask ourselves now is, given this history, does Article 8 require that the sponsor and appellants live together in this country, even if the maintenance requirements of the Rules have not been satisfied? The question is made all the more difficult because, in the leading cases on BOCs, maintenance has always been adequate.
30. We do not think it is relevant that the sponsor’s father apparently could have, but did not, act upon his entitlement to an entry certificate in 1971. The sponsor was only 7 years old at the time, and as soon as he approached manhood, he applied for a British passport. If he had been recognized as a CUKC by the consular authorities in Bombay in 1982, he could have applied for a Special Quota Voucher and, although it might have taken some years for him to reach the end of the queue, he would no doubt have been able to come here at a time when any children he had would have been very young. He was rebuffed again in 2002 and 2003, although if he had been able to establish his British nationality at that time, he would have been able to register as a full British citizen after the end of April 2003. The trouble was, neither his parents’ marriage nor his own birth had been registered, and the British civil servants insisted on seeing documentary evidence, despite the fact that registration was not carried out, commonly or at all, in that part of India at those times. Unlike the female BOCs who were unable to apply for Quota Vouchers because they were married women, the sponsor would have been eligible to apply from his 18th birthday, if only he had been accepted as a CUKC (or, later, a BOC).
31. On the other hand, it was not unreasonable of the Deputy High Commission to require more than an applicant’s bare assertion that he was the son of a British father. Can the sponsor be blamed for not getting better evidence? He had little trouble finding two people in London in 2006 who remembered attending his parents’ wedding in 1940. One might have expected that, in 1982 and thereafter, he could have found two people in Mankuva with equally good memories. It should also be borne in mind that the sponsor’s family did not migrate to East Africa, only to find themselves facing expulsion after the British colonies and protectorates were granted independence. The sponsor’s father was a migrant worker, earning money as a mason in Nairobi, but always returning to his native village, where his wife and growing family continued to live. Thus the East African connexion, and the pressure to leave East Africa, can hardly be said to feature strongly in this case, compared to that of many other BOCs.
32. What seemed at first blush to be the sponsor’s strongest point is this. He travelled here on an Indian passport, which the Nationality Directorate of the Home Office thought had been issued in error. It seems more likely to us that the sponsor, never having been able to establish that he was British, would have been regarded by the Indian authorities as nothing other than an Indian national. But by registering as a British citizen in September 2006, the sponsor ceased to be a citizen of India by virtue of section 9 of that country’s Citizenship Act 1955. We do not know whether the sponsor would now be able to resume permanent residence in India, and it is said on his behalf that he has ‘burnt his bridges’. Of course, one can be permanently resident in Britain without being a British citizen, and while we cannot draw inferences from that about similar arrangements in India, the fact that the sponsor was born in India, lived there all his life until 2006, and has a wife and children there who are Indian citizens, makes it seem rather unlikely that he would not be allowed back. We note also that it is now possible for citizens of other countries to apply for Overseas Citizenship of India, a new status designed to secure links between the large Indian diaspora and the home country. On balance, therefore, we do think it likely that the sponsor would be able to resume family life in India.
33. The question then comes down to this. Do the sponsor’s failed attempts – in 1982, 2002 and 2003 – to establish his claim to British nationality, when all along he was entitled to a CUKC or BOC passport and, at least until 5th March 2002, he could have applied for a Special Quota Voucher, mean that it would now be a disproportionate interference with his family life if, through inability to satisfy the maintenance requirements of the Immigration Rules, he cannot bring his dependants to join him in this country? It must be remembered that, under paragraph 252(ii) of the Immigration Rules, it was a requirement that adequate maintenance and accommodation be provided for the families of Special Voucher holders. Admittedly, that could be provided through third party support, but it is unclear that any such support would have been available to the sponsor if he had travelled to the UK before the Special Voucher Scheme was abolished.
34. In the particular circumstances of this family, we have come to the view that Article 8 cannot override the maintenance requirement of the Rules. The sponsor and appellants enjoyed family life together in India until April 2006, and since the latter part of 2006 the sponsor has been trying to re-establish that family life in this country. Mr Gill contends that, because of the wrongful refusal of the British authorities to give him the opportunity of coming here much sooner, and because of the iniquity of the Commonwealth Immigrants Act 1968 and the Quota Voucher Scheme which was intended to ameliorate it somewhat, it would clearly be disproportionate to any legitimate public end now to deny this family the right to live here together. But we think it important to weigh in the balance the fact that the sponsor is now a British citizen, and that all British citizens must have adequate maintenance for their non-British dependants. The sponsor’s inability to prove his British nationality sooner has not, we think, caused him and his family such prejudice, or been so conspicuously unfair, as to compel their admission in spite of the maintenance requirement of the Immigration Rules. They have apparently had a comfortable life in Mankuva. Their house there, according to the valuer’s report, is in a middle-class area, and has all modern conveniences. It would not be unreasonable to expect family life to be resumed in India. We do not think that the sponsor should, in principle, be treated more favourably because of his history than other British citizens who, through poverty, cannot bring family members to join them in this country. The maintenance requirement of the Rules is indifferent to race or history, and there is a strong public interest in imposing such a requirement.
35. In coming to this eventual conclusion, we realize that it will be a great disappointment not only to this family but to their solicitors and counsel, who have striven with great diligence to achieve the desired result, and it is through no want of skill and hard work on their part that this result has not yet been achieved.
DECISION
The appeal of Premila Varsani is allowed under the Immigration Rules. The other appeals are dismissed under the Immigration Rules, and all five appeals are dismissed on human rights grounds.
Senior Immigration Judge McKee
1st August 2009
ASYLUM AND IMMIGRATION TRIBUNAL
Heard at: Procession House
On: 23rd July 2009
Prepared: 28th July 2009
Before:
Senior Immigration Judge McKee
Senior Immigration Judge Kekić
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
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 31st 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 25th 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 5th September 2006 from a building contractor, Ashcon Ltd, saying that the sponsor had been taken on as a mason/handyman on 27th 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 31st 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 31st 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 25th September 2006 to 5th 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 5th January 2007 he had been working for Ashcon Limited, and from 14th 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 25th September 2006 and 5th April 2007 the sponsor was working for either Ashcon or Vish, grossing about £5,000. But for a short period between 6th January and 13th 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 sponsor was in a position to maintain the appellants without recourse to public funds.”
9. That conclusion is, in our view, clearly erroneous in law. The judge has not factored in any outgoings. In particular, he has not deducted the £800 a month which the sponsor would have to pay in rent for the proposed accommodation, or the £120 per month which, we were told at the hearing, would have to go on Council Tax. Even without those deductions, the judge has calculated that the sponsor’s average income during the six-month period, in the middle of which comes the date of decision, was only £214 per week, and yet he is satisfied without more that this would be sufficient for the sponsor to maintain a wife and four children. Deducting the rent and Council Tax would, of course, leave nothing at all.
10. We shall have to take a fresh decision on maintenance ourselves. There is a difficult problem in doing that, since the respondent’s grounds for seeking a review repeat without demur the judge’s finding that “at the date of the Entry Clearance Officer’s decision, the sponsor received a net monthly income of £1,500.” This is the figure which Mr Patel has used as the base line for his calculation that, despite the deduction of £920 a month, there would still be adequate maintenance for the appellants. Miss Kiss has urged us not to use this inappropriate figure in our own assessment, but Mr Gill and Mr Patel insist upon the adversarial nature of these proceedings and contend that the respondent must be fixed with the £1,500 figure which he himself has accepted in challenging the judge’s determination.
11. At first we favoured the latter contention, but on reflection we think that would be wrong. Even if it is accepted that the sponsor was earning that high figure at the date of decision, it was clearly a most untypical ‘blip’. The average figure, apart from those five weeks around the date of decision, was less than £200 a week net (even factoring in the high earnings for five weeks, the weekly average is £214 net). That the sponsor’s earnings have continued at the lower rate can be seen from his Witness Statement dated 25th March 2008, when he says that he is earning £240 a week with K & K Builders. To form a realistic view of a sponsor’s ability to maintain his dependants, one may well have to look at his earnings over a longer period than just the date of decision and a week or two on either side. What if the sponsor, in the period from 6th January to 13th February 2007, had been out of work instead of doing general building maintenance? It would not be fair to dismiss his appeal because, at the date of decision, he was not working, and to ignore the evidence that for months before and after the date of decision, he was working. Just so, it would be artificial to take a uniquely high figure as the base for calculating the sponsor’s ability to maintain his dependants, ignoring the evidence that his income was at all other times a great deal less.
12. The task of this panel is to determine whether, looking at the sponsor’s circumstances as a whole at the time when the decisions under appeal were taken, he would have been able to maintain his dependants adequately, for a period longer than the two weeks after the date of decision (following which the sponsor began working for Vish Construction Ltd at a much lower wage). Post-decision evidence can be used in an entry clearance case if it sheds light on the circumstances ‘appertaining’ at the time of the decision, and it would not make sense to exclude such evidence if it assists us in making a realistic assessment of the sponsor’s ability at the date of decision to provide adequate maintenance.
13. It does make sense to take the accounting period of 25th September 2006 to 5th April 2007 as a whole, and to use the average net weekly income of £214 as our base line. If we take the sponsor’s monthly income as a rather generous £900 a month, that cuts a swathe through the very careful and thorough calculations which Mr Patel presented to us at the hearing, based as they were on a base of £1,500 a month. Mr Patel’s trump card was the addition to the sponsor’s earnings as a builder of Child Tax Credit and Working Tax Credit which, although included among the ‘public funds’ listed at paragraph 6 of the Immigration Rules, are not counted as impermissible recourse to public funds under paragraph 6B. Miss Kiss reminded us that a new paragraph 6C, inserted on 31st March 2009, does count the receipt of tax credits as recourse to public funds if an application is being made from outside the United Kingdom, and she asked us to infer that this was always implicit in the meaning of paragraph 6B. We cannot accept that invitation. There is nothing in the wording of paragraph 6B to suggest that it only applies to people who are already in the United Kingdom. The insertion of paragraph 6C was done, we apprehend, not to shed light on what paragraph 6B had always meant, but to prevent a large class of applicant from continuing to take advantage of paragraph 6B. Thus, at the date of decision in the instant case, tax credits could be included as (potential) income for the sponsor.
14. Mr Patel’s initial calculations were designed to show that at least the sponsor, his wife and the two minor children could easily be maintained on the sponsor’s earnings plus those benefits which did not count as recourse to public funds. He also endeavoured to show that Sushila could be squeezed in as well, although he acknowledged that it would be difficult get Manish in without calling upon other sources of money. To the sponsor’s monthly income of £1,500 Mr Patel added Child Benefit (which, although a ‘public fund’, the Home Office has long disregarded) and Tax Credits to yield a total monthly income of £2,115, from which he subtracted £800 rent to leave £1,315 disposable income for Mr and Mrs Varsani and their two minor children. It was later realized that Council Tax should also be deducted, leaving £1,195. But if we take the sponsor’s monthly earnings as £900 rather than £1,500, the disposable income shrinks to £595.
15. In KA & ors (adequacy of maintenance) Pakistan [2006] UKAIT 65, Mr Ockelton confirmed that what a comparable family would receive on Income Support should be the benchmark of ‘adequacy’ under the Immigration Rules, and Mr Patel did indeed provide a table showing that, during the year 2006-2007, a couple with two minor children on Income Support would have been entitled to allowances and premiums totalling £855 per month. That is some £260 a month more than the sum available to the sponsor, his wife and the two minor children after deduction of housing costs. The sponsor would have enough for himself and his wife alone, but presumably she would not wish to leave the children behind.
16. Is there any way, looking at the time of the decision, in which more income could have been generated? Several ways have in fact been suggested, and we shall look at these now. First, because the entire family is vegetarian, and none of its members smoke or drink, it is said that they can subsist comfortably on less money than the average British family, indeed on less than what they would get on Income Support. That argument has been roundly rejected in cases like KA (Pakistan), Uvovo and Momotaz Begum, and we see no reason to depart from the stance taken by the Deputy President. There must be an objective benchmark of adequacy, and it will not do for appellants to argue that they can live on less than what the Government considers to be subsistence level for British residents.
17. Secondly, while none of the children said in their Visa Application Forms that they would be taking employment, the sponsor’s wife indicated that she did intend to work in the UK, although when asked to be more specific, she replied “NOT DECIDED”. She is illiterate and speaks no English, but the sponsor insists that his wife will be able to find work as a cleaner when the family move into their proposed accommodation in Wembley. Inability to speak English will not be a barrier, he says, because there are many Gujerati speakers in the area. We can certainly take notice of the fact that there is a large Asian population in the vicinity of Harrow and Wembley, but we do not think that, on its own, this makes it more likely than not that Premila Varsani will find work within a short time. Nothing has been put forward by way of a job offer, and while job offers are often, it is true, treated with some scepticism, we have nothing more to go on than a vague assumption that cleaning work will be available.
18. There is now an offer of ‘third party support’. In a statement dated 8th April 2008, the sponsor’s brother-in-law, Valji Kanji Patel, with whom the sponsor has been living in Hendon, confirms that he and his wife will support the appellants financially once they are here, if the need should arise. Apart from the problem that third party support may not have been in contemplation at the date of decision, the Immigration Rules have been interpreted in AM (Ethiopia) [2008] EWCA 1082 as prohibiting reliance on such support. We understand that AM has gone up to the House of Lords (or, shortly, the Supreme Court), but we are currently bound by it. Mr Gill points out that third party support was specifically allowed under the Special Voucher Scheme for the maintenance of voucher holders and their dependants, but while that may be relevant to the Article 8 aspect of the appeal, it cannot affect the application of paragraphs 281, 297 and 317 of the current Immigration Rules.
19. The sponsor says that the five-roomed house which he has available for his family in Wembley is big enough to sub-let one of the rooms. But we do not know whether the owner of the property, Laxmi Devji Hirani, would be willing to allow this. Indeed, we do not know whether the property is still available. On 29th August 2006 Mrs Hirani wrote that she wished to let 6, St James Garden “to Bhanji for about a year at a rent of £800 per calendar month.” One of the problems with focusing on the date of decision, as one must do in entry clearance cases, is that circumstances may well have changed in the meantime. It seems unlikely that Mrs Hirani would keep her property empty year after year, if she could find other tenants for it. But that does not affect the present appeals. What is relevant is that, at the date of decision, there was no hint that part of the accommodation into which the family would move after their arrival would then be sublet to a paying tenant. The sponsor’s other gambit is that the family could actually live in smaller, cheaper accommodation. But that was not in contemplation at the date of decision either.
20. Then there are the sponsor’s savings. He opened a Halifax account in August 2006, and on 26th August it held a balance of £4,100. At the date of decision it stood at £3,200, and over the next few months it fluctuated between £3,000 and £4,000. We do not think that savings at that level would have been enough to bring the family past the threshold of adequacy at that time, although we acknowledge that by 2008 the sponsor had accumulated a great deal more in his Halifax account. The air fares alone would have made a large dent in £3,000 or £4,000.
21. Perhaps the sponsor’s strongest argument is that the family home in Mankuva is, according to a valuation carried out by a registered valuer in June 2008, worth some 9 lacs rupees, which is more than £10,000. If all the family were to move here, the house could be sold, or rented out. We think it is a fair assumption that, if all the appellants had been issued with entry clearance in January 2007, the sponsor would have wanted to sell or rent out the family home, even if this was not something which was put to the Entry Clearance Officer. The trouble is, while we know how much the house was worth a year later, we do not know how much demand there was for residential property in Mankuva in the early part of 2007, and how easy it would have been to find a buyer or, failing that, someone to rent it. Perhaps the property market was booming in Cutch at that time, but we just do not know. The house was not on the market at the date of decision, and we do not know how long it would have taken for a sale to be completed after the occupants had moved to this country, where the sponsor would not have had enough money to maintain them adequately prior to the proceeds of sale coming into his hands.
22. It may seem harsh that we have run through a list of various alternative sources of finance for the appellants, and found them all wanting. The basic difficulty for the sponsor is that, while he continues to live rent-free with his sister and brother-in-law, he can build up savings and send remittances home, even when he is only earning £214 a week (rising to £240 last year). To maintain and accommodate a wife and four children in their teens and twenties is quite a different story. These appeals went askew at the outset when the immigration judge failed to make a proper assessment of the sponsor’s ability to maintain the appellants, while the respondent’s grounds for seeking a review added to the confusion by fixing on a wholly unrealistic impression of the sponsor’s available income. We are not unsympathetic to the dilemma in which the sponsor finds himself, having come to this country in fulfilment of a long-cherished ambition, only to find that he cannot bring his wife and children to join him. But we can only allow these appeals under the Rules if there would have been adequate maintenance for the appellants at the time of the decision. By our reckoning, the sponsor could have maintained himself and his wife adequately, but not the children.
23. We turn now to Mr Gill’s alternative argument that, even if the strict requirements of the maintenance rules, as currently understood, cannot be met by all the appellants, the historical wrong done to British Overseas citizens and their families has affected this sponsor and these appellants so badly that it would be wholly disproportionate now to keep them apart, and indeed there is no legitimate public end to be served by doing so. Immigration Judge Gillance allowed the appeals under Article 8, and we are invited to find that he made no error of law in that aspect of his determination. One of the respondent’s criticisms is that he did not explain why the two adult children could be said to enjoy family life with the sponsor in terms of Article 8, but we can say at once that Manish and Sushila have remained in the same household as their mother and two younger siblings, and have remained financially and emotionally dependent on the family unit headed by the sponsor. At the date of decision, Manish was no older than the appellant in NH (India), who was found to come within Article 8. In the words of Lady Justice Arden in Kugathas [2003] EWCA Civ 31, “something more exists than normal emotional ties” between the two overage children and the sponsor.
24. The other main criticism is that the judge found the sponsor to be “in the same situation as the two female sponsors in the case of NH”, when in fact their circumstances were very different. True it is that the leading cases in this area – NH (India) [2007] EWCA Civ 1330, RO (India) [2008] EWCA Civ 1525 and JB (India) [2009] EWCA Civ 234 – have all concerned British Overseas citizens who were married women and who, because of their marital status, were unable to apply for the Special Quota Vouchers which would have enabled them to come to the United Kingdom with their families at a time when their children had not become overage. As a man and the head of a household, the sponsor here did not labour under this disability, and it has to be said that nowhere in his determination does the judge show any appreciation of the different problems which this sponsor faced. He does not seem to be aware of the sponsor’s history, saying for example that the sponsor “was registered as a British citizen on 5 September 2006 and thereafter came here and obtained work and applied for his family to join him.” In fact, the sponsor was already here when he registered as a British citizen. To say that “in principle” the sponsor is in the same situation as female sponsors who were ‘BOCs’ is, in our view, self-evidently not so, although Mr Gill would contend that all BOCs were victims of an historical wrong. We think it necessary, however, to examine the circumstances of the BOC sponsor in any particular appeal, to see how being a BOC might affect the Article 8 assessment. It will not do to assume, as the judge did here, that the children of any BOC sponsor must per se have a strong case under Article 8.
25. Accordingly, we find an error of law in the Article 8 aspect of the determination, and we must proceed to take a fresh decision ourselves. To do this, we must recite the sponsor’s family history, which is contained in a long Witness Statement and supplemented by many photocopied documents. There is no reason to doubt that this history is largely accurate, although at some points Mr Gill and we draw different inferences from it. Mr Gill, who has established himself as the leading advocate in this ‘niche’ area of immigration law, made lengthy and persuasive submissions to us, and we trust he will forgive us if we do not attempt to summarize them.
26. We begin in 1908, when the sponsor’s father was born in the village of Mankuva. He was a subject of the Maharajah of Cutch, and was thus a British Protected Person. Like many impoverished Gujarati men in the 1930s, he went to seek work in British East Africa, and for many years he divided his time between Kenya and Cutch. In 1940 the sponsor’s father and mother were married in Mankuva, at a time when the registration of marriages was unknown in that part of the world. Several children were born to the couple, but they all, like their mother, stayed in Mankuva. Their father never brought any of his family to Kenya.
27. In 1953 the sponsor’s father registered in Nairobi as a Citizen of the United Kingdom and Colonies (‘CUKC’), and any children born to him thereafter were CUKCs by descent. Although India, certainly since 1955, has not permitted dual nationality, the sponsor’s father does not seem to have had any problem travelling between India and Kenya until 1971. In August of that year he approached the British High Commission in Nairobi to renew his CUKC passport, and it was endorsed with the observation “HOLDER IS SUBJECT TO CONTROL UNDER THE COMMONWEALTH IMMIGRANTS ACT.” That, of course, was the notorious 1968 Act who deprived non-patrial CUKCs of the right to come and live in the United Kingdom. Those advising the sponsor have taken this endorsement to mean that the sponsor’s father had applied to migrate to the UK, and was told he could not, because of the 1968 Act. But this view is contradicted by an endorsement on the next page of the passport, dated 27th August 1971 : “THIS IS TO CERTIFY THAT THE HOLDER OF THIS PASSPORT IS A CITIZEN OF THE UNITED KINGDOM AND COLONIES WHO IS ENTITLED TO AN ENTRY CERTIFICATE TO TRAVEL TO THE UNITED KINGDOM AND HE WILL BE ISSUED WITH SUCH AN ENTRY CERTIFICATE ON APPLICATION TO THE NEAREST BRITISH GOVERNMENT REPRESENTATIVE.” Far from being told that he could not migrate to the ‘mother country’, the sponsor’s father was told he could travel any time. Why did he not avail himself of the opportunity? Perhaps he could not afford the fare. At any rate, he decided instead to return to India, and on 30th August 1971 his British passport was stamped with a visa at the Indian High Commission in Nairobi, valid for a single journey to India, and for a stay of six months. The sponsor’s father was given permission to land at Bombay on 24th September 1971, and for the rest of his life (he died in 1973) he stayed (indeed, it would seem, overstayed) in his native village of Mankuva.
28. The sponsor himself was born in Mankuva in 1964. During the 1970s his mother made some attempts to get the British consular authorities in Bombay to recognize her children as British, but she could not produce any marriage certificate as proof of their legitimate birth to a CUKC father. Affidavits from two witnesses to the marriage might, it seems, have done the trick, but she could only find one (and he has since died). In 1981 the sponsor, who was still 17, asked the Deputy High Commission in Bombay for a British passport, and the application was passed to the Home Office, but was rebuffed because of a lack of documentary evidence. For the next twenty years the sponsor got on with his life in Mankuva, marrying and having children, but in 2002 and 2003 he renewed his application for a passport. A statutory declaration could have been substituted for his parents’ non-existent marriage certificate, but the Consular Section also demanded “first class documentary evidence” dating from the sponsor’s early years, which again the sponsor could not produce. In 2004 an advocate in Bhuj (who was also involved in preparing the sponsor’s appeal in 2007) advised him to travel to the UK and try there to establish his claim to British nationality. So the sponsor applied for a visa to visit his niece in the UK. This was refused, but the sponsor was successful on appeal, and in April 2006 he arrived on these shores.
29. Events then moved quickly. In May the sponsor found two elderly Gujeratis in West Ham who agreed to make statutory declarations that they had been present at his parents’ wedding. Armed with these declarations, the sponsor obtained a British Overseas citizen’s passport in June, and by September he had registered as a full British citizen under section 4B of the 1981 Act. We have no doubt that the primary purpose of the sponsor’s visit was not to see his niece but to obtain recognition of his British nationality. We can hardly hold that against him, as he was getting nowhere with his applications in India. The question we must ask ourselves now is, given this history, does Article 8 require that the sponsor and appellants live together in this country, even if the maintenance requirements of the Rules have not been satisfied? The question is made all the more difficult because, in the leading cases on BOCs, maintenance has always been adequate.
30. We do not think it is relevant that the sponsor’s father apparently could have, but did not, act upon his entitlement to an entry certificate in 1971. The sponsor was only 7 years old at the time, and as soon as he approached manhood, he applied for a British passport. If he had been recognized as a CUKC by the consular authorities in Bombay in 1982, he could have applied for a Special Quota Voucher and, although it might have taken some years for him to reach the end of the queue, he would no doubt have been able to come here at a time when any children he had would have been very young. He was rebuffed again in 2002 and 2003, although if he had been able to establish his British nationality at that time, he would have been able to register as a full British citizen after the end of April 2003. The trouble was, neither his parents’ marriage nor his own birth had been registered, and the British civil servants insisted on seeing documentary evidence, despite the fact that registration was not carried out, commonly or at all, in that part of India at those times. Unlike the female BOCs who were unable to apply for Quota Vouchers because they were married women, the sponsor would have been eligible to apply from his 18th birthday, if only he had been accepted as a CUKC (or, later, a BOC).
31. On the other hand, it was not unreasonable of the Deputy High Commission to require more than an applicant’s bare assertion that he was the son of a British father. Can the sponsor be blamed for not getting better evidence? He had little trouble finding two people in London in 2006 who remembered attending his parents’ wedding in 1940. One might have expected that, in 1982 and thereafter, he could have found two people in Mankuva with equally good memories. It should also be borne in mind that the sponsor’s family did not migrate to East Africa, only to find themselves facing expulsion after the British colonies and protectorates were granted independence. The sponsor’s father was a migrant worker, earning money as a mason in Nairobi, but always returning to his native village, where his wife and growing family continued to live. Thus the East African connexion, and the pressure to leave East Africa, can hardly be said to feature strongly in this case, compared to that of many other BOCs.
32. What seemed at first blush to be the sponsor’s strongest point is this. He travelled here on an Indian passport, which the Nationality Directorate of the Home Office thought had been issued in error. It seems more likely to us that the sponsor, never having been able to establish that he was British, would have been regarded by the Indian authorities as nothing other than an Indian national. But by registering as a British citizen in September 2006, the sponsor ceased to be a citizen of India by virtue of section 9 of that country’s Citizenship Act 1955. We do not know whether the sponsor would now be able to resume permanent residence in India, and it is said on his behalf that he has ‘burnt his bridges’. Of course, one can be permanently resident in Britain without being a British citizen, and while we cannot draw inferences from that about similar arrangements in India, the fact that the sponsor was born in India, lived there all his life until 2006, and has a wife and children there who are Indian citizens, makes it seem rather unlikely that he would not be allowed back. We note also that it is now possible for citizens of other countries to apply for Overseas Citizenship of India, a new status designed to secure links between the large Indian diaspora and the home country. On balance, therefore, we do think it likely that the sponsor would be able to resume family life in India.
33. The question then comes down to this. Do the sponsor’s failed attempts – in 1982, 2002 and 2003 – to establish his claim to British nationality, when all along he was entitled to a CUKC or BOC passport and, at least until 5th March 2002, he could have applied for a Special Quota Voucher, mean that it would now be a disproportionate interference with his family life if, through inability to satisfy the maintenance requirements of the Immigration Rules, he cannot bring his dependants to join him in this country? It must be remembered that, under paragraph 252(ii) of the Immigration Rules, it was a requirement that adequate maintenance and accommodation be provided for the families of Special Voucher holders. Admittedly, that could be provided through third party support, but it is unclear that any such support would have been available to the sponsor if he had travelled to the UK before the Special Voucher Scheme was abolished.
34. In the particular circumstances of this family, we have come to the view that Article 8 cannot override the maintenance requirement of the Rules. The sponsor and appellants enjoyed family life together in India until April 2006, and since the latter part of 2006 the sponsor has been trying to re-establish that family life in this country. Mr Gill contends that, because of the wrongful refusal of the British authorities to give him the opportunity of coming here much sooner, and because of the iniquity of the Commonwealth Immigrants Act 1968 and the Quota Voucher Scheme which was intended to ameliorate it somewhat, it would clearly be disproportionate to any legitimate public end now to deny this family the right to live here together. But we think it important to weigh in the balance the fact that the sponsor is now a British citizen, and that all British citizens must have adequate maintenance for their non-British dependants. The sponsor’s inability to prove his British nationality sooner has not, we think, caused him and his family such prejudice, or been so conspicuously unfair, as to compel their admission in spite of the maintenance requirement of the Immigration Rules. They have apparently had a comfortable life in Mankuva. Their house there, according to the valuer’s report, is in a middle-class area, and has all modern conveniences. It would not be unreasonable to expect family life to be resumed in India. We do not think that the sponsor should, in principle, be treated more favourably because of his history than other British citizens who, through poverty, cannot bring family members to join them in this country. The maintenance requirement of the Rules is indifferent to race or history, and there is a strong public interest in imposing such a requirement.
35. In coming to this eventual conclusion, we realize that it will be a great disappointment not only to this family but to their solicitors and counsel, who have striven with great diligence to achieve the desired result, and it is through no want of skill and hard work on their part that this result has not yet been achieved.
DECISION
The appeal of Premila Varsani is allowed under the Immigration Rules. The other appeals are dismissed under the Immigration Rules, and all five appeals are dismissed on human rights grounds.
Senior Immigration Judge McKee
1st August 2009