England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
HIS HONOUR JUDGE BIRTLES QC
CO/4311/2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th July 2013

Lord Justice Elias :

The background to this appeal.

1. The appellant in this case is now 17 years of age. She is a national of Somalia and claims to be a member of the minority Reer Hamar clan. She wishes to be reunited with her mother and her brother, who is a year younger than she is. Her father had been taken from the family home by soldiers some years earlier. She lived with her mother and brother until she was sent to the United Kingdom on 23 September 2006 when she was just 11. She was granted discretionary leave to remain for three years on 24 November 2006 and in November 2009 she was granted indefinite leave to remain. Her claim for asylum, however, was rejected and she did not appeal that decision.
2. Subsequently her mother and brother (hereinafter referred to as "the applicants") left Somalia and they now live in Jigjiga in Ethiopia. They have been there for some five years. Although this is not entirely clear, it seems likely that they are living in a refugee camp there.
3. On 20 February 2010 they travelled to Addis Ababa in order to support applications they had made for visas to join the appellant in the United Kingdom. They had with them completed visa application forms and also detailed representations which had been prepared by their solicitors, who are based in the United Kingdom.
4. They sought entry clearance to the United Kingdom to join the appellant on two distinct grounds. First, they contended that their applications should be considered under Article 8. The submission was that respect for family life required that they should be granted entry clearance so that they could join their daughter/sister in the United Kingdom. Second, they also applied for asylum under the terms of a policy then in existence entitled "Applications from Abroad". They were told that those applications would not be considered unless they paid a fee. That was not a proper reason for refusing to consider the asylum claims, for which fees have never been charged, but it was a usual requirement in relation to the Article 8 claim for entry clearance.
5. On 1 April 2010 the appellant applied for permission to apply for judicial review. There were two main grounds. The first was the assertion that the Secretary of State had acted unlawfully in requiring a fee to be paid before the asylum application could be considered. The second was that the defendant had a discretion to waive the fee in respect of the Article 8 claim under the Immigration and Nationality (Fees) Regulations 2011 and that she had wrongly exercised that discretion in refusing to do so in the circumstances of this case.
6. An acknowledgment of service was filed well out of time on 14 July 2010. Permission was granted the following day by Mrs Justice Nicola Davies. The substantive hearing did not come before the judge until 19 December 2011, almost eighteen months later. This was a wholly unacceptable delay which can in my view in large part be laid at the door of the Secretary of State. The hearing came before Mr C M G Ockleton, sitting as a deputy High Court judge.
7. There were two significant developments between the grant of permission and the substantive hearing. The first was that some time in the summer of 2011 the policy relating to asylum applications from abroad was revoked and so it was not in force by the time of the hearing. The second development was that the Secretary of State had by letter dated 1 December 2011 formally indicated that she was not willing to exercise her discretion to waive the fees in relation to the Article 8 applications for entry clearance. She gave reasons for her refusal to do so.
8. These developments led to an amendment of the judicial review grounds. It was asserted that the discretion had been wrongfully exercised and that the only proper decision for the Secretary of State was to waive the fees as requested. There was also a challenge to the withdrawal of the policy which was not, in the event, pursued.
9. At the hearing before the judge there were discussions in open court which led to a Consent Order which was sealed by the Court on 2 February 2012. The proper meaning of that Order is very much an issue in these proceedings and I analyse it below. Suffice it to say that at the very least it involved the Secretary of State accepting that she would deem the policy still to be in force with respect to these asylum applications, notwithstanding that it had in fact been revoked. Nothing was said expressly in the Order with respect to the Article 8 waiver of fee claim; the order merely provided that all other issues relating to the application would be stayed.
10. On 19 March 2012 the defendant sent a letter to the court and to the appellant's solicitors indicating that having considered the applications in accordance with the policy, she had concluded that the applicants had failed to establish a prima facie case that they should be granted asylum and so the applications were not formally accepted. This was essentially the first stage of the policy, a condition precedent to the applications being submitted to the UK for full consideration by the relevant officers. One of the grounds in this appeal is that this was not in compliance with the terms of the Consent Order. It is asserted that the Secretary of State was obliged to accept the application and give them full consideration on the merits. The significance of this, it is said, is that once an application is formally accepted, there is a right of appeal if the application fails on the merits. If, on the other hand, it is not even accepted, then there is no relevant immigration decision which can be the subject of an appeal.
11. The appellant wrote to the court on 22 March 2012 to re-convene the proceedings in order for the court to determine whether the terms of the Consent Order had been complied with or not. The grounds of the judicial review application were amended on 28 June 2012 to raise this point. In addition, the appellant made it clear that she wanted the other matters which had been stayed by the Consent Order to be considered by the court. This included the challenge to the refusal to waive fees.
12. There were three principal issues which came before the judge. First, it was submitted that the Secretary of State had failed to give effect to the consent order. The appellant contended that, properly construed, it required the Secretary of State to go straight to the second stage of the policy; she was not entitled to dismiss the applications at the first stage by refusing to accept them. Second, the applicants alleged that even if they were wrong about that, the Secretary of State had erred in various ways in her conclusion that there was no prima facie case that they fell within the terms of the policy. She had failed to give interviews as the policy required; she had failed to give effect to section 55 of the Borders, Citizenship and Immigration Act 2009 requiring her to treat the interests of the children as a primary consideration; and in concluding that the applicants were not refugees she had failed to apply the right test, namely would they be at risk if returned to Somalia and had instead asked whether their conduct in Ethiopia demonstrated that they were genuine asylum seekers.
13. The second ground was that in any event the Secretary of State had reached a decision which was perverse; it was a decision which no reasonable Secretary of State, properly directing herself, could have made. The only proper conclusion on the evidence before her was that the applications had to be accepted and sent to London for a full merits assessment.
14. The third ground was that the Secretary of State ought to have exercised her discretion to waive fees with respect to the Article 8 claim; alternatively, the failure to do so itself infringed the appellant's Article 8 rights (and presumably the rights of the applicants).
15. The matter came before His Honour Judge Birtles QC, sitting as a deputy High Court judge, on 26 July 2012, and in a judgment delivered on 5 October 2012 he dismissed all the grounds advanced by the appellant. I will consider the basis of his reasoning in so far as it is relevant when addressing the issues raised in this appeal.

The issues in the appeal.

16. Laws LJ gave permission to appeal on two grounds. The first was the failure to hold an interview before determining the applications. The second was the question whether the Secretary of State had acted lawfully in refusing to waive fees. He indicated that if the appellant sought to renew any other grounds, this should be done at the hearing of the appeal. She has sought to re-argue virtually all the grounds on which permission was not given. These include in particular whether the Secretary of State properly implemented the consent order, and whether in any event she had erred in law in concluding that the applicants had not demonstrated a prima facie case for asylum.
17. However, shortly before the appeal came on for hearing, the Secretary of State conceded that she should have conducted an interview under the policy. She agreed to reconsider the applications in accordance with the policy following interviews. She did not, however, accept that she had misconstrued the terms of the consent order or that she had acted irrationally in rejecting the claims at the first stage. Nor was she willing to accept that she ought to have agreed to waive the fees with respect to the Article 8 claim, although counsel conceded before us that, as with the asylum claims, the question of waiver would need to be reconsidered in the light of any further information resulting from the reconsideration of their claims.
18. Mr Hussain QC, counsel for the appellant, did not accept that her concessions went far enough. He sought to re-argue the issues advanced before the judge so as to establish both that the Secretary of State was obliged as a matter of law to accept the asylum applications and that she was obliged to waive the fees with respect to the Article 8 applications.
19. The matters now before the court can therefore be considered under three broad heads: whether the terms of the consent order required the Secretary of State to go straight to the assessment on the merits; whether it was in any event irrational to reject the asylum applications at the first stage in the light of the evidence available; and whether the Secretary of State erred in refusing to waive fees.

Were the terms of the consent order satisfied?

20. Central to this ground are the terms of the applications from abroad policy and of the consent order itself. The material parts of the former are as follows:

"Applications from abroad

1. Introduction

Applications from abroad are made by persons still present in a third country. The application from abroad is initiated when a British Diplomatic Post refers to the ICT an application for asylum from outside the UK from a person who has not yet been recognised as a refugee by another country or by UNHCR.

