Dependent Relatives and Leave to Remain: A Glimmer of Hope?

The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 (03 March 2016)

The inception of the new rules meant that in-country dependent relative applications were abolished so that net migration could be reduced to the tens of thousands. Wholesale failure in achieving that goal has come at the cost of prejudicing the elderly who are being badly disrespected both by first instance decision-makers and “specialist” tribunals jubilantly applying the rigid rules. The net result is widespread despair and it is common for clueless officials and heartless tribunal judges to feel a certain amount of pleasure, or even euphoria, by insulting the sick and the old who are in need of their families’ help and care. However, as shown by the arguments made to the Supreme Court in the MIR litigation (not to be confused with the Russian space station, which is probably easier to get a visa for), specifying article 8 rights in the immigration rules may be a great starting point but it cannot be the end of the story. The facts in the recent case of Razia Begum – a namesake of Razia, Sultan of Delhi 1236-1240 – confirm that it is possible to fight and win even on the tight parameters to article 8 ECHR laid down in the rules.

Begum’s two sons, two daughters (married to British citizens), 12 grandchildren and brother are all British citizens with longstanding residence in the UK. The case also shows that not all judges are afraid of granting leave on the basis of private life. Aged 70, Begum was ultimately given leave to remain on paragraph 276ADE(vi), as in force at the material time, even though she had lived in Pakistan for more than 60 years and a fifth columnist immigration judge seems to have done the unthinkable, i.e. grant an in-country “dependent relative” leave to remain on the private life criteria set out in the rules! From that angle, the case breathes much needed life into the overall coherence of the system in times when the article 8 rights of elderly dependent relatives of British citizens, who are not a burden on the public purse, are being royally ripped to shreds by invisible first instance decision-makers, sedentary presentation staff and undignified and bloody-minded tribunal judges.

Furthermore, it adds to an existing string of immigration cases simply known as “Begum” which transform a South Asian honorific title (minimally meaning “lady”) used to give respect to women into shorthand for parasitic foreigners begging to be given visas on the basis of their private and family life and exceptional circumstances: recent cases examined on this blog called “Begum” – which may in Hindi/Urdu also mean “wife/Mrs”, or may even refer to a female employer or boss etc – turned on issues such as the standard of proof in citizenship and deception and entry clearance.

Context

After the expiry of the 28-day time limit, a three-month extension of time for filing an appellant’s notice sought by the home office in connection to an appeal against a decision of the Upper Tribunal in Begum’s favour was refused by the Court of Appeal which found that no special rule applied to public authorities in litigation.

The home office argued that an administrative oversight caused them to fail to lodge the appellant’s notice in accordance with the 28-day deadline stipulated by CPR Practice Direction 52D, paragraph 3.3. It was said that because permission to appeal had already been granted in the lower courts, the respondent would not suffer any prejudice due to the late filing of the appellant’s notice and no more than de-minimis prejudice to the interest of justice would occur as a consequence.

However, McCombe LJ said that merely having a good case at first blush is insufficient to succeed in permission being granted in circumstances where no real issue of principle or practice arises for the court to consider. It was clear to his Lordship that the Upper Tribunal should not have granted permission because the version of paragraph 276ADE under consideration had been amended and so it was impossible to identify how the present case satisfied the relevant test for a grant of permission to appeal in the first place.

Begum had visited the UK in 2005 but returned to Pakistan. She entered again in late 2009 and some months later in 2010 she applied for ILR as a dependent relative. Appeals arising out of the application were dismissed and permission to appeal to the Court of Appeal was also refused. After appeal rights became exhausted, she remained in the UK illegally and failed to report for a flight to Islamabad arranged for 18 July 2012. Immigration officers made a swoop on her declared address but she was not present. Soon afterwards another application for leave to remain outside the rules was made but was of course refused.

On appeal, the first tier judge allowed the appeal on the ground that Begum’s removal would disproportionately breach her Convention rights. The Upper Tribunal corrected the first tier judge’s error of law and found that Begum qualified for leave to remain on the grounds of her private life under paragraph 276ADE(vi) as it then stood, i.e. the applicant was aged 18 years or above, had lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but had no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

The UT judge was of the view that irrespective of Begum having spent the majority of her life in Pakistan and despite her family’s visits to that country, she had “taken the step to cut her ties with Pakistan by seeking to be with her UK based close family members” and apart from linguistic and cultural ties nothing suggested that she had anything left in Pakistan that might amount to a tie. Since the home office did not contest the existence of private and family life between the appellant and her close relatives in the UK the appeal had to be allowed on the rules. However, the judge also said compelling circumstances existed in the case and he would even have allowed the appeal on article 8 outside the rules because after applying Razgar v SSHD [2004] UKHL 27 he arrived at the conclusion that questions of proportionality needed to be resolved in Begum’s favour.

Subsequently, another UT judge granted permission to appeal because he felt the grounds of appeal were arguable as the finding that Begum had voluntarily renounced her ties to Pakistan – where she had lived for over 60 years before coming to the UK – was wrong in law because it was at odds with the concept of “ties” elaborated in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) – see here.

The Court of Appeal

The home office accepted that the principles established by the decisions in Mitchell v News Group newspaper Ltd [2013] EWCA Civ 1537 and Denton v TH White [2014] EWCA Civ 906 applied to applications for extensions of time. Four things were said in support of the application to extend time, namely (i) the delay had occurred after permission to appeal had been granted (ii) the omission had not been a deliberate tactical one, but a mere oversight (iii) the parties knew that permission had been granted and that an appeal would follow and (iv) the home office had a compelling case on the merits.

However, McCombe LJ (Richards LJ concurring in the result) disagreed with the above and in relation to the first and third point he held that the fact of the grant of permission did not necessarily imply that an appeal would follow, and his Lordship held at para 19 that “as time recedes the appeal may become less and less likely.”

As for the second point, the court did not think that the fact of simple oversight in their lawyers’ office assisted the home office because when such errors occur in the offices of private solicitors they tend not to give rise to a legitimate excuse for delay warranting an extension of time. The situation was the same in the present case and in light of R (Hysaj) v SSHD [2014] EWCA Civ 1633 it was clear that no special rule for public authorities was available because they have a responsibility to adhere to the rules just as much as any other type of litigant: per Moore-Bick LJ at paras 41 and 42 of Hysaj.

On the fourth and final point, it was arguable that the home office may have had a relatively strong case that the tribunals had erred which was similar to the case of AC (Canada) in proceedings reported as SSHD v SS (Congo) & Ors [2015] EWCA Civ 387 (see here) but an extension of time had not been granted in that case.

Explaining that it is important not to strain the second appeals test by applying it to a case in which, on a cursory look, the proposed appellant might appear to have a “good case” when no real issue of principle or practice is raised in the case at all, the court remarked:

21. At this third stage of the Mitchell/Denton criteria, it is also relevant that this was to be a second appeal. While permission to appeal had been granted by the Upper Tribunal, I have grave doubts whether the case properly satisfied the second appeal criteria. Even if the appellant was right that the Tribunals below had reached erroneous decisions, the principles were in truth well-known and the decisions, on this hypothesis, merely represented failures to apply those principles properly. No new or separate point of principle or practice arose on the proposed appeals at all. Moreover, there was little, if any, public interest in the appeal being heard. The decision in the case would have been no more than an illustration of the application of well-known principles to the facts of the present case. I would add that the case turned upon a version of the relevant immigration rule that is no longer in force. Hence it is, to my mind, impossible to identify how the present case satisfied the relevant test for a grant of permission to appeal in the first place.

Comment

The recent row over 92-year old Mrs Myrtle Cothill’s deportation, which was averted in light of a 150,000 person strong petition to save her, shows that you are generally better of dealing with the home office than the tribunals. In Cothill’s case, in contrast to the judges who allowed Begum’s appeal, the great lawgivers in the tribunal elected even to dismiss a white woman’s appeal whose father had fought for the British army during the great war and whose brother did the same during the second world war. Because she is old and frail, is losing her eyesight, has a heart problem and suffers from depression it was always really obvious that removing Mrs Cothill would be quite an insane thing to do. It would be equally heartless to force someone like her to go overseas and make an application for entry clearance as a dependent relative at the exorbitant cost of £2676 only for it to be refused and for the hearing of the appeal to linger for another year.

Of course the other side of the story is that she arrived on a tourist visa, shrewdly sold her house in South Africa after entering the UK and apparently also received a monthly pension of £300. Yet in her case there was widespread public support for her campaign to remain in the UK with her only daughter, Mary Wills, in defiance of the rules. Public pressure and fresh evidence meant that the home secretary’s dodgy butler James Brokenshire decided to intervene and suppress Mr CMG Ockelton’s brutal but colour blind decision. Perhaps at the height of his form for the season, the tribunal’s infamously harsh vice-president not only found that Mrs Cothill “obtained entry to the United Kingdom by deception, and that she and her daughter arranged their affairs with the deliberate intention of making her removal difficult” but he also held “evidently neither of them is a person of credit and there is no reason why they should be believed … about the appellant’s circumstances.”

However, the end result was that Mrs Cothill was granted leave to remain which is an event that demonstrates that non-white appellants do not necessarily enjoy the privileged (“exceptional”) status conferred on white members of society. Had Mrs Cothill been an illiterate and mentally ill Indian widow without a house and pension, the home office would lie in the appeal hearing and claim that she said in the entry clearance application that she owned a house (without being able to provide the form as evidence of course!). Unless you are blessed with the kind of traitor, fifth columnist, immigration judge who allowed Mrs Begum’s appeal, some swine will even actively collude with a hog of a HOPO to obfuscate everything and thereby expose the true extent of the prejudices prevalent in the supposedly great British system of justice.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Appendix FM, Article 8, Court of Appeal, Dependants, Families, Immigration Rules, India, Pakistan, Proportionality and tagged , , , , , . Bookmark the permalink.

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