MB (Somalia) v Entry Clearance Officer
| Jurisdiction | England & Wales |
| Judgment Date | 20 February 2008 |
| Date | 20 February 2008 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Laws, Dyson and Moore-Bick LJJ
Representation
Mr David Jones instructed by Messrs Wilson & Co, for the Claimant;
Ms Katherine Olley instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
AH (Article 8_ECO_Rules) Somalia[2004] UKIAT 00027
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11; [2007] 2 AC 167; [2007] Imm AR 571; [2007] INLR 314
Ishtiaq v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 386; [2007] Imm AR 712; [2007] INLR 425
KL (Article 8-Lekstaka-delay-near-misses) Serbia & Montenegro[2007] UKAIT 00044
KP (Para 317: mothers-in-law) India[2006] UKAIT 00093
MO (Date of decision: applicable rules) Nigeria[2007] UKAIT 00057
R v Immigration Appeal Tribunal ex parte Bibi[1987] Imm AR 392
R v Immigration Appeal Tribunal ex parte SinghWLR[1987] 1 WLR 1394; [1987] Imm AR 563
R v Secretary of State for the Home Department ex parte Arman Ali[2000] Imm AR 134; [2000] INLR 89
R v Secretary of State for Work and Pensions ex parte Carson; R v Secretary of State for Work and Pensions ex parte ReynoldsUNK[2005] UKHL 37; [2006] 1 AC 173
Legislation judicially considered:
Immigration Rules HC 395 (as amended), paragraph 317(i)(a) and (e)
Human rights Article 8 of the ECHR near miss cases Article 14 of the ECHR discrimination between widows and separated persons immigration leave to enter paragraph 317(i)(a) of the Immigration Rules separated mothers not included
The Claimant, a citizen of Somalia, applied for entry clearance in 2004 as the parent of a person present and settled in the United Kingdom. Her son, who had left Somalia in 1995, had been granted refugee status in the United Kingdom. The Claimant had remained in contact with him, and after she moved to Kenya in 2002 he visited her on two occasions. The Claimant told the Entry Clearance Officer (ECO) that she was over sixty-five years of age, and although she was married, she did not know her husband's current whereabouts because she had become separated from him as a result of the war in Somalia.
Paragraph 317 of the Immigration Rules HC 395 (as amended) set out the requirements to be met by a person seeking indefinite leave to enter or remain as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom. Paragraph 317(i)(a) applied to a mother who was a widow of sixty-five or over, and paragraph 317(i)(e) applied to a parent under the age of sixty-five.* Section 6 of Chapter 8, Annex V to the Immigration Directorate Instructions (IDIs) further provided that widowed, single, separated or divorced parents of any age could also be considered under paragraph 317(i)(e). The ECO refused the Claimant's application on the grounds that she could not meet the requirements of either paragraph 317(i)(a) or paragraph 317(i)(e) as she was not a widow and her circumstances were not exceptional.
On appeal, an Immigration Judge found first, that the Claimant could not satisfy the requirements of the Immigration Rules, and secondly, taking account of her age, the findings under the Immigration Rules, her son's ability to visit her in Kenya, and her relatively good health, this was not a truly exceptional case and there was no violation of Article 8 of the ECHR.
On reconsideration, the Asylum and Immigration Tribunal affirmed the Judge's decision. The Claimant appealed to the Court of Appeal on the grounds first, that on its true construction separated women were included in paragraph 317(i)(a); secondly, if separated women were excluded from paragraph 317(i)(a), the rule was arbitrary, irrational and unlawful; thirdly, paragraph 317(i)(a) unjustifiably discriminated between widows and separated women contrary to the Claimant's
rights under Article 14 of the ECHR; and fourthly, the decision to refuse the Claimant leave to enter violated her rights under Article 8 of the ECHRHeld, dismissing the appeal:
(1) giving the words used their ordinary meaning, it was impossible to read paragraph 317(i)(a) as including separated or divorced mothers (para 22);
(2) the Immigration Rules, like any other instrument, should be construed so as to further their purpose; the purpose of paragraph 317 was to state the requirements for indefinite leave to remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom; fixing those requirements involved policy questions as to which class of dependent relative should be included and on what terms; it was for the Secretary of State for the Home Department to strike the fair balance between the interests of families and the need for an effective system of immigration control and that decision would only be interfered with if it was unlawful or if its application in an individual case violated the individual's rights under the ECHR (para 23);
(3) if the plain and ordinary meaning of a rule yielded an absurd result, the court would strain to avoid it; if paragraph 317(i) made no provision at all for separated parents, it would be absurd; read literally, it had this effect but Section 6 of Chapter 8, Annex V to the IDIs filled the lacuna in paragraph 317(i) because it made provision for separated, single and divorced parents (paras 25, 26 and 28);
(4) it was not irrational for the Secretary of State to take the view that the range of the class of separated mothers was so wide that they should not be assimilated to widows, or that such a definition would give rise to great uncertainty or difficulty of application; the fact that a policy could produce irrational results in individual cases, although relevant to the question of whether the policy was irrational as a whole, was not determinative of it: the rationality of the policy had to be judged by considering the policy as a whole (paras 30 and 31);
(5) the discrimination made by the Immigration Rules between different classes of dependent relatives was not based on characteristics of those relatives which prima facie offended notions of respect due to the individual; rather, the determination was based on the decision of the Secretary of State in carrying out the difficult balancing exercise between the interests of families and the need for an effective system of immigration control; there was no unjustifiable discrimination and the claim under Article 14 of the ECHR had to fail (paras 3538);
(6) subject to one qualification, the Tribunal was correct to hold that the approach of the Immigration Judge to the Article 8 issue could not be criticised; although the facts of the Claimant's case were close to those of a widow, and her case therefore came close to paragraph 317(i)(a), it did not follow that the refusal of her Article 8(1) rights resulting from the refusal of entry clearance was disproportionate; just as a person could fail to qualify under the Immigration Rules and still have a valid claim under Article 8, a person could qualify under the Immigration Rules and not have a valid claim under Article 8; the only qualification was that the Judge applied the exceptionality test, but if he had directed himself in accordance with the decision of the House of Lords in Huang v Secretary of State for the Home Department[2007] UKHL 11, his conclusion would have been the same (paras 43 and 4547);
(7) (per curiam) paragraph 317(i)(a) was unsatisfactory and the Secretary of State should be encouraged to review it: it was unsatisfactory that an obvious lacuna was made good by a passage in the IDIs; the relevant passage of the IDIs was badly drafted; it was difficult to see on what rational basis divorced persons aged sixty-five and over as a class were excluded from paragraph 317(i)(a), but a subset of divorced persons aged sixty-five and over, namely those who had remarried and could not look to the spouse or child of the second relationship for financial support, were included under paragraph 317(i)(d), when unlike separated persons, divorced persons were a class of certain definition (paras 49 and 60).
Lord Justice Dyson:
[1] This appeal raises questions as to the proper interpretation of para 317(i) of the Immigration Rules (the Rules) and the application of Articles 8 and 14 of the European Convention on Human Rights (the Convention) to that paragraph in the light of the facts of this case.
[2] Para 317 of the Rules provides as follows:
317 The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:
(i) is related to a person present and settled in the United Kingdom in one of the following ways:
(a) mother or grandmother who is a widow aged 65 years or over; or
(b) father or grandfather who is a widower aged 65 years or over; or
(c) parent or grandparents travelling together of whom at least one is aged 65 or over; or
(d) a parent or grandparent aged 65 or over who has remarried but cannot look to the spouse or children of the second marriage for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or child of the second marriage who would be admissible as a dependant; or
(e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and
(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and
(ii) is joining...
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