England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		05 October 2012

HIS HONOUR JUDGE BIRTLES:

Introduction

1. This is an application for judicial review challenging the ongoing refusal of the Defendant to accept an application for family reunion and an application for asylum without payment of a fee. Permission was granted on the papers by Mrs Justice Nicola Davies on 16^th July 2010.
2. There was a history in this case which is relevant to one of the issues which I have to determine. I will set out that history in more detail later. I heard the application for judicial review on 26^th July 2012 and reserved judgment.
3. The Claimant was represented by Mr Edward Nicholson of counsel. The Defendant was represented by Mr Matthew Barnes of counsel. I am grateful to both counsel for their written and oral submissions. At the conclusion of the hearing both counsel indicated that they wish to make written submissions on the case of AJ (India) and Secretary of State for the Home Department [2011] EWCA Civ 1191 which was handed down on 27^th July 2011. I agreed and both counsel did so. I have taken those written submissions into account.
4. The Claimant, who was born on 1^st January 1995 and is now 17 years of age, is a national of Somalia. Her application is based upon her hope that she will be reunited with her mother Malyun Ismail Dahir (whose date of birth is unknown) and with her brother HA, who was born on 1^st January 1996. All members of the family are members of the sub clan Shanshi of the Reer Hamar clan.
5. The Claimant came from Somalia to the United Kingdom on 23^rd September 2006, when she was 11 years old. In Somalia she lived with her mother and her brother. She has not seen her father since he was taken from the family home by soldiers when she was a young child. On 24^th November 2006 she was granted discretionary leave to remain in the United Kingdom for 3 years. On 10^th November 2009 she applied for further leave to remain and on 7^th March 2011 the Claimant was granted indefinite leave to remain in the United Kingdom.
6. Her mother and brother live in a refugee camp in Jigjiga in Ethiopia. On or around 20 February 2010 they travelled from Jigjiga to Addis Ababa to support their applications for visas to join the Claimant in the United Kingdom. They had with them detailed representations dated 15^th December 2009, prepared by the Claimant's solicitors in the United Kingdom. Their completed visa application forms were also enclosed with the representations.
7. The representations of 15^th December 2009 made it clear that the Claimant's mother and brother were applying to join the Claimant in the United Kingdom, and that the application should be considered by the Defendant in accordance with the United Kingdom's obligations under Article 8 of the European Convention on Human Rights (hereinafter ECHR).
8. The Claimant's mother and brother also applied for asylum under the terms of the Defendant's published policy entitled "Applications from Abroad". However, they were told that their applications could not be considered without a fee being paid.
9. The Claimant made her application for permission to apply for judicial review on 1^st April 2010. There were two issues raised:

i) That the Defendant has acted unlawfully in requiring a fee to be paid before the Claimant's mother and brother's asylum application was considered, and

ii) That the Defendant's discretion to waive the fee for consideration of the application had to be exercised by her in order to obviate any breach of the Claimants' and their Article 8 rights.

10. The Defendant filed an Acknowledgement of Service dated 14^th July 2010.
11. Permission was granted by Mrs Justice Nicola Davies on 15^th July 2010 and the substantive hearing of the Claimant's application came before Mr CMG Ockelton sitting as a Deputy High Court Judge on 19^th December 2011.
12. Between the grant of permission and the substantive hearing there were two significant developments. First, the Defendant's policy relating to asylum applications from abroad was removed from the UKBA's website. This occurred between June and September of 2011. Second, by letter dated 1^st December 2011 the Defendant replied to the Claimant's representations dated 15^th December 2009 notifying the Claimant of her decision not to exercise her discretion under the Immigration and Nationality (Fees) Regulations 2011 to waive the fee in relation to the Claimant's mother's and brother's applications for entry clearance.
13. The Claimant amended her Grounds in support of her application to enable her to address these developments. Amended Grounds addressing the contents of the Defendant's decision of 1^st December 2011 were issued on 6^th December 2011, and then on 9^th December 2011 a further ground 15 was added to the Claimant's Grounds, addressing the Defendant's withdrawal of her policy relating to asylum applications made outside the United Kingdom.
14. As I have said the substantive hearing of the Claimant's application was heard on 19^th December 2011 before Mr CMG Ockelton sitting as a Deputy High Court Judge. Following discussions in open court the proceedings were terminated on the basis of a consent order which was sealed by the Court on 2^nd February 2012. The meaning of that consent order is one of the issues which I have to decide.
15. On 19^th March 2012 the Defendant sent a letter of the same date to the Court and to the Claimant's solicitors. The letter did not contain any decision on the applications which the Claimant's mother and brother had made in accordance with the Defendant's policy on asylum applications from abroad. The Defendant provided her reasons for not having made such a decision.
16. By letter dated 22^nd March 2012 the Claimant's solicitors wrote to the Court to complain that Defendant had not complied with the terms of the consent order made following the hearing on 19^th December 2011, and to request that the Court should therefore reconvene the proceedings as soon as possible. The Defendant then wrote to the Court on 26^th March 2012 to express her view that she had so complied and that the proper course for the Claimant to take if she wished to challenge the letter of 19^th March 2012 was to issue further Amended Grounds addressing the Defendant's description of the parameters of her withdrawn policy which was contained in that letter.
17. The Claimant issued Amended Grounds on 28^th June 2012. In those Grounds the Claimant maintained her position as stated in the letter of 22^nd March 2012 that the Defendant had failed to abide by the terms of the consent order. The Claimant indicated that as provided for in paragraph 2 of the order the other issues (i.e. the lawfulness or otherwise of the Defendant's failure to waive the fees for the Claimant's family members' entry clearance applications to achieve reunification with the Claimant, and of her withdrawal of the 'Applications from Abroad' policy) remained outstanding before the Court. The Claimant's Amended Grounds issued on 28^th June 2012 are unopposed. I grant permission for the Claimant to rely upon them as well as the earlier Grounds. Amended Detailed Grounds of Defence are dated 5^th July 2012 and were served on the Claimant's solicitors on 11^th July 2012.

The Issues

Issue One: The Decision of 19^th March 2012 and the terms of the consent order

18. The consent order was sealed on 2^nd February 2012. What is clear from the correspondence at trial bundle pages 258-260 is that the consent order was not drafted at Court but drafted thereafter by counsel. It appears to have been drafted by Mr Nicholson and forwarded to Mr Barnes for his agreement. It was then sent on to the Administrative Court office.
19. The consent order appears at trial bundle page 275. It says this:

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

(1) The Defendant shall consider the asylum applications made by the Claimant'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 Claimant's application shall be stayed pending the Defendant's decisions referred to in (1) above and

(3) There shall be no order as to costs, save that there shall be a detailed assessment of the Claimant's publicly funded costs."

20. Despite the fact that the hearing before Mr CMG Ockelton took place on 19^th December 2011 I was not provided with a transcript of that hearing. Instead I was given a typed note of the hearing made by the Claimant's solicitor who was present. The note is (a) not verbatim and (b) incomplete (there are a substantial number of question marks in the text). At 2.10 pm after the short adjournment Mr Barnes is recorded as saying:

"Instructions SS will consider the applications for asylum made by the Claimant's mother and brother pursuant to policy set out in policy."

21. I do not regard this as helpful. In my view the correct approach is for me to construe the words of the consent order itself which were drafted by counsel after the hearing. Both counsel had more than adequate time to consider the language agreed by them in the consent order because it was not sent to the Administrative Court to be sealed until late January 2012: trial bundle page 259.
22. The other document I need to refer to is the 'Applications from abroad' policy. It appears at trial bundle pages 74-75. The material parts read 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:

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

And s/he has close ties with the UK;

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:

Spouse

Children (minors)

Parents/grandparents over 65

…"

The remainder of the document is not relevant.

23. Mr Nicholson makes detailed written submissions in paragraphs 16-22 of his skeleton argument which he amplifies in his oral submission. He submits that the phrase in the consent order "made by the Claimant's mother Maylun Ismail Dahir and her brother [HA] in accordance with the Defendant's policy entitled 'Applications from abroad'" is plainly an adjectival phrase identifying the applications upon which the Defendant was required to reach a decision by 19^th March 2012. The sentence which immediately follows in the consent order "…and shall reach a decision on those applications on or before 19^th March 2012" makes this clear. The phrase "those applications" are the applications identified in the preceding sentence. He also makes the point that in accordance with the policy document the Defendant could have processed the application and interviewed the Claimant's mother and brother. He submits that the clear language of paragraph 1 of the consent order is that the Defendant had to consider the application and "shall reach a decision". The Defendant was being ordered to leapfrog the acceptance of the application and reach a decision on it.
24. Mr Barnes took me through the history of the proceedings up to the hearing before Mr CMG Ockelton on 19^th December 2011 and made the point that the order was a concession by the Defendant as the policy had been withdrawn. He submitted that there was a distinction between accepting an application and considering it. Acceptance of the application was the gateway leading to consideration. The consent order makes no mention of the word 'accept' and the phrase 'in accordance with the Defendant's policy entitled 'Applications from abroad' incorporates the two stage process set out in the policy document of (1) acceptance (2) if the application was accepted consideration of it.

Decision

25. I have already stated that in my judgment the correct way to approach this issue is for me to construe the words of the consent order itself bearing in mind that it was drafted after the hearing apparently by Mr Nicholson and then approved by Mr Barnes before being sent to the Administrative Court office to be sealed. In other words both counsel had adequate time to consider the language used. Nothing here was done in haste.
26. The wording of paragraph 1 of the consent order requires the Defendant to "consider the asylum applications made by (the Claimant's mother and brother) in accordance with the Defendant's policy entitled 'Applications from abroad' and shall reach a decision on those applications on or before 19 March 2012."
27. The Defendant's decision letter is dated 19^th March 2012 and appears at trial bundle pages 193-197. I do not propose to set it out in full but paragraphs 1-3 are relevant. They say this:

"1. Following a hearing at the High Court on 19 December 2011, and in accordance with the order of the Court, the Secretary of State has considered whether the persons named above meet the criteria – stipulated in a now withdrawn, but previously publicly available, policy – for making asylum applications from abroad. Please note that this matter has not been considered by the Secretary of State in person but by a representative working on her behalf.

2. The previously published policy on asylum application from abroad, which was withdrawn on 21 September 2011 for the purpose of being reviewed, made it clear that consideration would only be given, on a discretionary basis, to an application for asylum from abroad where the individual had very clear protection needs, and had particularly close ties with the UK, and the UK was the most appropriate country for asylum/ long-term refuge.

3. It is submitted that, in accordance with this policy, the function of the representative of the Secretary of State now is not to determine whether your above named clients are refugees under the terms of the 1951 Convention, as they assert, but to determine whether they have a prima facie case for making such a claim, and whether they have close ties with the UK, and whether the UK is the most appropriate country of long-term refuge. For the sake of clarity, the representative of the Secretary of State has not agreed to consider the merits of a substantive application for asylum but rather to consider whether to accept applications for asylum from your client. There are at present no such applications before the Entry Clearance Officer or the Secretary of State and there is no need for further information from you at this stage. The information you have already provided in connection with this matter has been taken into account. Any decision not to accept applications for asylum from your client will not lead to a right of appeal."

28. The letter then goes on in some detail to consider the evidence before the Defendant which I do not need to deal with in this section of my judgment.
29. I agree with Mr Barnes that the policy guidance "Applications from abroad" draws a distinction between accepting an application and consideration of it. That is clear from the passage under section two that I have read. Only when the British diplomatic post accepts an asylum application made overseas (which these were) then the documents will be forwarded to ICD for full consideration of the asylum claim. As Mr Barnes says the first stage is acceptance of the application and one obvious consequence of acceptance of the application is that if it is then considered and rejected there will be a right of appeal to a First Tier Tribunal in the UK. A refusal to accept an asylum application made overseas conveys no such right of appeal. If the judge (and the parties) had taken the view that these two asylum applications were to be treated as accepted for consideration by the Defendant then I would have expected the consent order to say so. In my judgment what the language of the consent order does is to require the application of the two stages of the "Applications from abroad" policy that is (a) acceptance (b) consideration. The difference is that for acceptance the foreign national needs to demonstrate a prima facie case that his/her circumstances meet the definition of the 1951 Convention. When one reaches the consideration stage the applicant must satisfy the usual criteria for refugee status as set out in the 1951 Convention. The latter test is clearly higher than the former test.
30. For the sake of avoidance of doubt I can see nothing in Mr Nicholson's point that there was a failure by the Defendant to interview the Claimant's mother and brother. That could only be done at the British diplomatic post in Addis Ababa. No such request was made by the Claimant's solicitor at any time either at the hearing on 19^th December 2011 or at any time thereafter. It was not part of the consent order.
31. The result of the action carried out by the Defendant was to assess whether the two applications for asylum were to be accepted as subject to consideration. For the reasons given in the Defendant's letter of 19^th March 2012 those applications were rejected for consideration. In my judgment the Defendant complied with the consent order sealed on 2^nd February 2012.

Issue 2: Was the Defendant's interpretation of the policy "Applications from abroad" lawful?

32. I have set out the policy earlier in this judgment. As is clear from sections 1.1 (Key points) and 3.1 (Considering the claim) there are three criteria. Although as I have pointed out there is a difference between the acceptance stage for the first criterion i.e. the applicant need demonstrate a prima facie case that is his/her circumstances meet the definition of the 1951 Convention and on consideration whether the applicant satisfies the usual criteria for refugee status set out in the 1951 Convention. The second criterion is that the applicant has close ties with the United Kingdom (the same test in both cases) and the third criterion is that the UK is the most appropriate country of long-term refuge (the acceptance stage) and the applicant has established that the UK is the most appropriate country of refuge (the consideration stage). I can see little if any difference between the third criterion in each case.
33. The Defendant's decision prior to the hearing on 19^th December 2011 is contained in her letter dated 1^st December 2011: trial bundle pages 158-166. The Defendant's decision in accordance with the consent order sealed on 2^nd February 2012 is in her letter dated 19^th March 2012: trial bundle pages 193-197. Those letters are of considerable length and rather than set them out in full I propose to set out such parts as seem to me to be relevant.
34. Mr Nicholson's submissions are contained in paragraphs 24-44 of his skeleton argument and in his oral submissions. Before considering those submissions and Mr Barnes' reply I remind myself that this is an application for judicial review. It is only if I am satisfied on conventional judicial review grounds that the decision of the Secretary of State is unlawful that I can quash her decision. I am not here to substitute my view for that of the Secretary of State. Mr Nicholson's first submission relates to the first criterion namely whether the applicants have demonstrated a prima facie case that his/her circumstances meet the definition of the 1951 Convention.
35. By Article 1 (A)(2) of the 1951 Convention relating to the status of refugees as amended by the New York Protocol of 31^st January 1967 the term "refugee" shall apply to any person who:

"Owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable to, owing to such fear, is unwilling to return to it."

36. Mr Nicholson points out that the Claimant's mother and brother explained their departure from Somalia in 2007 in their visa applications forms at section 6.2: trial bundle page 46. There they stated that they had come to Ethiopia to flee persecution in Somalia. In their representations of 15^th December 2009 the Claimant's solicitors told the Defendant that the Claimant's mother and brother had a prima facie case for asylum on the basis of what was then current country guidance issued by the Asylum and Immigration Tribunals.
37. Mr Nicholson further submits that the Defendant has not asked herself whether the Claimant's mother and brother have demonstrated a prima facie case for asylum, but instead "whether they are genuine asylum seekers": Amended Detailed Grounds of Defence paragraph 67. Mr Nicholson submits that the Defendant has asked the wrong question and has therefore erred in law. He also criticises the fact that there was no interview with the Claimant's mother and/or brother either before or after the consent order sealed on 2^nd February 2012.
38. Mr Barnes refers me to the background to the case as contained in the trial bundle. Although there are four witness statements from the Claimant they provide little detail. There is no evidence from either the mother or the brother apart from two documents. The first are the application forms at trial bundle pages 27-42 (for the mother) and 43-57 (for the brother). Neither are signed or dated. Second, there is the medical certificate at page 64 which says that the Claimant's mother is "suffering with pain in her breast for a period". The Claimant in her witness statement dated 15^th December 2009 paragraph 15 states that her mother has breast cancer but there is no medical evidence to support this. Mr Barnes submits that the assertion by the Claimant that her mother and brother are refugees is precisely that: an assertion. That point is taken up in the Defendant's letter of 19^th March 2012 at paragraphs 6-14: trial bundle pages 194-196 and in the Defendant's Amended Detailed Grounds of Defence at paragraphs 6 and 17: trial bundle pages 194 and 196.

Discussion

39. I remind myself that I am not here to substitute my decision for that of the Secretary of State. Whether one looks at this issue as (a) a decision to accept, outside of the immigration rules, an application for entry clearance for the United Kingdom where a foreign national demonstrates a prima facie case that his/her circumstances meet the definition of the 1951 Convention or (b) as considering the claim the Defendant must be satisfied that the usual criteria for refugee status as set out in the 1951 Convention apply then in my judgment the Defendant is entitled to have regard to the fact that the Claimant's mother and brother have been in Ethiopia since 2007, have not claimed asylum, or made contact with the UNHCR and to regard those factors as relevant to the question of whether or not they have demonstrated a prima facie case that his/her circumstances meet the definition of the 1951 Convention and/or satisfy the usual criteria for refugee status as set out in the 1951 Convention. Putting the matter another way there is simply a dearth of factual material provided by the Claimant or her solicitors in support of the application by her mother and brother. In my judgment the Defendant did not ask herself the wrong question but was clearly entitled to take account of the genuineness of the application and the credibility of the Claimant and her mother and brother. What weight the Defendant chooses to place on that issue is a matter for her within the exercise of her discretion.
40. No point is taken by Mr Nicholson in relation to the application by the Defendant of the second criterion namely close ties with the United Kingdom. Indeed, the point is not taken in either of the Defendant's letters dated 1^st December 2011 and 19^th March 2012.
41. However, Mr Nicholson does take issue with the Defendant's application of the third criterion namely the Defendant's decision that the United Kingdom is not the most appropriate country of long-term refuge. The point is flagged up in the Defendant's letter of 1^st December 2012 paragraph 13: trial bundle page 161 and her letter of 19^th March 2012 at paragraphs 15-17: trial bundle pages 196-197. In the latter letter the Defendant says this:

"15. It is not accepted that, because [the Claimant] is resident in the UK, there is a presumption that the UK is the most appropriate country of long-term refuge for her mother and brother. The claimants have lived in Ethiopia for some 5 years. There was no application for them to join her in the UK before December 2009, more than 3 years after [the Claimant] entered the UK. Other family members are known to be in the UK. They are Maliun Ismail Dahir's sister, Fadumo Mahamud Dahir (plus the six children and her mother) whose length of residence in the UK is not known, and Fuaad Omar Abdi, said to be Maliun Ismail Dahir's brother-in-law, who appears to be in the UK since April 2006. There is no evidence that your clients have ever made applications to join them.

16. The representative of the Secretary of State does not accept that either of your clients has a close connection with the UK. As mentioned above, they have not sought to join other relatives of theirs in the UK, even though one of those relatives—Mrs Dahir's sister, Fadumo Mahamud Dahir—is said to be their sole source of financial support. [The Claimant] left Somalia for the UK in 2006. She has not been part of her mother's household for at least 5 years. Scant detail has been provided of how she came to the UK and why she alone came at that time, considering that you now say that the entire family was in need of protection.

17. The representative of the Secretary of State does not accept that either Ms Dahir or her son has a prima facie claim for protection. The person they wish to join in the UK, [the Claimant], has not herself been recognised as a refugee in the UK. There is no evidence that they have made a claim previously and it is not accepted that they are in any danger in Ethiopia. Ethiopia has a large indigenous ethnic Somali population, centred in Jijiga, in addition to those who have sought refuge from Somalia itself. There is nothing to indicate that your clients are in any danger of refoulement. Had they been in any danger they would have made a claim for protection before now. In particular, if it was thought that your clients were in danger, it is not at all clear why an application for protection was not made for them prior to 2009 to enter the UK either to join [the Claimant] or the other relatives they are known to have here (sister and brother-in-law of Mrs Dahir). The continued lack of an application leaves the representative of the Secretary of State to doubt the credibility of any claim for refuge now and certainly to doubt the applicability of the UK as the most appropriate country of refuge."

42. Mr Nicholson's submissions are contained in paragraphs 41-44 of his skeleton argument and in his oral submissions. He submits that the policy is silent as to how this criterion is to be assessed and it would be very curious if the desirability of ensuring the unity of a family was not prominent in the assessment of whether it was appropriate or otherwise for applicants instead to approach the local authorities and to apply for asylum there. He refers to The Final Act of the UN Conference on the Status of Refugees which recommended governments to take the necessary measures for the protection of a refugee's family. In particular he submits that the principle of the best interests of the Claimant and her younger brother [HA] are not referred to in either of the Defendant's letters of 1^st December 2012 and 19^th March 2012. Those best interests are he submits best served by the families being reunited and this is a relevant material factor which the Defendant has ignored and which should have weighed heavily in favour of deciding that the UK was the most appropriate country of long-term refuge for the Claimant's mother and brother. He also says that the decision on that point was irrational.
43. Mr Barnes refers me to paragraphs 15-16 of the Defendant's letter dated 19^th March 2012 which I have set out above. He submits that the Secretary of State is entitled or required to take the interest of the child into account and refers me to section 55 of the Borders, Citizenship and Immigration Act 2009. The relevant parts of this provide as follows:

"55 Duty regarding the welfare of children

(1) The Secretary of State must make arrangements for ensuring that

(a) the functions mentioned in sub section (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2) The functions referred to in subsection (1) are –

(a) any function of the Secretary of State in relation to immigration, asylum, or nationality;

(b) any function conferred by or by virtue of the Immigration Act on an immigration officer;

(c) (not relevant)

(d) (not relevant).

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

…

(6) In this section –

'Children' means persons who are under the age of 18."

44. Mr Barnes refers me to AJ (I) India v. Secretary of State for the Home Department and associated cases [2011] EWCA Civ 1191 and to the remarks made by Pill LJ and paragraph 43. He also relies in his subsequent written submissions on the decision of Mr Justice Langstaff in R (Asefa) v. Secretary of State for the Home Department [2012] EWHC 56 (Admin) at paragraph 46.

Decision

45. In ZH (Tanzania) v. SSHD [2011] UKSC 4 Baroness Hale said this at paragraph 33:

"We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations."

46. Lord Brown of Eaton-under-Heywood and Lord Mance JJSC agreed with Baroness Hale's judgment. Lord Hope JSC said the same thing at paragraph 44 of his judgment and Lord Kerr of Tonaghmore JSC said the same thing in his judgment at paragraph 46.
47. The point was recognised by Mr Justice Sales in R (Shueb Sheikh) v. SSHD [2011] EWHC 3390 (Admin) at paragraph 74.8 of his judgment to which I will refer later.
48. In AJ (India) v. SSHD [2011] EWCA Civ 1191 at paragraph 43 Pill LJ giving the main judgment of the Court said this:

"43. Before expressing final conclusions I make the following general comments, in addition to those made in paragraphs above.

(a) As Baroness Hale stated at paragraph 33 in ZH, consideration of the welfare of the children is an integral part of the Article 8 assessment. It is not something apart from it. In making that assessment a primary consideration is the best interests of the child.

(b) The absence of a reference to section 55 (1) is not fatal to a decision. What matters is the substance of the attention given to the 'overall wellbeing' (Baroness Hale) of the child.

(c) The welfare of children was a factor in Article 8 decisions prior to the enactment of section 55. What section 55 and the guidelines do, following Article 3 of UNCRC, is to highlight the need to have regard to the welfare and interests of children when taking decisions such as the present. In an overall assessment the best interests of the child are a primary consideration.

(d) The primeness of the interests of the child falls to be considered in the context of the particular family circumstances, as well as the need to maintain immigration control."

49. The passage in paragraph (b) above is a summary of an earlier part of the judgment of Pill LJ at paragraphs 35-38 where he considers earlier authorities.
50. In R (Asefa) v. SSHD [2012] EWHC56 (Admin) Mr Justice Langstaff applied AJ (India) v. SSHD and said this at paragraph 46 of his judgment:

"The absence of any reference in a decision to s.55 itself is not fatal to the decision being made, for regard must be had to its substance, not its form: that substance was recognised by Pill LJ in AJ (India) and/ or SP v. SSHD [2011] EWCA Civ 1191 as being the attention given to the 'overall wellbeing' of the child, as he described Baroness Hale's description of it in ZH."

51. In his later written submissions Mr Nicholson sought to rely on the concession made by counsel for the Defendant in the substantive hearing on AJ by the same Court which took place later and is reported at [2011] EWCA Civ 1081. Mr Nicholson has submitted that the remarks made by Pill LJ in the early hearing of the same case did not have any application to decisions made by the Defendant in the Claimant's case. For the reasons given in Mr Barnes' written submissions I reject Mr Nicholson's argument. In the second AJ decision the same Court of Appeal made it clear that section 55 of the 2006 Act should be taken into account in non-appealable decisions as well as in appealable decisions: Pill LJ at paragraph 12. There is nothing in the second judgment in AJ where any judge in the Court of Appeal seeks to resile from what Pill LJ said in the first AJ decision at paragraphs 35-38 or 43. See also the remarks of Sir Mark Potter at paragraph 52 of the first AJ decision
52. Applying that law to the facts of the present case I am satisfied that the Defendant did take account of the best interests of the Claimant and her younger brother. A close reading of the Defendant's letters dated 1^st December 2011 and 19^th March 2012 (and in particular paragraphs 15-16 of the second letter) show that there was consideration of section 55 albeit it is not specifically referred to in either letter. By the date of the decision letter of 19^th March 2012 the Secretary of State had all of the material contained in the applications of the Claimant's mother and brother as well as her four witness statements. I agree with Mr Justice Langstaff that this is a matter of substance not of form. In my judgment the failure to mention section 55 of the 2006 act does not invalidate the decision in this case. There was consideration of the best interests of the Claimant and her brother.

Issue 3: Did the Defendant act unlawfully in failing to permit the Claimant's mother and brother to make an application for entry clearance without having to pay a fee?

53. Section 51 of the Immigration, Asylum and Nationality Act 2006 provides as follows:

"51 Fees

(1) The Secretary of State may by order require an application or claim in connection with immigration or nationality (whether or not under an enactment) to be accompanied by a specified fee.

(2) The Secretary of State may by order provide for a fee to be charged by him, by an immigration officer or by another specified person in respect of –

(a) The provision on request of the service (whether or not under an enactment) in connection with immigration or nationality,

(b) A process (whether or not under an enactment) in connection with immigration or nationality,

(c) The provision on request of advice in connection with immigration or nationality, or

(d) The provision on request of information in connection with immigration or nationality.

(3) Where an order under this section provides for a fee to be charged, regulations made by the Secretary of State –

(a) Shall specify the amount of the fee,

(b) May provide for exceptions,

(c) May confer a discretion to reduce, waive or refund all or part of a fee…"

54. The current statutory instrument is the Immigration and Nationality (Fees) Order 2011 (SI 2011 No 445). The 2011 order replaced the Immigration and Nationality (Fees) Order 2007 on 18^th February 2011. The 2007 Order had been in force at the date of the application. Both the 2007 and 2011 Orders provide as follows:

"3.-

(1) Applications to which this article applies must be accompanied by the fee specified in regulations made under section 51(3) of the 2006 Act.

(2) This article applies to applications for

(a) Leave to remain the United Kingdom

(b) Entry clearance

…"

55. The regulations made under section 51(3) of the 2006 Act, referred to in the 2007 and 2011 Orders are currently the Immigration and Nationality (Fees) Regulations 2011. The 2011 Regulations replaced the Immigration and Nationality (Fees) Regulations 2010 which had in turn replaced the Immigration and Nationality (Fees) Regulations 2009. The 2009 Regulations had been in force at the date of the request to make applications without the payment of the fee i.e. 15^th December 2009.
56. The 2011 Regulations deal with the fees for entry clearance applications in Regulations 25-27. These provide as follows:

"25. Fees for entry clearance applications

(1) In the case of an application for which article 3 (2) (b) of the 2011 order applies, namely an application for entry clearance—

…

(l) subject to paragraph (m), where the application is for entry clearance for settlement in the United Kingdom, the fee is £810;

(m) where the application is for entry clearance for settlement in respect of a parent, grandparent or other dependent relative the person present and settled in the United Kingdom, applying under paragraph 317 of the Immigration Rules, the fee is £1,814…

(2) This regulation is subject to regulations 26 and 27.

26. Exceptions and waivers in respect of fees for entry clearance applications

No fee is payable by the applicant in relation to an application referred to in regulation 25 where—

(a) the application is made in connection with the official duty of any official of Her Majesty's Government;

(b) the application is made under paragraphs 352A to 352FI of the Immigration Rules; or

(c) the Secretary of State determines that the fees should be waived."

57. In so far as it is material, and save as to the level and fees chargeable, the 2011 Regulations replicate the provisions of the 2009 and 2010 Regulations.
58. On 22 September 2010 the Defendant published a policy in her Entry Clearance Guidance, in sections ECB 6.6 and ECB 6.7 dealing with the circumstances in which the discretion to waive fees for entry clearance should be exercised. It said this:

"ECB 6.6 Issue of Gratis Visas

The expectation is that all applicants seeking a visa to enter the UK or Crown Dependencies will pay the appropriate fee. These operations are an essential part of UK's immigration control and it is Government policy that, where possible, fees charged for services should cover the costs of providing them, to reduce the burden on the taxpayer.

The paragraph numbers below are taken from the Immigration and Nationality Costs Recovery (Fees) Regulations 2011. However common the provisions of this guidance apply to all fees including those covered by the Costs Recovery Fees Regulations.

11. No fee is payable by the applicant in relation to an application referred to in regulation 10 where—

(a) it is in connection with the official duty of any official of Her Majesty's Government;

(b) the application is made under paragraphs 352 A - 352 FI of the immigration rules; or

(c) the Secretary of State determines that the fee should be waived.

Paragraph 11(c) 'The Secretary of State determines that the fee should be waived' will apply only to cases where there are the most exceptional, compelling and compassionate circumstances specifically relating to the payment of the fee.

ECB 6.7 Discretion to waive fee

Posts have no discretion to waive visa fees for any other reason other than those listed in the fees legislation, as quoted in ECB 6.6 above.

…

Destitution alone will not be considered as valid grounds for waiving visa fees. When considering the payment of the fee, it is the 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."

59. The Defendant's decision to refuse to waive fees is contained in her letter of 1^st December 2011 at paragraphs 2-18 (excluding the Article 8 point which I will deal with later): trial bundle pages 158-162. The letter begins by stating that the Claimant's solicitor's representations have been considered, sets out the fees payable and summarises the Immigration and Nationality (Fees) Regulations 2011 and the Entry Clearance Guidance sections ECB 6.6 and 6.7. The letter then goes on to deal with the financial provision made by the Claimant's aunt to her mother and brother and the fact that the Defendant has taken account of the mother's and brother's personal and financial circumstances. The letter concludes in this way:

"18. In any event, even if your client's mother and brother are destitute, our policy on waiving fees provides that destitution alone will not normally be a valid ground for waiving fees. We have considered the financial circumstances of your client's mother and brother along with all the other circumstances of their case, including their living conditions, and whilst their case has some sympathetic features, our judgment is that these circumstances overall are not the most exceptional compelling and compassionate circumstances which would justify waiving the application fees of your client's mother and brother."

60. Mr Nicholson refers me to R (on the application of Elmi) v. SSHD [2010] EWHC 2775 (Admin) at paragraphs 42-47 where Mr Justice Ousely held that whatever policy the Defendant may adopt she is not able to exclude from her consideration matters which may apparently fall outside it without fettering her general discretion under regulation 25C of the 2011 Immigration and Nationality (Fees) Regulations.
61. Mr Nicholson submits that the Defendant failed to take 'full account' of the following material factors:

"(1) Her own delay in reaching a decision upon the remaining application from December 2009- December 2011 (during which time the Claimant aged from 14 to 16 and was without the company of her mother and brother);

(2) the circumstances under which the family came to be separated;

(3) the fact that the Claimant was a minor and therefore subject to the Defendant's duty under section 55 of the Borders, Citizenship and Immigration Act 2009;

(4) the fact that each member of the family was prima facie a refugee, being out of the country of his/her nationality during a well founded fear of persecution upon the basis of ethnicity."

62. Mr Nicholson goes on to make detailed criticisms of the Defendant's letter dated 1^st December 2001 in relation to s55 of the 2006 Act and Article 8. I will deal with Article 8 later in this judgment.
63. Mr Barnes refers me to R (on the application of Shueb Sheikh) v. SSHD [2011] EWHC3390 (Admin) which was a decision of Mr Justice Sales delivered on 16^th December 2011 where he rejected a full scale attack upon the discretion to refuse to waive an entry clearance fee. He also refers me to the history of the matter and the allegedly scant material provided by the Claimant or her solicitors to justify the exercise of the discretion to waive the entry clearance fees for the Claimant's mother and brother.

Decision

64. It is quite clear from the Regulations and Guidance I have set out above that the discretion to waive entry clearance fees is exercised only in the most exceptional circumstances. There is no challenge by the Claimant to the lawfulness of the policy as such but to the exercise of it on the facts of this particular case. It is important to note that the fees are charged for the entry clearance visas and not for the asylum claim. There are good reasons for that policy and as I say the policy itself is not under attack in this case.
65. A close analysis of the Defendant's letter of 1^st December 2011 shows the following:

i) paragraphs 2, 9 and 11 show that in the Defendant's view on the material before her that the Claimant's aunt could make a greater financial contribution towards the costs of the two entry clearance visas. It is notable there is no financial evidence from the aunt at all either then or subsequently.

ii) there was no other evidence of impecuniosity either then or now before the Defendant from either (a) the Claimant's mother or (b) other members of the family.

iii) one person unknown paid for the Claimant to come by plane to the United Kingdom in 2006. No evidence about this was placed before the Defendant.

iv) the Defendant made reference to the fact that the UNHCR had indicated that the Ethiopian authorities respect the right of asylum seekers to be protected from refoulement and it was not clear why they had not sought refugee status in Ethiopia.

v) paragraph 14 of the letter shows that the Claimant's mother and brother were not fleeing persecution and there was no risk of it in Ethiopia.

vi) paragraph 15 of the letter comments on the lack of evidence that the Defendant's mother was suffering from breast cancer.

vii) paragraphs 17-18 deal with the issue of destitution which is specifically referred to in ECB 6.7 as not being valid grounds for waiving a visa fee.

66. I agree with Mr Barnes' submission that this reasoning is both compelling and legally unassailable. I can see no error of law in the way the Defendant has reached her decision to refuse to exercise her discretion to waive the entry clearance fees for the Claimant's mother and brother. All of the matters referred to by Mr Nicholson in paragraph 68 of his skeleton argument and set out by me above were matters of which the Defendant had cognisance. They were all clearly matters in front of her, albeit she took a different view from the Claimant when applying ECB 6.7 on the facts of the case. I can see no error of law.

Issue 4: Article 8

67. The Claimant's case is that Article 8 is engaged in this case and the Defendant's failure to waive the entry clearance fees for her mother and brother violates their Article 8 rights. The result is that the family will remain separated as a consequence. Mr Nicholson develops his submissions at length in his skeleton argument paragraphs 57-65 and 83-101 as well as in his oral submissions. In the context of waiver of entry clearance fees Mr Nicholson particularly relies upon the judgments of Elias J (as he then was) in R (on the application of J) v. Enfield LBC [2002] EWHC 432 (Admin) at paragraph 72 (not a fees waiver case); R (on the application of QB) v. SSHD [2010] EWHC 483 (Admin) Black J (as she then was) at paragraphs 30 and 32; and finally R (on the application of Shueb Sheikh) v. SSHD [2011] EWHC 3390 (Admin) at paragraph 74 and especially at 74(10) per Sales J.
68. Mr Nicholson submits that there is no distinction in EU law between positive and negative support for the family and in this case the family were separated by persecution and the Defendant is wrong to say that they are safe in a refugee camp in Ethiopia. The discretion to waive the entry clearance fees would protect the Claimant and her family's Article 8 rights because that would enable them to make applications for entry clearance to the United Kingdom without payment of a fee which they cannot afford to pay. He subjects the Defendant's letter of 1^st December 2011 to a detailed analysis.
69. Mr Barnes refers me to the Shueb Sheikh case which is now the leading authority on the subject. In particular he refers me to paragraphs 73-80 where Mr Justice Sales considers Article 8 in a case such as this. Mr Barnes goes on to submit that prior to the decision letter of 1^st December 2011 the Defendant (a) had very limited evidence in the present case compared to that before Mr Justice Sales in Shueb Sheikh and (b) there was no evidence provided by the Claimant about the availability of funds from various members of the family. He goes on to analyse the letter of 1^st December 2011 and says that Article 8 was not engaged on the facts of this case.

Decision

70. I turn first to the Shueb Sheikh case. Having set out a number of "main points to be borne in mind in structuring consideration of the case under Article 8" in paragraphs 74(1)-74(6) of his judgment Mr Justice Sales goes on to say this:

"74. …

(7) Reflecting these considerations, an implied obligation under Article 8(1) will only be found when the court 'has found a direct and immediate link between the measures sought by the applicant and the latter's private and/or family life': Botta v. Italy [1998] 26 EHRR 241, paras.[33]-[35]. The Court will be slow to find an implied positive obligation which would involve imposing on the state significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the State and the public interest: see, e.g., the rejection of the implied obligation argument by the ECtHR in its admissibility decision in Sentges v. The Netherlands, ECtHR decision of 8 July 2003 (denial of assistance in the form of provision of a life- transforming robotic arm for a severely disabled person); see also Draon v. France (2006) 42 EHRR 40, paras. [105]- [108] (Grand Chamber);

(8) On the other hand, the fact that the interests of the child are in issue will be a countervailing factor which tends to reduce to some degree the width of the margin of appreciation which the state authorities would otherwise enjoy. Article 8 has to be interpreted and applied in the light of the UNCRC: see In re E (Children) (Abduction) Custody Appeal [2011] UKSC 27; [2011] 2 WLR 1326 at [26]. However, the fact that the interests of a child are an issue does not simply provide a trump card so that a child applicant for positive action to be taken by the State in the field of Article 8(1) must always have his application acceded to (for example, the applicant in Sentges was a child); see also In re E (Children) at [12] and ZH (Tanzania) v. Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 WLR 148 at [25] (under Article 3(1) of the UNCRC the interests of the child are a primary consideration – i.e. an important matter – not the primary consideration). It is a factor relevant to the fair balance between the individual and the general community which goes someway towards tempering the otherwise wide margin of appreciation available to the state authorities in deciding what to do. In the present context, the age of the child and the closeness of their relationship with the other family members in the United Kingdom are likely to be important factors which should be borne in mind (if, e.g., a very young child had just been separated from his mother, with whom he has a close relationship in the ordinary way, that is likely to indicate a strong interest for that child in restoring family life with the mother);

(9) In the context of charging fees for consideration of an application for entry clearance for a family member, it is fair and proportionate to the legitimate interests identified in Article 8(2) of 'the economic well-being of the country' and 'the protection of the rights and freedoms of others' (i.e. other users of the immigration system and taxpayers generally) for the state authorities to focus attention primarily on the ability of the applicant (even if the applicant is a child) and his sponsor and family members to pay the relevant fee, as policy OPI 216 does. If there is no great difficulty in them 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. Putting the same point positively, the collection of the fee would fall within the wide margin of appreciation to be accorded those authorities (even after adjustment in the light of Article 3 of the UNCRC if the interests of a child are an issue);

(10) But in a case where the claimant, sponsor and family can show (my emphasis) that they have no ability to pay the fee it will in my view be necessary to assess in broad terms the strength and force of the underlying claim which is to be made. If, upon undertaking such an exercise, it can be seen that the claimant may well have a strong claim under Article 8 involving an aspect of the interests protected by that provision of particularly compelling force – supporting his claim to be allowed to enter the United Kingdom to develop or continue his family life with other family members already here – and that insistence on payments of the fee will set that claim at nought, then in my view an obligation may arise under Article 8 for the Secretary of State to waive the fee (or for the court to order the Secretary of State to waive the fee). In doing this, the Secretary of State and the court are not bound to take the Claimant's asserted case at its highest, as on a summary judgment application, as Mr Armstrong submitted. There entitled to subject the case to critical evaluation to determine its true underlying strength and the true force of the particular Article 8 interest being asserted. If it is a strong underlying case concerning a compelling interest under Article 8(1), then, by contrast with the position under sub-paragraph (9) above it can be said that there is a 'direct and immediate link' between the waiver of the fee and respect for family life and that the fair balance between the interests of the individual and the interests of the general community does require the state authorities to forego collecting the application fee. Putting the same point negatively, the collection of the fee would not then fall within the margin of appreciation to be accorded those authorities (especially, in the case of a child, after adjustment in light of Article 3 of the UNCRC);

(11) In a marginal case, falling between the types of case referred to in sub paragraphs (9) and (10) above where the claimant, sponsor and family may be able to raise the money for the application fee but it may take some time for them to do so, the strength and force of the underlying Article 8 case will again be important, as will the assessment of the financial resources available and how long the making of the application might have to be delayed in order for the necessary funds to be raised."

71. I respectfully agree with those passages I have cited and with the remarks made Mr Justice Sales at paragraphs 75-76 of his judgment. The learned judge goes on to consider the facts of the case as they were before the Secretary of State when she gave her decision in that case and found that they fell within the marginal category referred to in paragraph 74 (11) above. He found that the Secretary of State was entitled to form the view that on the materials before her not to waive the application fee could not properly be impugned as unlawful and in violation of Article 8. She was also entitled to form the view that even though the family were on state benefits, there was a reasonable prospect on the financial information presented to her that they would be able to raise the funds necessary to pay the application fee within a reasonable time.
72. The learned judge also went on to examine the Article 8 claim on the evidence available before him which included material not available to the Secretary of State on the facts of the case the Article 8 claim also failed.
73. Applying the analysis of Mr Justice Sales to the facts of this case it seems to me I have to consider two situations. The first was the material before the Secretary of State when she made her decision on 1^st December 2011: trial bundle pages 158-166 on the facts as known to the Secretary of State at that date there were various potential sources of monies to pay the entry clearance fees of £2,620. The first was the Claimant herself. She was a school student who is currently aged 17. She lives with her aunt in north London. The Secretary of State appears to have accepted that she did not have any income of her own. The second source is her aunt, Fadumo Mahmud Dahir. The evidence is clear that she made a payment of 60 dollars a month to her sister, the Claimant's mother in Ethiopia: trial bundle page 30 and 46. There is no witness statement or documentary evidence of any kind from either Mrs Dahir or her solicitor about Mrs Dahir's income and expenditure. The evidence from the Claimant is that her aunt is living on state benefits but there is no information at all about the family's income and expenditure. The Claimant's mother has a brother-in-law (the Claimant's uncle), Furar Omar Abdi who has been living in the United Kingdom since April 2006. He apparently lives in Leeds. There is no evidence from him or the Claimant's solicitor about his income or expenditure or his ability to assist in paying the whole or part of the entry clearance fees. For the purposes of this analysis I discount the absence of any witness statement from the Claimant's mother. If she is living in a refugee camp in Ethiopia then it would appear that she would have little or no independent income of her own.
74. This was the information the Secretary of State had before her when the decision letter dated 1^st December 2011 was signed. The aunt's income is specifically referred to in paragraph 11. And the reasoning is at paragraph 29 which says this:

"29. If any refusal to waive the applicant fees of your client's mother and brother would interfere with the right to respect for family life under Article 8(1), then any such interference would be lawful, necessary and proportionate. The imposition of fees in the case of your client's mother and brother is justified under Article 8(2), which entitles the UK to interfere with Article 8(1) rights in the interests of the 'economic well-being of the country'. The payment of application fees is essential to fund a number of the UK Border Agency's operations. We have considered whether the imposition of fees in the particular case of your client's mother and brother would be a disproportionate interference with Article 8(1) (assuming that Article 8(1) is engaged and interfered with), and taking into account all the circumstances, including those referred to in this letter, we have decided that the imposition of fees would not be disproportionate."

75. Mr. Nicholson relies on the fact that in paragraph 28 there is an error of fact because the letter states that the Claimant was not present and settled in the UK. That error was recognised in paragraph 44 of the Detailed Amended Grounds of Defence. It is not integral to the decision because of paragraph 29 of the letter which I have just set out.
76. In my judgment the present case fell into the marginal category referred to in paragraph 74 (11) of the judgment of Mr Justice Sales in Shueb Sheikh and on the material before her the Secretary of State had wholly inadequate evidence to accept the Claimant's argument that there was no or no adequate funding to raise the funds necessary to pay the application fees within a reasonable time.
77. I then proceed to examine the claim under Article 8 on the evidence available before me. In my judgment, the claim for waiver of the application fee again fails on the evidence before me. There is no fresh material placed before me which was not before the Secretary of State when she made her decision on 1^st December 2011. I still have no information about the income and expenditure of the Claimant's aunt with whom she is living or any information at all from or about the Claimant's uncle. The Article 8 claim therefore fails.

Conclusion

78. For these reasons the claim is dismissed.
79. I will hear counsel's submissions on costs when judgment is handed down in open court. If the parties are able to agree an order including dealing with costs then I will excuse the parties from attending when judgment is handed down.