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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DL (DRC) & the Entry Clearance Officer, Pretoria v The Entry Clearance Officer, Karachi [2008] EWCA Civ 1420 (18 December 2008) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2008/1420.html Cite as: [2009] Fam Law 195, [2008] EWCA Civ 1420, [2009] 2 FCR 709, [2009] Imm AR 352, [2009] 1 FLR 1128 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
OA/23223/2006 & OA/28966/2006
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RIX
and
LORD JUSTICE WILSON
____________________
DL (DRC) & THE ENTRY CLEARANCE OFFICER, PRETORIA |
Respondent Appellant |
|
- and ZN (AFGHANISTAN) & |
Appellant |
|
THE ENTRY CLEARANCE OFFICER, KARACHI |
Respondent |
____________________
WordWave International Limited
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Mr Edward Nicholson (instructed by MSZ Solicitors) for the 2nd Appellant
Ms Samantha Broadfoot (instructed by The Treasury Solicitor) for The Entry Clearance Officers
Hearing dates : 7 October 2008
____________________
Crown Copyright ©
Lord Justice Laws:
INTRODUCTION
THE FACTS
THE CONVENTIONS, THE IMMIGRATION RULES, AND THE DIRECTIVES
" 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."
"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 partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse [or civil partner] and the marriage [or civil partnership] is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant hold a valid United Kingdom entry clearance for entry in this capacity."
Paragraph 297 provides:
"297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or
(f) one parent or relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately by the parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity".
"352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse [or a civil partner] of a refugee are that:
(i) the applicant is married to [or the civil partner of] a person granted asylum in the United Kingdom; and
(ii) the marriage [or civil partnership] did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and
(iii) the applicant would not be excluded from protection by virtue of article 1F of the United National Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
(iv) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity".
Paragraph 352D provides:
"352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who has been granted asylum in the United Kingdom are that the applicant:
(i) is the child of a parent who has been granted asylum in the United Kingdom, and
(ii) is under the age of 18, and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and
(v) would not be excluded from protection by virtue or article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity".
For reasons which will appear I should also set out the terms of paragraph 352E:
"352E. Limited leave to enter the United Kingdom as the child of a refugee may be granted provided a valid United Kingdom entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Limited leave to remain in the United Kingdom as the child of a refugee may be granted provided the Secretary of State is satisfied that each of the requirements of paragraph 352D (i) - (v) are met."
"Refusal of entry clearance or leave to enter the United Kingdom
320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules... the following grounds for the refusal of entry clearance or leave to enter apply:
Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
(1) the fact that entry is being sought for a purpose not covered by these Rules;
(18) save where the Immigration Officer is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom;
(19) where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to given him leave to enter".
THE ISSUES IDENTIFIED
"Issues common to both appeals
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?
Issues relating to DL only
4. If Part 11 of the Immigration Rules applies, can the ECO rely upon Part 9 of the Immigration Rules (general grounds for refusal of entry clearance) in considering an application for entry clearance made under Part 11?
5. If yes, does Article 8 nevertheless compel a different outcome in this case?
Issue relating to ZN only
6. Did the Tribunal err in law in their assessment of Article 8 in ZN's case?"
THE COMMON ISSUES CONSIDERED
Issue (3): HC395 Paragraphs 352A and 352D: Must the Sponsor Enjoy Refugee Status at the Time his Spouse/Child Seeks to Join Him under the Rule?
"It cannot be right to approach the disruption to family life which is caused by someone having to flee persecution as a refugee as if it were of the same nature as someone who voluntarily leaves, or leaves in the normal course of the changes to family life which naturally occur as children grow up."
Thus Mr Nicholson submits it is no surprise that the Immigration Rules offer favourable treatment to members of families which were originally split by the effects of persecution. In similar vein he referred also to Recommendation B of the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (which with respect I need not set out) and to Article 34 of the Refugee Convention, which provides:
"The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings."
"Like Dyson LJ (paragraph 24) I disagree with Collins J's insistence [sc. in Arman Ali [2000] INLR 89, 102B] on a purposive construction of the Immigration Rule, if it is thought that such an approach would produce a result in any way different from the application of the Rule's ordinary language. As Dyson LJ indicates, the purpose of the Rules generally is to state the Secretary of State's policy with regard to immigration. The Secretary of State is thus concerned to articulate the balance to be struck, as a matter of policy, between the requirements of immigration control on the one hand and on the other the claims of aliens, or classes of aliens, to enter the United Kingdom on this or that particular basis. Subject to the public law imperatives of reason and fair procedure, and the statutory imperatives of theHuman Rights Act 1998, there can be no a priori bias which tilts the policy in a liberal, or a restrictive direction. The policy's direction is entirely for the Secretary of State, subject to Parliament's approval by the negative procedure provided for by the legislation. It follows that the purpose of the Rule (barring a verbal mistake or an eccentric use of language) is necessarily satisfied by the ordinary meaning of its words. Any other conclusion must constitute a qualification by the court, on merits grounds, of the Secretary of State's policy; and that would be unprincipled."
"It is not in dispute that the sponsor was granted asylum in the United Kingdom. The fact that he now has British citizenship does not mean that he was not granted asylum. I cannot see why, in principle, the enhancement of the sponsor's immigration status should preclude the appellants from obtaining family reunion. The Immigration Rules on family reunion are designed to put into effect the provisions of the UNHCR Handbook. Had the intention been as Mr Smart argues then there is no reason why a provision should not have been inserted into paragraph 352D on the lines of 'has been granted asylum in the United Kingdom and has not become a British citizen' or 'has been granted asylum in the United Kingdom and retains asylum status'."
Issues (1) and (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? If not, does his status cease automatically or only by a procedure as contemplated by Directives 2004/83 and 2005/85?
"129. As in the case of the re-acquisition of nationality, this third cessation clause derives from the principle that a person who enjoys national protection is not in need of international protection.
130. The nationality that the refugee acquires is usually that of the country of his residence. A refugee living in one country may, however, in certain cases, acquire the nationality of another country. If he does so, his refugee status will also cease, provided that the new nationality also carries the protection of the country of his new nationality."
"If a refugee opts to accept an offer of citizenship there, with entitlement fully to participate in all aspects of that state's public life, his or her need for the surrogate protection of refugee law comes to an end. There is no need for surrogate protection in such a case, as the refugee is able and entitled to benefit from the protection of his or her new country of nationality."
"It has been seen that the 1951 Convention and the 1967 Protocol define who is a refugee for the purposes of these instruments. It is obvious that, to enable States parties to the Convention and to the Protocol to implement their provisions, refugees have to be identified. Such identification, i.e. the determination of refugee status, although mentioned in the 1951 Convention (cf. Article 9), is not specifically regulated. In particular, the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status. It is therefore left to each Contracting State to establish the procedure that it considers most appropriate, having regard to its particular constitutional and administrative structure."
If however a State Party has not established any such procedures, cessation of refugee status pursuant to Article 1C(3) will in my judgment take place automatically. If it were otherwise the absence of a domestic procedure would frustrate the operation of the Article.
Issue (4): If Part 11 of the Immigration Rules applies, can the ECO rely upon Part 9 of the Immigration Rules (general grounds for refusal of entry clearance) in considering an application for entry clearance made under Part 11?
Issue 5: If paragraph 320(18) is engaged, does ECHR Article 8 nevertheless compel an outcome in DL's favour?
Issue 6: Did the Tribunal err in law in their assessment of Article 8 in ZN's case?
CONCLUSION
Lord Justice Rix:
Lord Justice Wilson: