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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ST & Anor v The Secretary of State for the Home Department [2014] EWCA Civ 188 (28 February 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/188.html Cite as: [2014] EWCA Civ 188 |
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ON APPEAL FROM High Court QBD. Adminstrative Court
His Honour Judge Thornton QC in C1 and Ors
CO87552012 (for C1 and Ors)
Mr James Dingemans QC sitting as a Deputy Judge of the High Court
CO35102012 (for ST and ET)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TOMLINSON
and
LORD JUSTICE McCOMBE
____________________
ST and ET |
Appellants |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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And Between: |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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- and - |
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(1) C1 and (2) C2 |
Respondents |
____________________
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Ms Deok Joo Rhee (instructed by the Treasury Solicitors) for the Respondent in ST and ET.
Ms Deok Joo Rhee (instructed by the Treasury Solicitors) for the Appellant in C1 and Ors
Mr Duran Seddon (instructed by Sookias & Sookias) for the Respondent in C1 and Ors
Hearing dates: 15 & 16 January and 5 February 2014
____________________
Crown Copyright ©
Lord Justice McCombe:
(A) Introduction
(B) Facts
(1) ST and ET
"Resettlement Needs and Prioritization:
Resettlement to a third country is the best durable solution for the PRA, as the PRA meets the following resettlement criteria:
Woman at Risk
- The PRA and her sister are single women without an accompanying adult family member. The PRA and her sister are depending emotionally and financially on her aunt.
- While the PRA and her sister have not been subjected to harassment, her poor living conditions and lack of family and community support render her vulnerable to abuse and sexual and gender based violence.
- At the present time, the PRA and her sister live with their aunt and shares the house with her. She receives food assistance and 8,000 S.P. from UNHCR. The PRA and her sister receive money from her mother and sister in London for very special occasions only.
- The PRA has no relatives in Iraq who can support her.
Legal and Physical Needs:
- The PRA has managed to obtain a temporary residence permit in Syria. The permit is subject to the ongoing approval of the government of the Syrian Arab Republic and requires that the PRA periodically report to have it stamped. The permit can be revoked at any time and may not be renewed. The PRA's legal status in Syria is therefore uncertain, and without a permit, the PRA could face incarceration and summary deportation amounting to refoulement.
- Additionally, the permit does not carry the right to work. Engaging in work is a breach of the permit conditions and could result in incarceration and summary deportation. By working illegally in Syria, the PRA would be at risk of exploitation, abuse, arrest, and deportation.
The PRA has no prospects for local reintegration in Syria or possible to voluntarily repatriate to Iraq. Therefore in light of the PRA's need for resettlement, UNHCR is submitting the PRA's case for resettlement considerations under normal priority."
(2) C1 and C2
(C) Mandate Refugees and the SSHD's Policy
"CO-OPERATION OF THE NATIONAL AUTHORITIES WITH THE UNITED NATIONS.
1. The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.
2. In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:
(a) The condition of refugees,
(b) The implementation of this Convention, and;
(c) Laws, regulations and decrees which are, or may hereafter be, in force relating to refugees."
For C1 and C2 it is argued that the rejection of their resettlement claims amounts to a simple failure on the part of the SSHD to meet the UK's obligations of co-operation under this Article.
"While UNHCR submits cases for resettlement, it cannot guarantee that the case will be accepted by a resettlement country.
Resettlement depends on the willingness of the resettlement country to accept a refugee for legal stay in its territory, in accordance with its laws and regulations. Each resettlement country has its own regulations and procedures in respect to the resettlement of refugees, as detailed in the Country Chapters of this Resettlement Handbook …."
The Handbook refers UNHCR field officers to relevant "Country Chapters" of the book "for information on a particular State's resettlement programme": see paragraph 7.6.1. In the case of the UK that programme identifies two schemes, "The Gateway Protection Programme" ("GPP") and "The Mandate Refugee Scheme" ("MRS").
"….those applying for resettlement under the MRS must have been recognised as refugees within the 1951 Refugee Convention and its 1967 Protocol. They must also have close ties with the UK through family or possibly also historical links to the UK (e.g. periods spent here as a student). Close ties are usually taken to mean spouse, minor child or parents/grandparents over the age of 65. In exceptional circumstances other relationships will be considered; parent/grandparent (in the singular) under 65, family members aged 18 or over; son, daughter, sister, brother, uncle, aunt. No other categories of family relationship will meet the close ties requirement. The family members in the UK do not need to have been accepted as refugees but must be settled here or have limited leave in a category leading to settlement and this includes family members here under the Humanitarian Protection or Discretionary Leave provisions. Those who are here in a temporary capacity (e.g. visitors, students, for medical treatment etc) would not normally provide the mandate refugee with a close tie with the UK. The relative in the UK must confirm that they are willing to provide initial accommodation and help with the integration of the resettled refugee(s)."
"Assessing the Claim of Those Mandate Refugees Referred by the BRC, or Who Claim in Person at a Post Abroad.
Caseworkers should not need to assess the refugee status of a mandate refugee whose application is made abroad via UNHCR/BRC (for in-country applications see below). However, if the case has not been referred via UNHCR/British Red Cross, but has instead been referred by a British Post abroad as a result of an entry clearance application, caseworkers should confirm with UNHCR in London that the applicant has been recognised as a mandate refugee as claimed.
Consideration of the case should usually be limited to an assessment of:
- the applicant's circumstances in the present country of refuge;
and
- whether the UK is the most appropriate country for resettlement.
It may be that there is a case to be made for applicants to remain where they are or, alternatively, that there is a case for resettlement outside the present country of refuge to another safe third country.
The applicant must have close ties with the UK-usually close family, but also possible history (e.g. periods spent here as a student). The family members in the United Kingdom do not need to have been accepted as refugees but must be settled here or have limited leave in a category leading to settlement and this includes family members here under the Humanitarian Protection or Discretionary Leave provisions. Those who are here in a temporary capacity (e.g. visitors, students, for medical treatment etc) would not normally provide the mandate refugee with a close tie with the UK.
For the purposes of clarifying what constitutes close family the categories are:
- spouse
- children (minor's)[sic]
- parents/grandparents over 65
Exceptional Circumstances
The following family members will only meet the close ties requirement in exceptional circumstances:
- parent/grandparent (in the singular) under 65
- family members aged 18 or over: son, daughter, sister, brother, uncle, aunt.
No other categories of family relationship will meet the close ties requirement."
"27. First the five separate categories of family member read as if they are alternatives to each other. For example the third category is "parents/grandparents over 65" and the fourth category is "parent/grandparent (in the singular) under 65" which suggests that a person is unlikely to be in both categories. It would also be unusual to have a person who could be both in the "close ties" category (meaning that entry would be granted) and also in the "exceptional circumstances" category (meaning that there would be not entry without exceptional circumstances). This would be the effect of the Claimants' interpretation. This is because, for example, a minor child with parents in the United Kingdom would be in the second category (with leave to enter) but probably (depending on ages of parents) also in the fourth category, meaning that exceptional circumstances needed to be shown.
28. Secondly the relevant part of the policy begins noting that "the applicant must have close ties with the UK". Just after the reference to "exceptional circumstances" it is stated that "the following family members will only meet the close ties requirement..". This suggests that the categories of family members then set out below are applicants, because it is the applicant who must satisfy the close ties requirement. If the last two categories of family members relate to applicants, it strongly suggests that the first three categories relate to applicants as well. This suggestion is supported by the fact that in the United Kingdom Country Chapter of the UNHCR Resettlement Handbook it is recorded at page 4, paragraph 3.1 under Mandate, that "the relative in the UK must confirm that they are willing to provide initial accommodation and help with the integration of the resettled refugee(s). Given that one of the categories of family members is "children" if, as the Claimants contend, this category applies to both applicant and family members in the UK, it would be unusual to expect children to be able to provide initial accommodation and help with the integration of the resettled refugee.
