Families of asylum seekers entitled to advantageous entry clearance requirements says Supreme Court

13 May 2010 by Rosalind English

ZN (Afghanistan) (FC) and others (Appellants) v Entry Clearance Officer (Karachi) (Respondent) and one other action, UKSC 21. Read judgment

The Immigration Rules, which applied lighter requirements for entry clearance for the dependants of persons granted asylum than for other British Citizens, should be interpreted to mean that a person should always be a refugee for the purposes of Rule 352D even though that status has technically expired on grant of citizenship.

This appeal raised a question  the true construction of the Immigration Rules, House of Commons Paper 395 (‘HC 395’): 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. Put another way, the issue was whether the sponsor must enjoy refugee status at the time his spouse or child seeks to join him under the paras 352A and 352D.

The first appellant married her husband (‘the sponsor’) in Afghanistan in 1979. She and the sponsor had six children, the other six appellants in the action. The sponsor fled Afghanistan in order to seek international protection and arrived in the United Kingdom on 8 August 1999. He was granted indefinite leave to remain in the United Kingdom as a refugee on 13 December 2001. By the time his family applied for entry clearance he was a British citizen . Application by his dependants for entry clearance was refused by the ECO because the appellants could not fulfil the accommodation and maintenance requirements imposed by sub-paras (iv) and (v) of paras 281 and 297.

On appeal, the immigration judge rejected the appellants’ case on the basis that the sponsor was no no longer a “refugee” within the meaning of the Refugee Convention, and therefore his dependants could not take advantage of the more advantageous requirements under 352D. He also rejected some of the appellants’ claims under Article 8 on the basis  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  that any such interference was proportionate to the interests of immigration control and/or  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 Court of Appeal dismissed the appellants’ case on the interpretation of the rules.

Held:

Appeal upheld. On the point of statutory construction, rule 352D could apply to dependants of a sponsor irrespective of his citizenship status, provided that he had once been granted asylum. There were coherent policy reasons for applying the same principles to applications to join or remain with a spouse or parent who has been granted asylum both before and after such a sponsor has become a British citizen.

The appeals of the sixth and seventh defendants, which relied only upon Article 8 of the ECHR (they could not rely on the rules as they were over 18 and therefore not dependants), became academic because the parties conceded that they would be granted three years’ discretionary leave to remain without any restrictions on employment or recourse to public funds.

Case Comment

So, the Supreme Court has said that the ordinary rules dealing with applications by family members seeking leave to enter to join a sponsor do not apply to the dependants of persons who were once asylum seekers, whether or not at the time of application they have become British citizens. These rules require the sponsor to satisfy the court that there will be “adequate” accommodation for the dependants without recourse to public funds and that the parties will be able to maintain themselves and their dependents adequately without recourse to public funds. Dependants of a sponsor who is a refugee (for the purposes of the Refugee Convention) do not have to fulfil these requirements.

The whole question therefore turned on whether the sponsor is currently a refugee; in the Court of Appeal ruling on this case, Laws LJ did not consider that this sponsor was, since his refugee status had expired automatically on being granted British citizenship. The Supreme Court however attached more importance to the particular wording in the rule applying advantageous conditions to dependents of refugees, referring to the person sponsoring their application as “the parent who has been granted asylum” (para 352D). They found that the status of having been granted asylum referred to “a particular historic event and not to an existing condition”.

Before the Court of Appeal it was argued that such a construction could lead to absurd results. The plainest instance was said to be where a person’s refugee status has been cancelled because it had been obtained by fraud. On the appellants’ argument he would still be a person “who has been granted asylum” and his relatives could rely on the special provisions of paras 352A et seq. The Supreme Court dismissed this scenario, saying that such a person would not be treated as having been granted asylum for the purpose of the rules if the grant had been obtained by fraud.

The Court acknowledged that it could be said “with force” that all applications by a spouse or child to join or remain with a British citizen should be subject to the same rules, but in the end overturned the Court of Appeal’s interpretation of the Rules. Whilst this decision was no doubt a humane and welcome outcome for the appellants, it further tilts the balance of the law in favour of asylum seekers, a situation already perceived as unfair by a large section of the population not entitled to the benefits and advantages they see as being liberally available to new entrants claiming persecution. And by giving the benefit of the doubt to any sponsor seeking entry for family members that he or she is or was a genuine refugee the Court has signalled that there is no difference between those who merit and those who abuse asylum.

It has been pointed out on a number of occasions that English courts tend to interpret the UN refugee convention far more broadly than other countries – allowing refugee status to those persecuted by private agents, not just the state – and it is highly likely that generous attitude will have the unintended consequence of alerting the new political dispensation to the need to tighten up on entry requirements.

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