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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ali, R (on the application of) v Secretary Of State For Home Department [1999] EWHC Admin 830 (28 October 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/830.html Cite as: [2000] Imm AR 134, [1999] EWHC Admin 830, [2000] INLR 89

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/10/1999

MR JUSTICE COLLINS:

The applicant, Mr. Arman Ali, is a British citizen of Bangladesh origin who has lived in this country since 1963. He is married to a Bangladeshi national, Rukiya Khatun, who lives with their six children in Bangladesh. The children were born in October 1974, March 1978, November 1981, November 1982, March 1986 and February 1990 respectively. The applicant has been in regular employment and owns a three-bedroom house in Oldham, which is subject to a mortgage which had in 1995 to be serviced by payments of £185 per month. The applicant sent money regularly to maintain his wife and children. By 1996, the amount sent was about £100 per month. For obvious reasons, he wanted his wife and children to come to live with him in this country. In the belief that the relevant Rules could be complied with on 25 April 1991 his wife and children applied to the Entry Clearance Officer in Dhaka for entry clearances to enable them to join the applicant. The application had to be decided in accordance with Rules 50 and 52 of H.C. 251, which were then in force. So far as material, these required the applicant to show:-

"50(d) that there will be adequate accommodation for the parties and their dependents without recourse to pubic funds in accommodation of their own or which they occupy themselves; (e) that the parties will be able to maintain themselves and their dependents adequately without recourse to public funds". Rule 52 provided:- "

An entry clearance will be refused unless the entry clearance officer is satisfied that there will be adequate accommodation for the applicant without recourse to public funds in accommodation which the person concerned owns or occupies himself and he is able and willing to maintain them (sic) adequately without recourse to public funds".

50 was the 'marriage entry' rule, and 52 related to dependents. There was an obvious overlap between the two and it is unfortunate that the language was not as consistent or as clear as it might have been.

On 21 April 1993 the application was refused on the grounds that the entry clearance officer was not satisfied that there was "adequate maintenance and accommodation available without recourse to public funds". The applicants appealed to an adjudicator. On 20 January 1995, their appeal was dismissed, but on 1 August 1995 the Immigration Appeal Tribunal remitted the case to be heard again by a fresh adjudicator. On 2 January 1996, the second adjudicator dismissed the appeal, but recommended that, despite the need to dismiss the appeal because the applicants did not meet the requirements of the Rules, they nonetheless be granted entry clearances. On 6 March 1996, the Secretary of State refused to accept the recommendation. He was pressed to change his mind and various further arguments were presented to him, culminating in a reliance on Article 8 of the European Convention on Human Rights, which his decision was alleged to contravene. On 31 January 1997, the Secretary of State confirmed his original decision. This application was lodged and as long ago as 10 July 1997, Buxton, J granted leave to move for judicial review of the Secretary of State's refusal to follow the recommendation of the adjudicator.

The applicant is in no way to blame for the delay. It is unacceptable that an application made in 1991 should still be the subject of litigation in 1999. One most unfortunate result is that the two elder sons are now both over 18 and the third nearly 18. Sons over 18 cannot normally qualify for entry as dependents, but are treated as no longer part of the family for the purpose of joining their parents and siblings here. They must qualify for entry in their own right. Neither of the two elder sons are likely now to qualify.

Since the Secretary of State has given reasons for rejecting the adjudicator's recommendation which reflect on its rationality, I should summarise her decision and set out the salient parts of it. She entirely accepted the applicant's credibility. She had to consider the position at the date of the decision appealed against, namely 21 April 1993. At that time, the applicant was earning some £121 to £124 per week. He could not accommodate all his family in his house without there being overcrowding. It was proposed that the eldest child should work for and live with his uncle, who also lived in this country. There would still have been overcrowding. As was conceded by his representative, the applicant could not establish that he was able to meet the requirements of the Rules and so the adjudicator had to conclude, as she did, that:-

"At the date of the decision .... the decision was in accordance with the law and Immigration Rules and this appeal is dismissed".

However, she went on to consider the position at the date of the hearing before her. She recorded that the applicant had got a second job as a kitchen porter in which he earned £40 per week, thus giving him a total income of some £160 per week. If his family were admitted, he would receive child benefits of some £52.65 (this was not 'public funds' within the meaning of the Rules) and some tax benefits. She accepted evidence from a friend of the applicant that the eldest son would be given a job from which he would earn £75 per week and from the uncle (who was ill and could not offer any job) that he would provide accommodation to the two eldest sons in premises he owned.

The adjudicator referred to two Tribunal cases which had decided that the provision of accommodation by another member of the family would not meet the requirements of the Rules and that a dependent could not qualify by providing his own support since a person could not at the same time be a dependent and a sponsor. She then referred to Rules 50 and 52 and concluded her determination thus:-

"The purpose behind this rule is to ensure that there is no recourse to public funds as a result of dependents entering the United Kingdom. This family has not been able to bring themselves within the rules as at the date of decision. However, where this is the case, and where the appellants are currently able to bring themselves within the rules, Adjudicators frequently make recommendations that entry clearance nevertheless be granted without the necessity of a fresh application. This is not quite the case here. According to current case law the appellants would not be able to fulfil the requirements of the Immigration Rules. Nevertheless, in fact if they were granted entry clearance I find that on the balance of probabilities there would be no recourse to public funds. The family would have a total income of £250 and would not be overcrowded because the two eldest children would be accommodated by another family member. In practice, therefore, there would not be a drain on public funds which is, of course, the purpose behind the Immigration Rules. Therefore, whilst they cannot succeed in law, I recommend that they nevertheless, be all granted entry clearance".

On 6 March 1996, a Mr Blackwell wrote to the applicant's solicitors explaining why the Secretary of State had decided not to implement the recommendation. He stated the Secretary of State's policy in dealing with adjudicators' recommendations in these words:-

"Recommendations in dismissed appeals are extra-statutory and Ministers are not bound by them. However, it is normal policy to accept adjudicator's recommendations unless to do so would be unreasonable, inconsistent or would undermine general policy".

This has been slightly expanded in an affidavit sworn on behalf of the Respondent by Alan Campbell Betts. He explains that general policy means "the maintenance of a firm and fair immigration control in conformity with the Rules". He continues:-

"In considering whether acceptance of the recommendation would undermine general policy the Secretary of State requires to be satisfied that the case is an exceptional one, that is, that it displays features which take it outside the general run of cases where people apply for settlement under the Dependency Rules. What is required is something additional relating either to the Applicant's own circumstances in the U.K. or overseas which distinguishes the compassionate circumstances of his case from the cases of many others on whose behalf similar points could be made".

I shall have to return to consider this later. Suffice to say at this stage that the Secretary of State does not have to implement what is only a recommendation and his only obligation is to give it very serious consideration: see R v Secretary of State for the Home Department ex p. Sakala [1994] 1A.R. 143. But he has propounded a policy and that must be rational and applied fairly. Further, it must be clear that he has properly understood and so fairly considered the reasons why the recommendation was made. I should add that the affidavit was sworn in September 1997 and so post-dates the statement made on 23 July 1996 by the Secretary of State in which he said:-

"Henceforth, I will act on adjudicators' recommendations in dismissed or withdrawn appeals only where the written determination discloses clear exceptional compassionate circumstances which have not been previously considered and which would merit the exercise of my discretion outside the immigration rules".

It may be that that was intended to narrow the circumstances in which recommendations would be implemented. But it does not affect the principles which I have set out.

I go back to Mr Blackwell's letter of 6 March 1996. He summarises the findings of fact made by the adjudicator. He concludes his summary thus:-

"........because she found that on the balance of probabilities by adopting the proposals put forward for the two eldest sons to be accommodated elsewhere and for the eldest son's earnings to be counted towards the family income, the family would not have recourse to public funds. She considered therefore that the intention of the Rules was met and recommended that all the family be granted entry clearance".

That seems to me to be a fair summary of the adjudicator's conclusions which led her to make the recommendation.

I should set out the final paragraph of the letter which explains why the recommendation was rejected. It reads:-

"The Secretary of State has considered the determination carefully. He notes that the adjudicator concluded that according to current case law the family could not meet the requirement of the rules relating to maintenance and accommodation. The Secretary of State therefore considers the recommendation that entry clearance nonetheless be granted to be unreasonable and inconsistent with the adjudicator's findings. He further considers that to implement a recommendation made on the basis that the appellants met the intention of the rules when they did not meet the rules as formulated would seriously undermine general policy on immigration control. The Secretary of State has therefore decided not to implement the recommendation and the decision to refuse to grant entry clearance to Rukiya Khatun and her children is maintained".

This has again been expanded on by Mr Betts. Paragraph 4 of his affidavit reads as follows:-

"The Secretary of State has decided not to follow the adjudicator's recommendation for a number of reasons. First, the adjudicator's recommendation itself was, with respect to her, unclear and equivocal. On the Secretary of State's understanding of her reasons, the adjudicator concluded that:-

(1) The rules as to maintenance and accommodation were not satisfied as at the date of the date of the Secretary of State's decision and that the appeal was therefore bound to fail.

(2) The rules as to maintenance and accommodation were not satisfied as at the date of the adjudicator's decision ("considering the current case law the appellant would not be able to fulfil the requirements of the Immigration Rules") since there is tribunal authority to the effect that appellants have to be supported by sponsors and not by themselves (see Hussain) and that other members of the family could not provide accommodation (see Naimun Nessa). These authorities remain good law, see MacDonald, Immigration Law and Practice, fourth edition, paragraphs 11.13 - 11.18).

(3) Notwithstanding (2) above, and the adjudicator's reminder to herself that recommendations should be given only in cases where appellants are currently able to bring themselves within the rules, the adjudicator deemed it appropriate to make a recommendation in the circumstances of the instant case because in practice there would no recourse to public funds. In the Secretary of State's view, these reasons are contradictory and the adjudicator, had she correctly applied the principles which she herself appreciated were applicable, should not have made a recommendation in the first place. Additionally, the adjudicator has not identified any particular compelling or compassionate circumstances which differentiate this case from all those others the Secretary of State must routinely consider. Reunification of the family is not regarded by the Secretary of State as a compelling or compassionate circumstance since it is a consideration which applies to all cases of this category".

Ms Harrison on behalf of the applicant has attacked the Secretary of State's reasoning on two grounds. First, she says that the law is not as it was believed to be by the adjudicator and the two tribunal decisions upon which she and the Secretary of State relied were wrongly decided and the construction placed on the Rules by them is incorrect. Secondly, she submits that, even if the rules were correctly construed, the reasoning is flawed and contradictory.

I shall deal with the second submission first. A recommendation is frequently needed where an appellant could not at the time of the decision or cannot, for whatever reason, meet the requirements of the law or any relevant Rule. It is an encouragement to the Secretary of State to exercise the discretion that he retains as part of the prerogative to permit entry to the United Kingdom outside the Rules. Thus it is absurd to state, as Mr Blackwell does in the second sentence of his final paragraph, that because the adjudicator had concluded that the appellants could not qualify under the Rules, therefore the recommendation was unreasonable and inconsistent. Mr Jay Q.C. on behalf of the Secretary of State accepted that the word 'therefore' was unfortunate. So it is. It is precisely because the appellants could not meet the requirements of the Rules that the recommendation was made. And it was made because the adjudicator was satisfied that they met the spirit but not the letter of the Rules since there would be no recourse to public funds resulting from their admission. Thus I cannot understand how it can sensibly be said that the recommendation was unclear or equivocal.

Mr Blackwell then asserts that to apply the intention behind the Rules would seriously compromise general policy on immigration control. Mr Betts' additions are seriously undermined by what he says in Paragraph 4(3) of his affidavit. Mr Jay had to concede that not only did the adjudicator not remind herself "that recommendations should be given only in cases where appellants are currently able to bring themselves within rules" but that that was in any event not the approach either of adjudicators or of the Secretary of State. It is to say the least unfortunate that a deponent on behalf of the Secretary of State should so badly misstate the true position.

Mr Jay sought to uphold Mr Blackwell's reasoning by arguing that the general policy was that there should be conformity with the Rules and this would be seriously undermined if individuals were to be admitted notwithstanding they could not meet the requirements of the Rules unless there were compelling or compassionate circumstances particular to them. It seems that the desire to live together as a family is not such a circumstance. I confess that I have great difficulty in following the reasoning. One starts with the obvious proposition that a recommendation is only necessary in a case such as this because the requirements of the Rules as drafted cannot be met. The Secretary of State has nowhere disputed that the intention behind these particular Rules was as the adjudicator stated, namely to ensure that the admission of the applicant's family should not result in any recourse to public funds. Thus the finding that in fact there would be no such recourse (if well-founded) seems to me to afford a perfectly reasonable basis for the recommendation. For the Secretary of State to say that he must reject it because it would undermine his policy that there must be conformity with the rules as formulated is to negate his declared policy that recommendations will normally be accepted. In truth, the Secretary of State is turning his avowed policy upside down since he is saying that, absent particular compelling or compassionate circumstances, to allow an individual entry when he could not meet the requirements of the Rules as formulated would be seriously to undermine his general policy on immigration control.

In any event, the Secretary of State has not shown consistency. The present Rules (H.C. 395) deal with the entry of spouses and dependent children, so far as material to this case, as follows. Rule 281 requires a spouse to show:-

"(v) there will be adequate accommodation for the parties and any dependents without recourse to public funds in accommodation which they own or occupy exclusively; and

(vi) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds". Rule 297 requires "a person seeking indefinite leave to enter..... as the child of a parent, parents or a relative present and settled" to show that he:-

"(iv) can, and will be, maintained and accommodated adequately without recourse to public funds in accommodation which the parent, parents or relative own or occupy exclusively".

On a literal construction of Rule 281(v) and (vi), an application would fail if the spouse or any dependants were already in receipt of public funds notwithstanding that the entry of the spouse would not increase any recourse to public funds. Accordingly, the then Parliamentary Under Secretary of State in a letter to an M.P. of 5 October 1994 stated:-

"With regard to public funds there is no objection to other residents in the same household receiving public funds to which they are entitled in their own right. The question is whether additional recourse to public funds would be necessary on the applicant's arrival here. The sponsor's means, including any public funds to which they are entitled in their own right, must therefore be sufficient to provide adequate maintenance and accommodation for the applicant and their dependants (if any)".

It is undoubtedly undesirable that a Rule which fails to make clear the intention of the executive (or, presumably, of Parliament) should be allowed to remain in force but be tempered by the discretion of the Secretary of State. It makes the task of the appellate authorities very difficult since they cannot because of s.19(2) of the Immigration Act 1971 review the exercise by the Secretary of State of a discretion where he has refused to depart from the Rules. This difficulty has been grappled with by the Tribunal in Kausar v E.C.O. Islamabad [1998] 1 N.L.R. 141 in a decision whose reasoning I find most persuasive. It is not, however, necessary for me to consider the problem in any detail. The point made by Ms Harrison is that the Secretary of State has indicated that he will apply a policy which seeks to implement the clear intention of the Rule notwithstanding that its language is contrary. This does not sit well with his contention that his general policy is to uphold the rules as formulated and that a recommendation which is directed to the intention behind the rules would seriously undermine that policy.

Thus I am satisfied that the reasoning set out in the letter of 6 March 1996 and adopted by Mr Betts is unsustainable, both because it misunderstands the basis upon which the adjudicator made her recommendation and because the Secretary of State's policy as described is irrational.

That, however, is not the end of this case. Mr Jay has submitted that at the time of the adjudicator's decision, the eldest son was over 18. Accordingly, whether or not his potential earnings of £75 per week could be taken into account as being a source of maintenance within the Rules (which by then were 281 and 297 of H.C. 395), he could not be admitted as a dependant child. This was not a point taken by the Secretary of State either in correspondence before the proceedings were instituted or in Mr Bett's affidavit and bears, I am bound to say, all the signs of a desperate last ditch attempt to justify a singularly doubtful decision. The Secretary of State may decide that the special circumstances of this case, namely the appalling delay and the invalidity of the grounds relied on to refuse to implement the decision, mean that he will not take the over-18 point. He may already have so decided: if he has, I for one would applaud that decision.

Ms Harrison has submitted that the adjudicator was wrong to conclude that the applicants could not meet the requirements of the Rules and that the tribunal decisions upon which she relied were wrong or not applicable to the present Rules. Furthermore, she submits that the Secretary of State has failed properly to have regard to Article 8 of the European Convention on Human Rights ('the Convention') and this trumps all Mr Jay's arguments for upholding the decision. I must deal with each of the arguments.

The first depends upon the true construction of the present Rules. The Convention argument touches on this since, if there is any ambiguity in the Rules, it must be resolved in a manner which accords with the treaty obligations of the U.K. Equally, if there is no ambiguity, it is not until 2 October 2000 possible to strike down a Rule for non-compliance with the Convention. Incidentally, I have no doubt that the Rules will have to be reconsidered to ensure that they comply with the Human Rights Act 1998. It therefore seems sensible to deal with the Convention argument first since, if the Rules in question cannot contravene Article 8 in particular, the Convention will not be relevant in construing them.

On 25 October 1996, the applicant's solicitors wrote a lengthy letter which requested the Secretary of State to reconsider his decision to refuse to implement the adjudicator's recommendation. It set out extra material which was said to be of fundamental importance in considering whether there would be a breach of Article 8 if the refusal were maintained.

This material included an assertion that it would be wholly unreasonable to require the applicant to join his wife and family in Bangladesh since, if he did, they would have nothing to live on. The family depended on the money sent from the U.K. By letter dated 31 January 1997, the Secretary of State maintained his refusal, saying:-

"We do not consider the decision to refuse this application constitutes a breach of the European Convention on Human Rights".

Thus, as Mr Jay accepts, the Secretary of State has taken the Convention into account in reaching his decision and, if he believed the decision contravened the Convention, he would not uphold it. This does not mean he has applied the Convention nor should I.

However, since the Secretary of State has taken the Convention into account, I am entitled to consider whether he has misdirected himself on it. So much is, I think, clear from the reasoning of the House of Lords in R v Secretary of State for the Home Department ex p. Launder[1997] 3 All E.R. 961. Lord Hope of Craighead, giving the only reasoned speech, said at p.989c-e:-

"Then there is the question whether judicial review proceedings can provide the [applicant] with an effective remedy, as Article 13 requires where complaints are raised under the Convention in extradition and deportation cases (see Soering v U.K. (1989) 11 EHRR 439, Vilvarajah v U.K. (1991) 14 EHRR 248 and D. V U.K. (1997) Times, 12 May). If the [applicant] is to have an effective remedy against a decision which is flawed because the decision maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions, and not to some independent remedy, that Mr Vaughan directed his argument".

I do not regard those observations as limited to deportation or extradition cases. They are of general application where a decision is said to have taken a particular Convention protection into account. Thus, while a failure to take account of a Convention obligation will not of itself enable a decision to be impugned, since that would be to apply the Convention by the back door (see R v S.S.H.D. ex p. Ahmed & Patel [1998] INLR 570 at 582), an assertion that a Convention obligation has been taken into account in reaching a decision will entitle a court to strike down that decision as irrational if the decision maker has misinterpreted the relevant Convention obligation.

Article 8 of the Convention provides:-

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There should be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

In his letter of 31 January 1997, the Secretary of State relies on a decision of the European Court of Human Rights, Abdulaziz & others v U.K. (1985) 7 EHRR 471. He correctly states that that case decided that Article 8 does not give rise to a general obligation on the part of a state to respect the choice made by married couples of the country of their matrimonial residence and to accept the non national spouse for settlement in that country. But it is important to consider the material reasoning of the court since the proposition stated is not unqualified. It is set out in paragraphs 66 to 69 of the judgment (at pp 497-498) which read:-

"Compliance with Article 8 66. The applicants contended that respect for family life - which in their cases the United Kingdom had to secure within its own jurisdiction - encompassed the right to establish one's home in the State of one's nationality or lawful residence; subject only to the provisions of paragraph 2 of Article 8, the dilemma either of moving abroad or of being separated from one's spouse was inconsistent with this principle. Furthermore, hindrance in fact was just as relevant as hindrance in law: for the couples to live in, respectively, Portugal, the Philippines or Turkey would involve or would have involved them in serious difficulties, although there was no legal impediment to their doing so. 67. The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective 'respect' for family life. However, especially as far as those positive obligations are concerned, the notion of 'respect' is not clear cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In particular, in the area now under consideration, the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. 68. The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom, as single persons, that the applicants contracted marriage. The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country. In the present case, the applicants have not shown that there were obstacles to establishing family life in their own or their husbands' home countries or that there were special reasons why that could not be expected of them. In addition, at the time of their marriage (1) Mrs Abdulaziz knew that her husband had been admitted to the United Kingdom for a limited period as a visitor only and that it would be necessary for him to make an application to remain permanently, and she could have known, in the light of draft provisions already published, that this would probably be refused. (2) Mrs Balkandali must have been aware that her husband's leave to remain temporarily as a student had already expired, that his residence in the United Kingdom was therefore unlawful and that under the 1980 Rules, which were then in force, his acceptance for settlement could not be expected. In the case of Mrs Cabales, who had never cohabited with Mr Cabales in the United Kingdom, she should have known that he would require leave to enter and that under the rules than in force this would be refused. 69. There was accordingly no 'lack of respect' for family life and, hence, no breach of Article 8 taken alone".

It is clear that the applicant and his wife and children are a family and that a bar to the family living together as such in the U.K. is capable of amounting to a failure to show respect for family life and so of breaching Article 8(1). Whether or not it does in any particular case will depend upon the circumstances of that case. While it may be easier to demonstrate such a breach in the case of a deportation, there is no reason to limit the protection of Article 8 to such cases. It is in my judgment of fundamental importance that in the Abdulaziz case the applicants had not shown that "there were obstacles to establishing family life in their own or their husband's own countries or that there were special reasons why that could not be expected of them". (Paragraph 68). If such obstacles or special reasons had been shown, it seems to me that the court would (and, in my judgment, should) have decided that Article 8.1 was breached, since the refusal of leave to enter would have prevented any family life. It was the view of the minority in Abdulaziz that Article 8.1 was breached, but that there was no violation of Article 8 as a whole because Article 8.2 justified the exclusions in question as being necessary in the interests of the economic well-being of the U.K.

Accordingly, the question whether the family could reasonably be expected to live together in Bangladesh is crucial. The Secretary of State, judging by the letter of 31 January 1997, has not appreciated this and has not considered whether that is indeed the position. It is said by Mr Betts that there are no compelling compassionate circumstances which differentiate this from all those other cases which the Secretary of State must routinely consider. An inability to live together as a family anywhere but in the U.K. seems to me to distinguish this case from others and is at least a factor which must be given its appropriate weight in considering whether Article 8 is breached.

Even if there has been an interference with respect for family life, there has not necessarily been a breach of Article 8. The interference may be justified under Article 8(2), but it must be proportionate to the legitimate aim concerned, which in this case is the maintenance of the economic well-being of the state: see Beldjoudi v France (1992) 14 EHRR 801. Thus it is, as it seems to me, justifiable to avoid any recourse to public funds. But the barrier must not be greater than necessary. Accordingly, the Rules would not in my view be in accordance with Article 8 if they were construed so as to exclude a spouse when his or her admission would not affect the economic well-being of the country because there would be no recourse to public funds or any other detriment caused by it.

I am satisfied that in failing to consider the alleged inability to live as a family outside the U.K. the Secretary of State failed to have regard to a material consideration in reaching his decision that the refusal to implement the recommendation did not constitute a breach of Article 8.

I come finally to the construction of the relevant Rules, namely H.C. 395. Since it is clear that their implementation can, given circumstances which are not likely to be particularly unusual, produce a breach of Article 8, they should, if possible, be given a construction which will avoid such a breach. In any event, apart from the Convention, I would have assumed that Parliament did not intend to create any greater impediment than necessary to the ability of those settled in this country to enjoy family life here. It is therefore in my view appropriate to apply a purposive construction to the Rules, particularly as they are not to be construed strictly as if they were statutory provisions but sensibly in accordance with their natural meaning and purpose, bearing in mind that they are not intended to enact a precise code but frequently give only a broad indication of how discretion is to be exercised: see Alexander v I.A.T. [1982] 1 WLR 1076 and R v I.A.T. ex p. Bakhtaur Singh [1986] Imm AR 352. I note, too, the pertinent observations of Dillon, LJ in I.A.T. v Sarwan Singh [1987] Imm A.R. 563, a case dealing with the admission of elderly dependents, at p.566:-

" .... much of the trouble in this jurisdiction is that the rule [sc.52 of H.C. 169] is one of broad humanity which in [some instances] has not been administered humanely".

There are a number of conflicting decisions of the I.A.T. whether the maintenance requirements of the rules dealing with the admission of spouses can be met by third-party support. Leave to appeal to the Court of Appeal was given in Begum v S.S.H.D. on 8 July 1999 to clear up this point. I should say that there is apparently a consent order in a case called Ishaque Ahmed (No.3867/96, 19.11.96) which assumed the correctness of the view that such support would not suffice. That cannot be binding on any court.

The wording of Rule 281(vi) does not in terms suggest that the ability to maintain must be from the parties' own resources. Other rules do. Thus, for example, Rules 201(ii)(businessmen), 224(i)(investors) and 232(iv)(actors and artists) all state explicitly that the relevant funds or resources must be the applicant's own.

If a rich relation, or a benefactor is willing and able to maintain a family in this country so that there is no need to have recourse to public funds, I see no reason in principle why that family should be kept apart. The purpose of the rule is quite clearly met and the natural meaning of the language used is consistent with the construction I have espoused.

Rule 297(iv) does not indicate a different construction. The expression "child of a relative" is a little difficult to follow. The situation postulated in Rule 297(i) is an obvious example where a child may be admitted to join a relative, but the Rule seems to enable a child to join his parent or parents but be maintained by the relative. The natural meaning of Rule 297(i) enables a child to seek leave to enter to join a relative where, for example, his parents are resident here (297(i)(a)), and the relative rather than the parents may maintain and accommodate him under Rule 297(iv). The drafting is hardly elegant but I do not think it can be said to limit any third party assistance to that family to a relative, although in the present case it is an uncle who is providing the accommodation for the elder sons.

I am satisfied that Najmun Neesa (I.A.T. 11545) was wrong insofar as it decided that there could be no long-term maintenance by third parties to meet the requirements of the Rules. Equally, I see no reason why a person seeking leave to enter as a child pursuant to Rule 297 should not be able to provide his own support. No doubt, such circumstances would be rare, but a child might have his own income from a trust or be earning as, for example, a child actor. There is nothing in the language of Rule 297 which prohibits this and, again, I can see no reason in principle why it should be forbidden. Such a child would not be a dependent in any financial sense. Rule 52 of H.C. 251 was in somewhat more restrictive terms, using the words "he [sc.the sponsor] is able and willing to maintain them [viz: the children] adequately without recourse to public funds". This makes it more difficult to say that the child may provide for his own maintenance. It is not necessary to decide whether Hussain (I.A.T. 113372) was correct, since the rule now applicable is more liberal. Thus (assuming that there was no problem about the entry of the eldest son), the maintenance requirements would, on the findings of the adjudicator, have been met at the time she heard the appeal.

The accommodation requirement is a little more troublesome. Rule 281(v) requires there to be "adequate accommodation for the parties ..... in accommodation which they own or occupy exclusively". The natural meaning of that is that both spouses must either own or occupy the accommodation to be used to house them and any dependents. It is difficult to understand the justification for this. If a spouse is seeking to join his or her family settled in this country, the fact that one or more dependant children are being accommodated by, for example, their grandparents should not disqualify. There seems no reason in humanity or common sense for such a restriction.

Rule 297 does not help with regard to children already in this country. In the context of this case, as I have said, the accommodation to be provided by the uncle would fall within Rule 297 and to that extent, since 297 is dealing specifically with children, where there is any conflict between 297 and 281, 297 must prevail. But it is not easy, without doing total violence to the language used, to extend the accommodation requirement to cover circumstances where the family will not all be accommodated in the same premises. I have no doubt that such a restrictive requirement is disproportionate to the aim of the legislation and must be reconsidered before 2 October 2000. Since the point does not directly arise in the circumstances of this case, I do not think it necessary or desirable to reach a concluded view on whether it can be construed in as liberal a fashion as I believe to be right.

I do not doubt that it will be rare for applicants to be able to satisfy an Entry Clearance Officer, the Secretary of State or an adjudicator that long term maintenance by a third party will be provided so that there will be no recourse to public funds. But whether or not such long term support will be provided is a question of fact to be determined on the evidence. The adjudicator in this case was so satisfied and there was evidence which justified her in reaching the conclusion she did. Accordingly, in the absence of fresh evidence, the Secretary of State is not entitled to reject her findings of fact: see S.S.H.D. v Danaie[1998] Imm AR 84.

In all the circumstances and for the somewhat too lengthy reasons I have given I am satisfied that the Secretary of State's decision cannot stand. He has wrongly regarded the adjudicator's decision as unreasonable and inconsistent, he has applied a policy which, as described in Mr Blackwell's letter and in Mr Bett's affidavit, is irrational and he has misinterpreted the effect of Article 8 of the E.C.H.R..

Subject only to the point he has never before raised that the two elder sons are now over 18, on the adjudicator's findings the applicant's wife and children would have qualified for entry since the two tribunal decisions do not apply to the present rules.

Having regard to the history of this case, the appalling delays and the errors which have been made, I, for my part, would not have thought that to exercise compassion in this case would in any way undermine the Secretary of State's immigration policy. However, that must be for the Secretary of State to decide when he reconsiders this case.