MK (Somalia) v Entry Clearance Officer
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay:,Lord Justice Thomas,Lord Justice Waller |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1453 |
| Docket Number | Case No: C5/2008/0890 |
| Date | 19 December 2008 |
| Court | Court of Appeal (Civil Division) |
[2008] EWCA Civ 1453
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
REF NO: 0A113692006
Lord Justice Waller
Lord Justice Thomas and
Lord Justice Maurice Kay
Case No: C5/2008/0890
Mr Nigel Pleming QC and Mr Eric Fripp (instructed by Messrs Pickup & Jarvis) for the Appellants
Miss Lisa Giovannetti (instructed by Treasury Solicitors) for the Respondent
Mr Simon Cox (instructed by Simons Muirhead & Burton) for the Intervener (written submissions only)
Hearing date : 3 December 2008
Judgement
The three appellants are female children who are nationals of Somalia. They are now aged 14, 12 and 11. Their history is harrowing. They and their family belong to the Ashraf, a minority group which does not possess an armed militia for its protection. Members of the group have been accepted by the Asylum and Immigration Tribunal (AIT) as being at risk of persecution in Somalia. The appellants' mother was killed by tribal militia men in Somalia in 1997 when the eldest girl was aged 3 and the youngest was only 5 days old. Their mother drowned after being thrown into a well as punishment for resisting the attempts of the militia men to rape her. The appellants' father is missing in Somalia and has not played a parental role since before the death of his wife. After her death the appellants were taken into the household of their maternal aunt (the Sponsor) in which she lived with her husband and two children —a girl Hodan (now aged 12) and a boy Abdulrahman (now aged 11). A further girl, Hodo, was born to the Sponsor and her husband in 2000 and is now aged 8. From 1997, the appellants were raised as part of the Sponsor's household, the Sponsor becoming the only mother figure within their recollection. They were treated equally with her natural children.
In 2003 the Sponsor and Hodo became separated from the family group when they were kidnapped. The Sponsor was forced into slavery by militia men, along with another child (a son younger than Abdulrahman but older than Hodo) who was killed when the Sponsor and Hodo escaped from the militia men's camp during fighting. The Sponsor and Hodo ultimately travelled to the United Kingdom where, on 25 July 2005, the Sponsor was recognised as a refugee with Hodo as her dependent. In the meantime, after the Sponsor and Hodo had separated from the rest of the family, the remaining children including the appellants were cared for by the Sponsor's husband. Eventually the Sponsor traced the rest of the family and her husband took them to Ethiopia in order to seek reunion with the Sponsor. In January 2006 applications for entry clearance to join the Sponsor were made by the Sponsor's husband, her two children and the appellants. The entry clearance officer at Addis Ababa granted clearance to the husband and the natural children of the Sponsor and they are all now reunited with her in this country. However, clearance was refused in the case of the appellants. It seems that the appellants remain in Ethiopia under the care of the mother of the Sponsor's brother's wife.
Following the adverse decision of the entry clearance officer, the appellants appealed to the AIT. Their appeals were dismissed by an Immigration Judge and they were further unsuccessful before a Senior Immigration Judge on reconsideration.
In a nutshell, the appellants are unable to secure entry pursuant to the Immigration Rules. They cannot satisfy paragraph 297, the general provision for children seeking reunion with a relative, because they could not be maintained and accommodated by the Sponsor without recourse to public funds. More importantly, they do not qualify under the Refugee Family Reunion provisions of the Immigration Rules because their status in the family amounts to no more than de facto adoption. Their primary case is that they are entitled to entry clearance pursuant to a concessionary policy which is said to exist outside the Immigration Rules and to accrue for the benefit of children “who formed part of the family unit prior to the time the Sponsor fled to seek asylum”. Their secondary case is that, if they are not entitled to entry clearance pursuant to such a policy, it would nevertheless breach their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms if they were to be denied entry clearance. They failed by reference to both cases before the AIT. It is common ground that the decisions of the AIT on Article 8 were vitiated by legal error and that the Article 8 case will have to be remitted for further reconsideration. The live issue on this appeal relates to the policy which is claimed to exist outside the Immigration Rules. In order to establish or interpret it, the appellants seek to rely on customary international law but also on domestic arguments which are not dependent on that.
De facto adoption is of particular concern in cases from Somalia because (1) the institutions of the state are greatly depleted and formal adoption is unlikely and (2) in any event there are religious difficulties surrounding formal adoption based on the Islamic principle of Nasabiyah or blood lineage.
Customary international law
On behalf of the appellants, Mr Pleming QC prefaces his submissions by seeking to rely on customary international law. At its highest, the suggestion is that, although the Refugee Convention is silent on the subject, customary international law sustains the family reunion policy and imbues it with a generous meaning, sufficient to embrace de facto adoption. It is further suggested that this either provides a subtext for a free-standing domestic policy outside the Immigration Rules or, at the very least, should be deployed as an aid to the interpretation of the policy.
The Final Act of the Conference of Plenipotentiaries convened in relation to the Refugee Convention recommended Governments
“to take the necessary measures for the protection of the refugee's family, especially with a view to (1) ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for the admission to a particular country, [and] (2) the protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.”
In his respected treatise The Rights of Refugees under International Law, 2005, at page 533, Professor Hathaway states:
“Whilst it is possible to dismiss the Conference's recommendations as essentially hortatory, a plausible case can be made that at least the core elements of Recommendation B of the Final Act have ripened into customary international law.”
As part of the suggested ripening process, he refers to subsequent resolutions of the UNHCR's Executive Committee. However, he is constrained to observe that
“on close examination, it is clear that while there is continuing insistence that the family members of a primary applicant refugee should be admitted to protection, most refugee-specific formulations fail to define with any precision the content of an affirmative dimension of the principle of family unity.” (page 545)
He therefore limits the scope to “the refugee's opposite-sex spouse and any minor, dependent children” (page 547).
In 2001 the UNHCR held a series of consultations with experts. They are recorded in Feller, Türk and Nicholson, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, 2003. The relevant passage is strong on “respect for the right to family unity” but goes on to state (page 582):
“There is no one single, internationally accepted definition of the family, and international law recognises a variety of forms … Given the range of variations on the notion of family, a flexible approach is needed. In UNHCR's view, States...
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