UKSC 21
On appeal from:  EWCA Civ 1420
ZN (Afghanistan) (FC) and Others (Appellants) v Entry Clearance Officer (Karachi) (Respondent) and one other action
Lord Phillips, President
JUDGMENT GIVEN ON
12 May 2010
Heard on 15 February 2010
Manjit Gill QC
(Instructed by Fisher Meredith)
(Instructed by Treasury Solicitor)
LORD CLARKE (delivering the judgment of the court):
"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?"
Is this appeal academic?
"1) Did the Court of Appeal err in its construction of paragraphs 352A and 352D of HC 395 and, in particular, did it err in concluding that the said paragraphs apply only to the family members of a person who has the status of a refugee at the time those family members apply to join him or her in the UK?
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; or does his status cease automatically upon acquisition of that nationality or only by a procedure such as that contemplated by Directives 2004/83 and 2005/85?"
The decision of the court
The Refugee Convention and the Immigration Rules
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a 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".
Article 1F provides:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
"(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;"
There are similar provisions relating to children under 18 in para 297, which, like para 281, is set out by Laws LJ at his para 9.
"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; and(v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.
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 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(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity".
"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."
"depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."
"The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy. ... the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended."
See also per Lord Kerr at para 51.
"352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse … of a refugee are that:
(i) the applicant is married to … a person granted asylum in the United Kingdom; …"
There is also a reference to "the person granted asylum" in sub-para (ii). The respondent ECO points to the necessity for the applicant to be the spouse "of a refugee" and submits that that indicates that he or she must be a refugee at the time of the application. The ECO further relies upon para 352E, which refers to "the child of a refugee".
"18. … The opening words of paragraph 352A - 'seeking leave to enter ... as the spouse ... of a refugee' - import that the sponsor is currently a refugee. Compare 352E: 'Limited leave to enter[/remain in] the United Kingdom as the child of a refugee ...'. The references to 'refugee' are references to a current status. It is true that paragraph 352D has a different formulation: '... in order to join or remain with the parent who has been granted asylum...'. However this is a familiar use of the perfect tense, to denote a state of affairs which arose in the past but is still continuing. It is in contrast to the aorist or past historic tense, which denotes a past state of affairs which has come to an end. Compare 'It rained last night' with 'It has been raining since last night'."