R v. Immigration Appeal Tribunal, Ex parte Bastiampillai and Another
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 28 January 1983 |
| Citation / Document Symbol | [1983] 2 All ER 844, [1983] Imm AR 1 |
| Cite as | R v. Immigration Appeal Tribunal, Ex parte Bastiampillai and Another, [1983] 2 All ER 844, [1983] Imm AR 1, United Kingdom: High Court (England and Wales), 28 January 1983, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6c10.html [accessed 30 May 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v Immigration Appeal Tribunal, ex parte Bastiampillai and another
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
[1983] 2 All ER 844, [1983] Imm AR 1
Hearing Date: 13, 28 JANUARY 1983
28 JANUARY 1983
Index Terms:
Immigration -- Appeal -- Evidence of facts coming into existence after Secretary of State's decision -- Whether adjudicator or appeal tribunal can admit evidence of facts occurring after Secretary of State's decision -- Immigration Act 1971, s 14.
Immigration -- Leave to enter -- Indefinite leave -- Dependent parents -- Wholly or mainly dependent -- Applicants' children all settled in -- Applicants without income and living with daughter rent-free -- Whether applicants 'wholly or mainly dependent' on child settled in United Kingdom -- Whether dependence limited to financial dependence -- Whether emotional dependence to be taken into account in determining dependence -- Statement of Changes in Immigration Rules (Paper (1979--80) no 394), para 48.
Immigration -- Leave to enter -- Indefinite leave -- Dependent parents -- Other relatives in their own country to turn to -- Applicants' children all settled in United Kingdom -- Applicants living with daughter rent-free -- Applicants applying for conditions of stay to be removed on ground that they were dependent on children settled in United Kingdom and had no 'other close relatives in their own country to turn to' -- Who are 'other close relatives in their own country to turn to' -- Statement of Changes in Immigration Rules (HC Paper (1979--80) no 394), para 48.
Held:
The applicants, a husband and wife aged 69 years and 58 years respectively, were citizens of Sri Lanka. The husband came to the United Kingdom in 1973 and was joined a few years later by his wife. In 1976 the husband was granted a work permit to work as a trainee accountant conditional on his leaving the United Kingdom on completion of his accountancy training. The husband subsequently obtained employment and the work permit and consent to stay in the United Kingdom were renewed from time to time until 1 June 1979, when it expired. Between the time of his arrival in the United Kingdom and 1979 all three children of the applicants came to the United Kingdom, where they subsequently settled. The applicants lived with one of their daughters rent-free. On 31 May 1979 the applicants applied for the time limit on their stay to be removed on the grounds that they were 'wholly or mainly dependent upon children settled in the United Kingdom' within the then current immigration rules for control on entry of Commonwealth citizens. The Secretary of State refused the application on 12 March 1980 and permission for the applicants to stay in the United Kingdom expired on 9 April 1980. On 25 March 1980 the applicants lodged a notice of appeal to an adjudicator. On 30 March, as a result of the refusal by the Department of Employment to renew his work permit and that of the Secretary of State not to remove the conditions of their stay, the husband ceased work and thereafter his only income was a small pension from Sri Lanka. In March 1981 the appeal to the adjudicator was adjourned so that an application could be made to the Secretary of State to reconsider the matter in the light of the change in the applicants' circumstances, namely the fact that the husband had ceased work, and on 14 April the applicants' solicitors wrote to the Secretary of State asking for the matter to be reconsidered. On 5 June the Secretary of State refused the application on the ground that he was not satisfied that the applicants were 'wholly or mainly dependent' on the daughter with whom they were living or that the applicants were 'without other close relatives in their own country to turn to', as required by para 48 of the Statement of Changes in Immigration Rules. On 6 October the applicants' appeal was heard and dismissed by an adjudicator, who held that any change occurring in the applicants' circumstances after 12 March 1980 when the Secretary of State initially refused their application was irrelevant to the appeal. The applicants' appeal to the Immigration Appeal Tribunal was also dismissed. The applicants applied for orders of certiorari to quash the decision of the Secretary of State on 5 June, and the decisions of the adjudicator and the appeal tribunal, contending, inter alia, (i) that the decisions of the Secretary of State on 12 March 1980 and 5 June 1981 were effectively a single decision and that therefore the adjudicator should have taken into account all relevant facts, including the change in the applicants' circumstances, occurring up to 5 June 1981, (ii) that 'dependence' under the rules meant not merely financial dependence but also emotional dependence and that that had not been taken into account, (iii) that the Secretary of State had misinterpreted the phrase 'close relatives in their own country to turn to' in para 48 of the immigration rules, and (iv) that although the husband was still employed on 12 March 1980 nevertheless it was foreseeable at that date that he was likely to cease employment in the near future and therefore the adjudicator and the Secretary of State should have taken that into account in reaching their decision. Held -- (1) The letter of 14 April 1981 from the applicants' solicitors to the Secretary of State was a second or fresh application by the applicants to remain in the United Kingdom and not merely a continuation of the original application made on 12 March 1980. It followed that (a) because s 14 of the Immigration Act 1971 only permitted an appeal to be made to an adjudicator and the Immigration Appeal Tribunal against the Secretary of State's refusal of an application to remain if the application was received during the period of the applicants' permitted stay, the applicants had no right of appeal against the Secretary of State's decision of 5 June 1981, since the application of 14 April 1981 was made after the applicants' permission to stay had expired on 9 April 1980, and (b) the adjudicator and the tribunal were right to refuse to take into account any facts or change of circumstances arising after the date of the Secretary of State's original decision on 12 March 1980 (see p 848 h to p 849 b, p 850 c d and p 852 a b, post) R v Immigration Appeal Tribunal, ex p Kotecha [1983] 2 All ER 289 applied. (2) The requirement in para 48 of the immigration rules that the applicants were 'wholly or mainly dependent' on children settled in the United Kingdom referred primarily to financial dependence, although if there was any doubt regarding their financial dependence other types of dependence (such as emotional dependence) might also be relevant and might tip the balance in favour of permission to stay being granted. However, emotional dependence required more than the normal love and affection of a united family if it was to be relevant. The adjudicator and the tribunal had been entitled to take the view that since the applicants had each other to depend on there was nothing in the nature of emotional dependence on their children beyond the normal desire to be near them. Accordingly, the adjudicator and the tribunal had not been in error in not taking into account the applicants' emotional dependence on their children, and certiorari to quash their decisions would therefore be refused (see p 851 b to g, post). (3) Although the Secretary of State's decision of 5 June 1981 was completely discretionary (since the application of 14 April 1981 had been made after the applicants' permission to stay had expired), nevertheless, having regard to the reasons given by the Secretary of State, his decision was reviewable under the normal principles governing judicial review. In particular, (a) the phrase 'other close relatives in their own country to turn to' in para 48 of the immigration rules meant a relative who had the ability to provide some assistance to the applicants by way of providing a home or financial support such that it was reasonable to expect the applicants to depend on that relative rather than on a child or children in the United Kingdom, and it was not clear that the Secretary of State had regarded the phrase in that way, and (b) in deciding that he was not satisfied that the applicants were wholly or mainly dependent on their children in the United Kingdom the Secretary of State had failed to take into account the material consideration that by 14 April the applicants had become almost wholly financially dependent on their daughter because the husband had ceased to work and they had virtually no income of their own. Accordingly, the Secretary of State's decision would be quashed and the application remitted to him for reconsideration (see p 852 d e j and p 853 d to j, post) Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 applied.Notes:
For the procedure in immigration appeals, see 4 Halsbury's Laws (4th edn) paras 1016--1026. For rules governing admission of dependants, see ibid paras 992, 995--996. For the Immigration Act 1971, s 14, see 41 Halsbury's Statutes (3rd edn) 35.Cases referred to in the Judgment:
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA. Patel (S N) v Entry Clearance Officer, Bombay (21 August 1975, unreported), Immigration Appeal Tribunal. R v Immigration Appeal Tribunal, ex p Kotecha [1983] 2 All ER 289, [1983] 1 WLR 487, CA. R v Immigration Appeal Tribunal, ex p Tong (1981) Times, 8 December. Sharma (Sushila) v Entry Clearance Officer, New Delhi (29 November 1973, unreported), Immigration Appeal Tribunal.Introduction:
Application for judicial review Swampillai Saverinuttu Bastiampillai and Ruby Benedicta Bastiampillai applied, with the leave of Stephen Brown J granted on 15 October 1982, for, inter alia, an order of certiorari to quash the determination of the adjudicator, E J T Housden Esq, dated 24 September 1981 dismissing the appeal of the applicants against the refusal of the Secretary of State for the Home Department to grant indefinite leave to the applicants to remain in the United Kingdom as dependent parents of their daughters settled in the United Kingdom, an order of certiorari to quash the determination of the Immigration Appeal Tribunal dated 14 May 1982 dismissing the applicants' appeal against the determination of the adjudicator, and an order of certiorari to quash the decision of the Secretary of State for the Home Department dated 5 June 1981 refusing to grant the applicants indefinite leave to remain as the dependent parents of their daughters settled in the United Kingdom. The facts are set out in the judgment.Counsel:
Ian Macdonald for the applicants. John Laws for the Secretary of State.Judgment-READ:
Cur adv vult 28 January. The following judgment was delivered.PANEL: GLIDEWELL J
Judgment One:
GLIDEWELL J. This is an application on behalf of Mr and Mrs Bastiampillai for judicial review. The application seeks three orders: first, an order of certiorari to quash a determination of an adjudicator, Mr Housden, of 24 September 1981 dismissing an appeal to him by the applicants against the refusal of the Secretary of State to grant indefinite leave for them to remain in the United Kingdom second, an order of certiorari to quash a determination of the immigration appeal tribunal dated 14 May 1982 dismissing an appeal by the applicants against the decision of the adjudicator to which I have just referred and, third, an order of certiorari to quash the decision of the Secretary of State himself dated 5 June 1981 refusing to grant the applicants indefinite leave to remain in the United Kingdom. The applicants, Mr and Mrs Bastiampillai are citizens of Sri Lanka. Mr Bastiampillai is now 69 years of age and his wife is just 58. He came to the United Kingdom in 1973 and she came, I think, two or three years later. In 1976 Mr Bastiampillai was granted a work permit to work as a trainee accountant. That permit and consent for him to stay in the United Kingdom were renewed from time to time until 1979. The consent to stay in the United Kingdom expired on 1 June 1979. According to the applicant (and I shall refer to Mr Bastiampillai as the applicant because in essence the whole of this matter depends on his position) when he first came to this country he intended at the end of his period as a trainee accountant to return to Sri Lanka. However, between the time he arrived and 1979 all three children of these two applicants had come to the United Kingdom and all three of them are now settled in the United Kingdom. Bernadette, who is now Mrs Weerasinghe, came here in 1974. Chrisantas, who is the youngest of the three, came here in 1977. Aimee, who is Mrs Sukumar, came here in 1979. On 31 May 1979 the applicant wrote to the Under Secretary of State for the Home Office applying for the time limit on the stay in this country of himself and his wife to be removed. The basis of the application was that they were living by that time with Bernadette (Mrs Weerasinghe) and her husband, that they were to a large extent dependent on her and that they wished to be allowed to remain in that capacity. The effect of the Immigration (Variation of Leave) Order 1976, SI 1976/1572, is that permission for the applicants to stay in the United Kingdom did not expire as it would otherwise have done on 1 June, but was extended as a result of that application being made until the Secretary of State made his decision on it and for a further 28 days thereafter. The Secretary of State duly made his decision, which was to refuse the application, on 12 March 1980. The 28 days thereafter and thus the permission for the applicants to stay in the United Kingdom therefore expired on 9 April 1980. But in the mean time, on 25 March 1980, notice of appeal to the adjudicator against that decision had been entered under s 14 of the Immigration Act 1971. Again, as a result of the entry of that appeal, they lawfully remained in this country while that appeal was current. As I have already said, at the time of the Secretary of State's decision (that is to say on 12 March 1980) the applicants were living at the home of their daughter Bernadette Weerasinghe and her husband. At that time Mr Bastiampillai was working and he was earning about @1,800 per annum. He also had a very small pension from Sri Lanka. The evidence is that they were living free of charge with their daughter and from time to time both she and the other daughter gave them occasional gifts of money or clothes or other items. However, although he was actually working in March 1980, in the previous month, February 1980, the Department of Employment had made it clear that it did not intend to renew his work permit. As a result of that and also, I take it, as a result of receiving the Home Office decision not to remove the conditions so that he could stay indefinitely, Mr Bastiampillai ceased work on 30 March 1980. He has not been in paid employment, nor has he had any earnings, since that time. His only income since then has been the very small pension from Sri Lanka. A year later, on 25 March 1981, the appeal came on for hearing before the adjudicator. An application was made for an adjournment so that an approach could be made to the Secretary of State to reconsider the matter, because of the change of circumstances since 12 March 1980, that is to say the fact that Mr Bastiampillai had ceased work. That application for an adjournment was granted. On 14 April 1981 solicitors on behalf of the applicant wrote to the under Secretary of State at the Home Office saying:'We are now writing to you, as promised in an earlier letter, with the detailed background of our application for reconsideration of your decision dated 12th March, 1980, in the light of the change of circumstances which has taken place since then.'
It then sets out both the facts to which I have shortly referred and also argument whether or not the applicants' circumstances fell within certain rules in the Statement of Immigration Rules for the Control on Entry: Commonwealth Citizens (HC Paper (1972--73) no 79). On 5 June 1981 the Secretary of State, having considered the application in that letter of 14 April, refused it. In doing so he said:'Messrs Bates, Wells and Braithwaite [who of course were the solicitors to whom I have referred] have applied on your behalf for indefinite leave to remain in the United Kingdom as the dependant parents of Mr and Mrs Weerasinghe, but the Secretary of State is not satisfied that you are wholly or mainly dependant on Mr and Mrs Weerasinghe nor without close relatives in Sri Lanka to turn to. Furthermore, the Secretary of State is not satisfied that you have honoured a written undertaking to leave the United Kingdom on completion of your accountacy training given in obtaining leave to remain.'
Following that, on 2 July 1981, the Home Office issued a document described as a supplementary statement to the statement dated 24 November 1980, which was the statement which the Home Office originally served in relation to the appeal against the decision of March 1980. In that statement there is set out the fact that that appeal was adjourned so that the applicants' solicitors could submit a fresh application on their behalf in view of their changed circumstances and there is shortly set out the Secretary of State's decision on the later application in the terms to which I have just referred. On 6 October 1981 the appeal came on for hearing before the adjudicator, Mr Housden, and he dismissed the appeal. During the course of the hearing there was discussion of the question of whether or not the adjudicator should take into account the facts relating to what had happened after 12 March 1980, that is to say the change of circumstances. The adjudicator set out the position as at 12 March 1980 and said: 'I have to take the facts as they existed on 12 March 1980.' He then went on to recite certain facts shortly as I have done. He concluded that on the income which Mr Bastiampillai then had he would not necessarily have been wholly or mainly dependent on any or all of this children in the United Kingdom and thus would not meet the fundamental requirement of para 45 of Statement of Immigration Rules for Control after Entry (HC Paper (1972--73) no 80), the rule relating to dependent parents. He then went on to say:'I accept that after Mr Bastiampillai ceased working for A Maslow & Co he became dependent on his United Kingdom resident daughter, with whom he and his wife have been living for several years without having to contribute to the household expenses.'
I interpolate, that, although he did not use the words 'wholly or mainly dependent' in that paragraph, I think it is quite apparent that he meant wholly or nearly wholly. He then said that, for the reasons he had given, the decision of the Secretary of State was in accordance with the law and the immigration rules and he dismissed the appeal. That is not the end of the matter, because he went on: 'Mr Birtles [who appeared for the applicants before the adjudicator] has asked me to make a recommendation to the Secretary of State for the exercise of his discretion outside the rules, so as to enable Mr and Mrs Bastiampillai to remain in the United Kingdom with their children.' He considered the matter and decided the circumstances did not warrant him making such a recommendation. Against that decision the applicants appealed. The Immigration Appeal Tribunal dealt with the matter on 14 May 1982, when they were represented by Mr Macdonald, who had not represented them before the adjudicator. Despite the arguments that he presented, the Immigration Appeal Tribunal again dismissed the appeal to them. I note two points at this stage. There is no right of appeal against the Secretary of State's decision of 5 June 1981. The reason for that is that under s 14 of the Immigration Act 1971 an appeal to an adjudicator, and then if necesary a further appeal to the Immigration Appeal Tribunal, may only be made against the refusal of an application which is received during the period of the applicant's permitted stay. The decision of 12 March 1980 satisfies that requirement, because the application was made before the expiry of the permitted stay on 1 June 1979. But, if the application contained in the solicitor's letter of 14 April 1981 was a fresh or second application, then the permitted stay which had been extended as a result of the effect of the Immigration (Variation of Leave) Order 1976 had nevertheless long since expired, namely on 9 April 1980. So, if that was a new application, no appeal lay under s 14 of the 1971 Act against the refusal of it. The second point is that the refusal of both the adjudicator and the tribunal to base their decision on facts arising after the date of the Secretary of State's original decision of 12 March 1980 was in my view entirely correct. The authority for that proposition is the recent decision of the Court of Appeal in R v Immigration Appeal Tribunal, ex p Kotecha [1983] 2 All ER 289, [1983] 1 WLR 487, which is an appeal against a decision of my own. To the general rule that appeals to adjudicators and the Immigration Appeal Tribunal may only relate to the facts existing at the time of the decision appealed against there is one gloss to which I will refer later, because it forms part of another argument of counsel for the applicants. But, with the exception of that gloss, Kotecha's case is clear authority for the general principle and there is no doubt at all that it applies to the facts of this case. I turn therefore to the relevant rules for control of immigration. In relation to the decision of the Secretary of State of March 1980, the rules in force were contained in the Statements of Immigration Rules for Control on and after Entry: Commonwealth Citizens (HC Paper (1972--73) nos 79 and 80), which I shall refer to as HC 79 and HC 80. HC 80 dealt with control after entry and HC 79 with control on entry. Paragraph 28 of HC 80 reads, so far as is relevant:'When a person who is admitted in the first instance for a limited period has remained here for 4 years in approved employment . . . the time limit on his stay may be removed. Applications for removal of the time limit are to be considered in the light of all the relevant circumstances, including those set out in paragraph 4 . . . Applications for variation of leave to enter with a view to settlement may also be received from people originally admitted as, for example, visitors but permission has to be limited to close relatives of people already accepted for settlement. Particulars are set out in paragraphs 39--46 of the Rules for Control of Entry dated January 1973 (HC79).'
So one turns back to HC 79 and the rule which is relevant here is para 45 which reads:'. . . parents travelling together of whom at least one is aged 65 or over [which of course was the case here, because Mr Bastiampillai was 67 in 1980] should be admitted for settlement if wholly or mainly dependent upon children settled in the United Kingdom who have the means to support their parents and any other relatives who would be admissible as their dependants and adequate accommodation for them . . .'
There is no issue here about any other relatives being admissible as dependants, because all the three children are grown up and all are settled here. There is no doubt the Weerasinghes have adequate accommodation, there is no doubt the Weerasinghes have the means to support Mrs Weerasinghe's parents, so the issue was: were the applicants wholly or mainly dependent on Mr and Mrs Weerasinghe? By the time of the Secretary of State's further decision of 5 June 1981, whatever the nature of it for the moment, HC 79 and HC 80 had been replaced by the Statement of Changes in Immigration Rules (HC Paper (1979--80) no 394 (HC 394)). That contains paragraphs in similar but not identical terms to those to which I have referred. The equivalent of para 28 of HC 80 is para 119 of HC 394, but I detect no material difference between those paragraphs. The equivalent of para 45 of HC 79 is para 48 of HC 394, which starts off in the same way, that is to say:'. . . parents travelling together of whom at least one is aged 65 or over should be admitted for settlement only where the requirements of paragraphs 42 and 43 and the following conditions are met. They must be wholly or mainly dependent upon sons or daughters settled in the United Kingdom who have the means to maintain their parents and any other relatives who would be admissible as dependants of the parents, and adequate accommodation for them . . .'
So far it is the same, but then there is another sentence which is new in HC 394: 'They must also be without other close relatives in their own country to turn to.'
I turn to the arguments of counsel for the applicants. I would like to say that, though I have not found this an easy case, my task has been much assisted by the clarity and cogency with which both counsel advanced their arguments. The first argument of counsel for the applicants is that the decisions of the Home Office of 12 March 1980 and 5 June 1981 were effectively all one decision and that when the appeal to the adjudicator came before him, that is to say on 25 March 1981, it was an appeal against that combined decision. Thus, said counsel, the adjudicator should have taken account of all the facts up to 5 June 1981, establishing the major fact that Mr Bastiampallai was no longer in employment and was no longer in receipt of a salary. He put it in this way: where an appeal is adjourned to enable the Secretary of State to consider new circumstances and the Secretary of State makes a further decision and issues a supplemental statement the further decision is in issue in the appeal and evidence of facts up to the date of the further decision are relevant and admissible. I say at once in relation to that submission, as I indicated at the end of his argument before I asked counsel for the Secretary of State to address me, on that I am against him. In my view the adjournment was requested and was granted so that a new application could be made for a fresh decision to be made, that is a second decision by the Secretary of State. If that decision on the new facts had been in Mr Bastiampillai's favour, then it would of course have been unnecessary to proceed with the appeal. The fact on which counsel for the applicants places reliance, that the Home Office issued a supplemental explanatory statement, is in my view merely an explanation of the second decision. Counsel did place before me copies of two decisions of the Immigration Appeal Tribunal in Sushila Sharma v Entry Clearance Officer, New Dehli (29 November 1973, unreported) and S N Patel v Entry Clearance Officer, Bombay (21 August 1975, unreported). I mention them only to say that they seem to me not to be in point, because they were both dealing with second applications which had been made in time while the applicants were still permitted to be in the United Kingdom, so that appeals were laid properly against the second application. That of course is a very different situation from that which arises here. I therefore come to the second argument of counsel for the applicants. The issue is whether on 12 March 1980 when the Secretary of State made his first decision there was material on which he could properly conclude that the applicants were not wholly or mainly dependent on their daughter, Mrs Weerasinghe. The real issue was whether they were mainly dependent, because clearly they were not wholly dependent since at that time Mr Bastiampillai had an income. Counsel for the applicants advances two arguments in relation to this matter. The first is that dependence within the rule includes not merely financial dependence, but what has been called emotional dependence. The way he put it was that financial dependence must be the primary matter to be considered, but in a particular case where there is also emotional dependence that may tip the scale in favour of the applicants. In this case, the adjudicator said nothing at all about any question of emotional dependence and thus did not take account of all the relevant considerations. The second point is that, albeit Mr Bastiampillai was still in employment on 12 March 1980, nevertheless at that date the facts which then existed were such that anybody could have anticipated and should have anticipated that he was likely to cease employment in the very near future and that is a matter which the Secretary of State in the first place and then the adjudicator should have taken into account. In relation to that matter, he referred to another decision of mine, R v Immigration Appeal Tribunal, ex p Tong (1981) Times, 8 December. That was a case in which, in order to determine whether it was reasonably likely that a business in which the applicant was engaged would provide sufficient funds to support him, it was necessary at the time of the Secretary of State's decision to make some prognostication about the likely future success or failure of that business. Putting it quite shortly, I took the view that in such circumstances the Secretary of State was entitled or obliged, so to speak, to look forward for a purpose such as that. The issue therefore on that second argument is whether that sort of consideration applies in a case such as the present. The third argument of counsel for the applicants, if he fails on the second one, relates to the Secretary of State's second decision (as I have found it was) of 5 June 1981. Counsel argues, on Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, that the Secretary of State has failed to take account of a relevant consideration in that later decision, namely the fact that by that time Mr Bastiampillai had ceased work and had almost no income. Counsel, secondly, submits that the Secretary of State has misdirected himself as to the meaning of the words 'other close relatives . . . to turn to' in para 48 of HC 394. Counsel for the Secretary of State, in relation to the second argument, agrees that in appropriate circumstances it was right for the Secretary of State, and thus an adjudicator on appeal, to take emotional dependence into account. But he says that it is very much a subsidiary matter, that is to say subsidiary to financial dependence. The rule, he argues, is essentially concerned with persons likely to be financially dependent and if emotional dependence is to be taken into account it must mean something more than ordinary family affection. With that I agree. In my judgment, reference to dependence of parents on their children primarily means financial dependence. But I can see that, if the Secretary of State, or the adjudicator on appeal, is in doubt whether an applicant is mainly dependent on a child financially, then other types of dependence may become relevant and may tip the balance. I agree with counsel for the Secretary of State that the normal love and affection of a united family is not of itself such emotional dependence. It needs more than that. For instance, and of course this is not comprehensive, suppose one has a lady who has recently been widowed, who has an adult son or daughter who has been living close to her and that adult son or daughter comes to the United Kingdom, then there might well be said in those circumstances to be emotional dependence, because the lady would have been bereft not merely of her husband, but also of the child to whom she would normally have turned for support other than financial support. If in addition she was in part dependent on that child for financial support then the emotional dependence in such circumstances might tip the scale in the decision whether or not she was mainly dependent. But it seems to me that the adjudicator was perfectly entitled to take the view that the Bastiampillai family is a good example of a happy united family, and that, since the applicants have each other to depend on and are both, one hopes, in good health, there is nothing in the nature of emotional dependence on their children, albeit one can well understand their desire to be near their children, a perfectly normal human desire which all of us have as we get older. Accordingly, in my judgment, the adjudicator was not in error in not referring to this matter in dealing with the appeal. As to the second argument on this aspect of the case, whether at 12 March 1980 the Secretary of State should have looked forward and anticipated that Mr Bastiampillai was likely to lose his job, I quote a few words of what I said in Tong's case. They are set out in, and I am reading them from, the judgment of Lord Lane CJ in the Court of Appeal in Kotechacase [1983] 2 All ER 289 at 292, [1983] 1 WLR 487 at 4591, to which I have already referred. I said that one of the subsidiary points was that--'the adjudicator was obliged to look at the position as it was in May 1978, at the time of the notice of refusal, and in so far as he was entitled to look at anything that had happened since he was only entitled to do so as a guide to what could have been expected to happen viewed from the standpoint of May 1978. In other words, what has actually happened is to be taken into account in deciding what, had one been looking forward from two years back, would have been likely to happen. That, I think, is right.'
Lord Lane CJ, giving the judgment in Kotecha's case [1983] 2 All ER 289 at 293, [1983] 1 WLR 487 at 492, with which the other two members of the court agreed, said:'What that case [another case] and the earlier case of R v Immigration Appeal Tribunal, ex p Tong (1981) Times, 8 December seem to decide is this, that the situation may be different where the original decision involves making an inspired guess as to the future prospects of, for example, a business. It may be that within a very limited sphere it is proper in these limited circumstances to have regard to what happened subsequent to the original hearing. That is, as I say, very far from the present case.'
Coming back to this case, it is in my view far from this case too. I do not accept that there was any obligation on the Secretary of State to look forward or take into account facts which had not actually arisen at 12 March 1980, and there was no obligation on the adjudicator to take into account any other facts. In those respects, in my view the decision of the adjudicator and the Immigration Appeal Tribunal was entirely correct and the first two applications therefore fail. That brings me to the third application which relates to the Secretary of State's decision of 5 June 1981, which, as I have already said, falls to be treated as a separate decision. Counsel for the Secretary of State argues that although that decision is framed, that is to say worded, as though it was a decision made within the immigration rules, when one considers the matter in detail, that was not so. I go back to the letter of application of the applicants' solicitors of 14 April 1981. That application was specifically said to be pursuant to para 48 of HC 394. But counsel's point is that when one looks at the first paragraph in HC 394 to which one has to go, namely para 119, one finds that since the application was made after the permission to enter had expired, para 119 does not apply, because an application for removal of a time limit can only be made if it is made within the currency of the permission to enter, the point I have already referred to. Thus, says counsel for the Secretary of State, at the time of the further application of 14 April 1981 this applicant could not bring himself within paras 119 and 48 of HC 394. All he could do was to ask the Secretary of State to exercise his discretion generally. So far I agree with counsel for the Secretary of State. It is, however, right to say that when the Secretary of State came to deal with it, and I have set out the terms on which he dealt with it on 5 June 1981, the words used were words taken from para 48 of HC 394. That is relevant to the second point of counsel for the Secretary of State, which is that a decision of the Secretary of State in those circumstances is wholly a matter for his discretion and it is itself a matter which counsel submits either is not reviewable at all or is only reviewable within very limited circumstances. If the circumstances are limited, counsel submits that the normal Wednesbury principles do not apply, although I must confess I found him at this stage of his argument lacking in his usual clarity when he came to say in what respects the Wednesbury principles did not apply. In my judgment, the extent to which such a decision, that is to say a decision of the Secretary of State made wholly within his discretion, is reviewable depends on the nature of the decision itself. In many cases such a decision may not be reviewable by the courts at all. For example, if the Secretary of State is asked to exercise his discretion on compassionate grounds and decides that the grounds are not sufficiently compelling of themselves that is wholly a matter of factual discretion and there is nothing that this court could in my view properly grasp as a reason for saying that he had not taken into account the right factors. In this case what the Secretary of State has in effect done in his decision of 5 June 1981 is to indicate the matters he is taking into account. I will read them again, because there are three and I am adding numbers this time: (1) 'the Secretary of State is not satisfied that you are wholly or mainly dependant on Mr and Mrs Weerasinghe' (2) 'nor [that you are] without close relatives in Sri Lanka to turn to' (3) 'Furthermore, the Secretary of State is not satisfied that you have honoured a written undertaking to leave the United Kingdom on completion of your accountancy training given on obtaining leave to remain.' The first two points are direct quotations from para 48 of HC Paper (1979--80) no 394. In my view, because the Secretary of State has thought it right to give those reasons, in relation to those reasons this decision is reviewable on normal Wednesbury principles and I therefore turn to carry out that exercise shortly. I propose to deal with the reasons in the reverse order to that in which they are set out. It is accepted, because it is a clear fact, that Mr Bastiampillai has not left the United Kingdom and that when he originally arrived he gave an undertaking to leave at the completion of his accountancy training, I think not when he originally arrived, but back in 1976. He, of course, says: 'I gave that undertaking, but as a result of my children being settled here I applied to have the limitations on my stay removed. In effect what I have asked the Secretary of State to do is to release me from my undertaking.' The fact that he has not carried out the undertaking could be relevant, in two ways. If it were decided that he never intended to leave and thus that he was being untruthful and fraudulent when he gave the undertaking, clearly that would be a ground for refusal of the exercise of further discretion in his favour, because anybody who is going to seek the Secretary of State's discretion must at all times have approached the matter truthfully and honestly. But that is not suggested here. If, as is apparently accepted, he honestly did intend to leave, then in my view the relevance (and it is relevant) is that the applicant, albeit he is still in this country, is to be treated as if he had left and was seeking entry from outside the country under para 48 of HC 394. In itself that is not conclusive against the applicant. Secondly, 'close relatives . . . to turn to'. The phrase 'to turn to', apart from not coming very well at the end of the sentence (but that is a criticism of the grammar rather than anything else)' obviously qualifies 'close relatives'. Counsel for the Secretary of State suggests that in this matter the test to apply is: was there a person to whom the applicant might reasonably look for some measure of aid and support? Counsel for the applicants accepted that that was a proper test. I agree that a close relative to turn to need not be a relative who is equally able and equally willing to maintain the applicant as is the child who is in this country. But a close relative to turn to must mean a relative who has the ability to provide some assistance to the applicant by way of providing either a home or financial support so as to make it reasonable to expect the applicant to depend on that relative rather than on his child or children in the United Kingdom. It is not clear whether the Secretary of State regarded the phrase in that way. I cannot say he did not, but it is not clear whether he did. Finally, 'the Secretary of State is not satisfied that you are wholly or mainly dependant on Mr and Mrs Weerasinghe'. I find it difficult to see how the Secretary of State arrived at that decision in 1981, for this purpose thinking only of financial dependence. The applicants, by 1981, were (and still are of course) wholly financially dependent on Mr and Mrs Weerasinghe. They were not only living rent-free with them, but they had no income of their own, save for the very small pension of about @70 a year or something of that nature from Sri Lanka. Counsel for the Secretary of State did not advance any argument on this point. It seems to me that I am justified here in saying that the Secretary of State has overlooked the material consideration, that is to say the change of circumstances in March 1980, when the applicant ceased work. Counsel for the Secretary of State argues that, even if he fails on that particular aspect of the matter, in order to be allowed to stay the applicant had to satisfy all three tests and that it has only been shown that the Secretary of State was wrong in relation to one aspect. I cannot say what the Secretary of State's decision would have been if he had taken a different view of the first point, the financial dependence. Accordingly, though of course it does not mean that Mr and Mrs Bastiampillai are necessarily going to get a decision in their favour in the end, I think it right to send this matter back again to the Secretary of State for him to reconsider. If, despite having it back again, he says, 'I have taken into account all the relevant matters and I still decide that I am not going to exercise my discretion in his favour,' that is a matter for him, but I have concluded that he should have it back, because I believe that he discounted the change of circumstances after 12 March 1980. Accordingly, on that limited ground, the application on the third point succeeds and I quash the Secretary of State's decision of 5 June 1981.DISPOSITION:
Application allowed.SOLICITORS:
Bates Wells & Braithwaite (for the applicants); Treasury Solicitor.Copyright notice: Crown Copyright
