Upper Tribunal (Immigration and asylum chamber), 2006-01-27, [2006] UKAIT 21 (HK (Discrimination, Refugees' Family Policy))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Deputy President, Senior Immigration Judge Freeman, Senior Immigration Judge Grubb |
| Status | Reported |
| Date | 27 January 2006 |
| Published date | 04 April 2006 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 29 November 2005 |
| Subject Matter | Discrimination, Refugees' Family Policy |
| Appeal Number | [2006] UKAIT 21 |
ASYLUM AND IMMIGRATION TRIBUNAL
HK (Discrimination – refugees’ family policy) Somalia [2006] UKAIT 00021
THE IMMIGRATION ACTS
Heard at: Field House Date of Hearing: 29 November 2005
Date of Promulgation: 27 January 2006
Before:
Mr C M G Ockelton (Deputy President)
Mr J Freeman (Senior Immigration Judge)
Professor A Grubb (Senior Immigration Judge)
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr T K Mukherjee, instructed by Islington Law Centre
For the Respondent: Mr P Deller, Home Office Presenting Officer
Even if dependency is a ‘status,’ the Secretary of State’s policy for the admission of certain members of a refugee’s family does not discriminate unlawfully against other family members. It is for the Secretary of State, not the courts, to decide policy on refugees’ family reunion R (Carson) v SSWP HL applied
DETERMINATION AND REASONS
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The Appellant is a citizen of Somalia. She appealed to an Adjudicator against the decision of the Respondent on 6 December 2001 refusing her entry clearance. In a determination sent to the parties on 1 May 2003 an Adjudicator, Ms Sarvanjan Kaler, dismissed her appeal. She applied for and was granted permission to appeal to the Immigration Appeal Tribunal, which dismissed her appeal in a decision sent to the parties on 11 June 2004. She applied for permission to appeal to the Court of Appeal. Permission was refused by the Tribunal, but granted by the Court, which ordered by consent on 13 July 2005 that the Tribunal’s decision be quashed and that the Appellant’s appeal to the Tribunal be reheard. By the time the consent order was made, the Tribunal had ceased to exist but there is no doubt that the quashing of the Tribunal’s decision leaves undecided an appeal to it, which, following the commencement of the appeals provisions of the 2004 Act, takes effect as an order for reconsideration by this Tribunal. Four children of the Appellant had claimed and have appeals dependent on hers.
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The sponsor is also the Appellant’s daughter. She came to the United Kingdom on 17 February 1999 and applied for asylum. On 17 June 2000 she was given indefinite leave to remain as a refugee. The sponsor’s father appears to have remained in Somalia. The sponsor’s mother and siblings, who are the Appellants in this appeal, went to Uganda. It has been the feature of the Appellant’s case as put by Mr Mukherjee’s predecessor, Mr Taghavi, that they were in Uganda illegally. He asserted this in submissions to the Adjudicator, and emphasised it specifically in his application for permission to appeal to the Immigration Appeal Tribunal (“the Appellants (who were and continue to unlawfully reside in Uganda)”), before the Tribunal, where he asserted that there had been evidence to that effect before the Adjudicator, and in his grounds of appeal to the Court of Appeal (“her family are living illegally in Uganda”). We regarded these assertions as rather unlikely, given that the sponsor’s recognition as a refugee was based on her clan membership and that Uganda is a party to the Refugee Convention and has a long record of acting as a haven for refugees from Somalia. We therefore asked Mr Mukherjee what the evidence was that the Appellant and her children were in Uganda illegally. He was unable to point to any evidence: on the contrary, he showed us a grant of refugee status to them in Uganda which, although relatively recent, does nothing to show that their earlier presence there was illegal. It is no doubt unfortunate that counsel has at three separate levels argued this appeal on the basis of a factual assertion which was both unlikely and apparently unsupported by evidence.
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The principal argument presented on behalf of the Appellant before the Tribunal and the Court of Appeal was that a letter from Barbara Roche MP, apparently to one of her Parliamentary colleagues, amounted to a formal change to the government’s policy on refugees’ families, sufficient to mount a “not in accordance with the law” challenge to the immigration decision in this case. There can be little doubt that this ground of appeal was entirely unfounded. Although it was not advanced before us, we put it on record because the previous determination of the Tribunal has been set aside. The letter in question reads, so far as relevant, as follows:
“Under the Family Reunion Concession, a minor who has been recognised as a refugee can immediately apply for his parents and any of their other minor dependent children to join them in the United Kingdom. Any application must be made at a British diplomatic post abroad.”
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As the Tribunal noted in its previous decision, so far from changing existing practice, this letter merely states it. There is no indication in the letter that any such application will be successful. What is being pointed out in the letter is that where the person in the United Kingdom has been recognised as a refugee there is no necessary delay before an application by other family members will be considered: this distinguishes a refugee from others who have been granted limited leave.
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Mr Mukherjee’s submissions were now confined to two discrete points. First, he submitted that the decision of the Respondent was not in accordance with the law because he had not followed applicable declared policy; secondly, the considerations he had applied were unlawfully discriminatory and so a breach of Article 14. In order to do justice to Mr Mukherjee’s submissions, we need to set out the terms of the explanatory statement at some length. It is dated 23/12/2002, and after summarising the sponsor’s immigration history it records that an application was made on behalf of the Appellants and that HK was interviewed by an Entry Clearance Officer, who referred the application to the Home Office, mentioning that she was looking after the other Appellants and that one of them had cerebral palsy. Paragraphs 3.1 to 3.7 of the explanatory statement give the Secretary of State’s reasons for concluding that the Appellants were not admissible under the Immigration Rules. The explanatory statement continues as follows:
“3.8 The Secretary of State then considered if the refusal of entry clearance was in breach of Article 8. However she had been living with her cousin in the UK who had cared for her and she had been apart from the family from 1999 to 2001 before they applied to her. The Secretary of State was not satisfied that Article 8 would be breached.
3.9 The Secretary of State then considered the application exceptionally outside the Immigration Rules in accordance with the Family Reunion policy. Under this policy the existing spouse and minor children are to be admitted to join a recognised refugee if they formed part of the refugee’s family unit before she fled to the United Kingdom. In compelling and compassionate circumstances consideration may also be given to the admission of other dependant relatives. Also the sponsor is not expected to meet the maintenance and accommodation requirements of the Immigration Rules.
3.10 It was stated also that the sponsor was suffering illness and worry about her family abroad (Annex B11) but there was no independent medical report to verify this. The Secretary of State could still not be satisfied that there were sufficient compelling and compassionate circumstances to justify him exercising his discretion in the appellants’ favour and exceptionally grant entry clearance outside the Immigration Rules.
3.11 The Secretary of State respectfully submits that by virtue of paragraph 21 of Schedule 4 of the Immigration and Asylum Act 1999 it is not open to the Adjudicator to consider the merits of this exercise of discretion.
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The Secretary of State therefore refused the applications (Annex E).
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Although the Secretary of State was satisfied that his refusal decision was correct and the refusal notice was valid he noted that the reasons given for his decision in the notice were not wholly appropriate. He therefore amends the notice to read as follows:
Decision:
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On 6/12/2002 to refuse the first appellant entry clearance under Paragraph 319 with reference to paragraph 317(i)(e)(iv) of HC 395.
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On 6/12/2002 to refuse appellants 2 to 5 entry clearance under Paragraph 299 with reference to paragraph 297(i)(f) of HDC 395.
To:
You have applied for entry clearance to settle in the UK as the dependant of your daughter/sister who is present and settled in the UK. However in view of the fact that you have been living with your children/siblings in your own country and in Uganda the Secretary of State is not satisfied that you are living alone outside the UK in the most exceptional compassionate circumstances. Also that there are serious and compelling family or other considerations which make your exclusion from the UK undesirable.
Furthermore the Secretary of State is not satisfied that you are financially wholly or mainly dependant upon your daughter/sister who is settled in the UK.
Furthermore the Secretary of State is not satisfied that you can, and will be maintained and accommodated adequately without recourse to public funds in accommodation...
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