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

13 May 2010 by

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.

Read more:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: