As (Somalia) and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD HOFFMANN,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD PHILLIPS OF WORTH MATRAVERS |
| Judgment Date | 17 June 2009 |
| Neutral Citation | [2009] UKHL 32 |
| Date | 17 June 2009 |
| Court | House of Lords |
[2009] UKHL 32
HOUSE OF LORDS
Appellate Committee
Lord Phillips of Worth Matravers
Lord Hoffmann
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
and another
Appellants:
Manjit Gill QC
Declan O'Callaghan
Sophie Weller
(Instructed by Hersi & Co)
Respondent's:
Elisabeth Laing QC
Joanne Clement
(Instructed by Treasury Solicitors)
My Lords,
Introduction
The appellants are two young Somalis. The first appellant was born on 1 January 1991 and the second on 1 January 1995. When leave to appeal to the House was granted they were living in Ethiopia. They were appealing against the refusal of entry clearance which would have permitted them to enter the United Kingdom to live with their cousin, Ms Omar, who sponsored their application. Ms Omar is a recognised refugee who is settled in the United Kingdom. She acts as the litigation friend for the second appellant, who is still a child. On 30 October 2008 the appellants were granted entry clearance. They travelled to this country on 21 November 2008 and now live with Ms Omar. The House decided to entertain their appeal despite this because it raises an issue that is likely to affect a substantial number of other applicants. The issue in question relates to the effect of section 85(5) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").
Where members of the family of a refugee who has been given leave to remain in this country seek to join the refugee for the purpose of family reunion it is the policy of the Home Department to have regard to the right to respect for family life guaranteed by article 8 of the European Convention on Human Rights. It is the appellants' case that section 85(5) of the 2002 Act, if read literally, is incompatible with article 8, but that it is possible to remedy this by 'reading down' the subsection pursuant to section 3 of the Human Rights Act 1998. The Court of Appeal, in a single judgment delivered by Sedley LJ [2008] EWCA Civ 149, held that section 85(5) could not be read down as it was "unequivocal and unyielding", but that it was not incompatible with the Convention.
The appellants' case
Section 82(1) of the 2002 Act gives a right of appeal against an immigration decision. Section 82(2) sets out a list of 11 decisions that fall within the definition of "immigration decision". These include:
"(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance…"
Where a person outside the country wishes to enter the United Kingdom his proper course is to apply for entry clearance to an entry clearance officer in the country where he is living. If entry clearance is granted, leave to enter follows automatically. Where a person manages to enter the United Kingdom without entry clearance and wishes to remain his appropriate course is to make an application for leave to enter to an immigration officer in this country.
Section 85 of the 2002 Act, in its original form, provided:
"…
(4) On an appeal under section 82(1)…against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance…
(a) subsection (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse."
Those subsections applied in their original form at the time of the events that have given rise to this appeal. In order to comply with the current regime, they have since been amended so as to substitute "the Tribunal" for "an adjudicator" in section 85(4) and "the adjudicator" in section 85(5)(b).
The manner in which these provisions operated in the present case was described by Sedley LJ in the following passage of his judgment:
"2. In July 2003 the appellants applied for entry clearance …. The entry clearance officer in Addis Ababa, having referred the application to the Home Office, refused it by a decision dated 24 August 2004. The delay in taking a decision of this importance to those involved seems inordinate. On 25 October 2004 an appeal was lodged against the refusal. For reasons which again are completely unaccounted for, and which it has to be inferred amount to no more than inertia in the Home Office, the papers did not reach the AIT until 9 March 2006.
3. In the intervening period the appellants' situation had changed very much for the worse. When the appeal came on before IJ Oliver on 6 April 2006, the appellants' counsel conceded that, because of the need to rely on public funds, he could not pursue the appeal within the Immigration Rules. Instead he based his case on the Home Secretary's family reunion policy, which allowed for admission of family members outside the rules in 'compelling, compassionate circumstances'. The immigration judge accepted that he was entitled to take into account the serious neglect into which the appellants had fallen since the refusal of entry clearance in 2004, and went on to find that the combination of compassionate circumstances with the appellants' article 8 rights entitled them to succeed.
4. On reconsideration, SIJ Spencer, by a determination promulgated on 9 March 2007, held that IJ Oliver in 2006 had not been entitled to take into account events postdating the refusal of entry clearance in 2004. He went on to hold that the evidence of the appellants' situation at the earlier date passed neither the compassionate circumstances test of the policy nor what he took to be the exceptionality test for art. 8 protection. He accordingly substituted decisions dismissing both appeals."
For the appellants Mr Manjit Gill QC drew attention to the delay that the procedure had involved. He submitted that no sensible reason could be advanced for precluding the consideration, on an appeal against a decision refusing entry clearance, of matters arising after the date of the decision. If such matters could be considered on an appeal against refusal of leave to enter there was no reason why they should not equally be considered on an appeal against a refusal of entry clearance, for there was in reality no longer any significant distinction between entry clearance and leave to enter. The effect of such a requirement was to cause unreasonable and lengthy delay in bringing a family together. This was incompatible with the respect for family life required by article 8 of the Convention.
Discussion
It seems to me that Mr Gill's complaint is of a defect of procedure rather than of substance, albeit that defects in procedure may be capable of leading to an infringement of a substantive right. In this case there has been, as Sedley LJ observed, inordinate delay. He might, I think, have described the delay by a less temperate adjective. But the delay was not endemic in the system and it was certainly not a consequence of the prohibition, on an appeal against a decision on entry clearance, of consideration of matters rising since the date of the decision. The delay that occurred related in the first instance to the taking of the decision and in the second instance to the determination of the appeal.
The Home Department Entry Clearance Guidance of 27 December 2007 provides in General Instructions, Chapter 27 on "Appeals":
" 27.8 – Fresh application while an appeal is outstanding
There is nothing in law to prevent a person who has an appeal pending from making a fresh application for entry clearance in the same or any other category. There is no requirement for a person to withdraw an appeal before allowing a further application to be made…"
In this case the appellants could have made a fresh application as soon as their circumstances changed for the worse and I think that this would have been the appropriate course to take, having regard to the provisions of section 85(5).
Contrary to Mr Gill's submissions, I consider that there is good reason for the distinction that this subsection draws between decisions on entry clearance and decisions on leave to enter. Where a change of circumstances is alleged by someone who is outside the jurisdiction, the entry clearance officer will often be best placed to evaluate the effect of this. That would certainly seem to have been the position in the present case. In such circumstances it is not illogical to require a fresh application for entry clearance to be made. Where, however, an appeal is made against refusal of leave to enter by an appellant who is within the jurisdiction, consideration must necessarily be given to the position prevailing when the appeal is heard, at least where human rights are in issue as they usually are, for an adverse decision on the appeal will render the appellant liable to deportation.
Thus the provisions of section 85(4) and (5) are neither irrational nor calculated to result in unjustified delay in the consideration, where this is in issue, of the implications of the right to respect for family life. For these reasons I have concluded that section 85(5) of the 2002 Act is not incompatible with the Convention and that this appeal should be dismissed.
My Lords,
I have had the advantage of reading in draft the speeches of Lord Phillips of Worth Matravers and Lord Hope of Craighead. For the reasons they give, with which I agree, I too would dismiss this appeal.
My Lords,
I agree with my noble and learned friend Lord Phillips of Worth Matravers that it has not been shown that the provisions of section 85(5) of the Nationality, Immigration and Asylum Act...
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