AS (Somalia) (FC) and another (Appellants) v Secretary of State for the Home Department (Respondent), (2009)


HOUSE OF LORDSSESSION 2008-09[2009] UKHL 32 on appeal from:[2008] EWCA Civ 149OPINIONSOF THE LORDS OF APPEALFOR JUDGMENT IN THE CAUSEAS (Somalia) (FC) and another (Appellants) v Secretary of State for the Home Department (Respondent)Appellate CommitteeLord Phillips of Worth MatraversLord HoffmannLord Hope of CraigheadBaroness Hale of RichmondLord Brown of Eaton-under-HeywoodCounselAppellants:Manjit Gill QCDeclan O'CallaghanSophie Weller(Instructed by Hersi & Co )Respondent’s:Elisabeth Laing QCJoanne Clement(Instructed by Treasury Solicitors)Hearing date:18 MARCH 2009ONWEDNESDAY 17 JUNE 2009HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSEAS (Somalia) (FC) and another (FC) (Appellants) v Secretary of State for the Home Department (Respondent)[2009] UKHL 32LORD PHILLIPS OF WORTH MATRAVERSMy Lords, Introduction1.  The appellants are two young Somalis. The first appellant was born on 1 January 1991 and the second on 1 January 1995.When leave to appeal to the House was granted they were living in Ethiopia. They were appealing against the refusal of entry clearance which would have permitted them to enter the United Kingdom to live with their cousin, Ms Omar, who sponsored their application. Ms Omar is a recognised refugee who is settled in the United Kingdom. She acts as the litigation friend for the second appellant, who is still a child. On 30 October 2008 the appellants were granted entry clearance. They travelled to this country on 21 November 2008 and now live with Ms Omar. The House decided to entertain their appeal despite this because it raises an issue that is likely to affect a substantial number of other applicants. The issue in question relates to the effect of section 85(5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).2.  Where members of the family of a refugee who has been given leave to remain in this country seek to join the refugee for the purpose of family reunion it is the policy of the Home Department to have regard to the right to respect for family life guaranteed by article 8 of the European Convention on Human Rights. It is the appellants’ case that section 85(5) of the 2002 Act, if read literally, is incompatible with article 8, but that it is possible to remedy this by ‘reading down’ the subsection pursuant to section 3 of the Human Rights Act 1998. The Court of Appeal, in a single judgment delivered by Sedley LJ [2008] EWCA Civ 149, held that section 85(5) could not be read down as it was “unequivocal and unyielding", but that it was not incompatible with the Convention. The appellants’ case3.  Section 82(1) of the 2002 Act gives a right of appeal against an immigration decision. Section 82(2) sets out a list of 11 decisions that fall within the definition of “immigration decision". These include:“(a) refusal of leave to enter the United Kingdom,(b) refusal of entry clearance. . .”Where a person outside the country wishes to enter the United Kingdom his proper course is to apply for entry clearance to an entry clearance officer in the country where he is living. If entry clearance is granted, leave to enter follows automatically. Where a person manages to enter the United Kingdom without entry clearance and wishes to remain his appropriate course is to make an application for leave to enter to an immigration officer in this country. 4.  Section 85 of the 2002 Act, in its original form, provided:"…(4) On an appeal under section 82(1)…against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.(5) But in relation to an appeal under section 82(1) against refusal of entry clearance…(a) subsection (4) shall not apply, and(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.”Those subsections applied in their original form at the time of the events that have given rise to this appeal. In order to comply with the current regime, they have since been amended so as to substitute “the Tribunal” for “an adjudicator” in section 85(4) and “the adjudicator” in section 85(5)(b). 5.  The manner in which these provisions operated in the present case was described by Sedley LJ in the following passage of his judgment:“2. In July 2003 the appellants applied for entry clearance .... The entry clearance officer in Addis Ababa, having referred the application to the Home Office, refused it by a decision dated 24 August 2004. The delay in taking a decision of this importance to those involved seems inordinate. On 25 October 2004 an appeal was lodged against the refusal. For reasons which again are completely unaccounted for, and which it has to be inferred amount to no more than inertia in the Home Office, the papers did not reach the AIT until 9 March 2006. 3. In the intervening period the appellants’ situation had changed very much for the worse. When the appeal came on before IJ Oliver on 6 April 2006, the appellants’ counsel conceded that, because of the need to rely on public funds, he could not pursue the appeal within the Immigration Rules. Instead he based his case on the Home Secretary’s family reunion policy, which allowed for admission of family members outside the rules in ‘compelling, compassionate circumstances’. The immigration judge accepted that he was entitled to take into account the serious neglect into which the appellants had fallen since the refusal of entry clearance in 2004, and went on to find that the combination of compassionate circumstances with the appellants’ article 8 rights entitled them to succeed. 4. On reconsideration, SIJ Spencer, by a determination promulgated on 9 March 2007, held that IJ Oliver in 2006 had not been entitled to take into account events postdating the refusal of entry clearance in 2004. He went on to hold that the evidence of the appellants situation at the earlier date passed neither the compassionate circumstances test of the policy nor what he took to be the exceptionality test for art. 8 protection. He...

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