England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ASYLUM AND IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		23 November 2005

1. LORD JUSTICE KEENE: I do not intend to rehearse the facts of this case. They are essentially clear from the main documents in the bundle and, in particular, the immigration judge's decision, the skeleton argument and the case statement supplied by Mr Armstrong.
2. It seems to me that it is properly arguable that the immigration judge went wrong in paragraph 31 of his decision, a paragraph which was clearly a significant part of his reasoning. His reference to Huang at paragraphs 52, 53 and 56 of his decision show that he was regarding this as a case where Article 8 was being used as a potential means of circumventing the Immigration Rules. In other words, he treated it as a case where an exception had to be found to those Rules. What he seems to have overlooked is that Lord Justice Laws in Huang was dealing with policy, mainly as contained within in the immigration rules but not wholly or exclusively so. Policy is something to be found in a number of sources, of which Immigration Rules may be the most important part but not the sole part.
3. Here reliance has been placed by counsel for the present applicant on policy as set out in the Secretary of State's Family Reunion Policy. That reliance had been made clear before the immigration judge, as one sees from the skeleton argument for the then appellant, particularly in paragraphs 2 and 3. And, indeed, there is reference to the submission in the decision itself at paragraph 12. So the applicant was not asking so much for an exception to be made to policy but arguing that he came within it. To do so under the terms of the Family Reunion Policy he had to show that there were compelling compassionate circumstances. That was not, as such, the test applied by the immigration judge who, it is arguable, did not deal in his own reasoning adequately with Family Reunion Policy.
4. Mr Armstrong has very properly drawn our attention to the decision in Senanayake v Secretary of State for the Home Department, of which we have only a brief summary from Lawtel. It is clearly a decision of which the full text ought to be made available in due course to the court that hears this appeal. There is a reference there which appears to be to an obiter statement that it was difficult to envisage a case that would fail under Rule 317 of the Rules but would be successful under the Family Reunion Policy. Speaking for myself, one has to be cautions about what one can envisage in the future. The Rules, particularly Rule 317, appear to relate principally to those who are dependent on someone already resident in the United Kingdom whereas the situation being put forward here is the converse of that.
5. In any event, it seems to me that it can arguably be said that the immigration judge has not adequately dealt with the Family Reunion Policy in his decision.
6. The applicant does face the difficulty, which Mr Armstrong recognises, that the Family Reunion Policy requires applications to be made at entry clearance posts overseas (See paragraph 4). The fact that he may look like succeeding if he made such an application could cut both ways. Against the applicant is the fact that a successful application would minimise the separation time, the time that he was apart from his father. Nonetheless it seems to me that it is properly arguable that the immigration judge has erred in law in the present case in his approach to the policy context. In those circumstances I would not seek to shut him out.
7. I would grant permission to appeal. I would not restrict the grounds of appeal which have been advanced, although it does seem to me that the point relating to the way the Family Reunion Policy was treated by the immigration judge forms the best ground on which the applicant can rely.
8. LORD JUSTICE RIX: I agree.

Order: Application allowed with time estimate of half-a-day, to be heard by a court of three judges one of whom may be puisne judge and one of whom to have expertise in immigration law. The costs to be in the appeal