…

1.1 Key points

Although there is no provision in the Immigration Rules for people who are overseas to be granted entry clearance to come to the UK as refugees, Entry Clearance Officers have discretion to accept, outside the Immigration Rules, an application for entry clearance for the UK where:

o Foreign national demonstrates a prima facie case that his/her circumstances meet the definition of the 1951 Convention;

o And s/he has close ties with the UK;

o And the UK is the most appropriate country of long term refuge.

All such accepted applications must be referred by the post abroad to the ICD for decision on whether to grant Entry Clearance as a refugee.

2. Action British diplomatic post

When making an application at a post abroad, the applicant will first be asked to complete a visa application form. The applicant will then be interviewed about the asylum claim. Where it is appropriate an applicant will normally be encouraged to approach the local authorities for asylum, or local representatives of the UNHCR.

Under the 1951 Convention, there is no obligation to consider an asylum application made overseas but if, exceptionally, the post accepts the application, the visa application form and the interview record will be forwarded to the ICD for full consideration of the asylum claim. The applicant will be told that the Home Office in the UK will decide whether entry clearance should be granted.

3. Action and Asylum Directorate

3.1 Considering the claim

The caseworkers must consider whether the Applicant:

1. Satisfies the usual criteria for refugee status as set out in 1951 Convention; and

2. Has close ties with the UK; and

3. Has established that the UK is the most appropriate country of refuge.

The applicant must have strong ties with the UK e.g. close family member in the UK or period spent here as a student. For the purposes of clarifying what constitutes close family the categories are:

o Spouse

o Children (minors)

o Parents/grandparents over 65"

21. As I have said, there are essentially two stages to this process. First, the application is considered by an Entry Clearance Officer to determine whether there is a prima facie case that asylum should be granted in accordance with the Policy. If there is such a case and it appears, at least on initial consideration, that the three conditions may be satisfied, then the application is formally accepted. The second stage is then for the form and the interview record to be forwarded to the ICD for full consideration of the claim for entry clearance. The appellant submits that there would be a right of appeal if the application is rejected at that stage, although I understand that this may be disputed by the Secretary of State.

The Consent Order.

22. This was drafted between counsel and approved by the judge. So far as is relevant it was in the following terms:

"Upon hearing counsel for the Appellant and for the Defendant it is ordered by consent that:

(1) The Defendant shall consider the asylum applications made by the Appellant's mother Maylun Ismail Dahir and her brother [HA] in accordance with the Defendant's policy entitled 'Applications from abroad' and shall reach a decision on those applications on or before 19^th March 2012.

(2) The Court's determination in relation to all other issues relating to the Appellant's application shall be stayed pending the Defendant's decisions referred to in (1) above."

23. The dispute between the parties turns on the proper meaning to be given to the phrase "consider the asylum applications … in accordance with the Defendant's policy". The Secretary of State submits that this means no more than that she will apply the policy to them in the same way as she would have done had it still been in force; in that general sense she will consider the applications in accordance with the policy. The appellant says that the word "consider" has a more nuanced meaning. It has to be read in the context of the policy itself. Under the policy the act of considering the claim and then reaching a decision – the very words employed in the consent order – is the second stage of the process, which only arises once the applications have been accepted. It would not be unreasonable or unrealistic to assume that the Secretary of State would be willing to make this concession given the delays and the weakness of her case.
24. We were shown, as was the judge below, a transcript of a discussion which took place before Mr Ockleton concerning the making of what was then a possible Order, but like the judge, we do not find this to be of any assistance.
25. I would accept, as both counsel submit, that the consent order must be read in context. In my judgment it is very important to bear in mind that the position which the Secretary of State was initially adopting before Judge Ockleton; she was asserting that since the policy had been withdrawn, it was not open to these applicants to take advantage of it. That was so even if, which the Secretary of State denied, the significant delays in dealing with the applications could be laid at her door. The appellant was contending that notwithstanding the repeal of the policy, the principle enunciated in the well known case of R (on the application of Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 would require the Secretary of State to comply with the policy in the case of these two applicants, notwithstanding its repeal. She had by her delays frustrated the expectation that the policy would apply and it would be unfair not to allow them the benefit of the policy.
26. I accept that the construction is not entirely straight forward given that the language of the order reflects language used in the policy. But construing the terms objectively and in context, in my judgment the more natural construction is that the Secretary of State was simply accepting that the applicants should not lose their right to have their applications determined under the policy by virtue of its repeal; she would therefore consider their applications in accordance with the policy. She was not intending that the applicants should be placed in any better position than they would have been had their applications been considered when the policy was in force. I agree with the judge below that had this been the intention of the parties, I would have expected the order specifically and unambiguously to have clarified this important point rather than leaving it to be inferred by linking the language of the order to the language of the policy, even though there is no express link between them.
27. Accordingly I would not grant permission with respect to this ground of appeal.

Was it irrational to refuse to accept the applications?

28. This ground requires a consideration of the reasons why the Secretary of State refused to accept the applications. In the letter of 19 March she stated that the first function of her representative was to consider whether a prima facie case had been established. Although she did so without any interview having been held, nonetheless she stated that there was no need for further information at this stage. She then set out in some detail the reasons for concluding that there was no prima facie case justifying the applications being accepted.
29. First, she was not satisfied that they had a prima facie case for refugee status and therefore they did not meet the first condition. In this context she noted that the applicants had apparently made no application for refugee status whilst in Ethiopia; there was considerable uncertainty as to whether they lived in a refugee camp, as they claimed; they had made no application to the UNHCR for protection under the Mandate; and the appellant's own application for asylum had been rejected in the UK without any appeal ever having been lodged. In view of these factors, the Secretary of State concluded that they were choosing to live in the community in Ethiopia and not residing as refugees.
30. It is not entirely clear from the terms of the letter whether the Secretary of State was accepting that the second condition was satisfied at least to the prima facie level, i.e. the question whether the applicants had links with the UK. But in any event the Secretary of State made it plain that she did not consider that there was a prima facie case that the third condition was satisfied, namely that the UK was the most appropriate country of long term refuge. She noted that living standards were acceptable in Ethiopia, even if the applicants were in a refugee camp; the applicants had lived in Ethiopia for five years and had not applied to come to the UK for more than three years after the appellant herself had entered the UK, and this was so notwithstanding that other family members were already in the UK; they were not in any danger in Ethiopia; and there was already a large indigenous ethnic Somali population in Jigjiga quite apart from those who sought refuge from Somalia itself.
31. Initially the main focus on the applicants' submissions was that there were errors invalidating the decision – the failure to interview or to give full weight to the interests of the children - which, if established, would lead to a reconsideration. Given that the Secretary of State has now agreed to reconsider the applications and will have to avoid these alleged errors in future, it is unnecessary to focus on these arguments.
32. However, the more fundamental challenge is the contention that the Secretary of State was bound on the evidence before her to accept the applications; no reasonable Secretary of State could properly have found otherwise. There was, says counsel, at least a prima facie case that each of the three conditions was satisfied.
33. I see considerable force in the submission that the Secretary of State erred in her analysis of the first condition and confused the question whether the applicants were refugees as defined by the Geneva Convention with the quite distinct question whether they were applicants seeking asylum. There is a strong prima facie case derived from the case of Sufi and Elmi v United Kingdom (2012) 54 EHRR 9 that someone from the minority tribe in Somalia will, at least prima facie, face a real risk of ill treatment contrary to Article 3, particularly if returned to areas of Somalia under the control of an extreme Islamic group, the al-Shabaab. That, if the applicants are to believed, is their situation. Whether the Secretary of State erred in her analysis of the third conditions is, however, far more problematic.
34. But again in my view it is premature to reach a concluded view on this point. The premise underlying this submission is that the evidence adduced by the applicants is reliable and that no further material evidence will emerge which might undermine it. That is not in my view a legitimate premise to adopt. The applicants can properly say, as they do, that it was unreasonable for the Secretary of State to draw adverse inferences against them without even giving them the benefit of an interview. But equally, once their account is tested and further information is gleaned from them, it will give the Secretary of State fuller information from which to form a considered view on this issue. I see no justification for assuming at this stage that nothing fresh will emerge which could weaken the strength of their applications or possibly undermine their credibility. The picture emerging could be a different one, and the Secretary of State is entitled to make her decision in the light of all the relevant material. I would not, therefore, grant permission with respect to this ground either.

Ought the Secretary of State to have waived fees?

35. Under the rules in force at the material time the fee applicable to the mother's application was £1,814 and for the brother's application it was £810. Regulation 26 of the Fees Regulations provided that the Secretary of State could determine that the fee should be waived. There is a publicly promulgated policy on the circumstances in which the application fee may be waived. This makes it plain that in principle fees should be charged in order to cover the costs of providing the service to the applicants and thereby to reduce the burden on the tax payer. The policy also states that fees would be waived:

"only to cases where there are the most exceptional, compelling and compassionate circumstances specifically relating to the payment of the fee."

36. It is then expressly stated that "destitution alone will not be valid grounds for waiving visa fees". Moreover, the question whether fees can be afforded is not limited to a consideration of the applicant's personal resources:

"When considering the payment of the fee, it is usual practice to consider not only the applicant's ability to pay but also to take into account the sponsor's or other wider family's ability to pay the fee as well."

The rationale behind this is that if the fee could not be paid by the sponsor or wider family, that would be prima facie evidence that the sponsor was unable to support the applicants who would therefore be likely to be a drain on public funds.

37. The Secretary of State set out her reasons for refusing to waive fees in the letter dated 1 December 2011. She was not satisfied that the applicants were unable to raise the money. She noted that the aunt who looked after the appellant had paid for the applicants to travel to Addis Abbaba and paid the mother $60 per month and she took the view that financial assistance would be likely to be available. In any event she was not satisfied that this case fell into the very exceptional category. They were far from destitute by Ethiopian standards, and in any event destitution was not a reason for waiving fees.
38. She then considered the Article 8 claims. She refused to waive the fees on this ground either. She contended that the daughter could be reunited with her mother and brother in Ethiopia itself; and that in any event the daughter spoke to her family every two or three weeks and that relationship could continue into the future. There was no general obligation on the State to authorise family reunion in the territory and she cited various authorities to the effect that there was in general no obligation on a State to provide financial support as part of the positive obligation on the State to respect family life. The authorities cited to support this proposition included Gold v Switzerland [1996] 22 EHRR 93 and the decision of the Court of Appeal in Anufriejeva v Southwark LBC [2003] EWCA Civ 1406 [2004] QB 11 24. In effect, to waive fees meant that the State was paying the fees.
39. The judge below held that there was no error in this approach. I agree with his conclusion. I have no doubt that, as Sales J accepted in his valuable judgment in R (on the application of Shueb Sheikh) v Secretary of State for Health [2011] EWCA 3390 (Admin), there will be cases where, if the applicant, sponsor and family cannot pay the fees and the Article 8 right is sufficiently strong, there will there will be an obligation to waive fees in order to protect Article 8 rights. But as Sales J pointed out in that case, (para.74(9):

"If there is no great difficulty in [the applicant] raising funds to pay the fee, there will be no tenable case for an implied obligation under Article 8(1) for the applicant to be exempted from paying the fee. In such a case it cannot be said that there is a 'direct and immediate link' between the waiver of the fee and respect for family life (Botta Draon); nor that the fair balance between the interests of the individual and the interests of the general community requires the state authorities to forego collecting the application fee."

40. In my judgment, given the paucity of evidence about the financial circumstances of the aunt (and indeed the mother's brother who seems to have paid for the appellant to travel to the UK), the Secretary of State was entitled to conclude that the resources to pay the fees would be likely to be available to these applicants. There was therefore no basis on which Article 8 could properly be invoked to require payment to be waived.
41. However, it is right to add that, as the Secretary of State has accepted, if new and fuller information emerges from the reconsideration of the asylum applications, this may oblige the Secretary of State to reconsider the waiver issue also. But on the current material, in my view this ground of appeal fails.
42. I would only add that the delays in this case have been wholly unacceptable. The Secretary of State, who is largely responsible for the delays, ought in conscience now deal with the outstanding issues as a matter of real urgency.

Disposal.

43. For the reasons given, I would dismiss the appeal.

Lord Justice Davis:

44. I agree.

Lord Justice Jackson:

45. I also agree.