Case Nos: C5/2009/0965, C5/2009/1759 & C5/2009/1908
Neutral Citation Number: [2010] EWCA Civ 17
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
OA/31309/2008,OA/24035/2008 & OA/24042/2008,OA/47388/2008 & OA/47387/2008
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/01/2010
Before:

LORD JUSTICE SEDLEY
LORD JUSTICE LONGMORE
and
LORD JUSTICE AIKENS
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Between :

	 PATEL,  MODHA &  ODEDRA 	Appellants	
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	ENTRY CLEARANCE OFFICER (MUMBAI)	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr Manjit Gill QC and Mr Nazir Ahmed (instructed by Messrs Sultan Lloyd) for the Appellants
Ms Kate Olley (instructed by Treasury Solicitor) for the Respondent

Hearing date: Monday 23 November 2009 
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Judgment
Lord Justice Sedley : 

1.	These three appeals concern refusals of entry clearance by the Mumbai entry clearance officer (an alter ego of the Home Secretary). What links the cases and distinguishes them from other entry clearance cases is that they concern members of the families of individuals who have only recently secured the British nationality which was taken away by the Commonwealth Immigration Act 1968.

The historical context
2.	How the present situation arose was described by the IAT in NH (India) [2006] UKAIT 00085 and adopted on appeal by this court [2007] EWCA Civ 1330:
13. Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1st January 1950.  They each, when born, became citizens of the United Kingdom and Colonies by birth (CUKCs).  Their rights to settle in the UK were restricted by the Commonwealth Immigration Act 1968.  The Immigration Act 1971 came into force on 1st January 1973.  It introduced the concept of a right of abode.  On 14th December 1973 the European Commission on Human Rights decided the East African Asians case.  It decided that the Commonwealth Immigration Act 1968 was racially discriminatory.  The UK Government entered into a friendly settlement.  A Special Quota Voucher Scheme (SQV Scheme) was introduced to benefit citizens of the United Kingdom and Colonies whose rights had been restricted by the 1968 Act. But it could not assist either of the two sponsors since  married women who were not heads of households were excluded from the Scheme.
14. The Special Quota Voucher Scheme had been introduced from 1968 to assist both CUKCs and subsequently British Overseas Citizens (BOCs).  Each of the two sponsors had qualified as BOCs under the provisions of the British Nationality Act 1981. The SQV Scheme was outside the Immigration Rules.  It allowed persons latterly BOCs who had no other citizenship and were under pressure to leave their country of residence and had nowhere else to go to settle in the UK.  The numbers entitled to come to the UK were limited by quota rules.  From 1975, 5,000 vouchers per year were issued.  Waiting lists were always long.  By 1987 those applying under the quota were expected to wait more than five years (Macdonald Immigration Law and Practice 1st Edition 1983 pg.248 and 2nd Edition 1987 pg.286).
15. Importantly the SQV Scheme was only available to heads of household and to their dependents.  Such heads of household were defined for the purpose of the scheme as “men who have reached their 18th birthday; women over 18 who [are] … single, widowed, divorced [or] married to a man who is incapable of fulfilling the role of head of household for medical reasons, e.g. severely physically or mentally handicapped.  (This includes a woman whose marriage may have been not valid in English law but which exists in fact, and a woman who is living in a permanent association with a man)”.  The scheme was therefore applied in a manner which discriminated between men and women on the grounds of marital status.  The scheme was abolished on 5th March 2002.  There were approximately 500 applications per year at that stage.
16. Section 12 of the Nationality, Immigration and Asylum Act 2002 amended sections 4 and 14 of the British Nationality Act 1981.  The effect was to entitle certain British Overseas Citizens to be registered as British citizens from 30th April 2003.  This applied to those who hold no other nationality and who had not renounced any other nationality.  The mothers of both the Appellants qualified for British citizenship for the first time as a result of this amendment. They were adversely affected by the "anomaly" referred to in the next paragraph.
17. The context of this legislative change is of importance in these cases.  The then Home Secretary said in a parliamentary debate on the Nationality, Immigration and Asylum Bill in the House of Commons on 5th November 2002 in relation to the changes made which subsequently enabled the mothers of the two Appellants to obtain British citizenship:
“We are talking here about righting an historical wrong, in terms of what happened back in the late 1960s and early 1980s in regard to British overseas citizens … [who] found themselves in an anomalous situation … I wish to put right that anomaly for British overseas citizens.”

These cases
(1) Patel
3.	Riddhiben Patel’s mother, who was born in 1958, was a British Overseas Citizen. In that capacity she entered the United Kingdom in 2007, registered as of right as a British citizen and in September of that year received a British passport. In March 2008 her husband and daughter applied for entry clearance to join her. The following month the Mumbai entry clearance officer (ECO) granted the husband entry clearance but refused it to their daughter Riddhiben, who at that date was 24 years old.
4.	Her appeal to the AIT succeeded under paragraph 317 of the Immigration Rules. The immigration judge therefore did not go on to determine the appeal under ECHR art. 8. On reconsideration, the paragraph 317 finding (based on exceptional compassionate circumstances) was overset; the art. 8 claim was also dismissed. It is not now sought to resurrect the paragraph 317 case, but it is both submitted and conceded that the adverse art. 8 decision is flawed and cannot stand, in essence because the immigration judge gauged the issues as at the time of the hearing rather than as at the time of the ECO’s decision. What remains in issue is whether the appeal now requires remission or can be determined by this court.
(2) Modha
5.	Pallaviben and Shital Modha’s father is the son of a British citizen. In that capacity he applied in 2000 to the British High Commission for a passport. There was a delay for which responsibility remains in dispute, but in October 2006 the father obtained a British Overseas Citizen’s passport and the following March was recognised as a British citizen. He entered the UK two months later. In January 2008 his wife and their two daughters, the appellants,  then aged 26 and 20, sought entry clearance in order to join him. In March of that year the mother was granted entry clearance but the daughters were refused. 
6.	Their appeals to the AIT under art. 8 were dismissed both initially and on reconsideration. It is contended that in their case, as in the first case, evidence postdating the ECO’s decision was taken into account. It is also contended that the separation caused by the differential grants of entry clearance was erroneously treated by the AIT as a voluntary choice severing family life.

(3) Odedara
7.	Ramaji and Liluben Odedara are brother and sister. Their father applied as long ago as 1992 to the High Commission in Mumbai for a British Overseas Citizen’s passport, but – for reasons which are in dispute – did not receive it until 2006, when he registered as a British citizen. Meanwhile, in 2004, he had entered the UK and settled here. In 2007 his wife was given entry clearance and joined him here. But the two children, then aged 27 and  23, were refused entry clearance.
8.	Their appeals to the AIT under art. 8 failed both initially and on reconsideration. The principal ground was that the refusal involved no significant interference with family life. The special historical context was not argued.

The ECO’s decisions
9.	The three ECO decisions we have in the papers before us are in almost identical terms. Having dealt at some length with what are evidently the paragraph 317 issues – compassionate grounds for admission – they deal with the important art. 8 question as follows:
“I have also taken account of article 8 of the Human Rights Act [sic]. I consider that refusing this application is justified and proportionate in the exercise of immigration control. I do not believe refusing this application will interfere with family life, for the purposes of article 8(1), as you can continue to enjoy that in India [or which you can enjoy in India].”
10.	If the evidence before us is representative, this is boiler-plate decision-making. It fails to engage in any meaningful way with the issues raised by the application. It is also illogically organised. Until it is established that refusal of clearance will involve a significant disruption of an applicant’s family life, article 8 of the Convention (not of the Human Rights Act) has no application. It is only if and when the character and extent of such a disruption is established that its proportionality can be gauged. Such decision-making has the unfortunate effect of suggesting that the decision-maker does not fully understand his or her task. 

Righting the wrong
11.	For the appellants Patel and Modha, Manjit Gill QC submits that cases such as these, in which family reunion in the UK is sought after more than three decades in which lawful settlement here was improperly barred, constitute a special category in which the presumption should be in favour of reconstituting families which ought to have had an unfettered right to settle here many years ago. While he has, of course, to accept that the bar was created by primary legislation which was and is unchallengeable, he adopts, as this court has done in NH (India), the AIT’s account of the material history – an account which includes, first, the condemnation of the UK in Strasbourg for enacting racially discriminatory legislation, then the institution of a sexually discriminatory voucher system by way of partial amends, and finally, in 2002, a public ministerial admission that these wrongs needed to be put right by new primary legislation. This was the Nationality, Immigration and Asylum Act 2002 which, from May 2003, enabled persons such as these appellants’ parents to register as British citizens and so to settle here as of right, as their own parents could have done before 1968.
12.	For the Home Secretary, Kate Olley adopts the reasoning of SIJ Lane in the Odedara cases: the voucher scheme did not exclude male heads of households such as the appellants’ father, who was their sponsor: he could have applied at any time under the voucher scheme, and indeed appeared to have done so as long ago as 1992.  If so, she submits, there was no wrong to be righted. But, as the AIT recounted in the passage set out above, the voucher scheme was not only discretionary: it was limited to an annual quota which resulted in the build-up of long queues. While its availability, such as it was, is nevertheless part of the factual background, so too, in my judgment, is the fact that it was a partial and in many ways demeaning substitute for a legal right which had been taken away and was not restored until 2002. It follows that no firm distinction can be made between individuals who were excluded even from the voucher scheme – in particular female heads of households – and individuals who, though eligible, did not take advantage of it or tried without success (for whatever reason) to do so. There may be differences of degree here, but there is no difference of kind.
13.	Thus in NH (India), where it was the mother who had been excluded and had finally secured British citizenship, this court held that the history was material to the question of proportionality; the fact that the father could meanwhile have sought entry by voucher played no part in the argument. It needs to be remembered that what is at issue in these cases is not reuniting a family which was divided by the 1968 Act: far too much time has gone by for that to matter save in the rarest cases. Appellants – the present ones included - are typically children who, but for their parents’ legal inability to settle here between 1968 and 2002, would have either been born here or have come as minors in right of their parents.
14.	You can set out to compensate for a historical wrong, but you cannot reverse the passage of time. Many of these children have now grown up and embarked on lives of their own. Where this has happened, the bonds which constitute family life will no longer be there, and art. 8 will have no purchase. But what may constitute an extant family life falls well short of what constitutes dependency, and a good many adult children – including children on whom the parents themselves are now reliant – may still have a family life with parents who are now settled here not by leave or by force of circumstance but by long-delayed right. That is what gives the historical wrong a potential relevance to art. 8 claims such as these. It does not make the Convention a mechanism for turning the clock back, but it does make both the history and its admitted injustices potentially relevant to the application of art. 8(2).
15.	As the individual cases to which I now turn illustrate, the effect of this is to reverse the usual balance of art. 8 issues. By the time they come to seek entry clearance, adult children may well no longer be part of the family life of British overseas citizens who have finally secured British citizenship. If so, the threshold of art. 8(1) will not have been crossed and the proportionality of excluding them will not be an issue. If, however, they come within the protection of art. 8(1), the balance of factors determining proportionality for the purposes of art. 8(2) will be influenced, perhaps decisively, by the fact (if it is a fact) that, but for the history recounted in NH (India), the family would or might have settled here long ago.

Disposal
(1) Patel 
16.	Although the substance of this appeal is conceded, its disposal is not. Ms Olley asks us to remit it for redetermination as at the date of the ECO’s decision. Mr Gill submits that we can decide it for ourselves on the existing evidence and findings because there is only one tenable outcome. 
17.	The findings of fact include the following. The appellant was 24 years old at the date of the ECO’s decision. At that date her mother had been in the UK for a year and, pursuant to his entry clearance, her father was about to join her mother. The appellant was a full-time student supported by her parents and living in accommodation provided by them. At the time of the decision she shared a home with her father, her grandmother, her brother and his family. When her father left for the UK she moved into accommodation rented by her parents for her. As a single daughter her parents were responsible for her. The recent separation from her mother was in anticipation of the appellant and her father being able shortly to join her as sponsor in the UK: it was not a severance of the family bond.
18.	DIJ McCarthy, on the second-stage reconsideration, dealt with the paragraph 317 issue as at the date of the ECO’s decision but with the art 8 issue as at the date of the hearing. It is accepted that this was a mistake. It resulted in a finding that the appellant had found her own feet, albeit still dependent on her parents for income, and no longer enjoyed a family life with them. It followed that art. 8 was not engaged. Had the issue been gauged as at the date of the ECO’s decision the conclusion, given the facts summarised above, would in my judgment necessarily have been the opposite.
19.	Were that to have been the case, DIJ McCarthy conscientiously made a contingent finding that “it would be disproportionate to expect the appellant’s mother to leave the United Kingdom to continue that life bearing in mind the injustices she has suffered because of previous policies and actions”. This  both reflects the approach taken in NH (India) to cases in this class and, in my view, determines the appeal in Ms Patel’s favour without the need of remission. For reasons I have given, there is nothing in the ECO’s decision capable of sustaining a different outcome.

(2) Modha
20.	The reconsideration decision in this pair of appeals was also marred by what is agreed to be a failure to consider the merits as at the date of the ECO’s decision. Ms Olley submits that it was an immaterial error because, as DIJ O’Malley himself put it, it made no difference. But the determination has in my respectful view other flaws. 
21.	At §21 DIJ O’Malley wrote:
It is clear the sponsor is very annoyed that his daughters have not been able to join him in the UK.  His brother’s family have managed it and he holds someone responsible.  He refers to the special voucher scheme and the scheme is also referred to by Mr Ahmed in his skeleton argument.  For my part I am at a loss to see how that scheme bears on this appeal.  The sponsor did not apply under the scheme and it was abolished in 2002.  This aspect of the Appellants’ argument is a red herring.
22.	For reasons I have given, the history of the voucher scheme may have had a significant bearing on the appeal. One result of marginalising it like this is visible in the DIJ’s conclusions: he repeatedly describes the separation of the family which it was now sought to repair as  the consequence of the choice of first the father and then the mother to settle here:
30. I must consider the desire of the sponsor and his wife to have their daughters with them.  I note that the separation arises from their choice.  The sponsor has not seen his daughters since he came to the UK.  He has chosen not to visit them.  The family life enjoyed between them will continue in precisely the same way as previously.
31. The family life enjoyed by the Appellant’s and their mother was of a different order.  They all lived together.  They no longer live together because the mother has chosen to exercise her right to live with her husband in the UK.  She has made that choice in full awareness that the Appellant’s had failed to obtain entry clearance.  I have noted the absence of any evidence of compulsion which may have restricted the mother’s freedom of choice.
23.	DIJ O’Malley also declined to ascribe the passage of time between 2001 and 2006 to any default on the part of the High Commission in dealing with the father’s application. He was in no position to do so because the Home Office had not produced the file. Ms Olley has now been provided with a selection of documents from it and has made them available to the court. But disclosure has been incomplete and Mr Gill is still in no position to deal with it. All that can be said is that, if the delay was not due to Mr Modha’s failures to provide evidence for which he was being asked, there will be force in the submission that it would be unfair to hold against the appellants the consequences of the passage of time.
24.	The family situation as it had developed by April 2009, when the hearing took place, may not have been materially different from the way it was in March 2008 when the ECO refused entry clearance. But the separation had taken place in anticipation of a reunion of the family in a country of which they should always have been citizens. That alone cannot conclude the case in the appellants’ favour, but it means that a simple resort to “choice” as the explanation of the separation of the family is not satisfactory. As I have said in relation to the Patel appeal, there is a relevant distinction between settlement here as a foreign national by leave or by force of circumstance and settlement here by right as a British citizen. The imperatives which govern family reunion, and which therefore affect the proportionality of refusal, are likely to be very different; and so may be the effect of family members reaching their majority.
25.	Although DIJ O’Malley concludes his determination with a rolled-up finding that the refusal of entry clearance “does not give rise to a disproportionate interference with the appellants’ right to a private and family life”, the entire thrust of his decision is that there was no remaining family life once the parents had left for the UK. This was in my respectful view wrong. The finding that the appellants were students who continued to live in their parents’ (or possibly their uncle’s) house and to be maintained entirely by their parents is reflected in the finding that “the family life which existed between the appellants and the sponsor and his wife was enjoyed in India” until the father left for the UK, coupled with the finding that the family remained in contact by telephone. This appears to me to locate the case within art. 8(1) and to move the debate to art 8(2). As to this, however, the rolled-up finding contains no reasoning at all about proportionality, something which this court has repeatedly said is necessary in all art 8(2) cases.
26.	But we cannot say for certain what the right outcome of this pair of appeals is. I would remit the second-stage reconsideration of them for redetermination by a differently constituted tribunal in the light of this court’s judgment.

