[2008] UKAIT 59
- Case title: JB and Others (children of former British Overseas citizens, limits of NH)
- Appellant name: JB and Others
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: India
- Judges: Mr R A McKee, Mr Colyer D E
- Keywords children of former British Overseas citizens, limits of NH
The decision
JB & Others (children of former British Overseas citizens – limits of NH) India [2008] UKAIT 00059
ASYLUM AND IMMIGRATION TRIBUNAL
Heard at : Bennett House
On : 17th July 2008
Prepared : 18th July 2008
Before :
Senior Immigration Judge McKee
Immigration Judge Colyer
Between :
JB
GB
BB
Appellants
And
Entry Clearance Officer, Bombay
Respondent
Representation :
For the appellants : Mr Nazir Ahmed, instructed by Bhavsar Patel Solicitors
For the respondent : Mr Walker, Home Office Presenting Officer
In determining whether the overage children of former British Overseas citizens, who were not able to settle in the UK while they were still minors, now have an entitlement under Article 8 to join their parents in this country, the criterion is not the “historical wrong” which was done to British Overseas citizens and their families in the past. That is part of the context in which the proportionality of exclusion must be assessed, if the “ultimate question” of Huang is reached. But first it must be established whether there is family life, for the purposes of Article 8, between the parents here and their adult children abroad, and, if so, whether the refusal of entry clearance for the latter interferes with that family life sufficiently seriously to engage the operation of Article 8. Those questions must be answered without reference to the injustices of the past.
DETERMINATION
1. This is the reconsideration of conjoined appeals by three siblings (Jagruti, Gautam and Bhavna Veja Bapodara), residents of Porbandar in Gujerat and citizens of India, against the respondent’s refusal on 27th June 2007 to issue them with entry clearance for settlement in the United Kingdom with their mother, Savitaben Rama Jivabhai (née Odedra, ‘the sponsor’). The appeals were allowed on Article 8 grounds by an immigration judge, Mr A.J. Parker, after a hearing at Nottingham on 27th February 2008, but on behalf of the respondent an application was made for a review. This was granted, and on 16th May 2008 the ‘first stage’ of the reconsideration came before Senior Immigration Judge Freeman, who held that there had been a material error in the judge’s determination, and adjourned the matter for a ‘second stage’ hearing at which the sponsor could give oral evidence. The case is rather a complex one, and as there is no major factual dispute between the parties, we think it will assist comprehension if we set down the facts, as we understand them, in chronological order.
The Special Quota Voucher Scheme
2. The sponsor was born in July 1954 in Mombasa. Her family hailed from Gujarat, and like many another Asian family in the years after Kenya became independent in 1963, they found life in that country increasingly difficult. The East African Asians largely retained their citizenship of the United Kingdom and Colonies, and many took up residence in the United Kingdom, particularly in Leicester. Alarmed at this large-scale immigration (not so large, perhaps, compared with recent examples), Parliament hastily passed the Commonwealth Immigrants Act in 1968, which limited the right of abode in the United Kingdom to British nationals with ‘patrial’ status. The non-patrial ‘CUKCs’ from East Africa would henceforth only be allowed to settle in the United Kingdom if they were lucky enough to be included within an annual quota. Heads of household wishing to come here with their families had to apply for ‘Special Quota Vouchers’, and for many years the number of applications greatly exceeded the number of vouchers available annually, which was 5,000.
3. Most of the sponsor’s relatives have in fact ended up in the United Kingdom. She has four brothers and a sister settled here, as well as a large extended family. She herself, however, married an Indian citizen, Vejabhai Arsi Bapodara, in 1972, and settled with him in India. They had four children : Jagruti, born in July 1973; Gautam, born in October 1975; Bhavna, born in August 1982; and Bharti, born in April 1986. On 7th December 1992, however, the sponsor applied for a Special Quota Voucher. In fact, she made three applications, all of them unsuccessful. According to correspondence which has been shown to us, the first application was refused on 4th March 1993 because, although the sponsor was a British Overseas citizen (a status created by the British Nationality Act 1981 to replace non-patrial citizenship of the UK and Colonies), she was not eligible for a Special Quota Voucher. She was said not to be the head of her household, this being Vejabhai Arsi Bapodara. The sponsor averred that she was indeed the head of her household, having secured a divorce on 8th April 1992. The Visa Officer, however, regarded this as a “divorce of convenience”, designed to “secure emigration to the United Kingdom.”
4. Another application was made in December 1993, but was refused because Vejabhai Arsi Bapodara was still regarded as the head of the household. After the third unsuccessful application, the sponsor’s relatives in Leicester approached the local MP, Mr Keith Vaz, who made representations to the Foreign & Commonwealth Office. These were met by a letter of 12th June 1995 from the Migration & Visa Correspondence Unit, which alleged that the sponsor had “practised deception” by going through a form of divorce which was “initiated solely to gain entry to the United Kingdom.”
The divorce
5. It does not appear that this matter was taken any further. At the hearing before us, Mr Ahmed handed up the Decree of Divorce which was issued by an Assistant Judge at the town of Porbandar on 8th April 1992. The most significant features of it are as follows. The husband, Vejabhai Arsi Bapod[a]ra, and the wife, Savitaben Ram[a] Odedra, are joint petitioners, having been separated for four years because of matrimonial difficulties. The sponsor is appointed guardian, and given custody, of the four children, and is given permission to take them with her to the UK. The judge has some unkind things to say about the sponsor’s husband. He “has not cared to look after the maintenance and education of the minor children” and is even “negligent towards development of the minor children.” Besides, “progress of the minor children would be better at U.K. than village Bapodar”, where their father resides. The judge even foresees that if their father remarries, “step-mother would give mental torture to the step-children and growth of minor children would be stopped.”
British citizenship
6. The sponsor continued to live with the four children in the taluka of Porbandar until she came to the United Kingdom as a visitor in July 2001. She did not just stay for a visit, however, but stayed on in the hope, apparently, of getting indefinite leave to remain. As we understand it, the Home Office did not really know what to do with ‘BOCs’ who came to the United Kingdom ostensibly for a temporary purpose and wished to stay permanently. Although they were subject to immigration control, they were British nationals, and it was unpalatable to deport them to a country where they had been residing, but of which they were not citizens. It would seem that, if the sponsor did make an application for ILR – and at the hearing before us, she did not think that she did - it was never decided. Any application was overtaken by the Nationality, Immigration and Asylum Act 2002, which amended the British Nationality Act 1981 so that from 30th April 2003 British Overseas citizens would be entitled to register as full British citizens, provided they had no other nationality and had not renounced another nationality after 4th July 2002. The sponsor duly registered as a British citizen, and in August 2003 she commenced employment with D.R. Garments Ltd in Leicester. (If we assume that the sponsor made an in-time application to vary her leave, that would have had the effect of continuing her leave as a visitor until such time as a decision was made. The conditions attached to that leave, which included a prohibition on working, would also have continued. Not until she became a British citizen would the sponsor have been able to work lawfully. The same would be true, of course, if the sponsor’s leave to enter had simply lapsed, and she became an overstayer.)
Entry clearance
7. In October 2003 the sponsor obtained a British passport, and shortly afterwards her four children (at that time aged 30, 28, 21 and 17 respectively) applied for entry clearance to join her as dependants. Their applications were refused on 18th February 2004, and their appeals came before an adjudicator, Miss Moira Dawson, on 20th January 2005. The determination in the case of the oldest child, Jagruti, was handed up to us by Mr Walker, who felt (rightly) that it should have been drawn to the Tribunal’s attention before today. The adjudicator records what the appellants told the ECO, namely that they had not seen or had any contact with their father since the divorce, although their paternal uncle visited them about once a month. They were living in a one-roomed house, with running water and electricity, rented from a Mr Lakhabhai Odedra. Gautam was earning around Rs 2,000/- per month as a farm labourer, while Jagruti was earning Rs 300-500 per month as a domestic servant. The sponsor, however, was said to be sending the children Rs 7,000/- every month (and in evidence before the adjudicator, postal order counterfoils were produced showing monthly payments of £100 in October, November and December 2003).
8. In her oral evidence, the sponsor told the adjudicator that she had been the sole breadwinner before she left India, and that she supported the household on an income of Rs 2,000/- per month. From this, the adjudicator made the following calculation. Rs 2,000/- had been enough for a household of five to live on, whereas now Gautam and Jagruti were earning between them Rs 2,300-2,500/- a month. The household had now been reduced from five to four persons. It followed that enough income was being generated to maintain the four children, and that they did not need the extra money being sent by the sponsor in order to survive. This meant that they were not “mainly dependent financially” on the sponsor, never mind “living alone in the most exceptional compassionate circumstances”, both of which were required in order to satisfy paragraph 317(i)(f) of the Immigration Rules.
9. Those requirements would not have applied to the youngest child, Bharti, who was under 18 when she sought entry clearance. Indeed, she was subsequently admitted for settlement, and now lives with her mother in Leicester. The three older children had their appeals dismissed, but in May 2006 they applied again, only to be refused a second time. Appeals were lodged, but appear to have been abandoned or withdrawn. In May 2007 the applications were made which are the subject of the present appeals. By this time the ‘reported’ case of NH (female BOCs, exceptionality, Art 8, para 317) India [2006] UKAIT 85 had entered the public domain, and no doubt gave the appellants’ advisers cause for thinking that it would be worth having another try. Certainly, the case has loomed large in the arguments before us, and we shall summarize the main features of it now.
NH
10. The appellant in that case, Navin Halai, was aged 18 years and 10 months when he applied in March 2004 for entry clearance. In September the previous year his mother had registered in the United Kingdom as a full British citizen, having previously been a British Overseas citizen. Being now present and settled in the UK, she was able to ‘call’ her husband and son, both Indian nationals, to join her. The husband eventually got entry clearance, but the son did not, and his appeal was dismissed under rule 317 of HC 395 because he was not “living alone in the most exceptional compassionate circumstances.” The adjudicator allowed the appeal, however, under Article 8, and on reconsideration a Presidential panel upheld that decision, noting in particular two “exceptional” features (this was when Huang at the Court of Appeal still held sway). The first was that the appellant was just over 18 when he applied, which made it very difficult to succeed under the Rules even though he was a student and still fully dependent, whereas under the Special Quota Voucher Scheme, which had been abolished in March 2002, the dependent children of voucher holders were admissible up to the age of 25. The age limit of 25 had also been set in another Home Office policy, allowing overage children to be admitted who had been refused as minors because of the mistaken belief that they were not related as claimed.
11. The second feature highlighted by the Tribunal was the “historic discrimination” suffered by Navin Halai’s mother. She had been deprived of a right of abode by legislation which was racially discriminatory – “an historical wrong” which was acknowledged by the Home Secretary, David Blunkett, during the passage of the 2002 Act - and she had then suffered discrimination on account of her sex, since married women could not apply for Special Vouchers unless their husbands were incapacitated. The panel regarded this history and context as “of the utmost relevance.” All the requirements of rule 317, including maintenance and accommodation, had been met, save for “the most exceptional compassionate circumstances.” But although there was no question of “attempting to enforce rights retrospectively”, the circumstances in which the appellant had been unable to settle here with his mother while he was still under 18 made the case “truly exceptional.”
The instant appeals
12. The three appellants in the present case were each interviewed at the Deputy High Commission on 27th June 2007. Jagruti said that she had never worked, and despite trying to obtain employment as a domestic, had been unable to get any. The sponsor sent money, however, through their landlord, Lakhabhai Odedra. Gautam said that he only did odd jobs, and would only work eight or ten times a month. Bhavna said that she did not work at all, adding that the sponsor would call them on the telephone once a week. The children’s Visa Application Forms indicated that the sponsor rented a three-bedroom property in Leicester which she shared with her youngest daughter, Bharti, and that she had £6,200 in her account with Barclays Bank. Supporting documentation included the counterfoils of postal orders sent by the sponsor to Jagruti in April, May, June, September and December 2004; a cheque for £800 made out to Jagruti on 31st January 2006; and a postal order for £50 made out to Jagruti on 14th June 2006.
13. The applications were refused under rule 317(i)(f) and under Article 8, and when the appeals were listed for 27th February 2008 an Appellants’ Bundle was prepared, which includes a statement from the sponsor. In this, she says that she earns about £210 per week net as a packer for D.R. Garments and now has £8,405 in Barclays Bank (figures which are borne out by wage slips and bank statements). She pays £300 a month in rent, and sends £150 a month to the appellants. There are three assertions, however, made at paragraphs 7 and 29 of the statement, which appear to be inaccurate. The sponsor says that she got married in 1968. She would only have been 14 at the time, and this is contradicted by the Divorce Decree, which states that she had been married for 19 years before the divorce petition was filed in 1991. Secondly, the sponsor says that she was divorced in 1990, whereas the decree was issued in April 1992. Thirdly, the sponsor says that there were three children of the marriage, and that she is living alone in a three-bedroom house, providing ample space for the three appellants. Bharti has thus been ‘airbrushed out of the picture’.
14. The documents provided in the Appellants’ Bundle include more counterfoils and receipts for the postal orders sent in 2004 than were provided to the ECO. In May, June, July, August, October, November and December of that year, postal orders for amounts varying between £100 and £150 were sent to Jagruti. Much larger sums were sent to Gautam via Euro Exchange in May and August 2007 : £1,809 followed by £1,208.
15. Despite this, Immigration Judge Parker did not believe that sufficient evidence had been produced to show that the appellants were mainly dependent on the sponsor. He found it “quite surprising that there is no history of them working” (he did not have before him Miss Dawson’s determination, which does record a history of working). In any event, he held that the appellants were not living alone in the most exceptional compassionate circumstances, and thus could not succeed under the Rules.
Navin Halai
16. Turning to Article 8, the judge was puzzled by the discrepancy between the sponsor’s statement that she was divorced in 1990, and letters from the Deputy High Commission referring to Vejabhai Arsi Bapodra as head of the household (the judge was not shown the Divorce Decree or the letters in which “a divorce of convenience” was alleged). He assumed that the divorce must have taken place later than 1993. At all events, the judge observed that if the sponsor had been eligible for a Special Quota Voucher in 1993, the appellants would all have been well under 25 years of age and would have qualified for admission as dependent children. He quoted extensively from Navin Halai’s case, which had now been to the Court of Appeal and had the neutral citation number [2007] EWCA Civ 1330. In the leading judgement, Sedley LJ held that the factors which the Presidential panel of the AIT had thought exceptional were just as apt to make the refusal of entry clearance simply disproportionate. At paragraph 37, he said this :
“the historical and moral dimensions of the laws which took away and then, following some remedial acts of executive discretion, finally restored to Mr Halai’s family a right of a most fundamental kind – the right to belong – were exceptionally, perhaps even uniquely, a legitimate part of the picture which the AIT formed in deciding whether the exclusion of Mr Halai was consistent with art. 8(2). They were entitled to conclude that it was not, and in particular that, but for a historic injustice which was now acknowledged, the mother would have been able as of right to bring her youngest son here with her years ago.”
17. Lord Justice Pill, noting that the appellant was not much over 18 when he applied for entry clearance, and was fully dependent on his sponsor, who could accommodate and maintain him adequately in the United Kingdom, agreed with the Presidential panel that the history and context of the case, which included the “historical wrong” done to British Overseas citizens, particularly females, was “of the utmost relevance.” The appeal lodged on behalf of the Entry Clearance Officer was dismissed.
First-instance decision
18. Immigration Judge Parker found the present case very similar to Halai. Although Navin Halai was considerably younger when he applied for entry clearance, the judge did not believe that the appellants’ age was “a determining factor.” The appellants, while not mainly dependent financially on the sponsor, were still “clearly dependent on their mother to some extent”, and strong family ties existed between them. The appeal was allowed under Article 8, but this outcome was challenged on the basis primarily that the Court of Appeal judgments in Halai had not been mentioned during the proceedings before the judge, who should have given the parties an opportunity to make submissions on the case if he was going to rely on it. A review was also sought on the basis that the judge had made contradictory findings on dependency, which he had not analysed in accordance with Kugathas [2003] EWCA Civ 31, and had made an unwarranted assumption about when the sponsor had obtained a divorce.
Error of law
19. Reconsideration was ordered principally on the point about no opportunity having been given to distinguish Halai. At the ‘first stage’ of the reconsideration, on the other hand, Senior Immigration Judge Freeman held that the judge had materially erred in assuming that the sponsor was not divorced when she applied for a Special Quota Voucher, and in regarding the age of the appellants as not “a determining factor”, if by that he meant that it was not a factor which would help him in determining the case.
Scope of review
20. The senior immigration judge did not specify on the ‘pink sheet’ what precisely the scope of the ‘second stage’ reconsideration should be, and when the matter came before us the representatives addressed us on this first. In his latest skeleton argument, Mr Ahmed had attempted to revive the appeal in respect of paragraph 317 of the Immigration Rules, but he acknowledged before us that, in the absence of any ‘Reply’ to the respondent’s application for a review, the appellants could not now argue that the first-instance judge was wrong to dismiss their appeal under rule 317. In the end it was agreed that we would proceed on the factual basis that the sponsor was in regular contact with the appellants and regularly sent them money, albeit they were not “mainly dependent financially” on her. What had to be decided was the nature of the family life ties between the sponsor and appellants for the purposes of Article 8, set in the context of the “historical wrong” discussed in Halai and the previous attempts to establish family life in this country.
The hearing
21. We heard oral evidence from the sponsor, who confirmed that she applied for a voucher after getting divorced in April 1992, and was still sending money to the appellants, whom she would telephone two or three times a week. In cross-examination, she was asked why her ex-husband’s brother was recorded in Miss Dawson’s determination as visiting the appellants every month. She replied that her ex-husband did not get on with the children, whereas his brother did. She went on to tell Mr Colyer that, apart from one occasion when her daughter was ill in hospital and he came by “for two minutes” to see her, her former brother-in-law never saw the children at all.
22. In response to questions from me, the sponsor said that when she came to Britain in 2001, she was not intending to stay permanently, but later thought that if she did stay, her children would be able to come. She then said that she had not applied for permanent residence before applying for British citizenship in 2003. She could not tell me why she had not attempted to regularize her status during the intervening period. What arrangements had she made about the children in the meantime? She said that her son used to look after the daughters, while their landlord – a kindly soul – kept an eye on all of them.
23. In his closing submissions, Mr Walker contended that there was not in the instant case that unusual degree of dependency which was held in Kugathas to be necessary for family life in Article 8 terms to subsist between a parent and her adult children. He noted the discrepancy between the monthly visits said by the children to have been paid them by their paternal uncle, and the sponsor’s assertion that he had only come by once. It might be that the appellants’ father had not completely disappeared from the scene, as claimed. In any event, Nalai was readily distinguishable.
24. Mr Ahmed submitted that the appellant’s divorce, finalized in April 1992, was genuine, and that she should have been issued with a special voucher as the head of her household in 1993, when the appellants were all under 25. The fact that they were now all over 25 did not reduce the strength of their claim to family reunion now. Mr Ahmed drew our attention to HG & RG [2005] UKIAT 2, in which a panel chaired by Ouseley J compared the Special Quota Voucher Scheme, which required the children of voucher holders to be under 25, with the Immigration Rules, which did not, and held that the latter prevailed over the former. In any event, we were strongly urged to follow the lead of the AIT and the Court of Appeal in Halai and find that the historical wrong done to female BOCs such as the sponsor, combined with the continuing relationship of dependency between the appellants and the sponsor, made their enforced separation a breach of their Article 8 right to family life.
Discussion
25. While we recognize that the Special Voucher Scheme and its annual quotas, designed to restrict the immigration of East African Asians, along with the old-fashioned assumption that the husband was the head of the household unless he was physically or mentally incapacitated, amount to what is now seen as an “historical wrong”, we remind ourselves than an appeal cannot be allowed under Article 8 simply in order to right an historical wrong. That is the job of Parliament, which did in fact restore to British Overseas citizens the right of abode which had been lost in 1968. As well as granting to BOCs the entitlement to register as full British citizens, Parliament could have added – but did not – an entitlement for the children of former BOCs, of whatever age, to join their parents in this country for settlement (subject, perhaps, to certain conditions, such as being unmarried and still financially dependent). Mr Ahmed comes close to arguing that, at least in the case of the children of married female BOCs, who could not come here while they were younger because their mothers did not qualify for a Special Quota Voucher, Article 8 can achieve the just outcome for which Parliament has not made provision. But we must bear in mind the warning given by Hodge J in NH about “attempting to enforce rights retrospectively.”
26. Our starting point must be to ask whether family life subsists between the appellants and the sponsor for the purposes of Article 8 and, if so, whether the decision under appeal constitutes an interference with it (or a denial of the appellants’ right to respect for their family life). It is apparent at once that there is a factual difference between the circumstances of Halai’s case and those of the present case. Navin Halai had been living with both his parents in India, and his mother only came to the UK when the law changed in April 2003, giving her the opportunity to register as a British citizen. She then returned to India, to support the applications of her husband and youngest son for entry clearance as dependants. At that time Navin Halai was just over 18. He was in full-time education, and still fully dependent on his parents. The appellants in the instant case, however, were aged respectively 33, 31 and 24 when they applied for entry clearance, and were not “mainly dependent financially” on the sponsor.
27. The evidence before us does show, we acknowledge, that the sponsor has been sending quite a lot of money to the appellants. For the last quarter of 2003, and for almost all of 2004, the sponsor sent postal orders each month amounting to at least £100. There are no documents relating to 2005, but in 2006 the sponsor sent a cheque for £800 and a postal order for £50. In 2007, cheques for over £2,000 were sent. Nevertheless, as found by Miss Dawson when determining the earlier appeal in 2005, both Jagruti and Gautam had been working, and earning between them more than what the sponsor was earning when she lived in India with the appellants and had to maintain them all. Immigration Judge Parker was rightly sceptical about what the appellants told the ECO at their most recent interview, about their difficulty in finding work. Jagruti contradicted her earlier interview by insisting that she had never worked at all. It is clear that by this stage the appellants realized they needed to play down their ability to maintain themselves.
28. Another difference between the instant case and Halai is that here the sponsor left India at a time when she could not have expected to be able to register as a British citizen. Indeed, two years were to pass before she could. Having got leave to enter the United Kingdom as a visitor, the sponsor tells us that she made no attempt to regularize her stay until it became possible to register for citizenship after 30th April 2003. She was not working during that period, and so was unable to provide the remittances which she began sending after she commenced work with D.R. Garments in August 2003. For two years, then, the sponsor was in Leicester and the appellants had to make shift for themselves. Gautam, the sponsor tells us, looked after his sisters, while the landlord (who may be a relative of the sponsor’s – they share the name Odedra) kept an eye on all of them. What is clear is that the appellants did not need their mother to be with them.
29. It is significant, we feel, that the sponsor has never been back in the seven years since she left India. She has managed to save a considerable amount of money. By the date of the hearing before Immigration Judge Parker, she had £8,400 in her bank account. We note from a more recent bank statement that the sponsor has transferred £3,600 to a “Tax Haven ISA”. That is no doubt a sensible investment, but it suggests that the sponsor has more important priorities than visiting her children in India. The Court of Appeal in Kugathas cited with approval a passage from the Strasbourg jurisprudence : “Relationships between adults, a mother and her 33-year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.” We do not think that the family life between the sponsor here, who could have paid a visit to India at some time, at least within the last four years, but has not, and the appellants, who do receive generous remittances from the sponsor, but who are capable of maintaining themselves and have certainly done so in the past, evinces that unusual degree of dependency which the Strasbourg jurisprudence requires in order for family life to subsist in Article 8 terms between a parent and her adult children.
30. True it is that if the sponsor had been issued with a Special Quota Voucher in 1993, the appellants would all have been under 25 years old at that time and, being dependent, would have been eligible for entry clearance. That is not to say that they would have obtained indefinite leave to enter, since the Immigration Rules applying at that time to the spouses and children of Special Voucher holders required the holder to provide adequate maintenance and accommodation. We cannot say whether, in 1993 or the next few years thereafter, the sponsor would have been able to provide those things. What we can say is that, on a net wage of £210 per week at the date of decision, the sponsor would not have been able to provide adequate maintenance for the appellants (although she was earning enough to send remittances to India). The sponsor’s three-bedroom house can provide adequate accommodation for five adults (four female and one male) in terms of the Housing Act 1985, but the rent is £300 per month. Minus the rent, the sponsor would only have had £135 a week left. That would not be enough to maintain herself and three adult dependants, if we take what a comparable family would receive on Income Support as the benchmark. If, on the other hand, the appellants envisage working and becoming financially independent once they get here, it is unlikely that they can exhibit the unusual degree of dependency highlighted in Kugathas.
31. Of course, the sponsor was not recognized by the Visa Officer in 1993 as being genuinely divorced from her husband, and hence qualifying for a Special Voucher as the head of a household. Mr Ahmed invites us to find that the divorce was genuine, and hence that the sponsor was wrongly denied a voucher in 1993. We are not, however, in possession of enough information to make any finding on this, even if it would be appropriate to do so. True it is that the sponsor has not “re-married” her ex-husband, but we cannot be sure that he has dropped out of the picture to the extent that the sponsor and appellants maintain. That his brother should be a regular visitor to the appellants, at least according to their own account (which is contradicted by the sponsor), would be odd if their father wanted nothing to do with them. We can also appreciate how the wording of the Divorce Decree might have aroused the Visa Officer’s suspicions, since the divorce was by mutual consent and yet the Assistant Judge went out of his way to say what a bad lot the husband was, and how much more beneficial it would be to the children if they could accompany their mother to the UK.
32. Recognizing that the ages of the appellants may be seen as an important factor distinguishing their case from Halai, Mr Ahmed has prayed in aid HG & RG for the point that paragraph 252 of the Immigration Rules (which was deleted in September 2002) did not put any limit on the age at which the children of voucher holders could be admitted for settlement. We do not think this avails the appellants. The sponsor is not a voucher holder, and the Special Quota Voucher scheme was abolished five years before the appellants applied for entry clearance in May 2007. As HG & RG is now of historical interest only, it may not be inapposite for the present writer, who sat on the panel of the Immigration Appeal Tribunal which heard HG & RG, to observe that the panel focused on the second requirement of rule 252 (that the voucher holder should provide adequate maintenance and accommodation for his dependants) rather than on the first requirement (that entry clearance as the spouse or child of a voucher holder was needed before indefinite leave to enter could be granted). Entry clearance would not be issued unless the applicant came within the terms of the Special Quota Voucher scheme, which required children to be aged below 25 years. It ought to be appreciated that the reason for allowing dependent children up to the age of 25 to take advantage of the scheme was not an assumption that children up to that age are normally part of the ‘nuclear family’, but a recognition that, while the scheme was oversubscribed, it was taking years for some heads of household to reach the end of the queue for Special Vouchers, during which period their children might have got well beyond the usual cut-off age of 18, despite being minors when the application was initially made.
Conclusion
33. In fine, we find that the instant case is readily distinguishable from Halai’s case, which is not authority for any general proposition that the children of former British Overseas citizens must be admitted for settlement if they have retained close ties with their parents. Article 8 of the ECHR can do many things, but it is not a vehicle for the righting of historical wrongs. That is for the politicians, and not for the judges. The historical wrong done to BOCs is, of course, part of the context against which the proportionality of an immigration decision is to be assessed, as was done in Halai. But first it must be shown that there is family life for the purposes of Article 8, and that the interference with it (or lack of respect for it) is sufficiently serious to engage the potential operation of Article 8. Those hurdles have not been passed in the instant case, and so “the ultimate question”, as Lord Bingham has called it, of proportionality has not been reached.
DECISION
We substitute a fresh decision to dismiss the appeals.
Richard McKee
23rd July 2008
ASYLUM AND IMMIGRATION TRIBUNAL
Heard at : Bennett House
On : 17th July 2008
Prepared : 18th July 2008
Before :
Senior Immigration Judge McKee
Immigration Judge Colyer
Between :
JB
GB
BB
Appellants
And
Entry Clearance Officer, Bombay
Respondent
Representation :
For the appellants : Mr Nazir Ahmed, instructed by Bhavsar Patel Solicitors
For the respondent : Mr Walker, Home Office Presenting Officer
In determining whether the overage children of former British Overseas citizens, who were not able to settle in the UK while they were still minors, now have an entitlement under Article 8 to join their parents in this country, the criterion is not the “historical wrong” which was done to British Overseas citizens and their families in the past. That is part of the context in which the proportionality of exclusion must be assessed, if the “ultimate question” of Huang is reached. But first it must be established whether there is family life, for the purposes of Article 8, between the parents here and their adult children abroad, and, if so, whether the refusal of entry clearance for the latter interferes with that family life sufficiently seriously to engage the operation of Article 8. Those questions must be answered without reference to the injustices of the past.
DETERMINATION
1. This is the reconsideration of conjoined appeals by three siblings (Jagruti, Gautam and Bhavna Veja Bapodara), residents of Porbandar in Gujerat and citizens of India, against the respondent’s refusal on 27th June 2007 to issue them with entry clearance for settlement in the United Kingdom with their mother, Savitaben Rama Jivabhai (née Odedra, ‘the sponsor’). The appeals were allowed on Article 8 grounds by an immigration judge, Mr A.J. Parker, after a hearing at Nottingham on 27th February 2008, but on behalf of the respondent an application was made for a review. This was granted, and on 16th May 2008 the ‘first stage’ of the reconsideration came before Senior Immigration Judge Freeman, who held that there had been a material error in the judge’s determination, and adjourned the matter for a ‘second stage’ hearing at which the sponsor could give oral evidence. The case is rather a complex one, and as there is no major factual dispute between the parties, we think it will assist comprehension if we set down the facts, as we understand them, in chronological order.
The Special Quota Voucher Scheme
2. The sponsor was born in July 1954 in Mombasa. Her family hailed from Gujarat, and like many another Asian family in the years after Kenya became independent in 1963, they found life in that country increasingly difficult. The East African Asians largely retained their citizenship of the United Kingdom and Colonies, and many took up residence in the United Kingdom, particularly in Leicester. Alarmed at this large-scale immigration (not so large, perhaps, compared with recent examples), Parliament hastily passed the Commonwealth Immigrants Act in 1968, which limited the right of abode in the United Kingdom to British nationals with ‘patrial’ status. The non-patrial ‘CUKCs’ from East Africa would henceforth only be allowed to settle in the United Kingdom if they were lucky enough to be included within an annual quota. Heads of household wishing to come here with their families had to apply for ‘Special Quota Vouchers’, and for many years the number of applications greatly exceeded the number of vouchers available annually, which was 5,000.
3. Most of the sponsor’s relatives have in fact ended up in the United Kingdom. She has four brothers and a sister settled here, as well as a large extended family. She herself, however, married an Indian citizen, Vejabhai Arsi Bapodara, in 1972, and settled with him in India. They had four children : Jagruti, born in July 1973; Gautam, born in October 1975; Bhavna, born in August 1982; and Bharti, born in April 1986. On 7th December 1992, however, the sponsor applied for a Special Quota Voucher. In fact, she made three applications, all of them unsuccessful. According to correspondence which has been shown to us, the first application was refused on 4th March 1993 because, although the sponsor was a British Overseas citizen (a status created by the British Nationality Act 1981 to replace non-patrial citizenship of the UK and Colonies), she was not eligible for a Special Quota Voucher. She was said not to be the head of her household, this being Vejabhai Arsi Bapodara. The sponsor averred that she was indeed the head of her household, having secured a divorce on 8th April 1992. The Visa Officer, however, regarded this as a “divorce of convenience”, designed to “secure emigration to the United Kingdom.”
4. Another application was made in December 1993, but was refused because Vejabhai Arsi Bapodara was still regarded as the head of the household. After the third unsuccessful application, the sponsor’s relatives in Leicester approached the local MP, Mr Keith Vaz, who made representations to the Foreign & Commonwealth Office. These were met by a letter of 12th June 1995 from the Migration & Visa Correspondence Unit, which alleged that the sponsor had “practised deception” by going through a form of divorce which was “initiated solely to gain entry to the United Kingdom.”
The divorce
5. It does not appear that this matter was taken any further. At the hearing before us, Mr Ahmed handed up the Decree of Divorce which was issued by an Assistant Judge at the town of Porbandar on 8th April 1992. The most significant features of it are as follows. The husband, Vejabhai Arsi Bapod[a]ra, and the wife, Savitaben Ram[a] Odedra, are joint petitioners, having been separated for four years because of matrimonial difficulties. The sponsor is appointed guardian, and given custody, of the four children, and is given permission to take them with her to the UK. The judge has some unkind things to say about the sponsor’s husband. He “has not cared to look after the maintenance and education of the minor children” and is even “negligent towards development of the minor children.” Besides, “progress of the minor children would be better at U.K. than village Bapodar”, where their father resides. The judge even foresees that if their father remarries, “step-mother would give mental torture to the step-children and growth of minor children would be stopped.”
British citizenship
6. The sponsor continued to live with the four children in the taluka of Porbandar until she came to the United Kingdom as a visitor in July 2001. She did not just stay for a visit, however, but stayed on in the hope, apparently, of getting indefinite leave to remain. As we understand it, the Home Office did not really know what to do with ‘BOCs’ who came to the United Kingdom ostensibly for a temporary purpose and wished to stay permanently. Although they were subject to immigration control, they were British nationals, and it was unpalatable to deport them to a country where they had been residing, but of which they were not citizens. It would seem that, if the sponsor did make an application for ILR – and at the hearing before us, she did not think that she did - it was never decided. Any application was overtaken by the Nationality, Immigration and Asylum Act 2002, which amended the British Nationality Act 1981 so that from 30th April 2003 British Overseas citizens would be entitled to register as full British citizens, provided they had no other nationality and had not renounced another nationality after 4th July 2002. The sponsor duly registered as a British citizen, and in August 2003 she commenced employment with D.R. Garments Ltd in Leicester. (If we assume that the sponsor made an in-time application to vary her leave, that would have had the effect of continuing her leave as a visitor until such time as a decision was made. The conditions attached to that leave, which included a prohibition on working, would also have continued. Not until she became a British citizen would the sponsor have been able to work lawfully. The same would be true, of course, if the sponsor’s leave to enter had simply lapsed, and she became an overstayer.)
Entry clearance
7. In October 2003 the sponsor obtained a British passport, and shortly afterwards her four children (at that time aged 30, 28, 21 and 17 respectively) applied for entry clearance to join her as dependants. Their applications were refused on 18th February 2004, and their appeals came before an adjudicator, Miss Moira Dawson, on 20th January 2005. The determination in the case of the oldest child, Jagruti, was handed up to us by Mr Walker, who felt (rightly) that it should have been drawn to the Tribunal’s attention before today. The adjudicator records what the appellants told the ECO, namely that they had not seen or had any contact with their father since the divorce, although their paternal uncle visited them about once a month. They were living in a one-roomed house, with running water and electricity, rented from a Mr Lakhabhai Odedra. Gautam was earning around Rs 2,000/- per month as a farm labourer, while Jagruti was earning Rs 300-500 per month as a domestic servant. The sponsor, however, was said to be sending the children Rs 7,000/- every month (and in evidence before the adjudicator, postal order counterfoils were produced showing monthly payments of £100 in October, November and December 2003).
8. In her oral evidence, the sponsor told the adjudicator that she had been the sole breadwinner before she left India, and that she supported the household on an income of Rs 2,000/- per month. From this, the adjudicator made the following calculation. Rs 2,000/- had been enough for a household of five to live on, whereas now Gautam and Jagruti were earning between them Rs 2,300-2,500/- a month. The household had now been reduced from five to four persons. It followed that enough income was being generated to maintain the four children, and that they did not need the extra money being sent by the sponsor in order to survive. This meant that they were not “mainly dependent financially” on the sponsor, never mind “living alone in the most exceptional compassionate circumstances”, both of which were required in order to satisfy paragraph 317(i)(f) of the Immigration Rules.
9. Those requirements would not have applied to the youngest child, Bharti, who was under 18 when she sought entry clearance. Indeed, she was subsequently admitted for settlement, and now lives with her mother in Leicester. The three older children had their appeals dismissed, but in May 2006 they applied again, only to be refused a second time. Appeals were lodged, but appear to have been abandoned or withdrawn. In May 2007 the applications were made which are the subject of the present appeals. By this time the ‘reported’ case of NH (female BOCs, exceptionality, Art 8, para 317) India [2006] UKAIT 85 had entered the public domain, and no doubt gave the appellants’ advisers cause for thinking that it would be worth having another try. Certainly, the case has loomed large in the arguments before us, and we shall summarize the main features of it now.
NH
10. The appellant in that case, Navin Halai, was aged 18 years and 10 months when he applied in March 2004 for entry clearance. In September the previous year his mother had registered in the United Kingdom as a full British citizen, having previously been a British Overseas citizen. Being now present and settled in the UK, she was able to ‘call’ her husband and son, both Indian nationals, to join her. The husband eventually got entry clearance, but the son did not, and his appeal was dismissed under rule 317 of HC 395 because he was not “living alone in the most exceptional compassionate circumstances.” The adjudicator allowed the appeal, however, under Article 8, and on reconsideration a Presidential panel upheld that decision, noting in particular two “exceptional” features (this was when Huang at the Court of Appeal still held sway). The first was that the appellant was just over 18 when he applied, which made it very difficult to succeed under the Rules even though he was a student and still fully dependent, whereas under the Special Quota Voucher Scheme, which had been abolished in March 2002, the dependent children of voucher holders were admissible up to the age of 25. The age limit of 25 had also been set in another Home Office policy, allowing overage children to be admitted who had been refused as minors because of the mistaken belief that they were not related as claimed.
11. The second feature highlighted by the Tribunal was the “historic discrimination” suffered by Navin Halai’s mother. She had been deprived of a right of abode by legislation which was racially discriminatory – “an historical wrong” which was acknowledged by the Home Secretary, David Blunkett, during the passage of the 2002 Act - and she had then suffered discrimination on account of her sex, since married women could not apply for Special Vouchers unless their husbands were incapacitated. The panel regarded this history and context as “of the utmost relevance.” All the requirements of rule 317, including maintenance and accommodation, had been met, save for “the most exceptional compassionate circumstances.” But although there was no question of “attempting to enforce rights retrospectively”, the circumstances in which the appellant had been unable to settle here with his mother while he was still under 18 made the case “truly exceptional.”
The instant appeals
12. The three appellants in the present case were each interviewed at the Deputy High Commission on 27th June 2007. Jagruti said that she had never worked, and despite trying to obtain employment as a domestic, had been unable to get any. The sponsor sent money, however, through their landlord, Lakhabhai Odedra. Gautam said that he only did odd jobs, and would only work eight or ten times a month. Bhavna said that she did not work at all, adding that the sponsor would call them on the telephone once a week. The children’s Visa Application Forms indicated that the sponsor rented a three-bedroom property in Leicester which she shared with her youngest daughter, Bharti, and that she had £6,200 in her account with Barclays Bank. Supporting documentation included the counterfoils of postal orders sent by the sponsor to Jagruti in April, May, June, September and December 2004; a cheque for £800 made out to Jagruti on 31st January 2006; and a postal order for £50 made out to Jagruti on 14th June 2006.
13. The applications were refused under rule 317(i)(f) and under Article 8, and when the appeals were listed for 27th February 2008 an Appellants’ Bundle was prepared, which includes a statement from the sponsor. In this, she says that she earns about £210 per week net as a packer for D.R. Garments and now has £8,405 in Barclays Bank (figures which are borne out by wage slips and bank statements). She pays £300 a month in rent, and sends £150 a month to the appellants. There are three assertions, however, made at paragraphs 7 and 29 of the statement, which appear to be inaccurate. The sponsor says that she got married in 1968. She would only have been 14 at the time, and this is contradicted by the Divorce Decree, which states that she had been married for 19 years before the divorce petition was filed in 1991. Secondly, the sponsor says that she was divorced in 1990, whereas the decree was issued in April 1992. Thirdly, the sponsor says that there were three children of the marriage, and that she is living alone in a three-bedroom house, providing ample space for the three appellants. Bharti has thus been ‘airbrushed out of the picture’.
14. The documents provided in the Appellants’ Bundle include more counterfoils and receipts for the postal orders sent in 2004 than were provided to the ECO. In May, June, July, August, October, November and December of that year, postal orders for amounts varying between £100 and £150 were sent to Jagruti. Much larger sums were sent to Gautam via Euro Exchange in May and August 2007 : £1,809 followed by £1,208.
15. Despite this, Immigration Judge Parker did not believe that sufficient evidence had been produced to show that the appellants were mainly dependent on the sponsor. He found it “quite surprising that there is no history of them working” (he did not have before him Miss Dawson’s determination, which does record a history of working). In any event, he held that the appellants were not living alone in the most exceptional compassionate circumstances, and thus could not succeed under the Rules.
Navin Halai
16. Turning to Article 8, the judge was puzzled by the discrepancy between the sponsor’s statement that she was divorced in 1990, and letters from the Deputy High Commission referring to Vejabhai Arsi Bapodra as head of the household (the judge was not shown the Divorce Decree or the letters in which “a divorce of convenience” was alleged). He assumed that the divorce must have taken place later than 1993. At all events, the judge observed that if the sponsor had been eligible for a Special Quota Voucher in 1993, the appellants would all have been well under 25 years of age and would have qualified for admission as dependent children. He quoted extensively from Navin Halai’s case, which had now been to the Court of Appeal and had the neutral citation number [2007] EWCA Civ 1330. In the leading judgement, Sedley LJ held that the factors which the Presidential panel of the AIT had thought exceptional were just as apt to make the refusal of entry clearance simply disproportionate. At paragraph 37, he said this :
“the historical and moral dimensions of the laws which took away and then, following some remedial acts of executive discretion, finally restored to Mr Halai’s family a right of a most fundamental kind – the right to belong – were exceptionally, perhaps even uniquely, a legitimate part of the picture which the AIT formed in deciding whether the exclusion of Mr Halai was consistent with art. 8(2). They were entitled to conclude that it was not, and in particular that, but for a historic injustice which was now acknowledged, the mother would have been able as of right to bring her youngest son here with her years ago.”
17. Lord Justice Pill, noting that the appellant was not much over 18 when he applied for entry clearance, and was fully dependent on his sponsor, who could accommodate and maintain him adequately in the United Kingdom, agreed with the Presidential panel that the history and context of the case, which included the “historical wrong” done to British Overseas citizens, particularly females, was “of the utmost relevance.” The appeal lodged on behalf of the Entry Clearance Officer was dismissed.
First-instance decision
18. Immigration Judge Parker found the present case very similar to Halai. Although Navin Halai was considerably younger when he applied for entry clearance, the judge did not believe that the appellants’ age was “a determining factor.” The appellants, while not mainly dependent financially on the sponsor, were still “clearly dependent on their mother to some extent”, and strong family ties existed between them. The appeal was allowed under Article 8, but this outcome was challenged on the basis primarily that the Court of Appeal judgments in Halai had not been mentioned during the proceedings before the judge, who should have given the parties an opportunity to make submissions on the case if he was going to rely on it. A review was also sought on the basis that the judge had made contradictory findings on dependency, which he had not analysed in accordance with Kugathas [2003] EWCA Civ 31, and had made an unwarranted assumption about when the sponsor had obtained a divorce.
Error of law
19. Reconsideration was ordered principally on the point about no opportunity having been given to distinguish Halai. At the ‘first stage’ of the reconsideration, on the other hand, Senior Immigration Judge Freeman held that the judge had materially erred in assuming that the sponsor was not divorced when she applied for a Special Quota Voucher, and in regarding the age of the appellants as not “a determining factor”, if by that he meant that it was not a factor which would help him in determining the case.
Scope of review
20. The senior immigration judge did not specify on the ‘pink sheet’ what precisely the scope of the ‘second stage’ reconsideration should be, and when the matter came before us the representatives addressed us on this first. In his latest skeleton argument, Mr Ahmed had attempted to revive the appeal in respect of paragraph 317 of the Immigration Rules, but he acknowledged before us that, in the absence of any ‘Reply’ to the respondent’s application for a review, the appellants could not now argue that the first-instance judge was wrong to dismiss their appeal under rule 317. In the end it was agreed that we would proceed on the factual basis that the sponsor was in regular contact with the appellants and regularly sent them money, albeit they were not “mainly dependent financially” on her. What had to be decided was the nature of the family life ties between the sponsor and appellants for the purposes of Article 8, set in the context of the “historical wrong” discussed in Halai and the previous attempts to establish family life in this country.
The hearing
21. We heard oral evidence from the sponsor, who confirmed that she applied for a voucher after getting divorced in April 1992, and was still sending money to the appellants, whom she would telephone two or three times a week. In cross-examination, she was asked why her ex-husband’s brother was recorded in Miss Dawson’s determination as visiting the appellants every month. She replied that her ex-husband did not get on with the children, whereas his brother did. She went on to tell Mr Colyer that, apart from one occasion when her daughter was ill in hospital and he came by “for two minutes” to see her, her former brother-in-law never saw the children at all.
22. In response to questions from me, the sponsor said that when she came to Britain in 2001, she was not intending to stay permanently, but later thought that if she did stay, her children would be able to come. She then said that she had not applied for permanent residence before applying for British citizenship in 2003. She could not tell me why she had not attempted to regularize her status during the intervening period. What arrangements had she made about the children in the meantime? She said that her son used to look after the daughters, while their landlord – a kindly soul – kept an eye on all of them.
23. In his closing submissions, Mr Walker contended that there was not in the instant case that unusual degree of dependency which was held in Kugathas to be necessary for family life in Article 8 terms to subsist between a parent and her adult children. He noted the discrepancy between the monthly visits said by the children to have been paid them by their paternal uncle, and the sponsor’s assertion that he had only come by once. It might be that the appellants’ father had not completely disappeared from the scene, as claimed. In any event, Nalai was readily distinguishable.
24. Mr Ahmed submitted that the appellant’s divorce, finalized in April 1992, was genuine, and that she should have been issued with a special voucher as the head of her household in 1993, when the appellants were all under 25. The fact that they were now all over 25 did not reduce the strength of their claim to family reunion now. Mr Ahmed drew our attention to HG & RG [2005] UKIAT 2, in which a panel chaired by Ouseley J compared the Special Quota Voucher Scheme, which required the children of voucher holders to be under 25, with the Immigration Rules, which did not, and held that the latter prevailed over the former. In any event, we were strongly urged to follow the lead of the AIT and the Court of Appeal in Halai and find that the historical wrong done to female BOCs such as the sponsor, combined with the continuing relationship of dependency between the appellants and the sponsor, made their enforced separation a breach of their Article 8 right to family life.
Discussion
25. While we recognize that the Special Voucher Scheme and its annual quotas, designed to restrict the immigration of East African Asians, along with the old-fashioned assumption that the husband was the head of the household unless he was physically or mentally incapacitated, amount to what is now seen as an “historical wrong”, we remind ourselves than an appeal cannot be allowed under Article 8 simply in order to right an historical wrong. That is the job of Parliament, which did in fact restore to British Overseas citizens the right of abode which had been lost in 1968. As well as granting to BOCs the entitlement to register as full British citizens, Parliament could have added – but did not – an entitlement for the children of former BOCs, of whatever age, to join their parents in this country for settlement (subject, perhaps, to certain conditions, such as being unmarried and still financially dependent). Mr Ahmed comes close to arguing that, at least in the case of the children of married female BOCs, who could not come here while they were younger because their mothers did not qualify for a Special Quota Voucher, Article 8 can achieve the just outcome for which Parliament has not made provision. But we must bear in mind the warning given by Hodge J in NH about “attempting to enforce rights retrospectively.”
26. Our starting point must be to ask whether family life subsists between the appellants and the sponsor for the purposes of Article 8 and, if so, whether the decision under appeal constitutes an interference with it (or a denial of the appellants’ right to respect for their family life). It is apparent at once that there is a factual difference between the circumstances of Halai’s case and those of the present case. Navin Halai had been living with both his parents in India, and his mother only came to the UK when the law changed in April 2003, giving her the opportunity to register as a British citizen. She then returned to India, to support the applications of her husband and youngest son for entry clearance as dependants. At that time Navin Halai was just over 18. He was in full-time education, and still fully dependent on his parents. The appellants in the instant case, however, were aged respectively 33, 31 and 24 when they applied for entry clearance, and were not “mainly dependent financially” on the sponsor.
27. The evidence before us does show, we acknowledge, that the sponsor has been sending quite a lot of money to the appellants. For the last quarter of 2003, and for almost all of 2004, the sponsor sent postal orders each month amounting to at least £100. There are no documents relating to 2005, but in 2006 the sponsor sent a cheque for £800 and a postal order for £50. In 2007, cheques for over £2,000 were sent. Nevertheless, as found by Miss Dawson when determining the earlier appeal in 2005, both Jagruti and Gautam had been working, and earning between them more than what the sponsor was earning when she lived in India with the appellants and had to maintain them all. Immigration Judge Parker was rightly sceptical about what the appellants told the ECO at their most recent interview, about their difficulty in finding work. Jagruti contradicted her earlier interview by insisting that she had never worked at all. It is clear that by this stage the appellants realized they needed to play down their ability to maintain themselves.
28. Another difference between the instant case and Halai is that here the sponsor left India at a time when she could not have expected to be able to register as a British citizen. Indeed, two years were to pass before she could. Having got leave to enter the United Kingdom as a visitor, the sponsor tells us that she made no attempt to regularize her stay until it became possible to register for citizenship after 30th April 2003. She was not working during that period, and so was unable to provide the remittances which she began sending after she commenced work with D.R. Garments in August 2003. For two years, then, the sponsor was in Leicester and the appellants had to make shift for themselves. Gautam, the sponsor tells us, looked after his sisters, while the landlord (who may be a relative of the sponsor’s – they share the name Odedra) kept an eye on all of them. What is clear is that the appellants did not need their mother to be with them.
29. It is significant, we feel, that the sponsor has never been back in the seven years since she left India. She has managed to save a considerable amount of money. By the date of the hearing before Immigration Judge Parker, she had £8,400 in her bank account. We note from a more recent bank statement that the sponsor has transferred £3,600 to a “Tax Haven ISA”. That is no doubt a sensible investment, but it suggests that the sponsor has more important priorities than visiting her children in India. The Court of Appeal in Kugathas cited with approval a passage from the Strasbourg jurisprudence : “Relationships between adults, a mother and her 33-year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.” We do not think that the family life between the sponsor here, who could have paid a visit to India at some time, at least within the last four years, but has not, and the appellants, who do receive generous remittances from the sponsor, but who are capable of maintaining themselves and have certainly done so in the past, evinces that unusual degree of dependency which the Strasbourg jurisprudence requires in order for family life to subsist in Article 8 terms between a parent and her adult children.
30. True it is that if the sponsor had been issued with a Special Quota Voucher in 1993, the appellants would all have been under 25 years old at that time and, being dependent, would have been eligible for entry clearance. That is not to say that they would have obtained indefinite leave to enter, since the Immigration Rules applying at that time to the spouses and children of Special Voucher holders required the holder to provide adequate maintenance and accommodation. We cannot say whether, in 1993 or the next few years thereafter, the sponsor would have been able to provide those things. What we can say is that, on a net wage of £210 per week at the date of decision, the sponsor would not have been able to provide adequate maintenance for the appellants (although she was earning enough to send remittances to India). The sponsor’s three-bedroom house can provide adequate accommodation for five adults (four female and one male) in terms of the Housing Act 1985, but the rent is £300 per month. Minus the rent, the sponsor would only have had £135 a week left. That would not be enough to maintain herself and three adult dependants, if we take what a comparable family would receive on Income Support as the benchmark. If, on the other hand, the appellants envisage working and becoming financially independent once they get here, it is unlikely that they can exhibit the unusual degree of dependency highlighted in Kugathas.
31. Of course, the sponsor was not recognized by the Visa Officer in 1993 as being genuinely divorced from her husband, and hence qualifying for a Special Voucher as the head of a household. Mr Ahmed invites us to find that the divorce was genuine, and hence that the sponsor was wrongly denied a voucher in 1993. We are not, however, in possession of enough information to make any finding on this, even if it would be appropriate to do so. True it is that the sponsor has not “re-married” her ex-husband, but we cannot be sure that he has dropped out of the picture to the extent that the sponsor and appellants maintain. That his brother should be a regular visitor to the appellants, at least according to their own account (which is contradicted by the sponsor), would be odd if their father wanted nothing to do with them. We can also appreciate how the wording of the Divorce Decree might have aroused the Visa Officer’s suspicions, since the divorce was by mutual consent and yet the Assistant Judge went out of his way to say what a bad lot the husband was, and how much more beneficial it would be to the children if they could accompany their mother to the UK.
32. Recognizing that the ages of the appellants may be seen as an important factor distinguishing their case from Halai, Mr Ahmed has prayed in aid HG & RG for the point that paragraph 252 of the Immigration Rules (which was deleted in September 2002) did not put any limit on the age at which the children of voucher holders could be admitted for settlement. We do not think this avails the appellants. The sponsor is not a voucher holder, and the Special Quota Voucher scheme was abolished five years before the appellants applied for entry clearance in May 2007. As HG & RG is now of historical interest only, it may not be inapposite for the present writer, who sat on the panel of the Immigration Appeal Tribunal which heard HG & RG, to observe that the panel focused on the second requirement of rule 252 (that the voucher holder should provide adequate maintenance and accommodation for his dependants) rather than on the first requirement (that entry clearance as the spouse or child of a voucher holder was needed before indefinite leave to enter could be granted). Entry clearance would not be issued unless the applicant came within the terms of the Special Quota Voucher scheme, which required children to be aged below 25 years. It ought to be appreciated that the reason for allowing dependent children up to the age of 25 to take advantage of the scheme was not an assumption that children up to that age are normally part of the ‘nuclear family’, but a recognition that, while the scheme was oversubscribed, it was taking years for some heads of household to reach the end of the queue for Special Vouchers, during which period their children might have got well beyond the usual cut-off age of 18, despite being minors when the application was initially made.
Conclusion
33. In fine, we find that the instant case is readily distinguishable from Halai’s case, which is not authority for any general proposition that the children of former British Overseas citizens must be admitted for settlement if they have retained close ties with their parents. Article 8 of the ECHR can do many things, but it is not a vehicle for the righting of historical wrongs. That is for the politicians, and not for the judges. The historical wrong done to BOCs is, of course, part of the context against which the proportionality of an immigration decision is to be assessed, as was done in Halai. But first it must be shown that there is family life for the purposes of Article 8, and that the interference with it (or lack of respect for it) is sufficiently serious to engage the potential operation of Article 8. Those hurdles have not been passed in the instant case, and so “the ultimate question”, as Lord Bingham has called it, of proportionality has not been reached.
DECISION
We substitute a fresh decision to dismiss the appeals.
Richard McKee
23rd July 2008