ZN (Afghanistan) and Others v Entry Clearance Officer and Another
| Jurisdiction | England & Wales |
| Judge | LORD CLARKE |
| Judgment Date | 12 May 2010 |
| Neutral Citation | [2010] UKSC 21 |
| Date | 12 May 2010 |
| Court | Supreme Court |
[2010] UKSC 21
Lord Phillips, President
Lord Rodger
Lord Collins
Lord Kerr
Lord Clarke
and Others
and one other action
Appellant
Manjit Gill QC
Edward Nicholson
Sophie Weller
(Instructed by Fisher Meredith)
Respondent
Lisa Giovannetti
Samantha Broadfoot
(Instructed by Treasury Solicitor)
LORD CLARKE (delivering the judgment of the court):
Introduction
This appeal raises a short question on the true construction of the Immigration Rules, House of Commons Paper 395 ('HC 395'). The question is what rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and has subsequently obtained British citizenship. The respondent Entry Clearance Officer ('ECO') says that they must satisfy the ordinary rules dealing with applications by family members, notably paras 281 (spouses and civil partners) and 297 (children) of HC 395. The appellant family members say that that is wrong and that their cases fall to be considered under the rules dealing with applications to join relatives in this country who have been granted asylum here, notably paras 352A (spouses and civil partners) and 352D (children) of HC 395. The distinction is important to the family because a person entitled to apply under para 352A or 352D does not have to meet the requirements concerning maintenance and accommodation imposed by paras 281 and 297.
The facts
The appellants are nationals of Afghanistan. The first appellant, ZN, married her husband ('the sponsor') in Afghanistan in 1979. ZN and the sponsor are the parents of the other six appellants, who were born between 1985 and 1998. The sponsor fled Afghanistan in order to seek international protection and arrived in the United Kingdom on 8 August 1999. At some time in 1999 the family went to Pakistan, where they have extended family members. The sponsor was granted indefinite leave to remain in the United Kingdom as a refugee on 13 December 2001. Since 2002 the sponsor has made a number of attempts to bring his family to the UK to join him. None of these is relevant to the resolution of the issues in this appeal. The sponsor's application for British citizenship was granted on 22 March 2005.
On 15 October 2005 the appellants made a fresh application for entry clearance as, respectively, the spouse and children of a person granted asylum. It was stated that the appellants were seeking entry clearance under paras 352A and 352D of HC 395. On 7 July 2006 the ECO refused the applications under the rules relating to family members, namely paras 281 and 297 of HC 395. He held that they could not meet the accommodation and maintenance requirements imposed by sub-paras (iv) and (v) of paras 281 and 297. The appellants appealed against those refusals to the Asylum and Immigration Tribunal ('the Tribunal') on the ground that ZN's application should have been considered under para 352A as the sponsor's wife and that four of the children's applications should have been considered under para 352D. The other two children, the sixth and seventh appellants, were by that time over eighteen years of age. All the appellants also relied upon their rights protected by Article 8 of the European Convention on Human Rights ('ECHR').
The appeals
The appeals were heard by IJ Wiseman on 23 July 2007 and were dismissed on 9 August 2007. He held that the sponsor and ZN had been married in 1979, which had been in dispute, and that the remaining appellants were their children. He also found that the sponsor had at all material times been in poor health, suffering from heart disease and osteoarthritis, and must on any showing be significantly handicapped in the labour market. He held that paras 352A and 352D did not apply because the sponsor had acquired British nationality at the time of the ECO's decision. He rejected the appellants' case under Article 8 on the basis (1) that the decision did not interfere with their right to respect for their private life because the sponsor could return to Pakistan and resume family life there, and/or (2) that any such interference was proportionate to the interests of immigration control and/or (3) that the decision was in accordance with the law because the appellants had the ability to comply with the immigration rules by various means.
The appellants sought and obtained an order for the reconsideration of that decision but on 8 February 2008 SIJ Eshun held that IJ Wiseman had made no error of law and that the decision therefore stood. On 17 May 2008, on consideration of the papers, Buxton LJ gave permission to appeal to the Court of Appeal on the basis that the issue as to the extent of paras 352A and 352D was important.
The appeal was heard with another appeal in the case of ECO (Pretoria) v DL (DRC), in which the appellants had succeeded. This Court is not concerned with that case. The Court of Appeal considered three issues as follows:
"1(a) Is a person who is outside his country of origin and recognised as a refugee, and who has subsequent to that recognition taken on the nationality of the host country, still a refugee within the meaning of the 1951 Geneva Convention on the Status of Refugees?
(b) If such a person does cease to be a refugee, does his refugee status cease only following a procedural process, or automatically by operation of law?
2. What is the effect, if any, of Directives 2004/83/EC and 2005/85/EC on these cases?
3. Do paragraphs 352A (relating to spouses) and 352D (relating to dependant children) apply to a person who was recognised as a refugee and is now a British citizen?"
Laws LJ, with whom Rix and Wilson LJJ agreed, considered issue 3 first. He restated the question as being whether the sponsor must enjoy refugee status at the time his spouse or child seeks to join him under the paras 352A and 352D. He held that the references to 'asylum' and 'refugee' were directed to a status of the sponsor that was current and accepted. He so held as a matter of construction of the language (at paras 18 to 20), which he said was entirely clear (at para 25), because any other result would lead to absurdity (at para 21) and because there are no considerations going the other way (at paras 22 to 24).
In the light of that conclusion, he considered issues 1 and 2 together, which he restated as being whether a person who has been recognised as a refugee, but thereafter assumes the nationality of his host country, remains a refugee within the meaning of the Refugee Convention and, if not, whether his status ceases automatically or only by a procedure as contemplated by EC Directives 2004/83 and 2005/85 ('the Directives').
Laws LJ answered the first of those questions in the negative (at paras 29 to 31). As to the second, he held that it was open to a State Party to the Refugee Convention to prescribe the procedures under which cessation of refugee status pursuant to Article 1C(3) would have effect but that, if a State Party had not done so, cessation would occur automatically (see para 32). He then considered whether the Directives laid down such a procedure and held that they did not (see paras 33 to 35).
In a judgment handed down on 18 December 2008 the Court of Appeal accordingly rejected the appellants' submission that paras 352A and 352D applied. It also rejected their case under Article 8 of the ECHR (at paras 44 and 45). It refused permission to appeal but this Court subsequently gave permission.
Is this appeal academic?
The circumstances have recently changed from those that existed when the case was before the Court of Appeal. On 27 January 2010 the UK Border Agency wrote to the appellants' solicitors saying that the position under Article 8 had been reconsidered and that it was accepted that the Immigration Judge's decision was not sustainable, principally because he did not take the family's recent history into account when considering whether it was reasonable to expect the sponsor to relocate to Pakistan. There followed some correspondence between the parties. The upshot was that the Treasury Solicitor ('TSol') wrote on 3 February to say that the appellants would be granted three years' discretionary leave to remain without any restrictions on employment or recourse to public funds. The TSol further wrote on 9 February to say that, if the appellants were successful on issues one and/or two they would, "due to the particular circumstances, and subject to the terms of the judgment" be granted indefinite leave to enter or remain, depending upon whether the person concerned was in the United Kingdom by then.
It follows from the exchanges between the parties that the appeal against the decision under Article 8 is academic but that the appeal on "issues one and/or two" is not. Those issues are as stated in the statement of facts and issues, as follows:
"1) Did the Court of Appeal err in its construction of paragraphs 352A and 352D of HC 395 and, in particular, did it err in concluding that the said paragraphs apply only to the family members of a person who has the status of a refugee at the time those family members apply to join him or her in the UK?
2) Does a person who has been recognised as a refugee, but thereafter assumes the nationality of his host country, remain a refugee within the meaning of the Refugee Convention; or does his status cease automatically upon acquisition of that nationality or only by a procedure such as that contemplated by Directives 2004/83 and 2005/85?"
The correspondence thus shows that if, for example, this Court were to hold that the Court of Appeal erred in holding that paras 352A and 352D did not apply to the appellants because their sponsor had become a British citizen on 22 March 2005 and was thus a British...
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