(3) Odedara
27.	On first-stage reconsideration, SIJ Lane noted the first immigration judge’s fact findings:
16.	Paragraph 11 of the determination contains the findings of the Immigration Judge in relation to this matter. It extends to some four pages.  The Immigration Judge found that each appellant “is an adult who is capable of and has worked in the past”. The male appellant said that when his parents were living in India he used to work and the Immigration Judge therefore found that “there is nothing to prevent the first appellant from working as I reject his evidence that he is unable to work because of his sister who is an adult with no physical or mental infirmity, is unable to stay at home on her own”. The Immigration Judge also noted the male appellant’s answer at interview that, once the appellants were in the United Kingdom, “they will work”.  The Immigration Judge accepted that monies were remitted by the parents to India and that telephone calls provided a means of contact between the male appellant and his parents.  The Immigration Judge nevertheless found that “there is no dependency in respect of the first appellant and his parents who are in the United Kingdom”.  The Immigration Judge also noted that neither the father nor mother had seen it necessary to return to India to see either of the appellants “even though they have the financial resources so to do”.  The Immigration Judge then reiterated that although the appellants received “generous remittances from their sponsor” the male appellant was capable of work, as he had in the past, and there was no degree of dependency as between him and the parents, such as was necessary in order to show a subsisting family life in Article 8 terms between a parent and an adult child.  Even if that were not the case, however, the Immigration Judge found that the degree of interference, as regards the male appellant, was not such as to take the first appellant  beyond the second of the five questions in Razgar [2004] UKHL 27.   
17.	So far as the second appellant was concerned, she was also an adult who had worked in the past “albeit with her mother”. Again, there was no evidence of any physical or other disabilities and no dependency apart from the financial.  The Immigration Judge noted with care the evidence of the sponsor 
“unchallenged as it is as to his plans for both appellants to in effect have them enter the United Kingdom where he would be able to marry then and in effect ensure they are able to work.  I find that there is no satisfactory evidence that the second appellant needs to be looked after as she has asserted in answer to question 14 of her interview.  I find that the lack of any further dependency apart from the financial assistance is evidenced by the fact that neither the second appellant’s father or mother have returned to India since the father left in 2004 and the mother in January 2007.  I find that there is no logical reason why the second appellant would be in a better position to marry in the United Kingdom as opposed to her home where she has relatives and friends in the vicinity of her family home.  I accept the evidence of the appellant's father that in effect for both appellants their prospects of work and of marriage would be much improved if they were to be allowed to live in the United Kingdom.  I however find as in the case of the first appellant that there is no further element of dependency between the second appellant and her parents which involves more than the normal emotional ties and that there is no evidence of the degree of dependency which is required in order for family life to subsist in Article 8 terms between a parent and an adult child”.
Once again, the Immigration Judge found that the case for the female appellant did not move beyond the second of the first questions in Razgar.

28.	The SIJ went on to set aside the “historic wrong” issue on the ground that the appellants’ father could have  - indeed apparently had – applied for a voucher as long ago as 1992, and that why he had failed to obtain one was unexplained.  He also characterised the father’s migration to the UK as simply a “choice … to leave behind the appellants and his wife”. For reasons I have touched on, these do not appear to me to be sufficient grounds for marginalising the NH (India) question; but this is less important here than the fact, found by the first immigration judge, that by the date of the application to the ECO there was no family life, only a bare financial dependency, between the appellants and their parents.
29.	If, as seems to me to be the case, this was a legitimate finding, the gateway to art. 8 had not been entered and the more difficult issues on which this court might have differed from the senior immigration judge did not arise.

Conclusions
30.	I would therefore allow the appeal of Riddhiben Patel by substituting a decision that she is entitled to entry clearance. I would allow the appeals of Pallaviben and Shital Modha to the extent of remitting them to the AIT, differently constituted, for a fresh determination of the second-stage reconsideration. I would dismiss the appeals of Ramaji and Liluben Odedara.
Lord Justice Longmore:
31.	I agree.
Lord Justice Aikens:
32.	I also agree.