FH (Post-Flight Spouses) Iran
| Jurisdiction | UK Non-devolved |
| Judge | C M G OCKELTON |
| Judgment Date | 19 July 2010 |
| Neutral Citation | [2010] UKUT 275 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 19 July 2010 |
[2010] UKUT 275 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Lord Justice Sedley
Mr C M G Ockelton, Vice President
Senior Immigration Judge Perkins
For the Appellant: Mr A Mahmood and Miss N Ismail, instructed by IAS
For the Respondent: Mr S Ouseley, Home Office Presenting Officer
FH (Post-flight spouses) Iran
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1. The Immigration Rules make no provision for the admission of post-flight spouses of refugees with limited leave. The Rules should be changed. In the mean time it is most unlikely that it will be proportionate to refuse the admission of the spouse of a refugee where all the requirements of paragraph 281 are met save that relating to settlement.
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2. Immigration Rules cannot be the subject of a declaration of incompatibility under s.4 of the Human Rights Act 1998, and in any event, a Tribunal has no power to make such a declaration.
This is the judgement of the Tribunal.
The appellant is a national of Iran. She appealed to the Asylum and Immigration Tribunal against the decision of the respondent on 4 March 2009 refusing her entry clearance to the United Kingdom as the spouse of the sponsor, who is also a national of Iran, and is in the United Kingdom with leave as a refugee. Immigration Judge Rose dismissed her appeal. The appellant sought and obtained an order for reconsideration, which under the provisions of paragraph 4 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 takes effect as a grant of permission to appeal to this Tribunal.
The sponsor was born in 1980. He came to the United Kingdom in 2002 and claimed asylum. Following an appeal, he was in due course recognised as a refugee on the basis of his conversion to Christianity, and granted limited leave to remain in the United Kingdom. That grant was made on 15 May 2006 and was for (nearly) five years: it expires, for some reason, on 11 May 2011. Under the terms of the Refugee Convention he was also issued with a Refugee Travel Document.
The appellant was born in 1976. She and the sponsor had known each other since 1999, and had been in contact since the sponsor left Iran. In 2008 they both travelled to Turkey, and were married there on 16 November 2008. They then each returned to their countries of usual residence. The appellant applied on 4 February 2009 for a visit visa, which was refused; she then applied on 17 February for a settlement visa as the sponsor's wife. It is convenient to indicate at this point that the Immigration Judge found that the marriage was valid, genuine and subsisting; and Mr Ouseley indicated to us, on the basis of the evidence that has been made available at various stages during the course of this appeal, that there was no doubt that, at the date of the decision and now, the sponsor's financial circumstances were such that the appellant would be maintained and accommodated adequately without recourse to public funds in the manner required by paragraph 281 of the Statement of Changes in Immigration Rules, HC 395 insofar as that paragraph applies to the appellant.
We turn, then, to the Immigration Rules. The Rules which appear to touch the appellant's situation most closely are paragraphs 281 and 352A. We set them out below omitting parts which are certainly not relevant to the present appeal.
“281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement ….
(ii) the parties to the marriage have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependents without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be available to maintain themselves and any dependants adequately without recourse to public funds ….
A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a refugee are that:
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(i) the applicant is married to a person granted asylum in the United Kingdom; and
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(ii) the marriage did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and
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(iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
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(iv) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; ….”
Those familiar with the Immigration Rules will be aware that paragraph 281 is the normal route for the admission of a foreign spouse. Paragraph 352A arises from the United Kingdom government's acceptance of a principle of family reunion for refugees. As will be seen from its terms, paragraph 352A is limited to the spouses of those who have been recognised as refugees; it differs also from paragraph 281 in that there is, for spouses of refugees, no financial requirement: it is not necessary to show that adequate maintenance and accommodation will be available without recourse to public funds. The phrase “a person granted asylum” in paragraph 352A(i) was the subject of authoritative interpretation by the Supreme Court in ZN (Afghanistan) and others v Entry Clearance Officer [2010] UKSC 21. The Court was there concerned with the family members of an individual who, after being granted asylum, had subsequently attained British citizenship. The Secretary of State's argument was that the provisions of paragraph 352A were no longer applicable and that the sponsor's family members should seek admission under the normal provisions relating to those present and settled in the United Kingdom (in other words, for a spouse, paragraph 281, with its requirements as to maintenance and accommodation). The Supreme Court rejected that argument, holding that the grant of asylum was a historical fact and that a person who had been granted asylum did not cease to be “a person granted asylum” if his status was no longer that of a refugee but that of a British citizen.
That decision means that a person who was the sponsor's spouse before he left his own country continues to benefit from the more generous provisions of paragraph 352A despite any change in the sponsor's status in the United Kingdom. It does not assist the appellant in the present case, however, because she was not the sponsor's spouse before he left Iran.
Paragraph 281 does not assist the appellant either. Although, as we have said, there is no dispute about the nature of the marriage, and the appellant's ability to meet the financial requirements of paragraph 281, the difficulty here relates to the requirement in the opening words of paragraph 281 that she be intending to join a person “present and settled in the United Kingdom”. That phrase, for the purposes of the Immigration Rules, is defined in paragraph 6, which, so far as relevant for present purposes, reads as follows:
“‘settled in the United Kingdom’ means that the person concerned:
(a) is free from any restriction on the period for which he may remain…
(b) is either:
(i) ordinarily resident in the United Kingdom without having entered or remained in breach of the immigration laws; or
(ii) despite having entered or remained in breach of the immigration laws, has subsequently entered lawfully or has been granted leave to remain and is ordinarily resident.”
Subparagraphs (a) and (b) are cumulative requirements. As we have said, the sponsor has limited leave to remain, until May next year. He is thus not “settled” for the purposes of paragraph 281, and it follows that the appellant is not entitled to admission under that paragraph.
Neither paragraph 281 nor paragraph 352A appears to admit of any argument as to ambiguity. It is not for the Tribunal to write or rewrite Immigration Rules. It follows that the appellant cannot succeed under the Immigration Rules.
The Secretary of State recognises that “post-flight spouses”, such as the appellant, cannot qualify under the Immigration Rules. In that respect, they are treated differently not only from pre-flight spouses (paragraph 352A) and the spouses of those settled in the UK (paragraph 281), but also from the...
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