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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> MS and others (family reunion: “in order to seek asylum”) Somalia [2009] UKAIT 00041 (15 September 2009) URL: http://www.bailii.org/uk/cases/UKIAT/2009/00041.html Cite as: [2009] UKAIT 00041, [2009] UKAIT 41, [2010] Imm AR 242 |
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MS and others (family reunion: "in order to seek asylum") Somalia [2009] UKAIT 00041
Date of hearing: 19 May 2009
Date Determination notified: 15 September 2009
MS AA FA |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
The family reunion provisions of para 352A et seq do not extend to the family members of those whose own status derives only from those Rules. In those circumstances, a claimant cannot show that the sponsor left his country of former habitual residence "in order to seek asylum" as required by the Rules.
"It is accepted that polygamous unions are not recognised in English law. I find in public law…a polygamous union is void ab initio….I find that for the reasons I have set out the fact that polygamous unions are voidable in Ethiopian law does not confer validity on them in UK immigration law which I take to be governed by principles of public law."
"278. Nothing in these Rules should be construed as allowing a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as the spouse of a man or woman (the Sponsor) if:
(i) his or her marriage to the Sponsor is polygamous; and
(ii) there is another person living who is the husband or wife of the Sponsor and who:
(a) is, or at any time since his or her marriage to the Sponsor has been, in the United Kingdom; or …"
"352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or 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 Nations 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;…"
"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 had 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 of 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;..."
"Family members, merely due to their relation to the refugee, will normally be vulnerable to acts of persecution in such a manner that could be the basis for refugee status."
"I disagree with Collins J's insistence [in Arman Ali [200] INLR 89] 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 the Human 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."
"The whole of [the Immigration Rules'] meaning is, so to speak, worn on their sleeve."
"Procedure
326A.The procedures set out in these Rules shall apply to the consideration of asylum and humanitarian protection.
Definition of asylum applicant
327. Under the Rules an asylum applicant is a person who either;
(a) makes a request to be recognised as a refugee under the Geneva Convention on the basis that it would be contrary to the United Kingdom's obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom, or
(b) otherwise makes a request for international protection. "Application for asylum" shall be construed accordingly.
327A. Every person has the right to make an application for asylum on his own behalf.
Applications for asylum
328. All asylum applications will be determined by the Secretary of State in accordance with the Geneva Convention. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules."
"The applicant would not be excluded from the protection by virtue of 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"(emphasis added).
"25. The Sponsor left them to set up a separate family unit in the United Kingdom. There is merit in the view that although they are the offspring of a polygamous union, they are to a degree an independent family unit by virtue of the sponsor's decision to move to the United Kingdom to live with his first wife."
C M G OCKELTON
DEPUTY PRESIDENT