ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE MITTING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
LORD JUSTICE SALES
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Neil Sheldon (instructed by Government Legal Department) for the Respondent
Hearing dates: 3 & 4 May 2017
Crown Copyright ©
Sir Terence Etherton, MR:
The statutory framework and the new ADR Rules
"1. General principles.
(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.
(4) .The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
"3. General provisions for regulation and control.
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality)."
"E-ECDR.2.1. The applicant must be the-
(a) parent aged 18 years or over;
(c) brother or sister aged 18 years or over; or
(d) son or daughter aged 18 years or over,
of a person ('the sponsor') who is in the UK.
E-ECDR.2.3. The sponsor must at the date of application be-
(a) aged 18 years or over; and
(i) a British Citizen in the UK; or
(ii) present and settled in the UK; or
(iii) in the UK with refugee leave or humanitarian protection.
E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-
(a) it is not available and there is no person in that country who can reasonably provide it;
(b) it is not affordable."
"2.2.2 Unable to receive the required level of care in the country where they are living
The ECO [Entry Clearance Officer] needs to establish that the applicant has no access to the required level of care in the country where they are living, even with the practical and financial help of the sponsor in the UK. This could be because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable. The evidence required to establish this is set out below. If the required level of care is available or affordable, the application should be refused.
2.2.3 No person in the country who can reasonably provide care
The ECO should consider whether there is anyone in the country where the applicant is living who can reasonably provide the required level of care.
This can be a close family member:
or another person who can provide care, e.g. a home-help, housekeeper, nurse, carer, or care or nursing home.
If an applicant has more than one close relative in the country where they are living, those relatives may be able to pool resources to provide the required care.
The ECO should bear in mind any relevant cultural factors, such as in countries where women are unlikely to be able to provide such support."
The background to the new ADR Rules
"Adult Dependent Relatives.
118. The new Immigration Rules will change the basis on which non-EEA adult dependent relatives can settle in the UK, in view of the significant NHS and social care costs to which these cases can give rise.
121. We will end the routine expectation of settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here. Non-EEA adult dependent relatives will only be able to settle in the UK if they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds.
122. In particular, this will mean:
The applicant must, as a result of age, illness or disability, require long-term personal care: that is help performing everyday tasks, e.g. washing, dressing and cooking;
The applicant must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable there.
The entry clearance officer must be satisfied that the applicant will be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds."
"To the extent any indirect discrimination is not mitigated by the detail of the changes, it is proportionate to achieving the policy objectives, given the NHS and social care costs which can be associated with these cases. For example, based on Department of Health calculations, a person who lives until their 85th birthday can be expected to cost the NHS almost £150,000, with more than 50 per cent of these costs arising between the ages of 65 and 85".
The proceedings and the judgment of Mitting J
"(1) Failing to find that the Respondent had exercised her powers under the Immigration Act ["the 1971 Act"] not for the purpose of promoting the object and policy of the statute but rather in the overriding pursuit of different non-statutory objectives namely the reduction of costs to the National Health Service (the Padfield Ground).
(2) Failing to find that the Immigration Rule in issue operates in a self-defeating and partial way, is irrational and thus unlawful; and/or
(3) Failing to find that the Immigration Rule in issue is incompatible with Article 8 ECHR and as such falls either to be quashed, or that a declaration should be made as to its non-conformity with Article 8."
Ultra vires the Padfield ground
"I must stress that the Bill will not affect the lives of people already here for permanent settlement. They will be able to continue to live and work here and to bring in their dependants as at present."
"Section 1(4) states that the rules laid down by the Secretary of State shall include provision for admitting persons coming for the purpose of taking employment, or for purposes of study, or as visitors or as dependants of persons lawfully in or entering the United Kingdom. It is implicit in the wording of this subsection that, in the case of the persons described, the Secretary of State is obliged to lay down rules "as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode". It cannot have been the intention of Parliament to leave it entirely to the discretion of the Secretary of State to decide whether to lay down any rules as to her practice, insisting only that, if she decided to do so, the rules should include provision for admitting the classes of person identified in the subsection. If that had been the intention of Parliament, the 1971 Act would have made it clear that the Secretary of State had a power (but not a duty) to lay down rules of practice, but it did not do so."
Manshoora Begum unreasonableness
" singularly unlikely to comply with the requirement [contained in the Rules] that their actual standard of living is substantially below that of their own country. Thus the rule is a snare and a delusion, a pretence which raises expectations without there being any real possibility of fulfilling them."
"I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'."
"I see no possible basis in sense or justice for a requirement which will automatically disqualify from admission under the rule virtually all those from the poorer countries of the world, irrespective of whatever exceptional compassionate circumstances may surround their case, and yet allow most dependants from more affluent countries to be considered on general compassionate grounds. Whether, moreover, one is considering the application of the rule to dependants living in rich or poor countries, I regard it as manifestly unjust that however extreme may be the compassionate circumstance of the case a dependant is barred from admission under the rule unless only his or her sponsor (who, of course, equally seeks their admission) cannot afford to send abroad enough money to raise the dependant's standard of living to above that where it still remains substantially below the general standard of living in that country, but yet has enough (presumably, only just enough) to maintain the dependant were he or she to be admitted for settlement here. All other dependants, namely those whose sponsors are able to afford to send them enough money that they may live above a substantially sub-standard level, are doomed to fail in their applications for leave. To them and their sponsors the rule is indeed but a mirage. In my judgment, it is unreasonable in the narrow sense indicated in Kruse v Johnson, and thus ultra vires the enabling statutory power."
Manshoora Begum unreasonableness.
"Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant."
Ms Lieven also referred to a number of other cases, including Singh and Singh v Secretary of State for the Home Department  EWCA Civ 630,  Imm AR 1, and PT (Sri Lanka) v Entry Clearance Officer Chennai  EWCA Civ 612, but they do not take the legal principles any further.
Lord Justice Davis:
Lord Justice Sales: