As (Somalia) and Another v (1) Entry Clearance Officer, Addis Ababa (2) Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Moore-Bick,Lord Justice Waller |
| Judgment Date | 29 February 2008 |
| Neutral Citation | [2008] EWCA Civ 149 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2007/1045 |
| Date | 29 February 2008 |
[2008] EWCA Civ 149
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUMIMMIGRATION TRIBUNAL
IM/11521/2006
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Sedley and
Lord Justice Moore-bick
Case No: C5/2007/1045
Mr M Gill QCMr D O'Callaghan (instructed by Messrs Hersi & Co) for the Appellant
Ms E Laing (instructed by The Treasury Solicitors ) for the Respondent
Hearing date: Monday 18 February 2008
The issues
The appellants are brothersister, born in 19911995therefore still minors. Their litigation friend in these proceedings is Fawsiya Sharif Omar, who is their cousin and, for entry clearance purposes, their sponsor. She has indefinite leave to remain in this country as a refugee, having fled here in 2002 from the carnage being perpetrated in Somalia by militias in the civil war. She is dependent on public funds for her accommodationsubsistence, but out of it manages to send modest but regular sums to maintain the two appellants. Their wishhers, however, is to be reunited here.
In July 2003 the appellants applied for entry clearance for this purpose. 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,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.
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,went on to find that the combination of compassionate circumstances with the appellants' article 8 rights entitled them to succeed.
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 200He 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 accordingly substituted decisions dismissing both appeals.
Manjit Gill QC, for the appellants, does not abandon the submission that even in 2004 the appellants qualified for admission outside the Rules; but his real case, which Carnwath LJ considered to merit this court's attention, is that the legislation, correctly construed, does not limit the AIT on appeal to the situation obtaining at the time of the refusal of entry clearance. Elisabeth Laing, for the Home Secretary, concedes that even if Mr Gill is wrong about that – as she contends he is —SIJ Spencer has made a separate error of law by determining the art. 8 issue, albeit correctly as at 2004, by an incorrect test of exceptionality. The Treasury Solicitor has proposed remission on this ground, but Mr Gill has justifiably pressed on with his contention that what still matters is the date as at which the test is to be applied. If he succeeds on that issue, he has a finding of the immigration judge in his favour on compassionate circumstances which the senior immigration judge has not purported to disturb. If he fails on it, Miss Laing accepts that the appeal has to be remitted for the purpose of determining the application of art.8 to the facts as they stood in 2004 in accordance with what is now known to be the law.
Additionally Mr Gill contends that there was before SIJ Spencer a claim, which he failed to address, under paragraph 352D of the Immigration Rules. He asks us either to allow the appeal on that discrete issue or to include it in the remitted case.
The background
The appellants are war orphans. In 1998 both their parents were killed. They were adopted by the present sponsor's parents as members of the family. In 2000 the sponsor's parents were both killed,the sponsor, who was their cousin, undertook to care for them. The following year, not long after she had remarried, the sponsor herself was put in a detention campher new mother-in-law took over the care of the two children. The following year, 2002, the mother-in-law had to flee with the children to Ethiopia. The sponsor herself managed to reach the United Kingdom, where she was accorded refugee status. Once settled here,although reliant on public funds, she was able to send modest sums of money to her mother-in-law for the appellants' maintenanceto maintain telephone contact with them. This, broadly, was the situation when entry clearance for the two children was applied forrefused.
But in 2005 the sponsor's husband left herher mother-in-law, blaming her for the separation, left the children in the care of a friend of the sponsor, named Shamis. By the time of the hearing of the appeal, in April 2006, their situation was found by the immigration judge to be that, although the sponsor had continued to maintain parental control,
“the conditions in which the appellants have been living since January 2005 appear to be below the standard in which they were living with the mother-in-lawthey are not being well clothedsometimes money has to be begged for from neighbours. Shamis is not giving the care that would be adequate for children of the appellants' ages.”
The immigration judge accepted that the sponsor was greatly concerned about the children's welfarethat her accommodation, while small, was sufficient to enable her to have them with herher own small child. He found that the money she would no longer be having to send to Somalia would go towards their maintenance.
The issue of law
Was the immigration judge right or wrong to base his decision on events which had changed the picture seriously for the worse since the refusal of entry clearance? It is worth observing that the Home Office has nothing to gain overall by establishing that he was wrong. To do so will mean that a situation which has changed to the applicant's benefit, thereby diminishing or negativing the case for entry, has to be ignored on appeal. If statute were silent about it, common sense might well dictate an up-to-date appraisal of an applicant's situation,never more so than when through the Home Office's own inactivity the lapse of time has enhanced the case for admission.
But the Nationality, ImmigrationAsylum Act 2002 is not silent on the subject. Section 82(1) affords an appeal against any immigration decision, an expression which by s. 82(2) includes both refusal of entry clearancerefusal of leave to enter. Section 85(4)(5) as amended then provide:
(4) On an appeal under section 82(1) … against a decision the Tribunal may consider evidence about any matter which it 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 a refusal of entry clearance …
(a) subsection (4) shall not apply, the Tribunal may consider only the circumstances appertaining at the time of the...
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