HC Deb 13 April 1973 vol 854 cc1756-66

4.4 p.m.

Mr. Hugh Dykes (Harrow, East)

I welcome this opportunity to raise on the Adjournment a case which affects a relation of a group of my constituents. Although it is an individual case, it raises certain wider issues which give me great concern, and I am glad, therefore, to have an opportunity to discuss it now, as well as being grateful to my hon. Friend the Under-Secretary of State for the Home Department for coming here to listen to my comments.

Those comments will not be entirely new to my hon. Friend because we have been in frequent touch about the case over a considerable time. Nor shall I go into excessive detail or discuss the minutiae of the case, since time will not allow. But it involves a close relation— the brother—of a constituent from the Kenton part of my constituency, Carlyle Clifford, who currently resides in Calcutta and who for some time has been applying to come to the United Kingdom as a permanent resident. He has a long history as a citizen in India but it is fairly typical of many people of Anglo-Indian background in that country. However, it is important to bear in mind as part of the scenario that the rest of Mr. Clifford's close relations—the immediate family—reside in the United Kingdom and have done so for some time.

What perplexes and concerns me about this case, not merely because it has gone on for a long time but because of the change in the position under the immigration laws, is why the Home Office takes its present attitude. Time does not allow me to develop the theme of immigration as a whole, but the Government have earned substantial support and praise in this country for increasing the severity of immigration controls and rules.

The changing relationship of this country with the old Commonwealth and Empire and Europe has inevitably created difficulties in preparing new rules. Nevertheless the revised rules presented to the House in January earned a great deal of support both here and outside. To show that I am not being partisan per se about this subject, I point out that I am a supporter of extremely severe immigration rules. Probably I would have gone further than was proposed in the 1971 legislation. There is a powerful consensus in this country in favour of immigration being strictly controlled.

It is important to bear in mind, however, that under the revised rules the patrial classification, or patriality, has again been relaxed. We have reverted to the original position concerning evidence, proof and actuality relating to a grandparent or grandparents born in the United Kingdom providing the necessary qualification for patrials. Prior to the revised rules it was a question of parents only. This is the crux of the present case. Having discussed the matter with my constituent and the other members of his family, I am overwhelmingly convinced that Mr. Clifford is a patrial and, therefore, is entitled to entry to the United Kingdom.

I shall not go over the history of the case, because that would be impossible in the time, but since I made my initial soundings with the Home Office at the end of October last year, having been approached by my constituents, I have seen all the evidence there is to hand to underline the essential patriality of this applicant. Prior to the revised rules there was no prospect of Mr. Clifford coming in as a patrial in the normal sense. He could have come in only if an employment voucher had been granted because an employer in the United Kingdom requested his presence or under the other limited provisions of the old legislation. But that situation has changed fundamentally.

Let me deal with the history of Mr. Clifford's family and the situation of his grandfather. It has come to my notice on several occasions that the evidence is clear—this is the key to the situation —that Mr. Clifford's grandfather was born in the United Kingdom, in Ventnor, Isle of Wight, in 1855. There are bound to be confusions and discrepancies about precise evidential information on the birth and marriage of Anglo-Indians. The facts were clearly laid out in a letter from Mr. Clifford's mother, who unfortunately is now deceased but who lived in the United Kingdom. The letter was written to the Deputy High Commissioner in Calcutta and was dated September 1971.

In May last year the Home Office, having taken up the case with my right hon. Friend the Member for Wolver-hampton, South-West (Mr. Powell), said that there was no qualification for Mr. Carlyle Clifford unless he could get an employer to vouch for him. The family in this country is not susceptible to welfare assistance and have said that they would be prepared entirely to cater for the economic needs of Mr. Carlyle Clifford and his immediate family if they came here. That is an aside but it shows the overall background and underlines the plight of Anglo-Indian families and individuals who have a clear case to come here but may not have the primordial evidence—that is, the evidence of the birth certificate.

The birth certificate is not available, and there are sound and understandable reasons for this. With the incidence of Indianisation and the difficulty of obtaining employment in India, Mr. Carlyle Clifford and his family are in extremely straitened circumstances and are prevented by the rules from coming here. I entirely understand the Government's difficulties. I know that the rules are essential, but in this case the Government should make an exception. The general position of the Government merits every support and I know that they have to be extremely vigilant against the large number of fraudulent cases, but that consideration does not apply in this case.

Mr. Clifford's grandfather lived for a time in South Africa and married an English woman on the way back from Rangoon. He was eligible to go to Australia which pursued a "whites only" policy in those days. All that is powerful evidence that Mr. Carlyle Clifford is a patrial, but perhaps the clincher is the evidence of the India Office library which in a letter of 21st December 1972 stated that Mr. Aynsley Clifford—Mr. Carlyle Clifford's grandfather—was definitely born in Great Britain and that in the records of the East India Railway Company he is called English and not Anglo-Indian. That information is repeated in Mr. Carlyle Clifford's father's birth certificate, which is dated 22nd September 1890. In those days there was strict adherence to racial descriptions of people's origin.

There is perhaps some doubt about the location of the birth, although the general evidence supports the Isle of Wight and there is a possible connection with the Church of Scotland. These are details which do not detract from the essential fact that Mr. Carlyle Clifford is a patrial, not under the previous rules but under the revised rules presented in January.

I concede that the resistance of the Home Office to this evidence and its insistence on the production of a birth certificate is understandable. The Government would be unwilling to create a precedent which might mean that it would be open to many other people to say "I have some evidence, which at the moment is flimsy, to show that my grandmother or grandfather was born in the United Kingdom".

A birth certificate is essential, but the Government must seriously consider their obligation to citizens here who may be connected with citizens overseas who have prima facie rights to enter this country. The Government must also consider the distress that can be caused to families— as has occurred to this family in Calcutta, which has a diminishing place in Indian society—which have a legitimate claim to come to this country and yet are prevented from doing so.

This situation has been brought about because of the absence or non-existence of a piece of paper that is of crucial importance—a document which many people in this country nowadays do not have in their possession. People are now able to go to Somerset House and obtain a copy but, bearing in mind what happened in earlier days when records were not compulsory, it is unrealistic to expect to find definite existence of the certificates in all cases. I must add that the family is making every effort to unearth the birth certificate if they can find it, and they are poring over some extremely detailed records. One can imagine how difficult is their task.

On 29th March this year I asked my hon. Friend the Under-Secretary whether he could say anything more about this case and whether he could give me some elucidation of the Home Office's view. I feel strongly about this case, although I am a devotee of strong, stiff controls on immigration in general. I was perplexed by my hon. Friend's answer because he said he could not agree that this man was a patrial. Was this because the birth certificate was not available or because there was some other evidence indicating that Mr. Carlyle Clifford was not a patrial under the new categories?

I also ask my hon. Friend to consider the wider issues. In pursuing the difficulties which I have put forward, I have become a little anxious about the process adopted in some of these cases and I believe that in some cases the attitude of High Commission staff, immigration officers and so on in various overseas posts may not be the most helpful to genuine and well-intentioned applicants. I appreciate that they have an enormous number of people to deal with, that there are people who pursue fraudulent applications and that nothing could be more irritating or frustrating to officials who in many cases do an excellent job. A factor which should not be affected by stiff immigration rules is that our overseas officials should make every effort in apparently genuine cases to deal with people in a civilised and courteous manner. Some of the circumstances of Mr. Carlyle Clifford's interviews in Calcutta with the High Commissioner's office have not been satisfactory from this standpoint and I should like an answer from my hon. Friend.

I should be grateful if my hon. Friend would continue to look with extreme care at this case. Indeed, I know that he is always careful in dealing with these matters. An hon. Member is often tempted to say that, although he does not wish to make any change in the general position, he wishes to have different treatment applied in an individual case. However, I do not pursue the matter in that spirit. I feel strongly that there is a special case for looking carefully at this matter again, and I am sure that my hon. Friend will do so.

4.20 pm.

The Under-Secretary of State for the Home Department (Mr. David Lane)

I am particularly grateful to my hon. Friend the Member for Harrow, East (Mr. Dykes) for the fairness with which he has put this case, both in his correspondence and today, on behalf of Mr. Clifford. I know how hard and thoroughly Mr. Clifford's family have worked to get permission for him and his wife and children to come to this country— understandably, as my hon. Friend said, because, although he is a citizen of India, it seems that Mr. Clifford is now the only member of his family who is not living either in this country or in Australia.

It is clear from the papers my hon. Friend has sent me that the Clifford family is one which for several generations has given long and devoted service to Britain and to India both in the Armed Forces and in service in India, particularly on the Indian railways.

I should like to take up the last point made by my hon. Friend about the treatment Mr. Clifford has received from our High Commission staff. I have no reason to think that he has been discourteously dealt with but if my hon. Friend has further evidence about it I would like to look into it. It is important that we are courteous as well as being firm and searching.

To come to the case more directly, there is a misunderstanding in my hon. Friend's mind when he says that patriality was changed by the new rules. That is not the case. I will come later to the nub of the case, which is whether Mr. Clifford's grandfather was born in this country, because the matter turns entirely on that. Is Mr. Clifford a patrial in the strict sense of the Act? The answer to that is "No", simply because, as my hon. Friend knows, it is laid down in Section 2 of the Immigration Act 1971 who is to have the right of abode in the United Kingdom. If we look at Section 2(1), paragraphs (a), (b) and (c) deal with citizens of the United Kingdom and Colonies who have, or may have, the right of abode, and paragraph (d) deals with Commonwealth citizens who may have the right of abode.

I pass over the first three paragraphs, because we are treating Mr. Clifford as a Commonwealth citizen. A Commonwealth citizen will be patrial in the sense of having an absolute right of abode here if he is born to parents who at the time of the birth had citizenship of the United Kingdom and Colonies by either parents' birth in the United Kingdom or any of the Islands. It is clear that Mr. Carlyle Clifford cannot be patrial in the strict sense of the subsection because both his parents were born in India. He is not patrial under any of the normal patrial provisions of Section 2; that is, he does not have an absolute right of abode here. I will try to make clear where the "grandparent concession" comes in.

If my hon. Friend is with me thus far, that Mr. Clifford is not patrial in the strict sense of the subsection, we can go on to ask how else could he come here under the rules? First of all, he could come here if an employer got a work permit for him to take up work in this country. That is one possible route. The provisions are clear in the rules.

The other way—this is the burden of my hon. Friend's argument—is that he could come here under the rules by obtaining the benefit of what I will call the "grandparent concession". That concession in the revised rules did not remove certain citizens totally from control, as they would have been removed if they were patrial under Section 2(1) (d). The concession provides a new facility for a Commonwealth citizen, while still remaining under control, to come here without a work permit. That is the point here, and that is why in the strict sense patriality does not apply to Mr. Clifford.

The provision is that if it is proved that one of Mr. Clifford's grandparents was born in the United Kingdom and Islands, if he wants to take or seek employment in the United Kingdom he will be granted an entry clearance for that purpose. He will be able to bring his family with him. If Mr. Clifford's grandfather, Mr. Aynsley Clifford, was born in this country, clearly Mr. Carlyle Clifford would be able to benefit by this provision.

It is said by the family that Aynsley Clifford was born at Ventnor in the Isle of Wight in 1855. If that is so and can be accepted, Carlyle Clifford will be able to come here. I have to stress that the burden of proof is on the applicant, and up to now in the various letters and papers which my hon. Friend has sent me we have not been able to accept this evidence as convincing proof of the place of Aynsley Clifford's birth.

It is true that there is an extract from a registrar of births about the birth of Carlyle Clifford's father. In that extract Aynsley Clifford is described as English. Again there is the letter from the India Office records office in which it is said that Aynsley Clifford, the grandfather, was similarly described in old lists of the East India Railways. But that letter then assumes for these various reasons that Aynsley Clifford was born in Great Britain. That does not necessarily follow. It may mean no more than that that description was applied to Aynsley Clifford, the grandfather, to show that he was of European or even of British stock and was not of Asian or mixed stock.

Another point which has been put forward is that Aynsley Clifford, the grandfather, was paid an allowance by the East India Railways payable only to persons who were not domiciled in Asia. It is said that Aynsley Clifford was allowed to enter Australia early in this century and that that would not have been allowed if he had not been of British stock. But neither of those pieces of information in itself is proof that Aynsley Clifford was born in this country, which is the strict proof that we have to apply.

I quite understand that the family of Carlyle Clifford, the applicant, want to bring forward any bits of evidence they can which may add up to proof that the grandfather, Aynsley Clifford, was born here, which would give his grandson the right to come here.

Mr. Dykes

I was referring to "patrial" in the wider and perhaps the generic sense. I was not referring to the strict definition under the legislation. I also refer to paragraph 27 of the Immigration Rules. But I am concerned to understand the overall position of the Home Office where birth certificates are not available in very understandable circumstances.

Mr. Lane

I understand that. That is what I am trying to explain in the context of this case, though I realise that it has a wider significance now that we are trying to administer this enlarged rule under the revised rules that we brought forward the other day.

Regardless of whether a birth certificate is available, we have to be satisfactorily convinced that the person concerned was born in this country. Searches have been made at Somerset House and in the Isle of Wight, and my hon. Friend said that they were continuing. It has been said that there is no record of Aynsley Clifford's birth at Somerset House, and we have been asked to accept that in 1855, the year concerned, the absence of a definite record is not to be taken as evidence that he was not born in this country. But I must stick to the position that we need to be reasonably convinced by evidence, preferably a birth certificate, that an individual was born in this country.

It is quite true as my hon. Friend says that 100 years or so ago records were not as complete or as compulsory as they are today. But there are records existing of births at that time, though not necessarily as complete as now, both nationally and in local places, parish registers and so on. The other kind of record which could be relevant here is an entry in a baptismal register. That is a possibility that my hon. Friend and his constituents may have considered. If they have not, it may be relevant.

I accept the reason why my hon. Friend's constituents and their family are anxious to have Mr. Carlyle Clifford here and why he at the Indian end is anxious to come here. But we have to discharge our obligation of being satisfied that he is qualified to come under the Immigration Rules, either by the normal work permit route or by his satisfactorily showing, by the total of the evidence which can be produced either by him or by those in this country working for him, that his grandfather was born here. In either of these ways —the work permit or the grand-parental way—he would be entitled to come here.

If in the end we are not able to say that we are convinced, the entry certificate officer overseas would have to refuse his application to come for permanent settlement. However, Mr. Clifford, or any other applicant in this situation, would have the automatic right of appeal to an independent adjudicator. He could put before the adjudicator all the evidence he has put forward, even if he had not at that point convinced the Home Office, and the adjudicator would reach his decision independently of the Home Office, making his judgment about the degree of conviction that the total evidence carried. That is the position that we have now reached.

I should like to go over further the past records, the various papers, letters, and so on, that we have been sent about this case and to think over what my hon. Friend has said this afternoon. There is nothing dramatically new, but he put his argument fairly. Therefore, I should like to rethink the whole matter in the light of what he has put to me face to face this afternoon. If any further evidence is brought forward by the family, we will, of course, look at it. I hope that we can leave it on the basis that I will think over this matter again before any final decision either way is reached.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes to Five o'clock.