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Dependency Immigration - OQ (India) and Another v Secretary of State for the Home Department

An immigration judge had made no error of law when ruling that three sisters from India, who were all over 18 years old, should be allowed entry clearance to join their mother in the United Kingdom on the basis of family ties. The appellants (O) appealed against a decision of a senior immigration judge allowing an appeal by the respondent secretary of state against a decision of an immigration judge granting O entry into the United Kingdom. O were three sisters of Indian nationality.

Their mother was a British overseas citizen. Following the introduction of the Nationality, Immigration and Asylum Act 2002, M was issued a British passport. O subsequently sought entry clearance from India which was refused on the basis that O did not fall within the Immigration Rules para.317 as they were over 18 years old and could not demonstrate that they were wholly or mainly dependent on their mother. An immigration judge allowed O's appeal under the European Convention on Human Rights 1950 art.8. On a reconsideration the senior immigration judge ruled that the immigration judge had made a material error of law and had misunderstood and misapplied Entry Clearance Officer v NH (India) (2007) EWCA Civ 1330, (2008) INLR 154.

The secretary of state conceded that the appeal should be allowed and the matter remitted. O contended that the immigration judge made no error of law and that therefore the senior immigration judge had no jurisdiction to hear the matter. O further submitted that the appeal should be allowed and the decision of the immigration judge should stand without remitting the matter .HELD: The immigration judge's conclusion in relation to the nature of the family ties between O and their mother was not flawed by any error of law. The immigration judge had given a reasoned basis for his decision and had made no error in his reference to NH, NH considered. As there was no error of law there was no reason to remit the case. Appeal allowed solicitors: For the appellant: Sultan Lloyd For the respondent: Treasury Soliciters.

Judgment: November 25, 2009

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