Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05126/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 13 December 2016
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

SANDEEP KAUR
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Gill QC, instructed by Trinity Law Solicitors
For the Respondent: Mrs Pettersen, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Sandeep Kaur, was born on 29 December 1990 and is a citizen of Singapore. By a decision promulgated on 8 November 2016, I found that the First-tier Tribunal had erred in law such that its decision fell to be set aside. My reasons for reaching that decision were as follows:
1. The appellant, Sandeep Kaur, was born on 29 December 1990 and is a citizen of Singapore. She arrived in the United Kingdom in September 2010 as a Tier 4 (General) Student with leave to remain until 14 October 2014. On 8 October 2014, she applied for further leave to remain on the basis of her private and family life in the United Kingdom. That application was refused by the Secretary of State in a decision dated 19 January 2015. The appellant appealed to the First-tier Tribunal (Judge R Caswell) which, in a decision promulgated on 28 May 2015, dismissed the appeal. The appellant applied for permission to the First-tier Tribunal and, when that was refused, to the Upper Tribunal (Upper Tribunal Judge Eshun) which also refused permission. The appellant sought permission to judicially review the Upper Tribunal’s decision to refuse her permission. Dove J granted permission on 18 November 2015 in the following terms:
It is in my view at the very least arguable that the First-tier Tribunal Judge’s reasoning in relation to both the existence of family life in this case and also the appropriate approach to the consideration of the Article 8 claim outside the provisions of the Immigration Rules give rise to genuine diet as to whether there has been a proper self-direction in relation to the relevant law in this case. Clearly, in addition to the significant consequences for the claimant, there are important issues raised in this case in relation to both the existence of family life and the approach to Article 8 which have a wide application. I am therefore satisfied that the tests are met to justify the grant of permission in this case.
2. Pursuant to CPR54.7A(9), the court made a final order quashing the refusal of permission, neither party having made a request within fourteen days for a hearing of the substantive application. Subsequently by an order dated 1 August 2016, Vice-President of the Upper Tribunal (IAC) Mr Ockelton directed that permission be granted in the light of the decision of the High Court. The appeal came before the Upper Tribunal at Bradford on 6 September 2016 to consider whether Judge Caswell had erred in law. Mr Manjit Gill QC appeared for the appellant and Mrs Pettersen, a Senior Home Office Presenting Officer, appeared for the respondent.
3. Before the Upper Tribunal, Mr Gill QC made lengthy submissions which dealt not only with the error of law which he claimed vitiated Judge Caswell’s decision, but also touched on matters relevant to the re-making of the decision in the Upper Tribunal. I am satisfied that Judge Caswell did err in law such that her determination falls to be set aside. However, I have not proceeded to re-make the decision; there was discussion at the initial hearing as to whether the parties wish to adduce fresh evidence in the appeal. Mrs Pettersen, for the respondent, indicated that she would contact the Upper Tribunal to confirm whether or not the Secretary of State wished to adduce additional evidence; since I have not heard from her, I have proceeded only to set aside the First-tier Tribunal’s decision. I will give directions for the listing of a resumed hearing before me at Bradford.
4. As Mr Gill explained at the initial hearing, this case does not touch upon the Immigration Rules at all. The appellant, as an adult child of her parents living in the United Kingdom, does not qualify under paragraph 276ADE of HC 395 (as amended). The appeal concerns, in the first instance, the existence or absence of family life between the appellant and her close family members living in the United Kingdom.
5. As Judge Caswell recorded at [6] “all the appellant’s other family members are in the United Kingdom ... these include her elderly grandmother and three maternal uncles and their families all who live nearby in the Leeds/Bradford area”. The judge noted that the appellant spends time regularly with the extended family and has sleep-overs with her cousins. She gives her younger sister and brother support with their studies and emotional support and has helped guide them through their teenage years. She visits her grandmother very frequently and stays and talks to her and cares for her. This is an important relationship for a grandmother and she would be devastated if the appellant had to leave [the United Kingdom]. The judge accepted that the appellant was close to her family but “in general terms I find that she is perfectly able to make a life for herself whilst keeping in touch with her family through visits, phone calls and electronic means as would be normal for any 24 year old in her position” [24]. The appellant submits that the judge here has applied the wrong test and has, crucially, failed to have proper regard to the cultural context; the appellant is a member of a very close-knit family of Indian origin where the extended family plays an important role, especially in the involvement of an unmarried daughter who remains living with her parents until marriage.
6. Further, the appellant submits that the judge misapplied Kugathas [2003 EWCA Civ 31. The appellant submits that the judge “wrongly appears to have thought that [Kugathas] supported the test which he seems to have been applying, namely that the appellant should be ‘less able than any other 24 year old to establish a life away from her parents’ in order to succeed under Article 8 ECHR”. The appellant submits that the question is not whether the appellant has shown an ability to live away from her parents but whether there actually exists family life which merits the protection afforded by Article 8. Moreover, the judge had ignored the ratio of AP (India) [2015] EWCA Civ 89, in particular at [45]:
It seems to me that adult children (male or female) who are young students, from most backgrounds, usually continue to form an important part of the family in which they have grown up. They attend their courses and gravitate to their homes during the holidays, and upon graduation, while (as the FTT put it) they seek to "make their own way" in the world. Such a child is very much part of the on-going family unit and, until such a child does fly the nest, his or her belonging to the family is as strong as ever. The proportionality of interference with the family rights of the various family members should receive, I think, careful consideration in individual cases where this type of issue arises.
7. The appellant submits that she is in similar circumstances to the appellant in AP; the very close family life which she enjoyed as a student up to the cessation of her minority continues (at least in part for cultural reasons) now that she is an adult.
8. Following careful consideration, I find that Judge Caswell did err for the reasons submitted by Mr Gill QC. In order to determine whether family life existed at the date of the hearing before her, Judge Caswell did no more than simply observe that the appellant, a well-educated, intelligent woman, was, whatever her current family arrangements, perfectly capable of living on her own and separated from her family. I agree that that is to set about satisfying the wrong test. An adult child may enjoy family life with his or her parents in such a way that it satisfies the requirement to show something more than normal ties of affection with close family members (as Sedley LJ considered possible in Kugathas) whilst at the same time being, like this appellant, perfectly capable, if required to do so, of living separately from the family.
9. Because she found that there was no family life which deserved protection under Article 8, Judge Caswell did not proceed to consider the question of proportionality. In this appeal, the determination of proportionality will involve a complex analysis (as Mr Gill indicated) which will touch on a number of issues including that of historic injustice.
10. It is the case that Judge Caswell did briefly consider whether the appellant’s removal would be proportionate assuming (as Judge Caswell did not) that family life existed between the appellant and her family in the United Kingdom. However, her analysis [29] is somewhat perfunctory and amounts to little more than an assertion rather than a properly reasoned finding. She has not, in my opinion, done enough to put right the legal error which I have identified above.
11. I find, therefore, that Judge Caswell erred in law in her approach to determining whether family life existed in this instance. Having considered the evidence which was before Judge Caswell, I am satisfied that, unusually for a case involving an adult child, that family life for the purpose of pursuing an appeal on Article 8 ECHR grounds does exist between the appellant and her United Kingdom family members. Given that Jude Caswell’s alternative finding as to proportionality is flawed for the reasons I have stated above, it will be necessary for the Upper Tribunal to examine the question of proportionality at a resumed hearing. To that end, I make the following directions:
DIRECTIONS
(1) The decision of the First-tier Tribunal which was promulgated on 28 May 2015 is set aside. None of the findings of fact shall stand.
(2) The parties do send to the Upper Tribunal and to each other copies of any documentary evidence (including witness statements) upon which they intend to rely at the resumed hearing no later than 14 days after the date upon which they receive this decision.
(3) The resumed hearing will be listed before Upper Tribunal Judge Clive Lane at Bradford on the first available date after 15 November 2016. Time estimate: ½ day. No interpreter required.
No anonymity direction is made.