29. In these circumstances it seems to me that the Defendant's construction of the policy is the correct one, and that the categories of family member set out in the policy apply to the applicant. This means that the Claimants are in the fifth category, namely "family members aged 18 or over…daughter, sister", and will need to show "exceptional circumstances" to be granted leave to enter."
"78. The correct approach to construction. It is important for the decision–maker to bear in mind when ascertaining the meaning to be given to the Mandate Policy that it is the objective meaning that is to be ascertained. Moreover, the policy is not enshrined in legislation so that any ambiguity or lack of clarity should be resolved by adopting a meaning which best gives effect to the overall UNHCR policy that seeks to find a durable solution to a mandate refugee's problems by the use of resettlement in a way that unites families but subject to the UK's implementation policy that only those who can demonstrate close ties with the UK should be permitted to resettle in the UK. Thus, the interpretative method adopted should be purposive and flexible rather than being strict and rigid. This approach is particularly apposite to the construction of the UKBA's version of the Mandate Policy which is drafted in an unsatisfactorily unclear manner."
A little later, he said (at paragraphs 82 and 83)
"82. The close family categories or relationship. Neither the UK Country Chapter document nor the UKBA Policy document defines what is meant by a family category or relationship. The SSHD asserts, without any explanation as to why this is asserted, that the categories or relationships described in the documents are referring to the applicant in question. Thus, by way of example, the SSHD contends that C1 does not fall into the category of a parent in (4)(iii)(c) above since she is not seeking to be reunited with her children nor is she over 65. The difficulty is that in the UK Country Chapter, it states that the applicant must also have close ties through family and it describes those close ties as being a relationship whereas the Policy document states that the applicant must have a close family category. The Country Chapter therefore appears to be describing a family relationship in the abstract whereas the Policy document is describing the individual applicant's side of the relationship. C1's relationship with her mother can readily be described as a parental relationship even though C1 is not, in that relationship, a parent or a grandparent. There is therefore an ambiguity in this policy which is best approached by asking which meaning better gives effect to the need to provide for family reunion. Clearly, that is best provided for by adopting a relationship rather than a category definition.
83. It follows that the meaning that should be applied must be ascertained on a case by case basis. The decision maker should ascertain what best describes the relationship between the applicant seeking resettlement and the family member who the applicant would be joining if permitted to resettle. C1 is seeking to create or recreate many different relationships: with her mother over 65, with her son, with her sister and brothers, with her nephews and nieces and with her great-nieces. C1, in joining her mother, is seeking to reconstitute a close family relationship of "mother" in the policy as set out in the UK Country Guidance section of the Resettlement handbook but is not constituting herself as falling into the "parents/grandparents" category as set out in the UKBA published policy. The policy as expressed in the UK Country guidance should prevail since that is the document which was drafted and submitted by the SSHD which the UNHCR is committed to attempt to give effect to and, moreover, the UKBA policy document has now been withdrawn and has not yet replaced."
At paragraph 95, he said:
"95. C1, in being resettled in England, would be reunited with her mother who is over 65 in age and with whom she has a very strong family tie. There is therefore a very close family tie based on the relationship of "parents over 65" and it is apparently accepted by the SSHD that in that context "parents" can mean "parent". Even if that is not accepted, it is the natural meaning of the word in its context in the policy, particularly as the policy expressly provides, by way of difference, for "parent (in the singular)" in stage (7) of the decision-making process. Therefore, C1 can be shown to come within the close ties requirement and the decision as to ground (a) is erroneous."
The reference to "ground (a)" is to the judge's formulation of the SSHD's decision on this point, as the Judge put it, in these terms:
"Neither qualify as a spouse, minor or parent or grandparent over 65 of any family relatives in the UK. In particular, C1's spouse is living in Iran and not the UK whereas to qualify he would have to be settled in the UK. Furthermore, C1 is not a parent of a person settled in the UK."
(See paragraph 73(1) of the judgment.)
(D) The Appeals and my Conclusions.
"63…..The Judge correctly set out the scheme at §§60-68, identifying at §64 that a state (of proposed re-settlement) is "not required to accept a refugee".
64 The duty is one of 'co-operation', not slavish acceptance. Co-operation denotes give and take and being prepared to listen to a case made by a party with whom one is 'operating'. It cannot denote a pre-determined position whereby the UK is entitled simply to shut its ears to a UNHCR submission, whatever the merits, unless and until the application satisfies the UK's own pre-figured criteria. If that were the case, then notwithstanding the article 35 obligation, the SSHD would be entitled to shut her ears to a UNHCR submission, whatever the urgency, however dire the need, however unlikely the refugee was to obtain re-settlement elsewhere, simply on the basis that her own 'close ties' criteria were not met even though there were very strong links to the UK (which, on the SSHD's case, is the position in this case)."
"[18]………The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
[19] That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment and ors, per Lord Hoffmann, p 780). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."[2]
"7.6.1 Determining the country of submission.
After determining that a particular case should be submitted for resettlement, the next step is to identify a suitable resettlement country if this is not already confirmed. Major considerations include:
- family links, particularly those in resettlement States;
- resettlement submission priority, vulnerability, and the resettlement country's average processing time and capacity for urgent processing;
- selection criteria and admission priorities of resettlement countries;
- allocation of annual quotas of resettlement States;
- health requirements/availability of treatment;
- language abilities;
- cultural aspects;
- nationality;
- family configuration; and, if possible:
- the refugee's expressed preference for a resettlement country.
Considering the options
Most resettlement cases are submitted to an established resettlement State, and field offices should consult the Country Chapters of this Handbook (available at http://www.unhcr.org/resettlementhandbook) for information on a particular State's resettlement programme."
"The applicant must have close ties with the UK – usually close family… For the purposes of clarifying what constitutes close family the categories are:
- spouse
- children…
- parents/grandparents over 65…"
This language might be taken to suggest that it is the applicant refugee that must have a relative of the relevant degree present in the UK, rather than that the applicant must be within that description relative to the person in the UK. However, that use of language in the documents must be considered carefully in the context of the document overall.
"8. Below I have set out some examples of cases which the UK has accepted as having "exceptional" circumstances for the purposes of the Mandate policy. In each case, the exceptional/compassionate circumstances were exclusive to the applicants themselves;
Case example one:
9. A 62 year old principal applicant living in Syria with his 63 year old wife requested entry to the UK to join his son. The applicants did not meet the normal criteria for acceptance because of their ages but the principle applicant had heart failure and needed surgery. Failing health left them both vulnerable to abuse as elderly refugees and their adult son in the UK was willing to care for them.
Case example two:
10. A 43 year old single woman in Iraq suffering from cancer requested entry to join her mother and sister in the UK. She did not fulfil the first criteria. However, she was accepted under exceptional circumstances because she was a single woman, suffering with secondary cancer, no treatment was available in Iraq and her mother in the UK had also been diagnosed with terminal cancer.
Case example three:
11. An 80 year old single woman with no children in Jordan asked to join her sister, niece and nephew in the UK. Due to her age, she was a very vulnerable woman at risk with no effective male protection (having never been married). With deteriorating health, she was struggling to care for herself and her only relatives were her sister and niece and nephew in the UK who were willing to accommodate and support her.
Case example four:
12. A 27 year old single woman in Malawi requested entry to join her mother in the UK. Due to epilepsy and having suffered sexual abuse in a Malawi refugee camp, the applicant was very vulnerable. She had no effective male protection and her mother and siblings were settled in the UK and willing to accommodate her."
This is not to say that the operation of the policy controls its objective meaning, but is merely illustrative of the concept of "exceptional circumstances".
"…I have given further consideration to whether [ST] and [ET]'s present circumstances are exceptional so that we should consider whether there is room for exercising discretion to conclude that they meet the secondary criteria of a close family tie of a daughter aged over 18/sibling as provided under the Mandate scheme.
6. It is not disputed that the instability, and associated hostility, in Syria has escalated since the application was submitted by UNHCR in August 2011. And it is acknowledged that UNHCR have categorised the sisters as women-at-risk being without accompanying adult male family members. We note that, at the time of the application, UNHCR stated that [ST] and [ET] lived with an Aunt. Your representations do not mention this point specifically but confirm that the sisters are living with fellow Iraqi refugees. In considering whether [ST]'s and [ET]'s circumstances are exceptional for the purposes of the Mandate policy I note that the environment they are living in is the same for other residents. I note also that, although the situation for women in Syria, generally, may have deteriorated, these circumstances are not exclusive to [ST] and [ET]. Finally, I note the stated medical condition of [family members] in the UK but, consistent with all considerations under the Mandate resettlement scheme policy, it is the factors appertaining to the applicants that apply, not those of relatives in the UK.
7. Without underestimating the seriousness of the situation that they experience each day, and having fully considered the updated facts of the case, and noting that UNHCR continue to submit Iraqi "women-at-risk" cases in Syria under normal priority, I must therefore conclude that, compared to other Iraqi women in Syria, their predicament is not compelling insomuch as demonstrating exceptional circumstances for the purposes of the Mandate policy. And in view of this conclusion, ST and ET are not entitled to be considered against the wider close ties definition of daughter aged 18; and/or sibling. I therefore see no reason to change the decision made on 9 January 2012."
In the C1/C2 case, the answer was:
"The applications have also been reconsidered in the light of the claimed exceptional circumstances. We are satisfied that your clients' circumstances are not exceptional when compared to other refugees in Turkey in the same situation whose only durable solution is resettlement. In the absence of any exceptional circumstances, there is no necessity to consider the wider family members criteria."
"….the policy is clearly intended to be applied by means of a structured decision making process notwithstanding the unstructured language used to identify it…"
He then set out a series of eight sequential questions.
(E) Additional Points
(1) "Close ties with the UK…possible history (e.g. periods spent here as a student)"
"Periods previously spent in the UK have also been considered, but it was decided that neither the two years [C1] spent here at school in the 1970's, nor their three years here between 2005 and 2008 as asylum seekers fulfilled this requirement."
"99. The decision-makers appear to have made a fundamental error in considering stage (5). This was that the "possible history" was limited to "periods spent here as a student". However, stage (5) envisages a consideration of an applicant's entire history of actual and potential close ties of all kinds, the periods spent in the UK as a student are merely put forward as one example of the many that could qualify as close ties. Such ties could include members of an extended family and might include many if not all of the factors giving rise to exceptional circumstances considered at Stage (6) of the inquiry.
100. The entire history of both C1 and C2 that is set out in this judgment can give rise, both in each of its several parts and in its whole, to establishing that C1 and C2 can each show, under this stage (5) that their historic links with the UK give rise to the kind of exceptionally close ties that bring them within the resettlement provisions of the mandate policy."
(1) C2's marital circumstances; husband's presence with her in Turkey
"…furthermore, [C1] lives with and is able to receive emotional support from her daughter [C2]; and [C2] is married to her husband who also lives in Turkey."
In a later letter of 15 August 2012, the SSHD also referred to the fact that C2 was an adult and had formed her own family unit.
"[C2's]… husband, C2H, has now moved to England and is here in a temporary capacity as a Tier 5 charity worker. The SSHD would, if reaching its decision now, have to consider whether exceptionally C2 would qualify as the spouse of C2H at this stage of the decision-making process. No such consideration was given. " (Italics added)
(2) Article 8
(F)Final Disposal
Lord Justice Tomlinson:
Lord Justice Moore-Bick:
Note 1 We were informed during the hearing that C2’s husband has since returned once more to this country to work as a Tier 5 worker and his leave to remain has been extended to September 2015. [Back] Note 2 A similar statement of that approach is to be found in the judgment of Lawton LJ in this court almost 28 years ago in R v Criminal Injuries Compensation Board, ex p. Webb [1987] QB 74 at 77H – 78B. [Back] Note 3 We were told that under present policies the UK does not accept submissions made within the “emergency” category, necessitating removal from the threatening conditions within a few days or even within hours. [Back] Note 4 The point was eventually raised on the eleventh page of the pre-action protocol letter of 1 August 2012: Supplemental Bundle for the Appeal/7/295. [Back]