SS (Jurisdiction – Rule 62(7))
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 24 November 2005 |
| Neutral Citation | [2005] UKAIT 167 |
| Court | Asylum and Immigration Tribunal |
| Date | 24 November 2005 |
[2005] UKAIT 167
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton (Deputy President)
Mr P R Lane (Senior Immigration Judge)
Miss B Mensah (Senior Immigration Judge)
For the Appellant: Mr M Symes, instructed by Wilson & Co
For the Respondent: Mr C Avery, Home Office Presenting Officer
SS (Jurisdiction — Rule 62(7); Refugee's family; Policy) Somalia
1. The restriction on grounds of reconsideration imposed by Rule 62(7) cannot be taken to enlarge the Tribunal's statutory jurisdiction by enabling an appellant to succeed on a ground of appeal not open to him. 2. The terms of any policy upon which the claimant relies must be read as a whole. 3. It is only in very rare cases that the terms of a policy will allow the Tribunal to give a substantive direction in allowing an appeal.
The Appellant is a citizen of Somalia, now aged nearly nineteen. He arrived in the United Kingdom on 8 December 2002. He claimed asylum. On 20 April 2004, he was served with notice of the Secretary of State's decision to refuse him asylum but grant him limited leave to enter. He appealed, and his appeal was heard by an Adjudicator, Mr D Taylor, and allowed in a determination sent out on 10 November 2004. The Secretary of State applied for and was granted leave to appeal to the Immigration Appeal Tribunal against that determination. The Appellant sought unsuccessfully to have the grant set aside on Statutory Review. Following the commencement of the appeals provisions of the 2004 Act, the grant of permission now takes effect as an order for reconsideration by this Tribunal of the Appellant's appeal.
We should say at the outset that in a number of respects the Secretary of State's paperkeeping in respect of this appeal has been rather unsatisfactory. We do not know the reason for the delay in determining the Appellant's claim. What we do know is that when it was determined, although the refusal of asylum is clear, the grant of limited leave is not. The notice of decision indicates in a paragraph headed “ Right of appeal” that the grant is “ for a period exceeding one year (or for periods exceeding one year in aggregate)” but does not state for what period leave has been granted. The Appellant's representatives wrote on 23 April and 30 April 2004 asking for the period of the grant to be indicated. We have not seen any reply to those letters, but it appears from the Adjudicator's determination that the Appellant has leave to remain in the United Kingdom until 13 April 2007. Secondly, it appears that the Appellant is one of three brothers. At his interview, he said that one brother had arrived with him and another earlier. He thought that they had all asked to stay on the same basis that he had. At the hearing before us, neither party was able to tell us anything about the current status of the other brothers.
The Appellant's claimed history is as follows. He says that he is from Bakaraha, Mogadishu, Somalia. He lived there with his mother, father, three brothers and sister. His mother is of the minority Ashraf clan. His father is of the Lugayare sub-clan of the Hawiye clan. When the Appellant was aged about nine his father's brother was killed and, soon afterwards, there was a raid on his house and the Appellant was taken away. He says that he was trained as a child soldier but, before engaging in any fighting, he happened to come across his father who took him back home. Then he and all his siblings went by lorry to Ethiopia. They lived there for about seven years. When the Appellant was about sixteen, he was brought to the United Kingdom by a man called Abdi.
In the Appellant's witness statement, he says that he is rather vague about dates particularly of things that happened a long time ago when he was very young. He says also that he was not really aware of what was happening around the time that he left Ethiopia. He says that he did not know his mother was still alive and did not know very much about the departure of his brother Shamarke. That may be so; but the documents before us show that the Appellant's mother, having left Somalia in 1999 and spent two years in Kenya, appears to have arrived here some time in 2001. She was refused asylum on 24 October 2001 but, following a successful appeal, was granted asylum and given indefinite leave to remain on 5 September 2002. That is just three months before the Appellant and his brother travelled to the United Kingdom.
The Appellant's grounds of appeal against the Secretary of State's refusal of his asylum claim were as follows:
“1. The Appellant's removal of the Appellant [sic] from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.
2. The Appellant has a well-founded fear of persecution based on race (perceived and actual) as the son of a minority clan member.”
The Appellant was invited to give any additional reasons why he should be allowed to stay in the United Kingdom. He did so in the following terms:
“1. The Secretary of State has erred in not granting the Appellant indefinite leave to remain as the minor child of a recognised refugee. See the Asylum Policy instruction on family reunion
3. ELIGIBILITY OF SPONSORING FAMILY MEMBERS
3.1 Where the sponsor has refugee status
If a person has been recognised as a refugee in the UK we will normally recognise family members in line with them. If the family are abroad, we will normally agree to their admission as refugees.”
In the Appellant's representatives' letter accompanying the notice of appeal appears the following paragraph:
“You will also know from the statement of additional grounds that we believe that the Secretary of State has erred in failing to grant our client indefinite leave to remain as the minor child of a recognised refugee.”
The Adjudicator's determination begins with the statement that the Appellant's appeal is under section 82(1) of the 2002 Act. After setting out the Appellant's immigration history and the basis of his claim, the Adjudicator asserts that he has taken into account all the documents before him, and notes that there was no oral evidence at the hearing.
The determination continues as follows:
“19. It is not disputed by the respondent that the appellant is, as he claims to be, a citizen of Somalia and I find him so to be.
20. The appellant's Counsel acknowledged to me that he was in some difficulty under the Refugee Convention. The objective material indicates that the appellant, as a member of the Hawiye clan, is unlikely to face persecution in Somalia and there is no evidence that he was indeed persecuted whilst he was there. I have no alternative therefore but formally to dismiss his claim under the Refugee Convention.
21. I propose, however, to allow the appeal under Section 86(3)(a) of the Nationality, Immigration and Asylum Act 2002. it is of the essence of the “One-Stop Appeal Procedure' that the appellant must indicate in his appeal all the grounds on which he claims to remain in the United Kingdom. Although the appellant, probably due to poor legal advice, applied for asylum in his own right, he made it clear in his notice of appeal that it was his case that he should have been granted indefinite leave to remain in line with the status of his mother.”
The Adjudicator then sets out the part of the Secretary of State's policy that is cited in the grounds of appeal, notes that the Appellant came to the United Kingdom to be with his mother, refers to SSHD v Abdi (DS) [1996] Imm AR 148 and to the duty under s86 to allow an appeal if the decision was not in accordance with the law, and continues as follows:
“26. … I am satisfied that the decision of the respondent to grant only discretionary leave to the appellant was ‘not in accordance with the law’. The respondent has a clear policy and he has failed to apply it. The appellant under that policy should have been granted indefinite leave to remain.
27. I therefore allow this appeal on the basis and, pursuant to the powers given to me by Section 87(1) of the Nationality, Immigration and Asylum Act 2002, for the purpose of giving effect to this decision, I direct the respondent to grant indefinite leave to remain to the appellant in line with his mother.”
The Secretary of State sought permission to appeal to the Immigration Appeal Tribunal on the following grounds:
“1. The adjudicator has erred in law by directing that the respondent be granted Indefinite Leave to Remain in line with his mother under the Family Reunion policy where the provisions relating to family reunion, covered in paragraphs 352E, states that limited leave to remain will be granted.
2. The adjudicator has failed to give due consideration to all sections of paragraph 352D when directing that Indefinite Leave to Remain be granted in line with his mother. At paragraph 26 of his determination, Mr Taylor found that, ‘It cannot be said that the respondent had any doubts about the relationship between the appellant and his mother …”, thereby finding in favour of paragraph 352D(i). However, the adjudicator has failed to give due consideration to 352D(iv). The brief details of this respondent's family life is that 4 years prior to his mother departing Somalia, he and his siblings went Ethiopia to live with their father whilst she stayed in Somalia. Upon leaving Somalia the respondent's mother went to Kenya where she stayed for a further 2 years. The respondent arrived in the UK in 2002, some 7 years after he last saw his mother. In directing that the appellant be granted Indefinite Leave to Remain in line with his mother without full...
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