Ms and Others (Family Reunion: “in Order to Seek Asylum”)

JurisdictionEngland & Wales
JudgeC M G OCKELTON,DEPUTY PRESIDENT
Judgment Date19 May 2009
Neutral Citation[2009] UKAIT 41
CourtAsylum and Immigration Tribunal
Date19 May 2009

[2009] UKAIT 41

THE IMMIGRATION ACTS

ASYLUM AND IMMIGRATION TRIBUNAL

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Grubb

Senior Immigration Judge Kekic

Between
MS
AA
FA
Appellants
and
Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr C Yeo instructed by Lawrence Lupin Solicitors

For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

MS and others (family reunion: “in order to seek asylum”) Somalia

The family reunion provisions of para 352A et seq do not extend to the family members of those whose own status derives only from those Rules. In those circumstances, a claimant cannot show that the sponsor left his country of former habitual residence “in order to seek asylum” as required by the Rules.

DETERMINATION AND REASONS
1

The first Appellant is a Somali national aged twenty-six. The second and third Appellants are her two dependent children aged respectively five and three years of age. On 1 February 2008 the Entry Clearance Officer in Addis Ababa refused the Appellants entry clearance to come to the UK as the spouse in the case of the first Appellant) and the children in the case of the second and third Appellants) of the Sponsor. On appeal, Immigration Judge J R Devittie in a determination signed on 23 October 2008, dismissed each of the Appellants' appeals under paras 281 and 352A in the case of the first Appellant) and paragraphs 297 and 352D in the case of the second and third Appellants) of the Immigration Rules Statement of Changes in Immigration Rules, HC 395). He also concluded that the Appellants had failed to show a breach of Article 8 and their respective right to respect for their family life. On 27 November 2008, Senior Immigration Judge Waumsley ordered reconsideration and thus the matter came before us.

2

The essential background facts to these appeals are as follows. The Sponsor fled Somalia, a country of which he is a national, in 1991 at the outbreak of the civil war. He claims to be of Ashraf ethnicity. He went to Addis Ababa in Ethiopia. On 30 January 2002 in Ethiopia he married his first wife, LD on 30 January 2002. Shortly after that LD came to the United Kingdom where she gave birth on 12 January 2003 to their son. She claimed asylum and was recognised as a refugee in 2004. On 24 December 2002, after LD had left Ethiopia, the Sponsor married the first Appellant. On 10 September 2003 their daughter the second Appellant) was born. On 28 May 2005, the Sponsor came to the United Kingdom under the refugee family reunion provisions to join LD, his first wife who, as we have said, had been granted refugee status in the United Kingdom. On 19 November 2005 the second child of his marriage to the first Appellant was born in Ethiopia. That child is the third Appellant. On 4 December 2007, the Sponsor and his first wife, LD were divorced see decree absolute issued by the Willesden County Court at pages 19–20 of the Appellants' trial bundle). Thereafter, the Appellants sought entry clearance to join the Sponsor as his spouse and daughters, the refusals of which are the subject of this appeal.

3

Mr Yeo accepted that the Appellants could not succeed under paragraphs 281 and 297 of HC 395 because they could not meet the maintenance and accommodation requirements. Instead, Mr Yeo relied exclusively upon the family reunion rules of HC 395, namely paras 352A and 352D.

4

The first point taken before us concerned para 14 of the Judge's determination where he concluded that the first Appellant and the Sponsor were not validly married. Thus, the Judge concluded that the first Appellant could not rely on para 281 to gain entry to the UK. That conclusion would equally debar the first Appellant relying on para 352A as the “spouse” of a refugee.

5

Mr Yeo submitted that the Immigration Judge had erred in law in concluding that the marriage was invalid. He submitted that the Judge's reasoning in para 13 of his determination was wrong. There, the Judge said this:

“It is accepted that polygamous unions are not recognised in English law. I find in public law…a polygamous union is void ab initio….I find that for the reasons I have set out the fact that polygamous unions are voidable in Ethiopian law does not confer validity on them in UK immigration law which I take to be governed by principles of public law.”

6

Mr Yeo accepted that the marriage to the first Appellant was a polygamous one but it was, he submitted, nevertheless valid under Ethiopian law unless subject to an order of dissolution under Ethiopian law. Consequently, he submitted that as a matter of private international law the first Appellant's marriage to the Sponsor, being a valid law under Ethiopian law, was one that was recognised by English law.

7

We need say little about this submission, other than to note that it is demonstrably correct, and it was accepted as such by Mr Deller on behalf of the Respondent. He accepted that the Judge had erred in law in concluding that the first Appellant's marriage to the Sponsor is not a valid marriage for the purposes of English law: it is valid. He further acknowledged that the polygamous nature of the marriage did not affect the application of the Immigration Rules to the first Appellant. We were referred to paragraph 278 of HC 395 which provides, so far as relevant, as follows:

“278. Nothing in these Rules should be construed as allowing a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as the spouse of a man or woman the Sponsor) if:

  • (i) his or her marriage to the Sponsor is polygamous; and

  • (ii) there is another person living who is the husband or wife of the Sponsor and who:

    (a) is, or at any time since his or her marriage to the Sponsor has been, in the United Kingdom; or …”

8

It was accepted that since the Sponsor and his first wife were divorced under English law on 4 December 2007 it could not be said that, in the words of para 278(ii), “there is another person living who is the… wife of the Sponsor”.

9

Mr Deller submitted, however, that the error of law was not material since the first Appellant could not succeed under para 352A and by parity of reasoning neither could the other Appellants under para 352D. The only possible outcome of the appeal was to dismiss the Appellants' claims under the Rules.

10

The applicable provision of the Immigration Rules in respect of the first Appellant is para 352A which, so far as relevant, provides as follows:-

“352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that:

  • (i) the applicant is married to or the civil partner of a person granted asylum in the United Kingdom; and

  • (ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and

  • (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

  • (iv) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting;…”

11

The applicable provision of the Immigration Rules in respect of the second and third Appellants is para 352D which, so far as relevant, provides as follows:

“352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who has been granted asylum in the United Kingdom are that the applicant:

  • (i) is the child of a parent who has been granted asylum in the United Kingdom; and

  • (ii) is under the age of 18; and

  • (iii) is not leading an independent life, is unmarried and is not a civil partner, and had not formed an independent family unit; and

  • (iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and

  • (v) 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;…”

12

In relation to paragraph 352A, Mr Deller submitted that the first Appellant could not show that she was the spouse of “a refugee”, that she is married to “a person granted asylum” in the UK para 352A(i)) and that the marriage did not take place after the Sponsor left Ethiopia “in order to seek asylum” para 352A(ii)). By parity of reasoning, in relation to the second and third Appellants Mr Deller submitted that they were not the children of a person the Sponsor) “granted asylum” para 352D(i) and iv)) and further that they had not been part of the family unit of a person granted asylum who left Ethiopia “in order to seek asylum” para 352D(iv)).

13

Mr Yeo submitted that the Sponsor was indeed a refugee and a person who had been granted asylum in the UK. He submitted that the Sponsor when he came to the United Kingdom in May 2005 had been recognised as a refugee. He drew our attention to the Convention travel document which had been issued to the Sponsor, a copy of which is at pages 14–17 of the Appellants' trial bundle. Further, he referred us to page 18 of the same bundle where it is clear that the Sponsor had been granted indefinite leave to remain....

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