RM (Special Vouchers – representation) India [2005] UKIAT 00067

IMMIGRATION APPEAL TRIBUNAL

Date:  25 February 2005
Date Determination notified:
	10 March 2005 

Before:

The Honourable Mr Justice Ouseley (President)
Ms C Jarvis (Vice President)
Mr P S Aujla

Between:

APPELLANT

and

Secretary of State for the Home Department
	RESPONDENT

Appearances:	
For the Appellant:	Mr J Satvinder of Jasvir Jutla & Co
For the Respondent:	Ms P Ramachandran, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	This appeal concerns the ending of the Special Voucher scheme for East African Asians.  It is brought by five adult siblings who were refused entry clearance to join their mother and sponsor who has indefinite leave to remain in the United Kingdom.  They made their applications after the Special Voucher scheme had ended and after the relevant Immigration Rules had been withdrawn.  Their application for entry clearance was considered and rejected under paragraph 317 of the Rules, which required them to show that they were living in the most exceptional compassionate circumstances.  The Adjudicator, Mr A O’Malley, in a determination promulgated on 15 April 2004, dismissed their appeals.  Following the grant of Statutory Review, the appeal comes before the Tribunal.  It was adjourned part heard and the Tribunal notified the parties of the material which it wished to consider in the light of the submissions which were being made.  The Appellants’ chief point, in essence, was that there were various government statements which had given rise to a legitimate expectation, which the Tribunal should, as a matter of substance, give effect to, that the children of those who were or should have been Special Voucher holders, should have been permitted to enter as if the changes in the Rules and scheme had not been made.

2.	The sponsor was born in Uganda in 1955, and left there in 1960.  She went to India where in 1972 she got married and where her children were born in 1975, 1977, 1979, 1981 and 1983.  The sponsor is a British Overseas citizen.  She was not eligible to come to the United Kingdom under the Special Voucher scheme because she was married and could not therefore be a head of household within the scheme.  It appears that after an application for a British Passport was rejected for that reason, she got divorced by consent.  It appears that she then made a number of other applications which were also rejected on the grounds either that she was not divorced or that the divorce was a divorce of convenience.  (There was no suggestion of maltreatment, the couple had lived together happily until immediately before the divorce, and an Entry Clearance Officer field trip report concluded that the children, contrary to what they said had happened after the divorce, were still living with the father.)  The IND Guidance Note operative for the scheme in 2001 required the Entry Clearance Officer to be clear that any divorce was not one of convenience.

3.	The sponsor arrived in the United Kingdom in 1999, the precise basis upon which she did so is unclear, and in April 2001 commenced Judicial Review proceedings, as did a number of other would-be Special Voucher holders, who claimed that the scheme Rules discriminated on gender grounds against women.  It appears that the Secretary of State dealt with these proceedings by granting Indefinite Leave to Remain;  invariably so, said Mr Juss for the Appellants.  In the sponsor’s case, she was granted Indefinite Leave to Remain in April 2002, following further consideration of her “particular circumstances”, outside the Rules.

4.	At no stage did she take Judicial Review proceedings from India challenging the refusal of a Voucher.  That would have been her only remedy because the scheme was outside the Rules and no appeal lay against the refusal;  and the refusal of entry clearance, which could lead to an appeal, would have been inevitable if there had been no voucher.

5.	We do not have the full terms of the Concession which embodied the Special Voucher scheme;  they were referred to in HG and RG (India – Special Voucher Rules) [2005] UKIAT 00002.  The Scheme was ended on 5 March 2002;  and no new applications were accepted after that date.  The relevant paragraphs of the Immigration Rules, 249-254, remained in force to cover those who had been granted a voucher but had not yet entered the United Kingdom and those whose applications were undecided at that date.  Those paragraphs were deleted with effect from 18 September 2002, in a Statement of Changes presented in August 2002.  These changes were related to the new provision which was made for British Overseas Citizens in section 12 of the Nationality, Immigration and Asylum Act 2002.  As we have noted, the five applications with which we are concerned were not made until 26 November 2002, after the 2002 Act had been passed.

6.	The Entry Clearance Officer rejected the five applications in February 2003 because they did not satisfy the requirements for the most exceptional compassionate circumstances or for maintenance without recourse to public funds, or the absence of close relatives in India to whom they could turn.  He took account of material which had been reported on during the field trip in connection with two earlier applications which they had made, details of which are missing but which appear to have been made not long after the mother’s divorce.

7.	The Adjudicator heard submissions to the effect that the mother should have been treated as a Special Voucher holder and that the Appellants should therefore be treated as the children of such a holder and somehow that meant that the removal of the provisions in the Rules was irrelevant.

8.	The Adjudicator inferred from the material he heard, which included evidence from the sponsor, that the divorce had been obtained to facilitate the issue of a British passport.  A statement from the oldest of the five said that they supported themselves by working as labourers; they could not speak English.  They did housework in exchange for accommodation rent-free.  They had not been abandoned by their father.  He was not satisfied that the five could be accommodated in the property occupied by the sponsor, or that they were financially dependant on her.  He dismissed the appeal on the grounds that they did not satisfy paragraph 317, and there were no Article 8 grounds for allowing them entry clearance.  It was not disputed but that the dismissal of the claim under paragraph 317 could not be faulted.  It was the failure to consider the implications of the ending of the scheme which were at issue.

9.	Mr Juss contended that a series of Government Statements, whether in Press Releases or in Parliament, should be taken to mean that it recognised the historic wrong done to East African Asians when they were threatened with expulsion from Africa, had promised that the then proposed legislative changes, which then followed, would mean that they were better off or at least no worse off than they had been before.  The changes had however meant that the children of Special Voucher holders were worse off because the provisions for entry under the former Rules were much more readily satisfied than the very restrictive provisions of paragraph 317.  The sponsor should have been granted a Voucher and that was in effect acknowledged by the Secretary of State in its grant of Indefinite Leave to Remain.  It had always been understood that families of Voucher holders were to be kept together, hence the ease with which their children could be granted entry clearance.  N0-one seemed to have thought about the children in the legislative changes which eventuated in the 2002 Act.  They had a substantive legitimate expectation as a result of those statements which the Tribunal should give effect to in the interests of justice, which was the concept which underlay legitimate expectation.

The provisions of the former paragraph 252 are as follows:

“252.	The requirements for indefinite leave to enter the United Kingdom as the spouse or child of a special voucher holder are that the person covered:
(i)	is in possession of a valid United Kingdom entry clearance for settlement in the United Kingdom in this capacity; and
(ii)	can and will be maintained and accommodated adequately by the special voucher holder without recourse to public funds.”

10.	They can be contrasted with the very much more restrictive provisions of paragraph 317, but it is not necessary to set them out.

11.	A written answer in the House of Commons of 5 March 2002 explained the thinking behind the abolition of the Scheme:

“Angela Eagle:  The special voucher scheme was introduced in 1968 in recognition of the specific hardship being suffered at that time by British Overseas Citizen (BOC) passport holders and their dependants, who were under political pressure to leave their countries of residence in East Africa, but who held no other citizenship and have nowhere else to go.  Several thousand BOCs and other United Kingdom passport holders took advantage of the scheme and settled in the United Kingdom in the 1970s and 1980s.

However, the world political situation has now changed and BOCs are no longer under threat of expulsion.  They have, over the intervening years, either settled with their families in the new independent East African countries or, alternatively, some have moved with their families to India.  Their families have now grown up and have families of their own.

There are relatively few applications for special vouchers these days and those who do apply are not being pressured to leave the country in which they reside.  The scheme no longer serves the purpose for which it was set up.  The Government have therefore decided that the time has come to abolish the scheme, with immediate effect.  No new applications for special vouchers will be considered.”

12.	The problem which this left was what would happen to those who had not yet taken up the benefits of the scheme yet might need to do so.  There was a campaign about that.  Mr Juss referred us to a paper in a practitioner’s Journal which suggested that a ray of hope might be found in making an amendment to the Bill which became the 2002 Act.  He had relied on another comment in that as evidence of the expectation that those who were eligible to obtain vouchers had always expected that they would be able to move with their families.  But it seemed to us that the references were at least as readily understood as showing the opposite, namely that people would move at a time when they were no longer burdened by children.

13.	Mr Juss placed considerable reliance upon the following statements.  First, from the then Secretary of State in April 2002 in a debate on the 2002 Bill:

“In recognition of the fact that the old special quota scheme had ceased to be used for the purpose for which it was originally designed, we abolished it.  I will examine the possibility of an alternative arrangement for British overseas citizens who have no other nationality but who, under the existing complex historical circumstances, are not able to enter the country.  It would be right for us to do that, as we have a moral obligation to them going back a long way, and it is unfinished business.”

14.	Second, a press release from the then Minister at the Home Office in July 2002 which announced a change to the 2002 Bill to meet what was described as a long-standing obligation to British citizens living overseas who would otherwise have no right of abode in any country: 

“At present, some citizens of our former colonies in east Africa have a British passport but not the right to live and work in the UK.  Now, if they do not have any other nationality and have never given up another nationality, they will be able to acquire these rights.

We are righting a historical wrong which has left a number of overseas citizens without any right of abode, either in the UK or elsewhere.

BOC status is a legacy of decolonisation, when some overseas citizens were treated unfairly, which was then compounded by the 1968 Immigration Act and the 1981 British Nationality Act.  The Government is acting to put that right.

We have a moral obligation to these people going back a long way.  We are now meeting that obligation and doing the right thing by those citizens of former British colonies who would otherwise have no right of abode in any country.

The number who would want to live in the UK is likely to be small – less than 500 BOCs a year have applied to live in the UK in recent times.  They are likely to view it as an insurance policy in case their circumstances change in the future.  I am pleased we are able to offer them that added security.”

15.	Third, a press release from the Home Office in September 2002 describing the change and repeating much of the earlier statements: 

“The Government has now decided that British protected persons from former British protectorates such as Zambia, and British subjects, generally people born in India or what is now the Republic of Ireland before 1949, will be eligible if they have no other nationality and have not given up another nationality.”

16.	Fourth, in the debate on the Bill, in October 2002, Lord Filkin for the Government, repeated much of the above and said: 

“The amendments which we now propose will provide British overseas citizens, British subjects and British protected persons having no other nationality, with an entitlement to acquire, on application, and subject to some further requirements – which I shall presently explain – British citizenship.

In doing so, they would also acquire automatically a right of abode here.  In other words, they would no longer be subject to United Kingdom immigration controls, but could come and go at will subject to the usual requirements for proof of right of entry on arrival.  They would additionally, as EU citizens under the Treaty of Rome, acquire the right of free movement under the treaty.

The requirements for acquisition of British citizenship under the new clause are as follows.  First, the applicant must be a British overseas citizen, a British subject or a British protected person.  Secondly, the applicant must have no other nationality or citizenship on the date of application.  Thirdly, the applicant should not previously have given up an alternative nationality or citizenship, whether through action or inaction on his part.

The latter requirement would exclude those who had lost another nationality through failure to take the steps prescribed by the law of that country for its retention beyond a certain date, as well as those who had lost another nationality as a result of some positive act on their part – such as the making of a declaration of renunciation.  Such countries are tolerant of dual nationality in minors but require that on attaining the age of majority, the person must not only renounce their citizenship but also make a declaration of intention as to future residence, and/or take an oath of allegiance.

Therefore, we do not consider it appropriate to extend an entitlement to British citizenship to those who, by their actions or inaction, have given up another nationality and one assumes the right to reside permanently in the country of that nationality.

The Secretary of State must be satisfied that the applicant has no other nationality and has not given up another nationality or citizenship.

The amendment proposes that those registered as British citizens, under the new provision would be British citizens “by descent” for the purposes of the British Nationality Act 1981.  As such, they would be subject to the restrictions imposed by that Act on the ability of British citizens “by descent” to transmit their citizenship to a further generation born outside the United Kingdom.  That would be consistent with their present position whereby British overseas citizenship and the status of British subject and the British protected person are usually non-transmissible.”

17.	Mr Juss also relied on other comments, made by Lord Filkin in another connection, to say that it was intended that no person formerly eligible for a voucher or entry as a dependant of an eligible person would be worse off. If they were worse off, the historic wrong could not be righted.

18.	Section 12 of the 2002 Act does provide for British Overseas Citizens and like groups, via an amendment to the British Nationality Act 1981:

“4B	Acquisition by registration: certain persons without other citizenship

(1)	This section applies to a person who has the status of -
	(a)	British Overseas citizen,
	(b)	British subject under this Act, or
	(c)	British protected person.

(2)	A person to whom this section applies shall be entitled to be registered as a British citizen if -
	(a)	he applies for registration under this section,
(b)	the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection (1), any citizenship or nationality, and
(c)	the Secretary of State is satisfied that the person has not after 4th July 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality.”

19.	In support of his contention that the Appellants should be given the benefit of a substantive legitimate expectation, Mr Juss recognised that the Tribunal was limited to deciding whether a decision was for these purposes in accordance with the law.  It had been recognised in Abdi v SSHD [1996] Imm AR 148 Court of Appeal, that if the Secretary of State ignored a relevant policy or failed to give effect to it, the decision would not be in accordance with law.  But it would not be for the Tribunal itself to give effect to that policy or to its reading of policy because it could not take into account all those factors which might influence a policy decision or an exception to it.

20.	However, Mr Juss said that legitimate expectations were now a recognised part of the law and that the Tribunal should do more than simply require the Secretary of State to consider his policy, it should give effect to the substantive legitimate expectation which it revealed.  It should plug the legislative gap created by the removal of the scheme in that way.  He prayed in aid the recognition of an historical wrong, the fact that the Appellants would have succeeded under the scheme, and they had perversely been put in a worse position by legislation which was intended to improve their position, defeating the intention to honour a moral obligation.  He suggested that R v SSHD ex parte Khan [1984] 1 WLR 1337, and R v Liverpool Taxi Fleet Operators’ Association [1972] QB 299 were of assistance.  He also suggested that the facts here showed that to frustrate the expectation would be so unfair as to amount to an abuse of power.

21.	He encouraged us to follow that route because two Adjudicators had already done so on the basis of the July and September 2002 press releases.

22.	Shala v SSHD [2003] EWCA Civ 233, [2003] INLR 349 provided an example of parallel exceptional circumstances;  but for the delay there, the claimant would have had leave to remain and could have made an in-country application.  Here, if the applications for the Voucher had been properly considered in the first place, the Appellants’ could have received entry clearance under the old Rules.  The Secretary of State should therefore either apply those old Rules or make an exception and grant entry clearance.

23.	For a whole range of reasons these submissions are misconceived.

24.	The statements relied on simply do not give rise to a legitimate expectation of the sort contended for.  They show a sequence of thinking.  The first written answer states that the scheme had been wound up and new applications were not accepted because the scheme was thought to have achieved its purpose.  So there was no representation there to help the Appellants.  On the contrary, they were being told that the scheme had ended.  Mr Juss did not put his case forward on the basis of any representation that the scheme would not end before it did nor that his clients had been expecting to be able to make an application shortly before its abolition.

25.	The second statement recognises an obligation owed to those who have no other nationality and promises something for them.  What that was to be was unresolved at that stage.  It did not contain at all a promise that anyone who might have been entitled to come in as the dependant of a Voucher Holder would in future be able to do so, let alone that someone who was the dependant of someone who was not a Voucher Holder, but who might have been, could do so.  In fact, although Mr Juss was unable to help us at the hearing as to whether the Appellants had any nationality, the applications for entry clearance all state that they have Indian nationality, as might have been expected for those born in India to an Indian father.

26.	The third document is a press release which deals with the historic wrong by proposing legislation for a category of British Overseas citizens who have no right of abode elsewhere.  It is not and clearly is not a general promise to right wrongs and to leave no one at all worse of as a result of ending the scheme.  It would be absurd to read the document that way because it would mean that it was pointless to end the scheme.  The meaning of the document cannot be arrived at by picking out a bit and ignoring the context.  There is a statement about the effect of proposed legislation which is confined to a particular group.

27.	The Hansard statements do not bear out any general promise of the sort Mr Juss contended for.  On the contrary, they set out clearly the scope of the Bill.  Section 12 of the 2002 Act as enacted reflects what was said about it from the second document onwards.

28.	So the alleged representation was simply not made.  The representation which was made was carried into legislation.  The Appellants could take advantage of it if they were British Overseas citizens, as appeared to be accepted, and satisfied the other provision about having no other nationality.  It appears, however, that they are not in that category.

29.	There was no expectation, let alone a legitimate one that the scheme would not be ended and the Rules left unchanged either indefinitely or for any particular time.  There was no expectation justified by any statements and none legitimately entertained that adult children would always be entitled to settle in the United Kingdom, even if they had another nationality.   Mr Juss made passing reference to the use of these statements as a tool of construction of the 2002 Act or of the changes in the Rules.  But there is no representation to assist and no ambiguity to permit any such approach.

30.	We point out that whilst there may be scope for debate about how far any representation needs to be acted on before giving rise to substantive enforcement or procedural protection, there is no evidence that the “representations” were ever understood by the Appellants or those in a similar position to mean what Mr Juss contended.  There is no evidence that it was acted on or was even expected to be acted on in any way other than by seeking the application of section 12 according to its plain terms. There is no factual material to suggest any of the factors relevant to the enforcement of a substantive legitimate expectation, for the avoidance of an abuse of power are present.  The case simply does not get off the ground.

31.	Nor is there any material, akin to that which in Khan and LTOA made it unfair for the authorities to change position without giving the individual the opportunity, to explain why it would be unfair were that to be done.

32.	The real complaint is that Parliament should have legislated differently in the Act of 2002 or should have disapproved the Changes to the Immigration Rules or that the Secretary of State should never have ended the scheme.  Leaving aside for the moment the problematic issue of the Tribunal’s jurisdiction to accommodate Mr Juss’ submissions were they sound in other respects, the Tribunal is not a body which can overturn or redraft Acts with supplementary provisions, let alone ones which there is no evidence to suggest Parliament ever intended.  The same applies to the Immigration Rules.

33.	It cannot be said either that the decision to end the Scheme was one to which the Secretary of State could not come;  Parliament enacted section 12 to remove the difficulty which certain prospective holders might have faced.  There is no argument but that when the Scheme was ended, neither the sponsor nor the Appellants were Special Voucher holders or had an application undetermined.  The clear purpose of the ending of the scheme was to stop further applications by those who might otherwise succeed.  The Secretary of State’s statement in the House of Commons rationalises it.  Those who had another nationality and so were not at risk of expulsion were now to be excluded, after very many years of the scheme’s operation.  Children, who would now be adults, could only come in under paragraph 317, unless they qualified in their own right under section 12.

34.	The argument that the sponsor should have been treated as a Special Voucher holder, and her children as dependants under the former Rule is hopeless, quite apart from the foregoing.  The grant of Indefinite Leave to Remain does not state that she should have been granted a Voucher.  It is a possible inference that the Secretary of State was concerned either to avoid the risk of losing the gender discrimination argument about heads of households, but that is some distance from acceptance that the sponsor here and the others granted Indefinite Leave to Remain were entitled to a Voucher.  It is a possible inference that he thought it too harsh or not worth the trouble to remove them.  She was never recognised as a head of household – her divorce continued to be seen as one of convenience and not effective.

35.	Even if she had been entitled to a Voucher, she never obtained one or maintained a challenge to its refusal.  She was content with Indefinite Leave to Remain.

36.	Even if she had been a holder, entry clearance would still have been refused to the Appellants, under Rule 252, because they were not dependent on the mother.  That is clear from the Entry Clearance Officer and the Adjudicator’s findings.  They could not be dependant on the sponsor as the Rules required, because of her earnings, and their age and number.  It was specifically found that the sponsor had not shown that she could accommodate them without recourse to public funds.  The Rules may apply to children as relations rather than as minors but that makes the dependency requirement on the sponsor or Voucher Holder the more difficult for adult children.

37.	The argument however proceeds from a false premise, namely that the sponsor and Appellants should be treated as what they were not.  There is no justification for applying some equitable notion of treating as done that which could have been done.  They were not Voucher Holders or applicants when the scheme ended.  They have not shown any basis for being treated as if either it never had ended or, as a matter of public law, never should have ended.

38.	Shala is of no assistance.  It deals with delay in decision-making and in a very different context.  There was no delay in the Entry Clearance Officer decision-making.  The sponsor objected to the refusals of Vouchers but did not challenge that till she arrived in the United Kingdom and did not pursue any ground after the grant of the Indefinite Leave to Remain which effectively compromised her case.

39.	There is therefore no justification for the asserted exception to the Rules, an assertion which would have to show that the decision was not in accordance with law, because, absent policy, extra-statutory discretions are not for the IAA.

40.	The Tribunal has jurisdiction to say that a decision is not in accordance with the law where the Secretary of State has ignored or misinterpreted his policy. Abdi shows as much.  But it is for the Secretary of State then to consider his decision again in the light of that policy.  The Tribunal does not enforce policy or take the decision under the policy.  There may well be and usually are matters of interpretation, discretion, exception and application which simply are not for the Tribunal.  Even in proportionality issues, policy is a guide to what is reasonable rather a matter for the Tribunal’s direct application.

41.	It obviously cannot hold that a decision is not in accordance with law simply because it is not in accordance with policy.  That would be to equate Home Office policy with law, rather than to recognise the distinction.

42.	Mr Juss’ arguments were tantamount to saying that we should decide not what policy was, but rather what it should have been and then should give effect directly to that preferred policy, and that to do otherwise would be to uphold a decision which was not in accordance with law.  We reject that suggestion.

43.	It might be that the facts of a particular case were so strong that a failure to give effect to a substantive legitimate expectation was an abuse of power and hence the decision would be not in accordance with law.  That would not be enforcing policy but law.  But the facts here are nowhere near that. Where the facts show that a decision breached the requirement for the procedural protection of a legitimate expectation, the decision would not be in accordance with law, but could be reconsidered.  The facts do not justify any such conclusion here.

44.	We considered Article 8.  But there is no basis, and Mr Juss’ Shala argument provides none, for saying that the Immigration Rules, with the provisions of section 12, and the scope of any extra-statutory discretions, do not provide a proportionate answer to the desire of the sponsor or her adult children to join her in the United Kingdom.  They could not come in on the Rules as they stood when she arrived because she had no Voucher to assist, and she could not show, even if she had had one, that they would then have been able to come.  And the Rules cannot be interpreted as if they still contained Rules which have been removed from them, simply because they at one time provided a basis for someone to come who now cannot do so.  The Rules would effectively be variously frozen as at the time preferred by applicants.

45.	This appeal is accordingly dismissed.  It is reported for what we say about the arguments on the Special Voucher scheme.  They seem to have been misunderstood by Adjudicators, who may have been misled by incomplete material, into failing to appreciate how the statements related to section 12 of the 2002 Act.  In any event, two Adjudicators also seem erroneously to have thought that it was their task directly to enforce this misconceived expectation.  It is to be hoped that these arguments now stop.  

MR JUSTICE OUSELEY
PRESIDENT