England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Stanley Burton)

		Royal Courts of Justice Strand London WC2 Friday 15 June 2001

Friday 15 June 2001

1. LORD JUSTICE DYSON: In these proceedings the applicant challenges the decision by the Immigration Appeal Tribunal of 17 May 2000 to refuse her permission to appeal against the decision of the adjudicator of 29 March 2000, which had dismissed her appeal against the refusal by the Secretary of State of her application for indefinite leave to enter the United Kingdom under rule 317 of the Immigration Rules. Stanley Burnton J dismissed the application for judicial review of the Tribunal's decision. She now seeks permission to appeal his decision.
2. So far as relevant, rule 317 provides:

"The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:

(i) is related to a person present and settled in the United Kingdom in one of the following ways:

. . .

(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom".

3. The appellant was born in 1971. Her mother (whom I will call "the sponsor") was born in Uganda. She was a voucher-holding British Overseas Citizen who now lives in the United Kingdom. At the date of application for indefinite leave to enter, the appellant was over the age of 18. Her application was rejected by the entry clearance officer in Bombay on the grounds, amongst others, that he was not satisfied that she was living alone outside the United Kingdom in the most exceptional compassionate circumstances.
4. On her appeal to the adjudicator, the evidence on behalf of the appellant was given by the sponsor. The essential findings of the adjudicator included the following:

"From the record of the sponsor's interview in 1986, it appears clear that she stated that the appellant worked. She now says that she was speaking about another daughter. I do not accept this. There is a series of questions which are concerned with the appellant. There is no reason whatever for the sponsor to have supposed that anyone else was being referred to. Moreover, the sponsor said, at the hearing of a previous appeal, that the appellant worked. I am consequently unable to accept her as wholly credible. It is probable that the appellant is not in good financial circumstances. She is receiving some money from abroad. I am prepared to accept that she is mainly dependent upon this money and thus on her relatives in the United Kingdom. She lives alone. Her sister died suddenly. I have no doubt that these are circumstances which can be described as 'compassionate'. However, she has to show that she is living in circumstances which can reasonably be called 'most exceptional compassionate circumstances'. I take account of the fact that she receives money from the United Kingdom. I do not find that the evidence is such that she meets the stringent requirements of the rule."

5. The tribunal refused permission to appeal on the basis that the adjudicator "quite properly did not find that [the claimant's] circumstances were most exceptional compassionate circumstances."
6. On behalf of the applicant, Mr Juss advances a number of grounds in his skeleton argument, but he has concentrated on two before us in his oral address this morning. I shall deal with the grounds in the skeleton argument very briefly. There is, first, a complaint that the determination by the adjudicator contained a number of flaws. First, that the adjudicator referred to the record of the sponsor's interview in 1996, but made no reference to the record of the appellant's interview in 1996. But in my judgment there was no relevant statement in the notes of the appellant's interview which did not also appear in the notes of the sponsor's interview. It was entirely reasonable that the adjudicator should refer only to the interview by the sponsor.
7. Next, the adjudicator is said to have wrongly concluded, on the basis of the sponsor's evidence, that the appellant had worked when it disclosed that had she had worked only intermittently. It is true that the sponsor said the appellant worked at part-time jobs for a few months at a time. There is no reason to suppose that the adjudicator was not alive to this point when reaching his conclusion.
8. The next point is that the sponsor said that the claimant lived alone, was very scared, had lost weight and cried a lot, and yet the adjudicator failed to make any reference to this evidence. This is true but again, in my judgment there is no reason to suppose that the adjudicator did not take this into account. I agree with the judge that in the absence of a medical report the adjudicator was entitled to take the view that this evidence, even when taken in conjunction with the other evidence, did not amount to the most exceptional compassionate circumstances.
9. The next complaint is that the judge determined for himself whether the applicant lived alone in the most exceptional compassionate circumstances, when this was a matter not for him but for the adjudicator. I do not read his judgment in this way. In any event, it seems to me that the adjudicator did decide that the criteria specified in rule 317(i)(f) were not met, and he was fully entitled so to decide.
10. Another complaint is that the judge, referring as he did to the lack of medical evidence, was in error to do so. I do not agree. His reference to the lack of medical evidence was for the very limited purpose of considering the significance of the complaint that the adjudicator failed to refer to the evidence that the appellant was very scared and so on, and with that I have already dealt.
11. The next point, which is the one that has been developed most before us this morning, concerns the way that the judge dealt with the submission that rule 317(i)(f) was incompatible with article 8 of the European Convention on Human Rights; or, perhaps, at least that it would be so unless the phrase "the most exceptional circumstances" were given a benign and liberal interpretation. The judge referred to ex parte Mahmood [2001] 1 WLR 840 and to ex parte Isiko, an unreported decision of this court of 20 December 2000. Both of those are decisions on the policy document known as DP3/96, which sets out the policy of the Secretary of State in relation to the removal of persons who marry after the commencement of enforcement action to remove them as unlawful entrants. Suffice it to say that the Strasbourg jurisprudence, reviewed in detail by Lord Phillips, Master of the Rolls and summarised by him in Mahmood pages 858-861, shows that there is no conflict between DP3/96 and article 8. It is true that those cases were concerned with DP3/96 and not rule 317(i)(f), but in my judgment the principles applicable are the same. I do not accept that the fact that the sponsor is a voucher-holding British Overseas Citizen makes any difference to the interpretation or application of the rule.
12. Mr Juss in his skeleton argument submits that the closer analogy is with the very different rule 297(i)(e) of HC 395, and he refers to an authority on the interpretation of the phrase "sole responsibility" in that rule. I confess I have difficulty in understanding his submission, but it seems to me that it does not impugn in any way the decision of the judge. He also submits that a better analogy is provided by the case of Offen [2001] 1 WLR 253, but that was a case about the interpretation of "exceptional circumstances" in the context of wholly different legislation, concerned with sentencing in criminal cases.
13. I believe that I have dealt with all the points that Mr Juss seeks to advance. In my judgment, there is no substance in any of them and I would dismiss this application.
14. LORD JUSTICE SIMON BROWN: I agree. When initially I considered this application on the documents, I refused it in these terms:

"There is nothing in the proposed grounds of appeal which, indeed, to my mind are put absurdly high. It is impossible to contend that a BOC voucher-holding Sponsor in the UK 'is entitled without let or hindrance to have her dependent children join her here unless there are pressing reasons why they should not' or 'has the legal right. . . to be joined by her dependent family members from India.' If such dependants are over 18 (as this applicant is) then rule 317(i)(f) requires them to demonstrate 'the most exceptional compassionate circumstances' and this is the hurdle at which the applicant fell. There is no conflict between that rule and the Strasbourg jurisprudence on article 8 - see the Master of the Rolls' judgment in Mahmood [2001] 1 WLR 840 - and it is not for this court to substitute its view of the facts for those of the Adjudicator."

15. Nothing said to us by Mr Juss today has altered my view of the hopelessness of this application. Rather it has confirmed it. I am, indeed, somewhat surprised that it has been renewed. For the reasons more fully given by my Lord, it is refused.
ORDER: Application refused. Detailed assessment of the applicant's costs. (Order not part of approved judgment)