United Kingdom Asylum and Immigration Tribunal

JISCBAILII_CASE_IMMIGRATION

Zaman & Anor (Dependent parent) (Pakistan) [1973] UKIAT 00001

TH/2672/71

IMMIGRATION APPEAL TRIBUNAL

Date of hearing:

Date Determination notified: 21 March 1973

Before
Sir Derek Hilton (President), Major R. A. K. MacAllan, Sir Gordon Whitteridge
Between

 

MOHAMMAD ZAMAN AND ANOTHER	APPELLANT
and
ENTRY CERTIFICATE OFFICER, LAHORE	RESPONDENT

Vasu Dev of the United Kingdom Immigrants Advisory Service, for the appellants. R. W. B. Hurley for the respondent.
DETERMINATION AND REASONS

Dependent parent—Income from parent's farms distributed by custom to sons in Pakistan—Claim that mainly dependent on sponsoring son in United Kingdom because of this distribution—Whether "mainly dependent" implies necessarily so dependent—Cmnd 4298, para 42.

1. The purpose lying behind the provisions of para 42 of Cmnd 4298 was to enable widowed mothers and elderly parents (as therein defined) to join children settled in this country who were supporting them because the resources of the parents were insufficient to meet their own needs^[1]. To make a successful application for admission it must be shown, inter alia, that the parents were necessarily dependent on their children here either wholly or mainly.
2. The Tribunal, affirming the decision of an adjudicator that the main dependence referred to in para 42 of Cmnd 4298 meant a main and necessary dependence,¹ so held in a case in which the appellants, a father and mother both over 65 years of age, sought admission to the United Kingdom on the ground inter alia that they were mainly dependent on remittances from their sponsoring son here because by custom the father regularly distributed all the income from his two farms in Pakistan to three other sons in that country. On the facts (set out in the determination below) the payment made by the sponsoring son had not been shown to be necessary to the appellants, and furthermore there was no evidence to show that the appellents were to any extend physically or emotionally dependent on their sponsoring son.

Determination

3. The appeal was against the determination of an adjudicator (Mr W. M. McCall) dismissing the appeal of the appellants against the refusal to grant them entry certificates to enable them to join their son, Abdul Majeed (the sponsor) in the United Kingdom.
4. The appellants, Mr Mohammad Zaman and his wife Mrs Anwar Begum, who are stated to have been born on 3 June 1902 and 1 January 1903, are citizens of Pakistan. They applied for entry certificates at Lahore on 13 November 1970. After they had been interviewed the entry certificate officer referred the papers to the Home Office to enable further enquiries to be made of the sponsor, who was interviewed on 26 January 1971. Particulars given by the appellants and the sponsor are contained in the Home Office statement. For the reasons given the application was refused in the following terms:—

"You have applied for entry certificates to join your son Mr A. Majeed in the United Kingdom but the Secretary of State is not satisfied that you are so related: your statements about family matters differ in several important respects from statements Mr Majeed has made in answer to enquiries in the United Kingdom."

5. At the hearing of the appellants' appeal before the adjudicator evidence was given by the sponsor as to the payments he had made to his parents and concerning the two farms owned by his father, the income from which he said was distributed among his father's family in Pakistan by custom. The sponsor also stated that he had four brothers, one in this country and the others in Pakistan and explained that his father had in all probability said that he had two sons because he was referring only to his sons in the United Kingdom. In view of the evidence given by the sponsor it was submitted that the appellants were mainly dependent upon him.
6. The adjudicator dismissed the appeal. He accepted that the appellants were the parents of the sponsor and held that the only question for his determination was whether or not they were mainly dependent on the sponsor under para 42 of Cmnd 4298. He continued his determination as follows:—

"The evidence to support this is mainly given by Abdul Majeed. He says that for the past ten years he has been sending £250 per annum to the appellants from the United Kingdom. Later he says that he and his brother contribute 100 Rupees per month equally and that this is 5/8ths of the money necessary to maintain them. Whatever it is, neither of these figures of themselves provide an answer to the question of the extent of the appellants' dependence upon Abdul Majeed and his brother. The starting point to this particular question is the situation of the appellants themselves. But before even asking it I think it is necessary to ascertain what is meant by the word 'dependent'. It may well be that it does not mean financial dependence alone. It could include emotional or physical dependence. But in my opinion if such be the case then save in most exceptional circumstances such as, say, a medically retarded adult child, there must always be associated with such emotional or physical dependence an element of financial dependence as well. In this particular appeal I find that however great the desire of the appellants to see their sons here in England there is no emotional or physical dependence upon them. As I see it the question is whether or not the appellants are mainly financially dependent upon their sons here.

The first appellant's family in Pakistan consists of his wife, three sons, the eldest of whom is a qualified doctor, the second and third are in the Pakistan Army, one a commissioned officer and the other a private soldier. The first appellant owns two farms the income from which although it belongs to him he distributes amongst his three sons because, I am told, that is the custom. I am also told that the 3 sons also contribute to the support of the appellants and that were Adbul Majeed and his brother to withdraw their contribution the appellants would and presumably could maintain themselves by economising out of the contributions made by the other 3 brothers. Whatever the custom is I am satisfied that it cannot be such that it enjoins a parent to distribute all his income amongst his sons and thereafter rely upon what these sons merely choose to return to him. The custom, such as it may be, must surely enjoin a reciprocity of the duty of a father to his children with the duty of children to their father. If this be so then the appellants' case is advanced on the ground that the 2 sons here in the United Kingdom are the best equipped to support their parents and thus contribute the greatest amount. That may well be so. But that does not make the appellants mainly dependent upon the contributions of the wealthier members of the family. I think that the main dependence spoken I of in para 42 of Cmnd 4298 means a main and necessary dependence. To read it otherwise would mean that a profligate father could squander regularly the money available to him and then claim that he is mainly dependent upon the remittance of his emigrant son. The expression 'mainly dependent' does not mean 'mostly dependent' nor does it necessarily mean that because one child contributes more than another his parent becomes mainly dependent on him who gives the most. It may be that the appellants are mainly but not necessarily dependent upon their sons here. It may be that knowing that the sons here have done well they have foregone or reduced the contribution they could justifiably demand from their sons in Pakistan. But that is a matter of family arrangement only and no such arrangement of itself can establish in my view the main dependence that is required by para 42.

Apart from the foregoing there is evidence which casts doubt upon the extent to which the appellants have been dependent upon the sons here. This is to be found in the statements said to have been made by Sarwar Khan when he applied for an entry certificate which were to the effect that the brothers here wrote infrequently to their parents and did not support them, and the purpose of his application was a visit to them so that they could be brought to recognise their filial duty.

On all the evidence I am satisfied that the appellants have not established that they satisfy the requirements that they are mainly dependent upon their sons here in the United Kingdom."

7. The adjudicator granted leave to appeal to the Tribunal. The appellants' grounds of appeal were that the adjudicator erred in construing 'mainly dependent' in para 42 of Cmnd 4298.
8. At the hearing of the appeal before us Mr Dev submitted that the adjudicator, in finding that the appellants were not mainly financially dependent on the sponsor, had not given sufficient weight to the evidence before him. The appellants were also, in his view, physically and emotionally dependent on the sponsor and he asked us to take into account the army service of the first named appellant for which he received a pension (para 51 of Cmnd 4298 refers).
9. In reply Mr Hurley accepted that the sole issue before us was whether the appellants were mainly dependent on the sponsor. In his submission dependence implied a reliance on another to an extent that the person in question could not otherwise manage but he conceded that dependence need not be wholly financial. On the available evidence there was considerable uncertainty on the degree of the appellents' dependence on the sponsor. On his own admission the sponsor had said in evidence "If I were not sending money to my parents my father would cut down expenses and live from my brothers in Pakistan".

Decision

10. This case falls to be decided under the provisions of para 42 of Cmnd 4298 which reads:—

"42. Widowed mothers, fathers and mothers aged 65 or over, and parents travelling together of whom at least one is aged 65 or over, should be admitted for settlement provided that they hold entry certificates granted for that purpose. The Secretary of State will authorise the issue of entry certificates if satisfied that such parents are wholly or mainly dependent upon children settled in the United Kingdom who have sufficient means at their disposal, and adequate accommodation, to support both the parents and any other relatives admissible as their dependents. If a parent has re-married, an entry certificate will not be issued unless:—

(a) he or she cannot look to the spouse or children of the second marriage for support; and

(b) the children in the United Kingdom have sufficient means and accommodation to support both the parent and any spouse or children of the second marriage that would be admissible as dependants."

11. It is accepted that the appellants are the parents of the sponsor, that they were over the age of 65 when they made application for entry certificates and that the sponsor has sufficient means at his disposal and adequate accommodation to support them in this country. It is also agreed on behalf of the appellants that they are not wholly dependent on the sponsor and the sole issue is whether they are mainly dependent on him.
12. According to the evidence the first named appellant owned two farms at the date of application and was in receipt of an army pension. According to a custom he distributed the income from the farms among his family in Pakistan in return for which his three sons there contributed from time to time towards his maintenance. The sponsor and his brother in this country have also been making payments to the appellants.
13. In our view the purpose lying behind para 42 of Cmnd 4298 is to enable widowed mothers and elderly parents to join children in this country who have been supporting them because the resources of the parents are insufficient to meet their own needs. We agree with the view expressed by the adjudicator that such parents to make a successful application must show that they are necessarily so dependent. In this case the sponsor's father had resources of his own producing an income which, had he retained it, is nowhere shown in the evidence to have been inadequate for his needs. The fact that he chose to distribute it among members of his family, whether or not because of a prevailing custom, cannot in our view be taken into account in applying United Kingdom immigration control rules. It may be that the appellants have become dependent to some extent on the payments they have received from the sponsor in regulating their standard of living but in our opinion these payments have not been shown by the available evidence to be necessary to the appellants or to bring them within the provisions of para 42. Nor are we satisfied that there is any evidence to show that the appellants are to any extent physically or emotionally dependent on the sponsor.

Appeals dismissed

Note 1   Paragraph 42 of Cmnd 4298 is set out on p 74, post.    [Back]