ZN (Afghanistan) and Others v Entry Clearance Officer and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Rix,Lord Justice Wilson |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1420 |
| Date | 18 December 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/0831 & C5/2008/0687 |
[2008] EWCA Civ 1420
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
OA/23223/2006 & OA/28966/2006
Lord Justice Laws
Lord Justice Rix and
Lord Justice Wilson
Case No: C5/2008/0831 & C5/2008/0687
Mr Mick Chatwin (instructed by Lawrence Lupin) for the 1st Respondent
Mr Edward Nicholson (instructed by MSZ Solicitors) for the 2nd Appellant
Ms Samantha Broadfoot (instructed by The Treasury Solicitor) for The Entry Clearance Officer
Hearing dates: 7 October 2008
Judgement
INTRODUCTION
In these two appeals we are principally concerned with the question, which is the applicable immigration rule in circumstances where family members seek entry to the United Kingdom to join a person who had been recognised as a refugee here, but later acquired British citizenship. The Entry Clearance Officers (the ECOs – appellant in one appeal, respondent in the other) contend that the prospective entrant must satisfy the ordinary rules dealing with applications by family members, notably paragraphs 281 (spouses and civil partners) and 297 (children) of the current Rules contained in House of Commons Paper 395 (HC 395). The applicants (as I shall call those seeking entry) contend by contrast 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 paragraphs 352A (spouses and civil partners) and 352D (children) of HC 395. The distinction between the two sets of rules matters because a person entitled to apply under paragraph 352A or 352D does not have to meet the requirements concerning maintenance and accommodation imposed by paragraphs 281 and 297.
THE FACTS
I will first outline the relevant facts. In appeal no. 0831 the applicant, DL, is the respondent: the appeal is brought by the ECO at Pretoria. DL was born on 25 December 1988 in the Democratic Republic of the Congo. At some point the family went to South Africa. DL's father came to the United Kingdom in 1993 and was granted refugee status in May 1999. Since then DL's mother and siblings have all come to the United Kingdom.
DL has twice been granted an entry clearance to enter the United Kingdom, but did not take advantage of it on either occasion. The first time was in his infancy when he was in care in South Africa. The second time was on 7 May 2002. He was, however, arrested at about that time (in South Africa) and subsequently convicted of indecent assault, committed by the non-consensual anal penetration of another male. He was sentenced to three years imprisonment with one year suspended for four years. Had the offence been committed in the United Kingdom, DL would have been liable to a term of imprisonment exceeding twelve months: a fact whose relevance will be clear in due course. He was released from prison on 7 February 2005.
Meanwhile his father had applied for and in 2004 been granted British citizenship under s.6 of the British Nationality Act 1981. On 24 June 2005 DL applied for entry clearance to join his father. The application was refused on 18 May 2006. DL appealed, and on 3 July 2007 Immigration Judge Goldfarb allowed his appeal. The ECO sought a reconsideration, which was ordered by Senior Immigration Judge Chalkley on 20 July 2007. On 25 January 2008 SIJ Mather found that there had been an error of law perpetrated by IJ Goldfarb, but nevertheless he also allowed DL's appeal. Both IJ Goldfarb and SIJ Mather proceeded on the footing that the applicable rule was 352D – one of the asylum rules rather than one of the ordinary family member rules. The difference between them was that IJ Goldfarb went on the basis that another rule, paragraph 320(18), was also relevant. Paragraph 320(18), as I shall show, allows entry to the United Kingdom to be refused where the applicant has been convicted of an offence which if committed in the United Kingdom would be punishable by a sentence of imprisonment of twelve months or more. Although IJ Goldfarb held that 320(18) was as it were engaged, she concluded that on the particular facts it ought not to debar the applicant's entry despite his conviction for indecent assault in South Africa. SIJ Mather, by contrast, held that on the proper construction of the rules, 320(18) had no relevance whatever to a claim to enter advanced under 352D: and so could not in any event bar DL's entry. On 17 May 2008 on consideration of the papers Buxton LJ granted permission to appeal to this court to the ECO, who sought to contend that the applicable rule in DL's case was not 352D at all, but 297.
In appeal no. 0687 the first appellant is ZN, wife of Israr Naimi to whom I will refer as the sponsor. They were married in Afghanistan in 1979 and have six children (born between 1985 and 1998) who are the second – seventh appellants. The family went to Pakistan in about 1999 where they have extended family members. The sponsor came to the United Kingdom in August 1999, and on 13 December 2001 was granted refugee status and indefinite leave to remain. On 22 March 2005 he was granted British citizenship.
After earlier applications and proceedings which for one reason or another came to nothing, on 15 October 2005 applications for entry clearance to join the sponsor were made by ZN and the children, of whom the two eldest were by now 20 and 18. At length these were dealt with and on 7 July 2006 refused, on the basis that the applicants could not meet the accommodation and maintenance requirements respectively imposed by paragraph 281(iv) and (v) and 297(iv) and (v) of HC 395. Claims advanced under Article 8 of the European Convention on Human Rights (ECHR) were also refused. The applicants appealed. Their appeals were dismissed by IJ Wiseman on 24 July 2007. Reconsideration was ordered, but on 8 February 2008 SIJ Eshun held that there was no error of law in IJ Wiseman's decision which accordingly stood. On 17 May 2008, on consideration of the papers Buxton LJ granted permission to appeal to this court to the applicants. He directed that cases 0687 and 0831 should be heard together, and in both cases observed, “[t]he issue as to the extent of rules 352A and 352D is important and the subject of conflicting decisions, and should be resolved by the Court of Appeal”.
THE CONVENTIONS, THE IMMIGRATION RULES, AND THE DIRECTIVES
Before identifying the issues more precisely it will make for clarity if at this stage I set out or summarise the principal legal materials.
Article 1A(2) of the 1951 United Nations Convention on the Status of Refugees defines a refugee as a person who:
“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.
Article 1C provides:
“This Convention shall cease to apply to any person falling under the terms of section A if…
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality”.
I should also set out ECHR Article 8:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Next, the Immigration Rules. They are divided into thirteen Parts. Part 1 contains general provisions regarding leave to enter or remain in the UK. Parts 2 to 8 lay down specific rules for considering applications for leave to enter or remain for a variety of purposes. Part 9 sets out general grounds for the refusal of entry clearance, leave to enter, and variation of leave to enter or remain in the United Kingdom. Part 10 deals with registration with the police. Part 11, 11A and 11B are together entitled Asylum and Humanitarian Protection. Part 12 relates to appeals. Finally Part 13 is concerned with removal. What I have called the ordinary rules dealing with applications by family members are to be found in Part 8. Amongst them paragraph 281 (as it stood at the material time) provides:
“281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse [or civil partner] of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to [or the civil partner of] a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
(b) the applicant is married to [or the civil partner of] a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married [or formed a civil partnership at least 4 years ago], since which time they have been living together outside the United Kingdom; and
(ii) the parties to the marriage or civil...
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