HK (Discrimination – Refugees' family policy) Somalia
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 2006 |
| Neutral Citation | [2006] UKIAT 21 |
| Date | 27 January 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Mr C M G Ockelton, Deputy President, Mr J Freeman, Senior Immigration Judge and Professor A Grubb, Senior Immigration Judge
Representation
Mr T K Mukherjee instructed by Islington Law Centre, for the Claimant;
Mr Peter Deller, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
AH (Somalia) [2004] UKIAT 00027
R (on the application of Hamfi) v Immigration Appeal Tribunal and Secretary of State for the Home DepartmentUNK [2004] EWHC 939 (Admin)
R v Secretary of State for Work and Pensions ex parte Carson; R v Secretary of State for Work and Pensions ex parte ReynoldsUNKELR [2005] UKHL 37; [2006] 1 AC 173
Human rights Article 14 of the ECHR Home Office policies/concessions family reunion policy dependency
The Claimant, a citizen of Somalia who lived in Uganda, applied for entry clearance to enable her and her four dependent children to join her minor daughter, who had been given indefinite leave to remain as a refugee in the United Kingdom. The Adjudicator and the Immigration Appeal Tribunal upheld the Secretary of State for the Home Department's decision to refuse the application for entry clearance. On appeal, the Court of Appeal ordered, by consent, that the decision of the Tribunal be quashed and that the Claimant's appeal be reheard. That order took effect as an order for reconsideration by the Asylum and Immigration Tribunal. Before the Tribunal, counsel for the Claimant argued that the Secretary of State's decision was unlawfully discriminatory under Article 14 of the ECHR; the Immigration Rules HC 395 (as amended) and the Home Office Family Reunion Policy (the policy) provided that the parents and siblings of a minor who had been granted refugee status were not entitled to family reunion but if the policy were reversed, that is to say if, at the date of application, the sponsor had been the Claimant and the Claimant her minor child, there would have been little difficulty in securing admission.
Held, substituting a fresh determination dismissing the Claimant's appeal against the decision by the Secretary of State:
(1) it was assumed that dependency was an other status within the meaning of Article 14 (para 14);
(2) the Immigration Rules and the policy embodied a precise and quite detailed, but limited, right of family reunion for family members of a refugee granted asylum in the United Kingdom, which could not be overridden by the urgings of UNHCR or any other general views (para 16);
(3) the Council of Europe, the parent body of the ECHR, recommended family reunion for spouses, dependent minor children and, according to domestic legislation or practice, other relatives; the recommendation was a clear demonstration that the Council of Europe would not regard the policy as being contrary to Article 14 (para 1819);
(4) if A was dependent on B, it did not follow that B was dependent on A; a policy based on dependency was itself likely to be asymmetric but did not for that reason breach provisions prohibiting discrimination (para 20);
(5) the family reunion of refugees was a question of general social policy, provided that refugees themselves were afforded appropriate protection; it was a matter which could properly be left to Parliament and the executive; R (Carson) v Secretary of State for Work and PensionsUNK [2005] UKHL 37 considered (para 22).
Determination and Reasons
C M G Ockelton, Deputy President
[1] The Appellant is a citizen of Somalia. She appealed to an Adjudicator against the decision of the Respondent on 6 December 2001 refusing her entry clearance. In a determination sent to the parties on 1 May 2003 an Adjudicator, Ms Sarvanjan Kaler, dismissed her appeal. She applied for and was granted permission to appeal to the Immigration Appeal Tribunal, which dismissed her appeal in a decision sent to the parties on 11 June 2004. She applied for permission to appeal to the Court of Appeal. Permission was refused by the Tribunal, but granted by the Court, which ordered by consent on 13 July 2005 that the Tribunal's decision be quashed and that the Appellant's appeal to the Tribunal be reheard. By the time the consent order was made, the Tribunal had ceased to exist but there is no doubt that the quashing of the Tribunal's decision leaves undecided an appeal to it, which, following the commencement of the appeals provisions of the 2004 Act, takes effect as an order for reconsideration by this Tribunal. Four children of the Appellant had claimed and have appeals dependent on hers.
[2] The sponsor is also the Appellant's daughter. She came to the United Kingdom on 17 February 1999 and applied for asylum. On 17 June 2000 she was given indefinite leave to remain as a refugee. The sponsor's father appears to have remained in Somalia. The sponsor's mother and siblings, who are the Appellants in this appeal, went to Uganda. It has been the feature of the Appellant's case as put by Mr Mukherjee's predecessor, Mr Taghavi, that they were in Uganda illegally. He asserted this in submissions to the Adjudicator, and emphasised it specifically in his application for permission to appeal to the Immigration Appeal Tribunal (the Appellants (who were and continue to unlawfully reside in Uganda)), before the Tribunal, where he asserted that there had been evidence to that effect before the Adjudicator, and in his grounds of appeal to the Court of Appeal (her family are living illegally in Uganda). We regarded these assertions as rather unlikely, given that the sponsor's recognition as a refugee was based on her clan membership and that Uganda is a party to the Refugee Convention and has a long record of acting as a haven for refugees from Somalia. We therefore asked Mr Mukherjee what the evidence was that the Appellant and her children...
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