AP (India) v The Secretary of State for the Home Department

In an Article 8 entry-clearance case involving historic immigration injustice, the applicant must show a causal connection between the past restriction and the present disadvantage. The question is whether, but for the restriction, the sponsor would probably have settled earlier and the applicant would have entered as a minor under more generous rules. Causation should not be applied with undue rigidity where the claim seeks to remedy historic wrong. Once established, the injustice may carry decisive weight against refusal based only on immigration control, although countervailing factors may alter the balance. Tribunals may draw common-sense inferences about likely future events, but assumptions about young adults leaving the family home must be supported by the evidence and contemporary social and cultural context.

The sponsor, a British citizen, sought entry clearance for his wife, minor daughter and adult son, all Indian citizens. The daughter and wife succeeded before the First-tier Tribunal on the relevant bases, but the son failed under paragraph 317 of the Immigration Rules and was also refused relief under Article 8.

The Upper Tribunal upheld the refusal. The son appealed, arguing that the proportionality assessment had failed to consider the impact on the family, had relied on impermissible assumptions about his future independence, and had overlooked the historic injustice caused by the British Overseas Citizen policy. The central issue was whether that injustice had causally deprived him of the opportunity to enter as a minor.

Appeal allowed. The court declared that the appellant was entitled to entry clearance.

1. Historic injustice and causation. The relevant inquiry was whether, but for the historic restriction on the sponsor’s entry, he would have settled in the United Kingdom earlier and the appellant would probably have entered as a minor under the less demanding rules. Historic injustice is potentially relevant to Article 8 proportionality only where that causal connection exists, as explained in Patel v ECO Mumbai [2010] EWCA Civ 17 and R (on the application of Gurung) v Secretary of State for the Home Department [2013] EWCA Civ 8.
2. The causation inquiry should not be applied unduly rigorously where its purpose is to remedy historic injustice. The sponsor had acted relatively quickly after the right of entry was restored. The absence of express evidence that he would have come earlier did not defeat the claim. The causal connection was established on the undisputed evidence and reasonable inference.
3. Historic injustice is a factor of considerable weight in the proportionality assessment. It may be decisive where the only factor supporting refusal is the maintenance of a firm immigration policy, although other matters such as criminality or a poor immigration record may affect the balance.
4. The court accepted that proportionality must be assessed at the date of the entry-clearance decision, while permitting consideration of likely future events and common-sense inferences based on the facts then available. The tribunals nevertheless made illegitimate assumptions about the appellant’s likely departure from the family home. The wider impact on family members also required proper consideration under Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39. These issues were not relied upon as the dispositive basis of the order.
5. The applicant bears the burden of identifying the prejudice caused by the historic wrong. A tribunal need not raise the point of its own motion. However, the Court of Appeal may permit a fresh point of law where the circumstances justify it and unchallenged documentary evidence provides a powerful basis for the inference; see Miskovic v Secretary of State for Work and Pensions [2011] EWCA Civ 16.

The appeal was allowed on the historic-injustice ground alone, with the declaration that the appellant was entitled to entry clearance.

• Court of Appeal (Civil Division): Allowed the appeal and declared that the appellant was entitled to entry clearance.
• Upper Tribunal (Immigration and Asylum Chamber): Rejected the historic-injustice and family-impact grounds and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal (Immigration and Asylum Chamber): Allowed the wife’s appeal on Article 8 grounds and the daughter’s appeal under the rules, but dismissed the son’s appeal under paragraph 317 and Article 8.