United Kingdom Asylum and Immigration Tribunal

MI (Paragraph 298 (iii): "independent life") Pakistan [2007] UKAIT 00052

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 24.05.2007

Date Determination notified: 05 June 2006

Before
Senior Immigration Judge Freeman
Between

MI	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr A Mackenzie (counsel instructed by IAS) For the respondent: Miss K Pal, Home Office Presenting Officer DETERMINATION AND REASONS

The mere fact that a person has chosen the life-style he has does not mean that he is to be regarded as leading an independent life.

1. This is a case where the Tribunal has ordered reconsideration of a decision of Immigration Judge Boyd QC, sitting at Newport on 8 August 2006, dismissing a dependant's appeal by a citizen of Pakistan. The Tribunal thought the judge might have made an error of law in his interpretation of the words emphasised in paragraph 298(iii) of the Rules:

298. The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled in the United Kingdom are that he:

[nothing arises on paragraph 298(i)]

(ii) has limited leave to enter or remain in the United Kingdom, and

(a) is under the age of 18; or

(b) was given leave to enter or remain with a view to settlement under paragraph 302; and

(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds in accommodation which the parent, parents or relative the child was admitted to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds.

1. This appellant at the date of the hearing was 20½: his age was no disqualification, because he had apparently (when already 18) been given leave to enter with a view to settlement under paragraph 302. So, unlike the appellant in SO (Nigeria) [2007] EWCA Civ 76, he could qualify for indefinite leave to remain under paragraph 298(ii)(b) of the Rules. The judge's findings of fact and conclusions were as follows:

24. The evidence in this appeal is that the appellant has been in full-time work in the UK for about two years. He works full-time and his net take home pay according to his payslips varies between about £700 and £1,000 a month. His income is deposited in an HSBC bank account in his own name. According to his oral evidence he hands over £500 of this income to his father so that he will not be tempted to waste it. Whenever he needs spending money he asks his father to let him have some and his father hands it over without question. As I understand the arrangement his father acts as a banker. Occasionally if he needed more money than he had deposited with his father, his father would let him have some.

24. The appellant lives with his parents in Cardiff rent free. He does not contribute to the 'household bills.'

25. His father normally works in London, returning home every two or three weeks. His mother by her tradition is unwilling to leave the house without being escorted by a male family member. During his father's absences, the appellant fulfils this role. He also helps his mother with household chores. He agreed that in his culture young men will often live with their parents until marriage and sometimes even after marriage.

26. My assessment of the evidence is that the appellant although working full-time and earning good money, chooses to live at home with his parents because this is part of his tradition. He is not financially dependent on them, nor as far as I can see from the evidence is he emotionally dependent on them any more than any young person is emotionally dependent on his or her parents well into the years of maturity. Indeed it appears that his mother is more dependent on him than he is dependent on his parents.

27. In this appeal the burden is on the appellant. I am not satisfied from the evidence that he is not leading an independent life as required by paragraph 298(iii).

2. The judge's findings of fact were of course for him to make on the circumstances of the individual case in hand, and this he did at paragraphs 24, 24 (bis) and 25. On the other hand, the features of the "independent life" which will disqualify an applicant from benefiting from paragraph 298 of the Rules, as the judge found they did in this case at paragraphs 26 and 27, may be a matter of law. The fact that one leads the life one does out of choice does not prevent it from being a dependent one: there is no requirement that the dependency must be one of necessity. The fact that one lives with one's parents as a matter of custom is in my view equally irrelevant: all one need show is that one is not leading an independent life, not why.
3. While there was at first sight nothing against the judge's modus operandi in analyzing dependency into its financial and emotional aspects, it may have distracted him from the essential difference between paragraph 298(iii), where an applicant has to show that he is not independent, and the other, more familiar provisions of the Rules, where he has to show that he is dependent. While dependency is something capable of analysis (on whom for what?), independence is not simply its opposite. Miss Pal suggested that it was in effect defined by paragraph 298(iv) and (v); but this appellant was certainly being accommodated by his parents, and, though he was earning his own living, I do not think that can fairly be regarded as having any more effect than removing any need for his parents to subsidize him. As with the proverbial elephant, it may be harder to explain what an "independent life" is, than to recognize it when one sees it. It has to be looked at (in that much-abused phrase) "in the round".
4. On that basis, this appellant was only 20½: he had always while in this country lived in the family home, and, though he worked full-time, the judge accepted that he still handed over half or more of his wages to his father for safe-keeping. He may have acted as the man of the house, in terms of escorting his mother, while his father was away; but that cannot be regarded as making the life he led there, with her, independent. There may well be cases of older people who live with their parents simply as a matter of convenience, but that is not so here: this appellant was still living on the basis on which he had been admitted for settlement, except that he was now going out to work. On what I consider the right approach to the "independent life" provision, I regard the only reasonable answer in this case as a negative one. It follows that the appeal is allowed.

The original Tribunal made a material error of law and the above decision is accordingly substituted.

John Freeman

Senior Immigration Judge

Date: