The Court of Appeal recently revisited the theme of “historic injustice” and Elias, McCombe and King LJJ unanimously held in this case that the appellant should be granted entry clearance. The matter clearly demonstrates the extent to which East African Asians continue to suffer at the hands of the British government. The entry clearance officer (ECO) failed to consider the rights of all family members. The “historic injustice” argument was not pursued with real vigour by the appellant’s representatives in the tribunal but was reintroduced by his counsel in the Court of Appeal. Elias LJ did not attempt to disguise the dark history behind it all and he recalled the court’s remarks in NH (India)  EWCA Civ 1330 where Sedley LJ was clear that the mistreatment of East African Asians was a “shameful episode in British history”. In the present case, the court was clear that modern means of communication, such as Skype or telephone calls, and visits alone were insufficient means for the appellant to sustain his family life with his British father and Indian mother and sister (who were ultimately given the right to enter).
The problem for the appellant was that he was an adult dependant and therefore faced an uphill battle to be admitted to the UK. But the law ultimately favoured him. As Sedley LJ said in Patel and Ors  EWCA Civ 17 it was one thing for the historical wrong to be compensated, but reversing the passage of time was quite another matter. The present judgment will undoubtedly inspire other separated families to continue their struggle to have their adult children admitted to the UK. Tens of thousands of people are affected by the problem. I wrote on the theme some years ago and dozens of East African Asians have responded to my post.
The sponsor was given a British passport and entered the UK to settle in 2009. His wife, son Arjun (the appellant, born in 1992) and daughter Urvi (born in 1996) are all Indian citizens. Arjun’s entry clearance application under paragraph 297 of the immigration rules in 2010 to join his father was refused on the basis that he was living with his mother, sister and other relatives in India. For the application to succeed, the father needed to demonstrate sole responsibility for his son. Alternatively, serious and compelling family or other considerations making his exclusion undesirable needed to be shown. The appeal was dismissed for not meeting the rules and on article 8 ECHR the judge found that any interference with family life between father and son was proportionate.
In 2012, the whole family reapplied for entry clearance and the rules were different. By then, the appellant had become an adult and fell short of the living alone outside the UK “in the most exceptional, compassionate circumstances” test in rule 317. The appellant’s mother failed on rule 281 because she could not produce an English language test certificate. As a minor, his sister fell to be considered under rule 297 which was easier than rule 317 but all three of them failed because the ECO was not satisfied that they would be adequately maintained and accommodated without recourse to public funds.
On appeal the First-tier Tribunal allowed the sponsor’s wife’s (the appellant’s mother) appeal on article 8 because she had acquired the required English certificate by the date of hearing and First-tier judge Beach concluded that to make for her to reapply for entry clearance would be too harsh. She found that there was adequate accommodation and maintenance available to the sponsor and she also allowed the daughter’s appeal.
However, the First-tier judge thought that the appellant could remain in the family home in India because he was studying there and his father had said that financial support to him would be extended irrespective of whether his entry clearance application succeeded. He was not within the four corners of rule 317 and he did not appeal that finding. The First-tier judge found that article 8 was engaged but that because the appellant was an adult in full-time education with a life of his own, the wrench of separation would be overcome by modern day communication and it was therefore proportionate to refuse him entry clearance.
The Upper Tribunal was satisfied that there had been a proper analysis of the proportionality question. On the impact of separation of the appellant from his family unit, the First-tier judge kept in mind the impact on the appellant’s mother and sister. The appellant also contended that proper consideration had not been given in the proportionality assessment to the fact that he had been affected by the British Overseas Citizen (BOC) policy – devised by successive British governments on racial grounds to remove the unrestricted right of entry from certain British subjects of East African origin, but only to be resurrected thirty five years later – which created historic injustice and operated to his detriment.
The historic injustice point, which was not argued in the first instance, was rejected by the Upper Tribunal because the First-tier judge had not been drawn towards any significant disadvantage suffered by the appellant and his family relating to the entitlement of the sponsor to register as a full British citizen. Though he was unsuccessful, the appellant was not deprived as a minor to apply to settle with his father under less demanding rules. The manner in which the case was put was “undeveloped” and even if the argument had been read into it would not have made a material difference to the outcome.
Court of Appeal’s Decision
Christopher Clarke LJ granted permission to appeal despite it being a second appeal. Fresh evidence, relating to the sponsor father’s attempts to secure registration as a British citizen, was admitted but did Elias LJ opined at para 13 that it did added “nothing of substance to the case.”
The appellant was aggrieved for the following reasons. Firstly, the First-tier judge erred in speculating that the appellant would shortly be making his own way in the world. Moreover, his sister’s best interests had not properly been accounted for whereas they should have ranked as a primary consideration pursuant to ZH (Tanzania)  UKSC 4. Furthermore, First-tier judge had not properly considered in the proportionality assessment the fact that the appellant had been affected by the BOC policy because of historic injustice.
The court recalled its own approach in Gurung  EWCA Civ 8 where Sir John Dyson MR was confronted by a similar, but arguably less culpable, historic injustice perpetrated on Gurkha veterans of the British army. In that case, with reference to Patel, the Master of the Rolls held that rather than being “decisive”, any historic injustice was only one of the factors to be weighed against the need to maintain a firm and fair immigration policy. On the other hand, he was equally clear that considerable weight should be afforded to historic injustice where it applies. Lord Dyson was clear that the following principle applied to historic injustice in relation to the Gurkhas and the British citizens from East Africa:
- If a victim can show that, but for the historic injustice, he would have settled in the UK at a time when his dependant (now adult) child would have been able to accompany him as a dependant child under the age of 18, that is a strong reason for holding that it is proportionate to permit the adult child to join his family now.
In Ghising  UKUT 567 the Upper Tribunal interpreted the authorities to mean that where the only justification for refusing entry is to maintain firm immigration policy, the historic injustice should always outweigh maintaining immigration control. Entry should therefore be granted as a matter of course in such cases and will be decisive unless some other factor weighing in favour of refusal, such as the commission of criminal offences or a bad immigration record, exists. For its part, the Home Office accepted the analysis in Ghising and issued Immigration Directorate Instructions on 5 January 2015 to give effect to the decision in relation to Gurkhas. It also accepted that no different rule as regards settlement can be applied to BOC cases like the present one.
Lord Justice Elias
Seized of the above principles, Elias LJ rejected the argument that the First-tier judge was wrong to speculate about the appellant’s independence. Her speculation was not a denial regarding the engagement of article 8. Rather, it was a mere explanation in relation to why the judge considered that the separation would not be as grievous as it might otherwise have been. Elias LJ therefore held at para 26:
The Tribunal must have regard to all relevant circumstances when considering the issue of proportionality, and in my view that includes in an appropriate case having regard to likely future events. That is not taking into consideration later events but assessing matters in the round at the point when the decision is made. Moreover, in my view the Tribunal must in an appropriate case be entitled to make common sense inferences about what is likely to happen in the future based on the facts as they were before the entry clearance officer. It does not necessarily require specific evidence on the point.
On the other hand, as explained by the court at para 27, the problem in the present case was that in drawing the “common sense” inference both tiers of the tribunal appeared to have made “illegitimate assumptions about what young men in the appellant’s position are likely to do.” Neither tribunal had erred by not making express reference to ZH (Tanzania) because there was no evidential basis for suggesting that the relationship was different in any material way from one which would typically exist between two siblings four years apart. The impact of separation on the sister was apparent and the court said at para 30 that it could find no suggestion that the impact on her, aged fifteen years, “would be materially worse than for others in her situation.”
Elias LJ did not accept the complaint that the judge should have proceeded to recognise that the separation would be temporary and was incapable of significantly undermining the strength of the relationship. He instead held that “it may be that the judge could have qualified his observation in that way but in my judgment it was not an error of law to fail to do so.” The point would have been weightier if the judge (who in fact accepted that there was a close family link) had concluded that as a consequence of the father coming to the UK, article 8 was not engaged by the refusal of entry to the son.
However, Elias LJ was attracted to the argument that the only proper inference from the undisputed facts was that the father had sought to exercise his right of entry as soon as he reasonably could. Both tribunals below were under the impression that the sponsor had not sought to come to the UK until 2009. To the contrary, there was some evidence (albeit not expressly referred to) before the First-tier Tribunal that the sponsor had taken steps to secure his registration as early as 2006. Moreover, the new evidence demonstrated the history of the somewhat protracted correspondence with the authorities from late 2005. As his Lordship said:
37. I accept the submission of Mr Gill that the causal connection in this case has been established notwithstanding the lacuna in the evidence. In my judgment, the courts should not in this context be unduly rigorous in the application of the causation test, given that its significance is to redress this historic injustice. I think there would be manifest unfairness to conclude that the absence of express evidence on the causation point should defeat the claim.
A couple of points caused the court some concern. First, that the historic injustice was not given any real emphasis in proceedings below. Elias LJ rejected the argument that this was irrelevant because under Robinson  EWCA 3090 a tribunal must take the point of its own motion once it is apparent that it is potentially in play. As he said:
40. … The onus is on the applicant to show that he or she is entitled to come into the United Kingdom and if it is alleged that there is prejudice as a result of this historical wrong then the applicant ought to identify why that is alleged to be the case. Having said that, in this case the point was raised below, albeit in a less than satisfactory way. In any event, the Court of Appeal has power to allow a fresh point of law not argued below: see for example Miskovic v Secretary of State for Work and Pensions  EWCA Civ 16. Given the moral dimension to this argument, I would allow the point to be raised for the first time on appeal, at least in circumstances where the unchallenged documentary evidence provides a powerful case for inferring that the applicant was in all likelihood adversely affected by the historic injustice.
The court went on to hold at para 41 that, in order to take advantage of the more generous entry rules, the appellant had applied when he was a minor but his application was refused because his mother shared responsibility and he could thus live in India.
Moreover, despite being drawn to the argument at first blush, Elias LJ roundly rejected the argument that the appellant was able to apply as a minor and therefore he was not in fact prejudiced as a result of the delays. The court held that “on a proper analysis the appellant plainly was prejudiced.” It was therefore clear that if the appellant had been accompanied by his mother and sister at that stage, as he later was, both parents would have been present in the UK and he would not have been refused entry. The court similarly opined that if there had been more time, there would have been no urgency for the appellant to apply at the time that he did and it was likely that he would have been granted entry clearance. All this militated in favour of allowing the appeal and the court held that but for his sponsor’s legal inability to settle in the UK between 1968 and 2002, he would have either been born in the UK or have come as a minor in right of his father, that factor was decisive in the applicant’s favour when carrying out the proportionality exercise.
Lord Justice McCombe
Concurring with Elias LJ, McCombe LJ held at para 45 that young adults who were studying “continued to form an important part of the family in which they had grown.” Although they were students, they gravitated to their homes for vacations notwithstanding their efforts to “make their own way” in the world. According to McCombe LJ:
such a child is very much part of the on-going family unit and, until such a child does fly the nest, his or her belonging to the family is as strong as ever.
The court explained that the proportionality of interference with the family rights of the various family members should receive careful consideration in individual cases where this type of issue arises. Therefore, it was “wholly unrealistic” for the First-tier judge to conclude that the present family was in a position to preserve its existing family life by telephone, other forms of communication such as Skype and occasional visits. To McCombe LJ’s mind, it was hard for the appellant not to continue to study in India because he had no other choice because he was the only one to be refused entry and the refusal had the effect of stopping his progress by splitting up the family abruptly. Unlike Elias LJ, McCombe LJ found attractive the appellant’s submission, mounted on the basis of Beoku-Betts  UKHL 39, inviting the court that the rights of all family members should be taken into account. But he did not dwell on it and allowed the appeal on the historic injustice ground.
Lady Justice King
Her Ladyship concurred with Elias and McCombe LJJ on the historic injustice point. She added that, in comparison to a decade or so ago, these days many young people in their twenties continue to live at home. For her, this has consequences for “families regardless of their cultural heritage, educational or employment status.” Moreover, King LJ concurred with Elias LJ’s para 26 point about the tribunal’s entitlement in an appropriate case to make common sense inferences about what is likely to happen in the future based on the facts as they were before the ECO.
She, however, added at para 52 that in order for it not to be mere speculation or an unhelpful generalisation, such an inference “can only be safely made against the backdrop of contemporary cultural and society mores.” According to her, the inference will mostly be an uncomplicated common sense view based on the facts before the ECO but may sometimes require evidence. She held that in the present case, the conclusion regarding maintaining family life via telephone and Skype was based on a presumption that (i) was not supported by the facts before the ECO and (ii) failed to consider in broad terms the cultural background of the appellant.
Enoch Powell’s “rivers of blood” speech, something the press also tends to link to the present-day immigration debate, instigated the plight of the East African Asians. Their unrestricted right to enter the UK was deliberately withdrawn to appease intolerance and populist anti-immigration sentiment. One thing is certain. It is very unfair that victims of historic injustice need to go all the way to the Court of Appeal to be able to get their children, like Arjun in this example, admitted to the UK. It would be a lot fairer if entry clearance staff and dismissive tribunal judges can be updated on why people like Arjun have a right to come and live in the UK. After all, the condemnatory Strasbourg ruling in 1973 (see summary) held that “a special importance should be attached to discrimination based on race; that publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity.”