Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 51

 

P790/15

OPINION OF LORD GLENNIE

In the petition of

(FIRST) EMM and (SECOND) CNM

Petitioner;

for

Judicial Review of a refusal by the Secretary of State for the Home Department to consider an application for leave to enter as the child of a refugee pursuant to Immigration Rule 352D

 

Petitioner:  Bovey QC, Byrne;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

1 April 2016

Introduction
[1]        The petitioners are the adopted daughters of F, a person recognised by the Secretary of State as a refugee.  They were lawfully adopted by F in the Democratic Republic of Congo (“DRC”) in 2008, some three years before F’s flight from the DRC to the UK in 2011.  The DRC is not a signatory to the Hague Adoption Convention. 

[2]        On 17 February 2014 the petitioners applied on line for entry clearance in order to join F in the UK and remain with him there.  That application was confirmed in a letter of 18 February 2014.  In that letter, their applications were presented as “applications for family reunion in terms of para 352D of the Immigration Rules”.  That paragraph sets out the requirements to be met by a person seeking leave to enter or remain in the UK in order to join or remain with “a parent” who is currently a refugee in the UK granted status as such under the Immigration Rules.  They were given appointments to be interviewed at the British Embassy in Kinshasa, DRC.  According to the averments in the petition and contemporaneous correspondence from those acting on behalf of the petitioners, when they attended the British embassy on that date they were “turned away” without their application being considered.  That description of events (“turned away”) is not accepted, but it is not disputed that their application was rejected without being considered on its merits. 

[3]        The reason for that is that the Entry Clearance Officer (“ECO”) at the British Embassy in Kinshasa and/or the Secretary of State had formed the view, later expressed in the decision letter of 20 June 2014, that their application was not properly made under para 352D, since that paragraph did not apply to family members who were neither biological children of the refugee nor “adopted children” as defined in that paragraph, that is to say children adopted by procedures recognised by the UK (i.e. adopted in Hague Adoption Convention countries) or adopted de facto in terms of para 309A of the Immigration Rules to which I shall refer. 

[4]        This matters because in terms of the Immigration and Nationality (Fees) Regulations 2013 (“the Fees Regulations”), made in the exercise of the powers conferred by section 51 of the Immigration, Asylum and Nationality Act 2006, fees are payable in respect of applications in connection with immigration and nationality.  Where those Regulations specify a fee which must accompany an application, “the application is not validly made unless it is accompanied by the specified fee”.  In terms of para 5.2 of Table 5 in Schedule 2 to the Regulations, no fee is payable in respect of an application made under paras 352A to 352FI of the Immigration Rules.  If, as the Secretary of State contends, the application was not properly to be considered as an application under para 352D, then the application is not fee exempt, a fee should have accompanied it and, absent that having happened, the application was not validly made – hence its rejection rather than a refusal on the merits. 

[5]        I should note that, subsequent to the application being made in February 2014, there was correspondence between those acting on behalf of the petitioners and the ECO in Kinshasa concerning the possibility of a fee waiver being granted.  This appears to have been raised by the ECO.  It was made clear to the petitioners that the ECO had no discretion to waive such fees, and the matter was referred to the Referred Casework Unit in the UK.  In consequence, the formal response on behalf of the Secretary of State to the petitioners’ application (in the letter of 20 June 2014) took the form of a consideration and ultimate refusal of an application or deemed application for waiver of the fees.  However, nothing turns on this for the purposes of the present petition.  Waiver of the fees having been refused, the application was considered as not validly made and was rejected. 

[6]        The consequence of the application being rejected without having been considered on its merits, as opposed to being refused, is that there has been no “immigration decision” capable of being appealed under section 82 of the Nationality, Immigration and Asylum Act 2002 (and c.f. section 88A).  Had there been an immigration decision capable of being appealed, the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”) would have been entitled to consider not only whether the petitioners were entitled to succeed in their claims under para 352D but also whether the refusal of entry was, in all the circumstances, a breach of articles 8 and/or 14 ECHR.  Absent a “refusal” of the claim under para 352D, the matter cannot be appealed to a tribunal.  The petitioners contend that there is no other paragraph of the Immigration Rules which more closely fits their circumstances; and that, accordingly, if this application is rejected without a decision on its merits, there is no other route open to them to pursue their claim. 

[7]        The petitioners seek reduction of the decision by the Secretary of State that their application did not fall to be considered under para 352D and/or declarator that their application was made under that paragraph. 

 

The relevant paragraphs of the Immigration Rules

[8]        So far as material to the issues arising in this petition, para 352D[1] is in the following terms:

“352D The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant:

(i)         is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and

(ii)        is under the age of 18, and

(iii)       is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv)      was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; …”

 

The underlying issue in this case is whether the petitioners qualify under sub-para (i) of para 353D as “the child of a parent”, namely F, it being accepted that F is currently a refugee granted status as such under the Immigration Rules in the UK. 

[9]        The term “a parent”, as used in the expression “the child of a parent” in sub-para (i), is defined in para 6 of the Immigration Rules, so far as material, as follows: 

“’a parent’ includes: … (d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A of these Rules …”

 

Para 6 also contains a definition of “adoption” which confirms the reference to para 309A:

“’adoption’ unless the contrary intention appears, includes a de facto adoption in accordance with the requirements of paragraph 309A of these Rules, and ‘adopted’ and ‘adoptive parent’ should be construed accordingly.”

 

[10]      Para 309A deals specifically with de facto adoptions.  It provides, so far as material, as follows:

“309A For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if:

(a)        at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad … for at least a period of time equal to the first period mentioned in sub-paragraph (b)(i) and must have cared for the child for at least a period of time equal to the second period mentioned in that sub-paragraph; and

(b)        during their time abroad, the adoptive parent or parents have:

(i)         lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and

(ii)        have assumed the role of the child’s parents, since the beginning of the 18-month period, so that there has been a genuine transfer of parental responsibility.”

 

Application of those Rules to the situation of the petitioners
[11]      I did not understand it to be in dispute that, although F’s adoption of the petitioners in 2008 was valid according to the law of the DRC, it does not entitle the petitioners to claim to be regarded as children of F for the purposes of para 352D(i) of the Immigration Rules.  This is so for two reasons: first, because the DRC is not party to the Hague Adoption Convention, so an adoption under the law of the DRC is not recognised by the United Kingdom;  and, second, because, although the adoption in the DRC could in principle be regarded as a “de facto adoption”, in order to satisfy the requirements of para 352D(i) it must be a de facto adoption in accordance with the requirements of paragraph 309A, sub‑para (b)(i) of which requires the adoptive parent to have lived with the child for the 12 months “immediately preceding” the child’s application for entry clearance, a requirement which is impossible to meet since F has been a refugee in the UK since 2011 while the petitioners were left behind in the DRC when he left.  It is unclear whether it is accepted that the petitioners lived with F as a family for at least 18 months, in fact for nearly three years, i.e. from the time of their adoption in 2008 until F sought refugee status in the UK in 2011, but this point does not matter for present purposes. 

 

Articles 8 and 14 ECHR

[12]      Articles 8 and 14 ECHR were referred to in argument.  Their terms are well-known but I should set them out here for ease of reference: 

“Article 8

Right to respect for private and family life

 

1          Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2.         There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

Article 14

Prohibition of discrimination

 

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with the national minority, property, birth or other status.”

 

The 1951 Refugee Convention
[13]      Reference was made by the petitioners in their Note of Argument to the 1951 UN Convention relating to the Status of Refugees.  Mr Bovey QC argued that although the Convention did not specifically mention family unity or reunification, that right was inherent in a number of articles of the Convention, including articles 4 and 22, which refer to the religious and public education of children of refugees, article 12(2), which deals with rights attaching to marriage, and para 2 of the annexed schedule concerning travel documents, which notes that children may be included in the travel document of a parent or, exceptionally, of another adult refugee. 

[14]      Mr Bovey went on to point out that the refugees’ “essential right” to family unity was the subject of recommendations approved unanimously by the Conference of Plenipotentiaries which adopted the final text of the Convention in its Final Act: 

“The Conference,

 

Considering that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unity is constantly threatened, and

 

Noting with satisfaction that, according to the official commentary of the Ad Hoc Committee on Statelessness and Related Problems, the rights granted to a refugee are extended to members of his family,

 

Recommends Governments to take the necessary measures for the protection of the refugee's family, especially with a view to:

 

(1)        Ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country,

 

(2)        The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption”

 

Council Directive 2004/83/EC

[15]      Reference was also made by the petitioners in their Note of Argument to Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the “Qualification Directive”).  Article 23 requires member states to ensure that family unity can be maintained.  In terms of the definition in article 2, family includes unmarried dependent minor children of the refugee “regardless of whether they were born in or out of wedlock or adopted as defined under the national law” (emphasis added). 

 

AA (Somalia) v Entry Clearance Officer [2014] 1 WLR 43

[16]      The present case has been argued before me against the background of the decision of the Supreme Court in AA (Somalia) v Entry Clearance Officer [2014] 1 WLR 43.  It is useful to summarise that decision before turning to the parties’ submissions in the present case. 

[17]      The applicant in AA (Somalia) was born in Somalia in 1994.  Her older sister (“S”) fled to the UK in 2002.  The applicant became separated from her mother and other siblings and went to live with S’s husband and his daughters for a period of about five years.  S’s husband came to the UK to be reunited with S and was granted asylum.  Applications for entry into the UK were granted in respect of his two daughters.  However, a similar application in respect of the applicant was refused.  She appealed to the FTT.  She succeeded before the FTT both in an argument that she was an adopted child for the purpose of para 352D of the Immigration Rules and also under article 8 ECHR.  The UT reversed the FTT’s decision under para 352D but upheld its decision under article 8.  The applicant appealed, essentially because, although she was allowed admission under article 8, she considered that admission by that route might be materially less advantageous than admission under para 352D.  Her appeal failed.  The decision of the UT was upheld by the Court of Appeal and, ultimately, by the Supreme Court. 

[18]      In the Supreme Court it was argued on behalf of the applicant that para 352D ought to be construed so as to cover her case.  She had failed under that paragraph, as I understand it, because, as in this case, although she had gone through a process akin to de facto adoption, she had not been living with her adoptive parent for the 12 months immediately preceding her application.  It was submitted that to make sense of para 352D in the context of the family of a refugee, the definitions must be interpreted broadly so as to include a child in her position.  This was supported by an argument based on the contention that effect must be given to the UK’s international obligations relating to the treatment of children, including a broader approach to the recognition of adoptive children; and by an argument based on discrimination, to the effect that children who are members of a family unit should not be put at a disadvantage because they come from countries which have no formal system of adoption.  Lord Carnwarth JSC delivered a judgment with which the other members of the court agreed.  On the question of construction, he formed the clear view that para 352D did not cover the applicant’s case and could not be rewritten in order to do so.  He came to this view despite recognising that the terms of para 309A(b)(i) and (ii), which presented the obstacle to the application succeeding, seemed ill-adapted to the purposes of dealing with refugees and, indeed, most asylum seekers.  In his view, the wording of the rules was “plain and unambiguous”.  So far as concerned the international instruments to which the UK was party, there was no specific obligation covering the position of someone in the position of the applicant.  Having regard to the fact that the applicant had been granted entry under article 8 ECHR, there was no international obligation to which the UK was party which went further in practical terms than the protection already given to her.  Finally, as regards discrimination, Lord Carnwath held that it was unnecessary to decide the point because in so far as the applicant had a claim for unlawful discrimination under article 14 or otherwise, she had that claim while in the UK regardless of the basis of her admission. 

[19]      Lord Carnwath concluded at para 25 by saying this:

“25      I would add one comment.  As I have made clear, I see great force in Mr Gill’s criticisms of the use of the paragraph 309A definition in the context of a rule which is concerned with the treatment of refugees and their dependents.  Mr Eadie’s only answer, as I understood him, was that clear definitions were needed to establish “bright lines”.  That answer loses most of its force if the bright lines are drawn so restrictively that they have in practice to be supplemented by the much fuzzier lines drawn by article 8.  In the interests of both the applicants and those administering the system, it seems much preferable that the rule should be amended to bring them into line with the practice actually operated by the Secretary of State, including that dictated by her obligations under international law.”

 

Submissions

[20]      Parties lodged detailed Notes of Argument which they expanded on in their oral submissions.  In light of that it is only necessary to set out their submissions briefly. 

[21]      The petitioners’ case as developed by Mr Bovey QC was straightforward.  The applications for entry clearance were expressly made under and in terms of para 352D.  As a matter of statutory construction, that was sufficient.  It did not matter if the applications did not meet all the requirements of that paragraph.  It was accepted on the basis of AA (Somalia) that the petitioners did not satisfy para 352D on its strict wording.  But that did not mean that the applications could not be made “under” that paragraph.  Whether or not an application is made “under” a particular rule depends on the terms of the application itself.  An application can properly be made under a rule even if, on the proper construction of that rule, the application will inevitably fail.  If there required to be some sufficient connection between the application and the terms of the rule itself (c.f.  Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153, 156), that was satisfied in the present case.  The Secretary of State appeared to be concerned that the petitioners had chosen to apply under para 352D simply to avoid paying fees, but that concern was unfounded; the petitioners had chosen the nearest applicable paragraph of the Immigration Rules and there was no rule which better fitted their circumstances.  If the petitioners did not qualify under that paragraph, their applications should, if necessary, be refused.  But they must at least be considered.  This is what happened in AA (Somalia).  It is also what happened in four decisions of the Upper Tribunal (Immigration and Asylum Chamber) to which I was referred[2], in each of which the claim was made under para 352D, and was considered and refused, triggering an appeal to the tribunal, though it was either common ground or clearly established that the appellant’s claim did not fall within the terms of that paragraph on its proper construction.  Unless the applications were considered on their merits, there was no refusal and consequently no right of appeal to the AIT.  That left the petitioners without remedy.  It deprived them of any right of recourse to the independent statutory tribunal which was an essential feature in the administration of a just immigration system.  A failure to consider the petitioners’ circumstances under the relevant policy was not “in accordance with the law”:  see S v ECO Islamabad [2015] UKAITUR OA 183822013.  The application had to be made under one of the paragraphs of the Immigration Rules.  There was no separate route for applying on the basis of article 8 alone.  If the applications were considered and refused, on any appeal that refusal would have to be considered in light of the Secretary of State’s obligations under article 8 ECHR as well as in the context of the Refugee Convention and the Qualification Directive. 

[22]      Mr Bovey submitted that the requirement for the petitioners to have lived with F for the 12 months immediately preceding their application was discriminatory contrary to article 14 ECHR.  That requirement could hardly ever be satisfied by a de facto adopted child applying to be reunited with his or her refugee parent.  By definition, in such circumstances the parent has been granted status as a refugee in the UK, whereas the child would still be in the country from which the parent had fled.  If the parent returned to the DRC to live for 12 months with the child, that would risk both his safety and his status as a refugee.  That provision therefore discriminated against persons in a non-Hague Convention country whose adoptive parents were refugees, as opposed to those from a Hague Convention country or whose adoptive parents did not have that status.  The relevant principles were summarised in DH v Czech Republic (2008) 47 EHRR 3 at 175-181.  Where the applicant could demonstrate a difference of treatment, it was for the Secretary of State to justify that different treatment by showing that it was an appropriate and proportionate way of achieving a legitimate aim: c.f. R (Carson and Reynolds) v SSHWP [2006] 1 AC 173 per Lord Nicholls at para 3. 

[23]      For the Secretary of State, Mr Komorowski first addressed the question of whether the application was made “under” para 352D of the Immigration Rules.  He submitted that the test was objective.  It could not depend on how the applicant chose to characterise her application otherwise the applicant could style her application as being under para 352D solely in order to avoid payment of a fee.  It could not be the legislator’s intention to allow liability to a fee to depend entirely on the applicant’s ipse dixit.  The correct interpretation and application of para 352D has been the subject of a decision of the Supreme Court in AA (Somalia).  In terms of that decision the application made by the applicants in the present case was bound to fail.  An application that cannot succeed on any legitimate construction of the provision cannot be said to have been made “under” that provision.  But even if the test was subjective, the terms of the application letter itself showed that the petitioners recognised that their application did not meet the terms of para 352D, so they cannot properly be said to have made an application under that paragraph. 

[24]      In the course of his oral submissions, Mr Komorowski provided a detailed analysis of the Secretary of State’s answer to the question: in what circumstances is an application made “under” a particular Immigration Rule?  He submitted that any question concerning the exaction of a fee was a question of statutory interpretation.  The intention behind the Fees Regulations was to operate an effective system of collection of fees.  It was not the intention of the legislature to allow exemption from fees on the say-so of the applicants.  The Fees Regulations should be read in such a way as tended to further the collection of fees as opposed to frustrating that aim.  That a particular construction of the legislation might result in an imperfect solution did not mean that that construction was unsound, unless perhaps there was another construction, consistent with the terms of the legislation, which was more effective.  For the purposes of the Fees Regulations, an application is not made “under” a Rule where, taking the application at face value, it cannot be granted in accordance with any proper interpretation of that Rule.  It was not necessary in this case to determine in what other cases that applied.  Nor was it necessary to determine what might happen if the application was ambiguous – this application was not ambiguous because it made explicit reference to para 352D.  Nor was it necessary to determine what would happen if the true nature of the application only came to light after some further enquiry – there is no prejudice to an applicant if he is told at a later stage that a fee is required and, even if in the absence of payment the application is held to be invalid, that does not prevent a new application being presented in the future accompanied by a fee.  Nor was it necessary to determine what would happen if the applicant lied about his circumstances in order to claim fee exemption – that was not in issue in the present case.  Put short, the fact that it is possible to identify potential problems which might arise in practice did not make the construction contended for by the Secretary of State either unworkable or absurd. 

[25]      Turning to article 8 ECHR, Mr Komorowski pointed out that the Secretary of State was responsible for determining whether a fee should be waived.  The ECO was responsible for considering a valid application.  Where no fee is tendered and the Secretary of State refuses to waive the fee, the result is that there is no valid application to be considered.  As appears from the decision letter, the Secretary of State did consider whether any refusal to waive the application fee would amount to a breach of the right to respect for family life under article 8 ECHR.  She decided that there would be no such breach and gave reasons for that view. 

[26]      Mr Komorowski then addressed the question whether para 352D of the Immigration Rules, read with para 309A, was discriminatory contrary to article 14 ECHR.  He accepted that article 14 was relevant here, since the question of discrimination was being considered within the ambit of the applicants’ article 8 rights.  He was prepared to concede also that the requirement that the adopted children should have lived with their adoptive parent for 12 months immediately prior to their application for entry clearance would be significantly more difficult for children of refugees to meet than for children of other persons with leave to enter or live in the UK.  To that extent he accepted that there was a differential impact of this requirement which was more than de minimis.  But that did not mean that the requirements of para 352D were generally to the detriment of applicants proceeding thereunder.  Other paragraphs of the Immigration Rules contained other requirements which were not there in para 352D.  For example, para 310(iv) contained a requirement that the applicant be capable of being accommodated without recourse to the public purse, a requirement that was not found in para 352D.  So the petitioner’s argument was not comparing like with like.  There was a need to formulate rules to assist in identifying clear-cut cases which could be admitted without preventing the flexibility which could be exercised to admit other deserving cases.  “Bright line” rules were necessary and a benefit.  It might be that a better bright line rule could be devised but there would be difficulties in framing such a rule to take account of all situations. 

 

Discussion
[27]      Although the submissions for both parties were detailed and wide-ranging in their scope, the point at issue is ultimately a narrow one.  As formulated in both parties’ revised statement of issues, the question is this: was the application made by the petitioners for leave to enter the UK “made under” para 352D of the Immigration Rules and therefore in terms of the Immigration and Nationality (Fees) Regulations 2013, Schedule 2, Table 5.2?  If so, it is fee exempt; and it ought to have been considered on its merits by the Secretary of State and/or the ECO at the British Embassy in Kinshasa. 

[28]      I have no doubt that the application was “made under” para 352D of the Immigration Rules.  The Immigration Rules contain a number of provisions in differently numbered paragraphs setting out the criteria under which a person can seek entry clearance.  It must be for the applicant in the first instance to decide which paragraph applies to his or her case and, having so decided, to make the application under that paragraph.  That application must be considered on its merits.  Of course the ECO to whom the application is presented may seek to assist, by pointing out any difficulties in the way of the applicant satisfying the relevant criteria; and may seek to guide the applicant to a paragraph of the Immigration Rules more suited to his or her case.  But ultimately the applicant is entitled to present the application as one “made under” the paragraph of his or her choice.  If the criteria laid down in the relevant paragraph under which the application is made are not satisfied, then the application may be refused, subject, of course, to the wider obligations placed on the Secretary of State in terms of article 8 ECHR (and, in some cases no doubt, other articles).  If the application is refused, that gives rise to a right of appeal to the appropriate tribunal.  On the hearing of that appeal the tribunal will consider not only whether the application falls within the terms of the paragraph under which it is made but also whether in refusing the application of the Secretary of State has acted consistently with her ECHR and international obligations. 

[29]      I see no difficulty in approaching the matter in this way.  On behalf of the Secretary of State it was argued that this approach would enable any applicant to avoid paying the fee applicable to his case under the Fees Regulations simply by choosing to make his or her application under a fee exempt paragraph.  The concern is that, having made the application under an inappropriate fee exempt paragraph of the Immigration Rules, and having had that application refused in terms of that fee exempt paragraph, the applicant will simply appeal to the tribunal, and the tribunal will be duty bound to consider not only whether the applicant met the criteria laid down by that paragraph but also whether the Secretary of State was in breach of her article 8 or other ECHR duties.  That way the applicant can avoid paying a fee but nonetheless get his article 8 case heard by the tribunal.  Such a construction, it is argued, would run counter to the principle that fee collection Regulations should be interpreted in favour of enabling the fees to be collected and not interpreted in a way which gives the applicant the choice whether to pay the fee or not. 

[30]      I do not accept this argument.  I accept, of course, the general principle that as a matter of construction the Fees Regulations should not be interpreted in a way which gives the applicant carte blanche as to whether or not to pay a fee.  But I do not consider that there is any danger of that.  The argument for the Secretary of State proceeds on the basis that the tribunal’s consideration of the applicant’s article 8 rights and the corresponding duty on the Secretary of State to consider the application having regard to her article 8 obligations, is an exercise which is carried out without regard to the whole circumstances of the application, including the paragraph of the Immigration Rules under which the application is made.  That is not right.  The consideration which will be given by the tribunal to the applicant’s article 8 rights will take account not only of her reasons for wishing to join her adoptive parent in the UK but also the proportionality of the refusal of the Secretary of State to allow her application under the particular paragraph of the Immigration Rules.  If the paragraph chosen for the application is clearly inappropriate, and there is one more suited, and if it looks as though the applicant has deliberately chosen an inapplicable paragraph in order to avoid payment of a fee, that will no doubt weigh with the tribunal.  I do not say that it will necessarily be decisive, but it will be a factor.  That provides the control necessary to prevent an abuse of the system.  To my mind that control is sufficient. 

[31]      The alternative approach leads, in my opinion, to a highly unsatisfactory scheme of immigration control in terms of which the Secretary of State has the right not to consider an application which she thinks does not fall within the paragraph under which it is presented.  In those circumstances, so the argument goes, there is no “refusal” of the application and therefore no right of appeal to the tribunal.  If that is right, then in those circumstances the scheme laid down by Parliament, whereby the immigration and asylum process is brought under review by an independent tribunal system, with a first appeal to the FTT, a further right of appeal to the UT and, possibly, a yet further appeal to the courts, breaks down.  The applicant has no decision to appeal and is left to challenge the rejection of the application in the courts by judicial review.  This takes decision-making away from the expert tribunals when Parliament has sought to direct the decision-making towards them. 

[32]      Much was made of the fact that the Supreme Court in AA (Somalia) had ruled that the terms of para 352D did not apply to a case such as that presented in these applications.  For my part I do not see that this makes any difference.  I was told that there is no other paragraph which more closely meets the applicants’ circumstances.  But even if there was, that would simply go into the balance when, after a refusal of the application by the Secretary of State, the matter came on appeal before the tribunal. 

[33]      In those circumstances I am satisfied that I should grant the prayer of the petition to the extent of reducing the decision that the petitioners’ application does not fall to be considered under para 352D of the Immigration Rules and granting declarator that the petitioners’ application for leave to enter was made under that paragraph.

[34]      In conclusion on this point, it is of some concern to note that the problems with para 309A of the Immigration Rules, as applied to the case of adopted children of refugees in para 352D, as identified by Lord Carnwath JSC have not yet been resolved.  I share his views as to those problems as well as his comments about the danger of “bright line” rules which ultimately result in the court being thrown back on the “fuzziness” of article 8.

[35]      I do not propose to say anything about the merits of a claim based upon article 8 (which will no doubt take account of the points made both under the Refugee Convention and the Qualification Directive) or the argument that the relevant paragraph is discriminatory contrary to article 14 ECHR.  Those matters which will be relevant if the Secretary of State refuses the application on its merits and if, on an appeal against that refusal, the matter is argued before a tribunal.  It is not for this court to pre-empt the decision of the tribunal on these points.

Disposal

[36]      For the reasons set out above, I shall grant the prayer of the petition to the extent indicated in para [33] above.  I shall reserve all questions of expenses.