2. The burden of proof in the appeal is on the appellant and the standard of proof is the balance of probabilities.
3. At the resumed hearing at Bradford on 13 December 2016, I heard evidence from the appellant, Rajinder Singh and Raghbir Singh (the latter both uncles of the appellant). The appellant was cross-examined by Mrs Pettersen but the other witnesses were not cross-examined. Mrs Pettersen did not invite me in her submissions to find that the evidence of any of the witnesses was not credible. Further, the Secretary of State has made no challenge to my finding (see error of law decision) that family life exists between the appellant and her close family members living in the United Kingdom such as to engage Article 8 ECHR.
4. The appellant’s appeal against the immigration decision dated 19 January 2015 proceeds on Article 8 ECHR grounds only. Both parties agree that the appellant cannot satisfy the provisions of HC 395 (as amended). The appellant is now 26 years old and arrived in the United Kingdom in December 2009 as a visitor. She subsequently applied for and obtained leave to enter as a student and obtained a bachelor’s degree in this country.
5. Central to Mr Gill’s submissions is the question of historic injustice and the significant role which, he submits, this should play in the proportionality assessment under Article 8 ECHR. The grandfather of the appellant (and father of the appellant’s uncles, who gave evidence at the resumed hearing, and the appellant’s mother), the late Gurbachan Singh entered Singapore in 1954 on an Indian passport and worked there as a labourer from 1956. At that time, Singapore was a British colony. On 12 May 1961, Mr Singh acquired British citizenship under the British Nationality Act 1948 whilst he was still living in Singapore. He was issued with a passport on 24 August 1961 as a citizen of the United Kingdom and Colonies. The appellant’s grandfather, therefore, fell within that category of individuals considered by the Court of Appeal in NH (India) [2007] EWCA Civ 1330 [6]:
Behind the personal history lies a fraught political history. It is set out, without dissent on the part of the Home Secretary, by the AIT:
13. Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1st January 1950. They each, when born, became citizens of the United Kingdom and Colonies by birth (CUKCs). Their rights to settle in the UK were restricted by the Commonwealth Immigration Act 1968. The Immigration Act 1971 came into force on 1st January 1973. It introduced the concept of a right of abode. On 14th December 1973 the European Commission on Human Rights decided the East African Asians case. It decided that the Commonwealth Immigration Act 1968 was racially discriminatory. The UK Government entered into a friendly settlement. A Special Quota Voucher Scheme (SQV Scheme) was introduced to benefit citizens of the United Kingdom and Colonies whose rights had been restricted by the 1968 Act. But it could not assist either of the two sponsors since married women who were not heads of households were excluded from the Scheme.
14. The Special Quota Voucher Scheme had been introduced from 1968 to assist both CUKCs and subsequently British Overseas Citizens (BOCs). Each of the two sponsors had qualified as BOCs under the provisions of the British Nationality Act 1981. The SQV Scheme was outside the Immigration Rules. It allowed persons latterly BOCs who had no other citizenship and were under pressure to leave their country of residence and had nowhere else to go to settle in the UK. The numbers entitled to come to the UK were limited by quota rules. From 1975, 5,000 vouchers per year were issued. Waiting lists were always long. By 1987 those applying under the quota were expected to wait more than five years (Macdonald Immigration Law and Practice 1st Edition 1983 pg.248 and 2nd Edition 1987 pg.286).
15. Importantly the SQV Scheme was only available to heads of household and to their dependents. Such heads of household were defined for the purpose of the scheme as "men who have reached their 18th birthday; women over 18 who [are] … single, widowed, divorced [or] married to a man who is incapable of fulfilling the role of head of household for medical reasons, e.g. severely physically or mentally handicapped. (This includes a woman whose marriage may have been not valid in English law but which exists in fact, and a woman who is living in a permanent association with a man)". The scheme was therefore applied in a manner which discriminated between men and women on the grounds of marital status. The scheme was abolished on 5th March 2002. There were approximately 500 applications per year at that stage.
16. Section 12 of the Nationality, Immigration and Asylum Act 2002 amended sections 4 and 14 of the British Nationality Act 1981. The effect was to entitle certain British Overseas Citizens to be registered as British citizens from 30th April 2003. This applied to those who hold no other nationality and who had not renounced any other nationality. The mothers of both the Appellants qualified for British citizenship for the first time as a result of this amendment. They were adversely affected by the "anomaly" referred to in the next paragraph.
17. The context of this legislative change is of importance in these cases. The then Home Secretary said in a parliamentary debate on the Nationality, Immigration and Asylum Bill in the House of Commons on 5th November 2002 in relation to the changes made which subsequently enabled the mothers of the two Appellants to obtain British citizenship:
"We are talking here about righting an historical wrong, in terms of what happened back in the late 1960s and early 1980s in regard to British overseas citizens … [who] found themselves in an anomalous situation … I wish to put right that anomaly for British overseas citizens."
6. Consequent to the United Kingdom’s policy summarised by a subsequent Court of Appeal judgment (AP) India [2015] EWCA Civ 89 at [16]:
The effect, therefore, was that the unrestricted right of entry was removed from 1968 until May 2003; that there was a limited discretionary right for part of that period for male heads of household only following a condemnatory ruling from the Strasbourg court; and that the purpose of the 2002 Act was to correct what was somewhat euphemistically termed an "historical anomaly".
7. The potential for the historic injustice of the sort described in AP and NH to influence the outcome of the proportionality assessment of an appeal under Article 8 ECHR was summarised by the Court of Appeal in Patel [2010] EWCA Civ 17 at [15]:
As the individual cases to which I now turn illustrate, the effect of this is to reverse the usual balance of art. 8 issues. By the time they come to seek entry clearance, adult children may well no longer be part of the family life of British overseas citizens who have finally secured British citizenship. If so, the threshold of art. 8(1) will not have been crossed and the proportionality of excluding them will not be an issue. If, however, they come within the protection of art. 8(1), the balance of factors determining proportionality for the purposes of art. 8(2) will be influenced, perhaps decisively, by the fact (if it is a fact) that, but for the history recounted in NH (India), the family would or might have settled here long ago
8. There must, therefore, be a causal connection between the historic injustice and the appellant’s circumstances. As the court observed in AP, “if the sponsor would not have come to the UK any earlier than he did even had the right not been removed from him, no prejudice would have been occasioned by the historic injustice and it would be immaterial to the proportionality exercise.” It remains important to bear in mind, however, that historic injustice is only brought into the assessment of proportionality only after family life requiring the protection of Article 8 ECHR has been identified (see JB & Others (children of former British Overseas citizens, limits of NH) India [2008] UKAIT 00059). I have found that Article 8 ECHR is engaged in this instance (see my error of law decision above)
9. The question of causation is significant in the present appeal. In order to explain why that is the case, I shall briefly summarise the evidence of the appellant and the witnesses. As I have noted above, the father of the two uncles of the appellant who gave evidence had become aware of his right to obtain a British passport in 1961. It appears that the appellant’s mother (Harbachan Kaur) was born in or around 1968 (she is described in the appellant’s statement as being 47 years old in 2015). The appellant’s mother was born in Singapore; her father (the appellant’s grandfather) had travelled to and settled in the United Kingdom in January 1989. Harbachan Kaur succeeded in her application for a British passport in October 2009. As we are aware, the United Kingdom government’s policy prevented an unrestricted right of entry for British Overseas Citizens between 1968 and May 2003. Had the appellant’s mother applied to exercise her right to obtain a passport and to settle in the United Kingdom immediately upon the right of entry becoming unrestricted in May 2003 then at that time the appellant would have been a minor (aged 12 years) and thereby entitled to remain indefinitely in the United Kingdom with her mother. It is necessary, therefore, for the appellant to explain why her mother delayed settling in the United Kingdom with citizenship until the appellant herself was no longer a minor (that is, after 2009).
10. The interplay between delay and causation was addressed by the Court of Appeal in AP at [38]:
No doubt there may be cases where it can be shown that a sponsor would not have come to the UK any earlier than he or she did perhaps, for example, because there were obligations to care for other persons who would have been unable or unwilling to come to this country. Moreover, the causal link is likely to be more difficult to establish as the years pass because the longer the delay from the time when the right was conferred in May 2003 before a sponsor exercises the right to enter, the more difficult will it be to show that he would have come earlier had there been no barrier to entry before 2003. But here the sponsor acted relatively quickly once the right of entry was conferred.
11. The explanation provided by the appellant and the witnesses for the delay seeking to pursue and establish their rights of entry to the United Kingdom between May 2003 and 2009 is set out in their respective witness statements. In essence, the uncles of the appellant claimed to have made repeated visits to the British High Commission in Singapore sometimes as often as twice every month, but on each occasion they claimed that they were rebuffed by local staff. The witnesses told me that, at that time applications for settlement were first considered by local staff members at the High Commission and only if the officers considered that the applications had merit would a fee be taken and a formal application made. Part of the reason for this system appears to have been to prevent a hopeless applicant from losing a fee which would not be refundable in the event that the application was refused. Eventually, Rajinder Singh (the appellant’s younger uncle) managed to get beyond the local staff members at the High Commission and to have his application considered by a British Foreign Office official (described in his statement as a “white British lady officer (probably senior)”) who accepted his application and, in August 1987, issued him with a passport. Notwithstanding this success, applications by the older brothers continued to be rebuffed. These individuals were told that their younger brother had succeeded because he was under 18 years old at the time of his application. Rajinder Singh and his father say that they waited for about a year in Singapore to see if the other family members would succeed in their applications and, when they did not do so, they travelled to settle in the United Kingdom. Raghbir Singh finally succeeded in his application in July 2009 after he asked for written reasons for the rejection of his application. Thereafter, the appellant’s mother applied and obtained her passport in October 2009.
12. On the face of it, the evidence of the appellant’s uncles may seem difficult to accept. They seek to persuade the Tribunal that there was, in effect, a concerted effort on the part of the officers of the High Commission in Singapore to discourage applications by deliberately misleading applicants as to the likelihood of success. There is also the fact that some eighteen years had elapsed between Rajinder Singh and his father travelling to the United Kingdom in 1989 and the eventual success of the other siblings in 2009. Mr S Singh, another of the appellant’s uncles, seeks to explain that delay, at least in part, in his witness statement at [17]:
We also consulted Harehills and Chapeltown Law Centre in August 1990 who said that the other siblings were not eligible after looking at all the documents provided. Based on these incidents my sister and I were left in Singapore to stop pursuing to claim our right to be with my family (sic).
13. Mr S. Singh goes on to say that it was “only in early 2009” that the family were put in touch with a new legal advisor who “advised that the family is entitled to a British passport ... it was his advice that got my siblings and me looking at this entire issue again.” There appears to have been some obstruction by the High Commission when Mr S. Singh again attempted to apply for a British passport but the delay (between “early 2009” and the issue of his passport in July 2009) was a short one.
14. The Court of Appeal at [37] in AP stated:
I accept the submission of Mr Gill that the causal connection in this case has been established notwithstanding the lacuna in the evidence. In my judgment, the courts should not in this context be unduly rigorous in the application of the causation test, given that its significance is to redress this historic injustice. I think there would be manifest unfairness to conclude that the absence of express evidence on the causation point should defeat the claim.
15. In accordance with the guidance provided by the Court of Appeal, I have not sought to impose an unduly rigorous test of causation. However, on the facts as I have described them, a break in causation did occur in August 1990 when the Law Centre in Yorkshire gave incorrect advice to the family. It was that advice (emanating from a source other than the by then mistrusted High Commission) which put an end to the efforts of the family members to obtain entry to the United Kingdom. In August 1990, the appellant was only 4 months old and the delay in reviving efforts to obtain visas consumed the remainder of her minority. However, if I accept that the behaviour of the officials at the High Commission led to the appellant’s mother remaining in Singapore when she would otherwise have been in the United Kingdom when the appellant was born, then the appellant would have been born to a citizen duly settled here.
16. As I have noted above, the Secretary of State does not challenge the evidence of the appellant or the witnesses. Although I have some misgivings as to the accuracy of the accounts, I find, in the light of the Secretary of State’s acceptance of the evidence, that the witnesses did experience the obstruction which they claim to have encountered at the High Commission. I accept also that between 1968 and May 2003 the policies of the United Kingdom government perpetrated an historic injustice which affected the appellant’s mother and, in turn, led to the fact that the appellant was born in Singapore rather than in the United Kingdom. I accept that between 1989 (when the appellant’s youngest uncle was admitted to the United Kingdom) and 1990 further injustice was perpetrated by the staff of the High Commission in Singapore by refusing to accept applications which should have been admitted and which should have been successful. I acknowledge that the family members were free to obtain accurate legal advice or, indeed, to have pursued a formal application by paying the fee but I find that there is a significant differential of authority which should be a factor in my analysis between the High Commission officers (whom any applicant should be entitled to expect to apply the law and practice in a fair, accurate and non-discriminatory manner) and the relatively poorly-educated family members of the appellant. I do not find, however, that the historic injustice persisted beyond 1990; I find that the appellant’s family members did not make any further applications between 1990 and 2009 because they relied upon the Law Centre’s advice; the conduct of the High Commission was no longer a determining factor. Any further obstruction by the High Commission in 2009 had only a minimal effect given the brief delay between the uncles resuming their applications and the grant of visas.
17. Mrs Pettersen did not suggest to me that the appellant’s mother had not sought to enter the United Kingdom for any reason other than that her applications had been rebuffed by the High Commission although she had received unfavourable advice from the Yorkshire Law Centre. For the purposes of my analysis, I find that the appellant’s mother, had her applications not been rebuffed, would have travelled to the United Kingdom at any time after 2003 when the restrictions were lifted by the United Kingdom government.
18. In summary, therefore, I find that the historic injustice of the kind detailed in AP and NH which affected British Overseas Citizens as a result of the United Kingdom’s Government’s policies prevented the appellant’s mother from entering the United Kingdom between 1968 and 1990. It follows that, but for the operation of the historic injustice, the appellant’s mother would have been in the United Kingdom from 1989 (when her father travelled here) and would have been here for the birth of the appellant in 1990. Alternatively, she could have travelled here but for the historic injustice at any time until the appellant was 13 years old (i.e. still a minor).
19. As Seldey LJ observed in Patel (see above) one cannot
set out to compensate for historical wrong .... [when] many of these children have now grown up and embarked on lives of their own. Where this has happened the bonds which constitute family life will no longer be there and Article 8 will have no purchase.
20. However, as he also observed, “a good many adult children may still have a family life with parents who are now settled here not by leave or by force of circumstance but by long-delayed right.” As I concluded in making the error of law decision, in the unusual circumstances of this case, I find that family life does continue to exist between the adult appellant and her family members in the United Kingdom. It follows that she can, therefore, still acquire the benefit provided by Article 8. Whilst I fully acknowledge the strength of the public interest in maintaining a system of immigration control (in this instance, excluding a healthy highly-educated young adult from the United Kingdom) the question of historical injustice must loom large in a proportionality assessment. This is a case where “the family would or might have settled here long ago” as the court observed in Patel. But for the policy of the United Kingdom government, I find it more likely than not that the appellant would have been born in this country. Between 2003 and 2009 her mother was dissuaded from exerting her right to enter this country by a mixture of the obstruction which her family experienced at the hands of the British High Commission and also wrong advice from United Kingdom based Law Centre (the latter, though unfortunate, is not a factor weighing in the appellant’s favour in the Article 8 assessment). I have had regard also to the fact that, although she is an adult and appears capable of making her life for herself elsewhere, the appellant does enjoy particularly strong bonds with her family all of whom are now either settled in the United Kingdom or are citizens of this country. Ultimately, I find that this is an instance in which Article 8 may be employed to “compensate for a historical wrong” which, in effect, led to this appellant being born in the wrong country. The appeal is therefore allowed on Article 8 grounds.

Notice of Decision

This appeal is allowed on human rights grounds (Article 8 ECHR).

No anonymity direction is made.

Signed Date 10 March 2017

Upper Tribunal Judge Clive Lane