Secretary of State for the Home Department v Dhudi Saleban Abdi
| Jurisdiction | England & Wales |
| Judgment Date | 30 October 1995 |
| Neutral Citation | [1995] EWCA Civ 27 |
| Date | 30 October 1995 |
| Court | Immigration Appeals Tribunal |
Court of Appeal
Peter Gibson, Otton LJJ Sir Roger Parker
R Singh for the applicant
I Macdonald QC and R Scannell for the respondent
Cases referred to in the judgments:
R v Secretary of State for the Home Department ex parte Asif Mahmood KhanUNK [1985] 1 All ER 40: [1984] Imm AR 68.
R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm AR 352.
Sonia Malhi v Secretary of State for the Home Department [1990] Imm AR 275.
Ali (unreported) (10520).
Political asylum — family reunion — application for admission of Somali family members — Secretary of State concluded applicants did not qualify under the immigration rules — likewise concluded they were outwith the provisions of the extra-statutory policy on Somali family reunion — whether principle of family uniy fell within the compass of the immigration rules — whether Ali correctly decided — whether on the facts the Secretary of State's decision was in accordance with the law — jurisdiction of the appellate authorities to determine whether a decision was in accordance with the law. Immigration Act 1971 ss. 1(4), 3, 13(2), 19: HC 251 paras. 14, 21, 52, 78, 98, 161: United Nations Convention relating to the status of refugees (1951) Protocol (1967). UNHCR Handbook on procedures and criteria for determining refugee status, para. 183.
The respondent was a citizen of Somalia who had been granted refugee status in the United Kingdom. She applied for various members of her family to be granted visas to join her pursuant to the provisions of the Somali family reunion policy. The applications in respect of the applicants who were not her own children were refused: the Secretary of State concluded they did not qualify under the immigration rules nor under the Somali family reunion policy, the respondent, in relation to them not being the head of the household. When formal applications were made to the entry clearance officer, they were refused.
On appeal to an adjudicator, he found as a fact that the respondent had been the head of the household in relation to the applicants, for the purposes of the Somali family reunion policy and concluded that the refusals had not been ‘in accordance with the law’. On appeal to the Tribunal by the Secretary of State, the Tribunal, following its earlier decision in Ali concluded that the principle of family unity fell within the compass of the immigration rules pursuant to paragraph 21 of HC 251: it concluded that discretion should have been exercised in favour of the applicants under the rules, and dismissed the appeal.
The Secretary of State appealed.
Held
1. Ali was wrongly decided.
2. The matter of family reunion in relation to refugees was not part of the Convention: it could not be brought within the ambit of the immigration rules.
3. In the instant case the Secretary of State had been asked to depart from the rules and had declined to do so. To that extent the decision was not appealable under section 19(l)(a)(ii) of the 1971 Act.
4. However the appellate authorities were entitled to consider whether the decision was ‘in accordance with the law’ insofar as that involved the Secretary of State failing to act in accordance with established principles of administrative or common law, for example, failing to take account of or give effect to his own published policy. It was not obvious however that Parliament intended the appellate authorities by section 19(l)(a)(i) to have the power to examine the validity of a decision by the Secretary of State by reference to all matters that would be relevant on judicial review.
5. The Secretary of State had not ignored his published policy on family reunion but had acted under a misapprehension of the facts. The case would be remitted to him for reconsideration.
Peter Gibson LJ: The Home Secretary appeals with the leave of the Immigration Appeal Tribunal against a determination by the Tribunal on 15 December 1994, dismissing an appeal of the entry clearance officer in Addis Ababa. The entry clearance officer had appealed against the determination on 12 May 1994 of an adjudicator who held that the decision of the entry clearance officer on 3 August 1992 refusing the eight respondents entry clearance to the United Kingdom was not in accordance with the law.
Before I recite the history of this inordinately protracted matter, it is convenient to set out the statutory provisions and rules which were in force at the material time and which are germane to how the issues before us arise.
Section 3 of the Immigration Act 1971 (as amended) contains general provisions for regulating the entry and stay in the United Kingdom of persons who are not British citizens. By section 3(1)(a), except as otherwise provided by or under that Act, such a person shall not enter the United Kingdom unless given leave to do so in accordance with the Act. Section 3(2) requires the Secretary of State from time to time to lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of the Act for regulating entry into and stay in the United Kingdom of persons required to have leave to enter. That is amplified by section 1(4) to require the Secretary of State to include in the rules provisions for admitting, amongst others, dependants of persons lawfully in or entering the United Kingdom. If a statement is disapproved by a resolution of either House of Parliament, then the Secretary of State is required to make changes in a further statement to be laid before Parliament. Thus the rules contained in the statement can only come into force if not disapproved by Parliament. They are the immigration rules to which the Act refers (section 33(1)).
By section 13(2) a person refused an entry clearance into the United Kingdom has the right to appeal to an adjudicator against the refusal. Section 19 prescribes the jurisdiction of an adjudicator. So far as material it reads:
‘19(1) Subject…to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act—
(a) shall allow the appeal if he considers—
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and
(b) in any other case, shall dismiss the appeal.
(2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.’
The Home Secretary has laid before Parliament in accordance with section 3(2) a statement of the rules and from time to time statements of changes in the rules, and the relevant statement for the purpose of this dispute is HC 251 laid before Parliament on 23 March 1990. That is of course prior to the changes in the law brought about by the Asylum and Immigration Appeals Act 1993 and to the elaboration of provisions relating to asylum in more recent changes in the rules. In HC 251 only one paragraph (paragraph 173) is directed to asylum and that in a manner not relevant to this appeal. However paragraph 21 (in the section on control on entry) is in this form:
‘Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmnd 9171 and Cmnd 3096). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments.’
For the sake of completeness I should mention that paragraph 98 in the section relating to control after entry and paragraph 161 in the section relating to deportation are in the same terms.
The Convention is the 1951 Convention relating to the status of refugees and the Protocol is the 1967 Protocol to the Convention. No provision of the Convention or of the Protocol is of direct relevance to the present case. However in the Final Act of the...
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