Immigration Law Update: AP (India) v The Secretary of State for the Home Department [2015] EWCA Civ 89

AP (India) v The Secretary of State for the Home Department  [2015] EWCA Civ 89
 
This was an entry clearance case in which an adult son, who sought to joint his British father, was the only member of the family who had not succeeded in his appeal below.  The CA considered the part which redressing historic injustice can play in an Article 8 proportionality assessment. Here the historic injustice was the restriction on the right of entry to the UK imposed by the Commonwealth Immigration Act 1968 on people who were CUKCs (citizens of the UK and Colonies) under the British Nationality Act 1948, which persisted until May 2003 and particularly effected East African Asians.  The court accepted, despite very limited evidence, that were it not for the historical injustice the Appellant’s father would have settled in the UK earlier, with the consequence that the Appellant would have sought entry as a minor rather than as an adult, and in all likelihood would have been granted a right of entry just as his mother and sister were.  Elias LJ took the view that that Court should not be “unduly rigorous” in its application of the causation test, given that its significance was to redress historical injustice (§37).  Referring to Patel v ECO Mumbai [2010] EWCA Civ 17 and R (on the application ofGurung) v SSHD [2013] EWCA Civ 8 the Court allowed the appeal, the need to correct historic injustice influencing the proportionality assessment decisively. 
 
There are also some useful comments in the concurring judgments of McCombe LJ (§45) and King LJ (§ 51) about the fact that in contemporary society young adults, especially students, commonly continue to form part of the family in which they have grown up rather than necessarily “making their own way in the world”.

 


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