United Kingdom Asylum and Immigration Tribunal

HK (Discrimination – refugees' family policy) Somalia [2006] UKAIT 00021

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 29 November 2005

Date Determination notified: 27 January 2006

Before

Mr C M G Ockelton (Deputy President) Mr J Freeman (Senior Immigration Judge)

Professor A Grubb (Senior Immigration Judge)

Between

HK	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr T K Mukherjee, instructed by Islington Law Centre For the Respondent: Mr P Deller, Home Office Presenting Officer

DETERMINATION AND REASONS

Even if dependency is a 'status,' the Secretary of State's policy for the admission of certain members of a refugee's family does not discriminate unlawfully against other family members. It is for the Secretary of State, not the courts, to decide policy on refugees' family reunion R (Carson) v SSWP HL applied

1. The Appellant is a citizen of Somalia. She appealed to an Adjudicator against the decision of the Respondent on 6 December 2001 refusing her entry clearance. In a determination sent to the parties on 1 May 2003 an Adjudicator, Ms Sarvanjan Kaler, dismissed her appeal. She applied for and was granted permission to appeal to the Immigration Appeal Tribunal, which dismissed her appeal in a decision sent to the parties on 11 June 2004. She applied for permission to appeal to the Court of Appeal. Permission was refused by the Tribunal, but granted by the Court, which ordered by consent on 13 July 2005 that the Tribunal's decision be quashed and that the Appellant's appeal to the Tribunal be reheard. By the time the consent order was made, the Tribunal had ceased to exist but there is no doubt that the quashing of the Tribunal's decision leaves undecided an appeal to it, which, following the commencement of the appeals provisions of the 2004 Act, takes effect as an order for reconsideration by this Tribunal. Four children of the Appellant had claimed and have appeals dependent on hers.
2. The sponsor is also the Appellant's daughter. She came to the United Kingdom on 17 February 1999 and applied for asylum. On 17 June 2000 she was given indefinite leave to remain as a refugee. The sponsor's father appears to have remained in Somalia. The sponsor's mother and siblings, who are the Appellants in this appeal, went to Uganda. It has been the feature of the Appellant's case as put by Mr Mukherjee's predecessor, Mr Taghavi, that they were in Uganda illegally. He asserted this in submissions to the Adjudicator, and emphasised it specifically in his application for permission to appeal to the Immigration Appeal Tribunal ("the Appellants (who were and continue to unlawfully reside in Uganda)"), before the Tribunal, where he asserted that there had been evidence to that effect before the Adjudicator, and in his grounds of appeal to the Court of Appeal ("her family are living illegally in Uganda"). We regarded these assertions as rather unlikely, given that the sponsor's recognition as a refugee was based on her clan membership and that Uganda is a party to the Refugee Convention and has a long record of acting as a haven for refugees from Somalia. We therefore asked Mr Mukherjee what the evidence was that the Appellant and her children were in Uganda illegally. He was unable to point to any evidence: on the contrary, he showed us a grant of refugee status to them in Uganda which, although relatively recent, does nothing to show that their earlier presence there was illegal. It is no doubt unfortunate that counsel has at three separate levels argued this appeal on the basis of a factual assertion which was both unlikely and apparently unsupported by evidence.
3. The principal argument presented on behalf of the Appellant before the Tribunal and the Court of Appeal was that a letter from Barbara Roche MP, apparently to one of her Parliamentary colleagues, amounted to a formal change to the government's policy on refugees' families, sufficient to mount a "not in accordance with the law" challenge to the immigration decision in this case. There can be little doubt that this ground of appeal was entirely unfounded. Although it was not advanced before us, we put it on record because the previous determination of the Tribunal has been set aside. The letter in question reads, so far as relevant, as follows:

"Under the Family Reunion Concession, a minor who has been recognised as a refugee can immediately apply for his parents and any of their other minor dependent children to join them in the United Kingdom. Any application must be made at a British diplomatic post abroad."

4. As the Tribunal noted in its previous decision, so far from changing existing practice, this letter merely states it. There is no indication in the letter that any such application will be successful. What is being pointed out in the letter is that where the person in the United Kingdom has been recognised as a refugee there is no necessary delay before an application by other family members will be considered: this distinguishes a refugee from others who have been granted limited leave.
5. Mr Mukherjee's submissions were now confined to two discrete points. First, he submitted that the decision of the Respondent was not in accordance with the law because he had not followed applicable declared policy; secondly, the considerations he had applied were unlawfully discriminatory and so a breach of Article 14. In order to do justice to Mr Mukherjee's submissions, we need to set out the terms of the explanatory statement at some length. It is dated 23/12/2002, and after summarising the sponsor's immigration history it records that an application was made on behalf of the Appellants and that HK was interviewed by an Entry Clearance Officer, who referred the application to the Home Office, mentioning that she was looking after the other Appellants and that one of them had cerebral palsy. Paragraphs 3.1 to 3.7 of the explanatory statement give the Secretary of State's reasons for concluding that the Appellants were not admissible under the Immigration Rules. The explanatory statement continues as follows:

"3.8 The Secretary of State then considered if the refusal of entry clearance was in breach of Article 8. However she had been living with her cousin in the UK who had cared for her and she had been apart from the family from 1999 to 2001 before they applied to her. The Secretary of State was not satisfied that Article 8 would be breached.

3.9 The Secretary of State then considered the application exceptionally outside the Immigration Rules in accordance with the Family Reunion policy. Under this policy the existing spouse and minor children are to be admitted to join a recognised refugee if they formed part of the refugee's family unit before she fled to the United Kingdom. In compelling and compassionate circumstances consideration may also be given to the admission of other dependant relatives. Also the sponsor is not expected to meet the maintenance and accommodation requirements of the Immigration Rules.

3.10 It was stated also that the sponsor was suffering illness and worry about her family abroad (Annex B11) but there was no independent medical report to verify this. The Secretary of State could still not be satisfied that there were sufficient compelling and compassionate circumstances to justify him exercising his discretion in the appellants' favour and exceptionally grant entry clearance outside the Immigration Rules.

3.11 The Secretary of State respectfully submits that by virtue of paragraph 21 of Schedule 4 of the Immigration and Asylum Act 1999 it is not open to the Adjudicator to consider the merits of this exercise of discretion.

3.12 The Secretary of State therefore refused the applications (Annex E).

3.13 Although the Secretary of State was satisfied that his refusal decision was correct and the refusal notice was valid he noted that the reasons given for his decision in the notice were not wholly appropriate. He therefore amends the notice to read as follows:

Decision:

1. On 6/12/2002 to refuse the first appellant entry clearance under Paragraph 319 with reference to paragraph 317(i)(e)(iv) of HC 395.

2. On 6/12/2002 to refuse appellants 2 to 5 entry clearance under Paragraph 299 with reference to paragraph 297(i)(f) of HDC 395.

To:

You have applied for entry clearance to settle in the UK as the dependant of your daughter/sister who is present and settled in the UK. However in view of the fact that you have been living with your children/siblings in your own country and in Uganda the Secretary of State is not satisfied that you are living alone outside the UK in the most exceptional compassionate circumstances. Also that there are serious and compelling family or other considerations which make your exclusion from the UK undesirable.

Furthermore the Secretary of State is not satisfied that you are financially wholly or mainly dependant upon your daughter/sister who is settled in the UK.

Furthermore the Secretary of State is not satisfied that you can, and will be maintained and accommodated adequately without recourse to public funds in accommodation which your relative owns or occupies exclusively as we understand that Ms Jama receives income support and child benefit for your daughter/sister Miss K.

The Secretary of State has also considered your application on compassionate grounds outside the Immigration Rules but he is not satisfied that there are sufficient grounds to treat the application in your favour."

6. In submitting that the decision was not in accordance with the law, Mr Mukherjee referred us to an extract from a website which is appended to the decision of Collins J in R (Hamfi) v IAT and SSHD [2004] EWHC 939 (Admin), whose reference he was unable to give us. The appendix is chapter 16 of the Diplomatic Service procedures, dealing with family reunion. It is dated 7 January 2004. Mr Mukherjee both asserted that it was the policy applicable to this case and that it was the policy upon which he relied. Its introduction makes clear that it is addressed to Entry Clearance Officers. Paragraph 16.2 reads, so far as relevant, as follows:

"16.2 – Eligibility of applicants for family reunion

Only pre-existing families are eligible for Family Reunion, ie the spouse and minor children who form part of the family unit prior to the time the sponsor fled to seek asylum. Other members of the family (eg elderly parents) may be allowed to come to the UK if there are compelling, compassionate circumstances (see below).

The parents and siblings of a minor who has been recognised as a refugee are not entitled to family reunion. Such applications are considered under the criteria above, ie there must be compelling, compassionate circumstances in order for the family to be granted entry to the UK."

7. Paragraph 16.3 is headed "Eligibility of sponsoring family members", and the relevant part is headed "Where the sponsor has refugee status". The position relating to the sponsor's spouse and children is set out first, and the guidance continues as follows:

"Other dependent relatives"

Dependent children over the age of eighteen and other dependent relatives (eg mother, father, brother, sister etc) do not qualify for Family Reunion under this section of the Rules. However, if there are compelling compassionate circumstances, which warrant consideration of the application 'outside' the Rules, ECOs have discretion to refer applications to the Home Office for a decision on compassionate grounds. However, ECOs must be satisfied that the applicant was genuinely dependent on the sponsor before his flight to seek asylum.

If there are no compelling compassionate circumstances, which warrant a referral to the Home Office, other dependent relatives should be considered under paragraph 317 of the Rules. The usual settlement fees are payable.

Other dependent relatives and over-aged children must also meet the requirements of paragraph 317."

8. Mr Mukherjee also referred us to the comments of Collins J in Hamfi at paragraph 53, where he points out that the hurdle in the policy is not necessarily as high as that in the Immigration Rules, for there is in the policy no requirement that the "compassionate circumstances" be "most exceptional", although they do have to be "compelling". He said that the Appellant's position is similar to that recognised by the Immigration Appeal Tribunal in AH (Somalia) [2004] UKIAT 00027 in that there were circumstances which could be regarded as compelling which the Respondent had not properly examined. He submitted that the appeal should be allowed in the same way as it was in AH, so that the Respondent could look properly at the circumstances in question.
9. As we remarked at the hearing, it is very difficult indeed to see that those submissions have any force in this case. On the face of the explanatory statement, this is clearly not a case where the Secretary of State did not have regard to the questions posed by the policy to which reference has been made. On the contrary, he specifically investigated the circumstances and reached the conclusion that they were not sufficient to merit the grant of entry clearance in this case. Nothing more could be required.
10. (For the avoidance of doubt, we note that the word "compelling" as used in the policy is a term of art: it does not imply that the circumstances so described are such as to compel the grant of entry clearance. If it did, there would obviously be no scope for the exercise of discretion once "compelling compassionate circumstances" (whether with or without a comma after the first word) were detected. The wording of the policy and the procedure under it, and the wording of the explanatory statement makes it clear that the word is intended to indicate that the circumstances are such as to compel compassion rather than to compel entry clearance.)
11. It is our clear view that the Secretary of State followed his policy. He considered whether to exercise his discretion and decided not to do so. It is not open to us to review the exercise of his discretion on the ground that the decision was not in accordance with the law.
12. Mr Mukherjee indicated that he had a further argument based on Article 8 but conceded that it could not succeed if we were against him on his principal "not in accordance with the law" grounds. In the circumstances, we do not need to consider it further: we pause only to point out that arguments mounted on Article 8 in previous considerations of this appeal have no doubt been affected by the assertion that the Appellants were living in Uganda illegally and so could not be joined by the sponsor there.
13. We pass now to Mr Mukherjee's second principal submission which was that the decision in this case was unlawfully discriminatory. The starting point is the fact that if the relationship between the principal Appellant and the sponsor were reversed – that is to say if, at the date of the application, the sponsor had been the mother and the Appellant her minor child – there would have been little difficulty in securing the Appellant's admission under paragraphs 352D-F of HC 395 and associated declarations of policy, to one example of which we have made reference earlier. Similar, but not identical arguments, can be raised in the case of the Appellants whose appeals are dependent upon that of their mother and who are the sponsor's siblings. Thus, it is said, the reason or one of the reasons why the Appellants' application has failed is that they are not related to the sponsor as her spouse or dependent children and that is a discrimination against them prohibited by Article 14 of the European Convention on Human Rights, which provides as follows:

"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 a national minority, property, birth or other status."

14. It appears to be accepted, and it is certainly clear to us, that Mr Mukherjee's argument cannot succeed except by reference to Article 14. For the purpose of considering it, however, we assume without deciding first, that the Appellants all have rights "secured by" the Convention to be with the sponsor, and that their not being her spouse or minor children is a difference of "other status" within the meaning of Article 14.
15. Mr Mukherjee's starting point was that the United Kingdom had a policy on family reunion and that there would be no purpose in such a policy unless it had the aim of securing the co-location of all members of a refugee's family in the country where the refugee had obtained refuge. He referred us to statements of family reunion made by the UNHCR and submitted that in the general context of the desirability of family reunion a distinction between different sorts of relationship to the refugee made no sense.
16. We cannot accept that submission. Family reunion is not a part of the Refugee Convention. The views of the UNHCR, although always entitled to the highest respect, are not part of UK law. The Immigration Rules and the policy which we have been considering embody a precise and quite detailed, but limited, right of family reunion for family members of a refugee granted asylum in the United Kingdom. Neither the urgings of the UNHCR nor any other general views on what a family reunion policy might be can override the precise terms which we have to apply.
17. Within those terms, Mr Mukherjee's submission was that provisions for family reunion that are confined to those in a particular relationship to the sponsor and do not include those who have the reverse relationship with the sponsor, are necessarily illogical and so cannot be either proportionate or justifiable. Again, we cannot accept Mr Mukherjee's submission.
18. So far as it concerns the present appeal, the matter is almost concluded by a recommendation of the Council of Europe (the parent-body of the European Convention on Human Rights) which is conveniently set out in paragraph 20 of AH. It is in the following terms:

"(1) Member states hosting refugees and other persons in need of international protection who have no other country than the country of asylum or protection in order to lead a normal family life together, should promote through appropriate measures family reunion taking into account the relevant case-law of the European Court of Human Rights.

(2) Members of the family of the refugee or other person in need of international protection covered by this recommendation are the spouse, dependent minor children and, according to domestic legislation or practice, other relatives."

19. That recommendation is, in our view, a clear demonstration that the Council of Europe would not regard a policy in the terms we are examining as one which was contrary to Article 14 of the Convention.
20. Looking more widely at Mr Mukherjee's submissions, however, it does not appear to us that there could be any basis for saying that a policy based on marriage or dependancy could be unlawful or discriminatory. The difference between those who are dependent upon others and those who are not is one which, particularly in the case of minor children, is at the heart of many areas of law of the United Kingdom and no doubt of most other countries. Dependancy itself is an asymmetric relationship: if A is dependent on B it does not follow (although it may occasionally be the case) that B is dependent on A. Thus a policy based on dependancy is itself likely to be asymmetric but does not for that reason breach provisions prohibiting discrimination. Legal rules allowing a dependent daughter to be with a mother who has obtained a particular civil status do not therefore entitle a mother to be with a daughter who has obtained the same civil status.
21. During the course of argument, we referred Mr Mukherjee to R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2005] 2WLR 1369. At paragraphs [15]-[17], Lord Hoffmann (with whose reasoning Lord Nicholls, Lord Rodger and Lord Carswell expressly agreed) said this:

"15. Whether cases are sufficiently different is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the 14th Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification: Massachusetts Board of Retirement v Murgia (1976) 438 US 285.

16. There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, eg that it is rational to prefer to employ men rather than women because more women than men give up employment to look after childen. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (eg on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.

17. There may be borderline cases in which it is not easy to allocate the ground of discrimination to one category or the other and, as I have observed, there are shifts in the values of society on these matters. Ghaidan v Godin-Mendoza [2004] 2 AC 557 recognised that discrimination on grounds of sexual orientation was now firmly in the first category. Discrimination on grounds of old age may be a contemporary example of a borderline case. But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy. In the present case, the answer seems to me to be clear. "

22. Similar considerations, it seems to us, apply to the family reunion of refugees. That is not a matter in which a right to respect for the individuality for the human being is at stake. The family reunion of refugees is a question of general social policy, provided of course that refugees themselves are afforded appropriate protection. It is a matter which can properly be left to Parliament and the executive.
23. For the foregoing reasons, we conclude that the Adjudicator's determination contained no material error of law and we therefore order that it shall stand.

C M G OCKELTON

DEPUTY PRESIDENT

Date: