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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hersi & Ors v Secretary of State for the Home Department [1996] EWCA Civ 1319 (24 May 1996) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/1319.html Cite as: [1996] Imm AR 569, [1996] EWCA Civ 1319

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 May 1996

1. LORD JUSTICE OTTON: These are appeals by two families of two Somali Nationals (sponsors) against the decision of the Immigration Appeal Tribunal which upheld the decision of the adjudicator in dismissing the appeal against the decision of the Entry Clearance Officer in Addis Ababa refusing entry clearance.
2. This is one of a series of cases arising out of a concessionary scheme made in the early 1990's to assist refugees and their families in war-torn Somalia. The concession was withdrawn on 27th January 1995.
3. It is not necessary to set out in extenso the statutory provisions and rules for regulating the entry and stay in the United Kingdom of persons who are not British citizens. The United Kingdom signed and ratified the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol (to the Convention). The United Kingdom's obligations under the Convention are reflected in the Immigration Rules and now the Asylum and Immigration Appeals Act 1993.
4. The United Kingdom has also given effect to two relevant supplementary considerations of the Convention which referred to:

(a) the expectation that States may make provision as far as possible for the assistance of those in need of protection but who do not fully satisfy the criteria of the definition of the term "refugee";

(b) the principle of family unity.

5. Thus the United Kingdom retained the freedom to grant protection to a wider group of persons beyond those who satisfied fully the criteria contained in the Convention. For those asylum applicants who are refused Refugee status, consideration is given to the question of whether the applicant ought, in any event, to be afforded protection. If protection is considered appropriate, the applicant is granted "exceptional leave to remain". Such persons have no expectation of having the time limit on their stay removed (ie becoming "settled') after four years like those granted refugee status. The normal policy at least from 1988 has been for "exceptionals" to be granted leave in stages of one year, three years and three years and thus to be granted settled status after seven years.
6. In relation to family unity, the Secretary of State has usually acceded to the immediate admission of the spouse and minor children of refugees regardless of whether such persons would satisfy the other provisions of the Immigration Rules in particular, the normal requirements that the sponsor (ie the refugee) be "settled" in the United Kingdom or could "maintain and accommodate" the family members "without recourse to public funds". Indeed such practice is now part of the Immigration Rules in circumstances where the family members accompany the refugee (HC 395 para 349). Applications for family members who wish to follow the sponsor at a later time are still governed by policies and practices outside the Rules.
7. For those granted exceptional leave to remain spouses and minor children generally have to wait until four years have elapsed following admission of the sponsor before they can be admitted unless there are exceptional circumstances. When granting leave it is pointed out to the "exceptional" that he or she must expect to wait the four year period before being unused with his or her family. The maintenance and accommodation requirements may be enforced in such circumstances. It is not in dispute that the Home Secretary retains a discretion to allow persons who do not qualify under the Immigration Rules to enter the United Kingdom. Further, it is common ground that the Home Secretary can properly formulate policies outside the Rules allowing particular categories of persons in particular circumstances to be admitted to the United Kingdom and stating the procedures to be followed.
8. An emergency arose when Somalia was racked by civil war. It was recognised that many of those who were displaced were unable to get to a British Diplomatic Post to apply for Visas. In September 1988 the Government introduced a concession whereby the sponsor legally in the United Kingdom could present the facts here so that Visa applications could be determined before the applicant attempted to journey to a British Embassy. This concession was conveniently accommodated in a letter headed "Somali Family Reunion Applications" dated 17th May 1990, this letter set out the special arrangements and in particular gave details of the current policy in terms. The relevant parts are:

"8. To state the obvious we cannot and do not simply authorise the issue of visas because we are asked to do so. The applicants have to meet certain criteria if they are to qualify for the issue of a visa. The applicants may qualify to come here as:

8.1 Immediate family of refugees

8.1.1 If the United Kingdom sponsor has been recognised as a refugee here under the terms of the 1951 United Nations Convention relating to the Status of Refugees then, like most countries, we follow the policy on family reunion agreed by the Conference which adopted the Convention. We will agree to the admission of the spouse and minor children of the refugee. However given the nature of the Somali family we are prepared to be flexible and if a refugee is able to show that a person not covered by the policy was a dependent member of the refugee's immediate family unit before the refugee came to the United Kingdom, then we would be prepared to consider exceptionally extending the refugee family reunion provision to cover that person.

8.4 The above outlines the criteria which must be met if an individual is to qualify for the issue of a visa. However, as you will know from your own experience, we are prepared to exercise discretion and consider going beyond those limits in individual cases where there are particularly strong compassionate circumstances. By its very nature it is difficult to set down any firm guidance on how far we are prepared to step outside the limits outlined above, but clearly the more criteria we are being asked to waive, the less likely we will be able to accede to the request. As a general rule of thumb if we are being asked to waive more than one of the requirements in the Rules then the expectation should be that the request will be turned down.

8.5 When we do exercise discretion in this way it should of course be seen for what it is - an exceptional decision in a particular case rather than as being the norm or a precedent.

The Facts - Hersi

9. The two appellants in Hersi are the mother and younger sister of the sponsor, Ms Haweyo Mahmoud Hersi. The sponsor arrived in the United Kingdom in 1990 having fled Somalia. She applied for asylum. Her application for refugee status was refused, but she was granted exceptional leave to remain in October 1992 when she was informed of the usual four year period.
10. On 20th May 1993 solicitors on the appellants' behalf applied for entry clearance to enable them to join the sponsor in the United Kingdom for the purpose of family reunion. Enquiries were pursued and on 16th September the Home Office wrote to the solicitors explaining that, under the Home Office Concession operating in respect of Somali Nationals, the application for family reunion had been regarded as a request to make a preliminary assessment of whether an EC Application by the sponsor's relatives was likely to succeed.
11. While the Home Office advice was that the appellants were unlikely to qualify for entry clearance if they made formal applications, there was nothing to prevent them from doing so, and in the event of application to the nearest diplomatic post being refused, there would be a right of appeal against the decision.
12. On the 21st September 1993 the solicitors applied to the British Embassy at Addis Ababa for entry clearance to enable the appellants to come to the United Kingdom for the purpose of family reunion. The Entry Clearance Office referred the application to the Home Office. The Home Office records show that the sponsor had been given leave to enter exceptionally with limited leave to remain outside the Immigration Rules and was accordingly not "settled" in the United Kingdom. The Secretary of State therefore considered the application for entry clearance outside the Rules to determine whether "compelling compassionate circumstances" existed. He was not satisfied that such circumstances existed and furthermore the appellants were not a spouse or children under 18 of the sponsor, they being her mother and sibling. Accordingly, the Secretary of State was not prepared to grant entry clearance outside the Rules. He instructed the Entry Clearance Officer to refuse the applications. On 25th January 1994 the Entry Clearance Officer did so and refused the applicants entry clearance as refugees in their own right. The decision was duly communicated.
13. On 19th May 1994 Notice of Appeal was lodged. The Secretary of State considered the ground of appeal but could find no reason to reverse his decision.

The Facts - Uslusow and others

14. The appellants are the mother, maternal grandmother, two younger sisters and three younger brothers of the sponsor Ms Jamala Hussein Kahie. It is said that the sponsor had lived in a family unit with the appellants. The sponsor's father, who was originally an applicant, sustained a bullet wound during the course of the war and subsequently died. The sponsor was granted exceptional leave to remain in the United Kingdom on 13th August 1990 and was again informed of the four year period which should elapse before she could be reunited with her family.
15. On 26th July 1993 the same solicitors applied to the British Embassy in Addis Ababa on behalf of the nine (now eight) appellants for entry clearance to settle in the United Kingdom as dependent relatives of Jamala Hussein Kahie. The Entry Clearance Officer referred the application to the Home Office. The records showed that the sponsor had been granted exceptional leave to remain until the 22nd August 1993.
16. The Secretary of State noted that the third, fourth, fifth, sixth, seventh and eighth applicants were the wife and children of the second applicant (Hussein Kahie Nur) and were to be treated as the dependents of the second applicant (and not the sponsor). He took account of the fact that the sponsor had been granted exceptional leave to remain and was therefore not a person "settled" in the United Kingdom nor a refugee. Furthermore, the Secretary of State was not satisfied that the first or second applicants qualified for admission under any provision in the Immigration Rules relating to relatives or persons not settled in the United Kingdom. He also considered exercising his discretion exceptionally outside the Immigration Rules but felt it was inappropriate to do so in their favour.
17. On the 14th February 1994 an appeal was lodged. By this time the sponsor's leave to remain had been extended. The Secretary of State noted that the sponsor was still not "settled" in the United Kingdom and found no reason to reverse his decision.
18. In the Hersi case, after reconsideration, the refusals of entry clearance were based on four reasons

(a) The appellants did not comply with the Immigration Rules because:

(i) the sponsor was not "settled";

(ii) the appellants were not of necessity dependent on the sponsor for financial or physical support;

(iii) the appellants could not be supported in the United Kingdom without recourse to public funds.

(b) the appellants were not a spouse or child under 18 years, but a mother and brother;

(c) there were no exceptional compassionate circumstances justifying the grant of entry clearance outside the Rules;

(d) the appellants did not qualify for entry into the United Kingdom as refugees.

19. In Uslusow's case the refusals were based on the same reasons save that there was no application or determination as to whether or not they qualified for entry into the United Kingdom as refugees.
20. In February 1994 Notices of Appeal were served in respect of Hersi and Uslusow. In March 1995 the appeals came before the adjudicator. The solicitors had lodged detailed grounds setting out the privations suffered by each of the applicants which in each case ran to several pages. However, the adjudicator declined to deal with any factual issue or to receive any further evidence or to determine whether the applicable policy had been complied with.
21. He decided that:

(a) there was no jurisdiction in the appellate authority to consider the matter under Section 19 (l)(a)(i) Immigration Act 1971 (in relation to the question of whether the Home Office had acted outwith the terms of its policy;)

(b) there was no distinction between the exercise of a discretion outside the Rules and one in departure from the Rules for the purpose of Section 19(2), that, in any event, discretion here was in departure from the Rules for the purposes of Section 19(2) and that, in any event the discretion was in departure as the applications were for (i) dependent relatives, (as opposed to a spouse and children and 18 years) and (ii) the sponsor was not "settled";

(c) the sponsor could not seek to assert her "refugee status" in a "collateral" way to enable the appellants to benefit from the reunion policy. This is conveniently known as an "up-grade" application.

22. The adjudicator dismissed the appeals, but granted leave to appeal.
23. In June 1995 the appeals came before the Immigration Appeal Tribunal. The appellants again lodged detailed submissions seeking to reverse the factual basis upon which the reasons for refusal were based. The tribunal declined to consider any issues of fact or the application of the Family Reunion Policy. In effect the immigration Appeal Tribunal decided:

(a) the Somali Family Reunion Policy could not be of any relevance to the decision of the appellate authorities if it impacted upon the decisions taken on facts falling either within or wholly outwith the Immigration Rules;

(b) the decisions refusing entry clearance were not wholly outwith the Rules simply because the effective decision maker was the Secretary of State and not the Entry Clearance Officer as contemplated by the Rules, hence the decision remained outside the purview of the appellate authorities.

24. Consequently the Immigration Appeal Tribunal dismissed the appeals and refused leave to appeal to the Court of Appeal. An application for leave was refused by the single member, the renewed application before the full court was allowed. Section 19 of the Immigration Act 1971 (relevant parts) provides:

"Sl9(1) Determination of appeals by adjudicators Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal. an adjudicator on an appeal to him under this Part of this Act

(a) shall allow the appeal if he considers-

(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of adiscretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and

(b) in any other case, shall dismiss the appeal.

(2) For the purposes of subsection (l)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (l)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.

(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite, and may also make recommendations...."

25. In R v. D S Abdi [1996] IAR 148 (given on 30th October 1995). The respondent was a citizen of Somalia who had been granted refugee status in the United Kingdom. She applied for various members of her family to be granted visas to join her pursuant to the policy. The applications in respect of the applicants who were not her own children were refused. The Secretary of State concluded they did not qualify under the immigration Rules nor under the policy, the respondent, in relation to them not being the head of the household. Formal applications for entry clearance were refused. The applicants appealed to an adjudicator who found as a fact that the sponsor had been the head of household for the purposes of the policy and concluded that the refusals had not been in accordance with the law. On appeal to the tribunal by the Secretary of State, the tribunal concluded that the principle of family unity fell within the compass of the Rules and that the discretion should have been exercised in favour of the applicants under the Rules and dismissed the appeal. The Secretary of State appealed. It was held in by Court of Appeal:

(1) the policy was not part of the Convention; it could not be brought within the ambit of Immigration Rules. The Secretary of State had been asked to depart from the Rules. He had declined to do so and thus his decision was not appealable under section 19(1)(a)(ii) of the 1971 Act;

(2) however, the appellate authorities were entitled to consider whether the decision was "in accordance with the law". In so far as that involved the Secretary of State failing to act in accordance with established principles of administrative or common law, for example, by failing to take account of or give effect to his own published policy

(3) the Secretary of State had not ignored his published policy on family reunion, but had acted under a misapprehension of the facts. The case was remitted to him for consideration.

26. It must be appreciated that the Court of Appeal's decision was given after the Immigration Appeal Tribunal decision in the instant case. The appeals in the present case therefore raise the following issues:

(a) whether the Adjudicator and the Tribunal (the appellate authorities) had jurisdiction to entertain the appellant's appeals against refusal of entry clearance or was entitled to dismiss them because the sponsors of both families were not "settled" in the United Kingdom or refugees but merely entitled to remain with exceptional leave

(b) whether the adjudicator and tribunal fell into error in not determining the appeal by considering the facts and then deciding on those facts whether the respondent had failed to apply the policy (or practice) operated at the material time in relation to the applications.

27. Mr Nicholas Blake QC on behalf of the appellants submits that there was jurisdiction to determine whether in the circumstances, the decisions were "in accordance with the law" pursuant to Section 19(1)(a)(i) of the Act. In particular he relies upon the dictum of Peter Gibson LJ in D S Abdi (supra) where at page 157 he said:

"I shalt therefore proceed on the footing that if it can be shown that the Home Secretary failed to act in accordance with the established principles of administrative or common law, for example, if he did not take account of or give effect to his ow published policy, that was not 'in accordance with the law'."

28. Leading counsel further submits that the decision is inconsistent and unfair between classes of similarly placed persons and others and "not in accordance with the law" where the Secretary of State does not apply practices in existence at the material time. This applies even if the practices are unpublished at the time and the policies related only to internal guidance. He further submits that appellate authorities can re-examine issues of fact and where necessary, allow an appeal even if it is only to the extent that it is remitted back to the Secretary of State for consideration under the terms of the applicable policy and upon the proper factual basis as established by the appellate authorities, as is provided under section 19(3). It follows that the Court of Appeal has jurisdiction to remit an appeal for rehearing to the initial decision-maker as it has jurisdiction to adopt such a course as was available to the tribunal from which the appeal was brought; accordingly we should exercise that power.
29. Mr Blake further contends that as a result of the policy many Somalis were granted refugee status and many exceptional leave to remain in the United Kingdom. The terms of the policy in operation at the time when the decisions were made in these cases, were indicated in letters written by the Home Office to interested advisors and in answer to Parliamentary Questions. In particular reliance is placed upon a letter from the Minister of State to Mildred Gordon MP on 20th May 1993, which stated:

"Our policy on family reunion is that the spouse and minor children of refugees should not be separated. We also consider requests from single adult or widowed daughters, a single adult son if all other relatives are in the United Kingdom, and parents over 65 who have been living in the same household. In the case of Somalia, we have gone further and will admit other family members where it can be shown that they were dependent on the refugee's immediate family unit before the refugee came to the United Kingdom. We apply the same criteria to requests from Somali sponsors in the United Kingdom who have been refused asylum but granted exceptional leave."

30. Thus counsel submits, it was in the policy, or a practice observed by the Secretary of State, that the concessionary treatment of Somali Nationals extended to those whose sponsor had no more than exceptional leave to remain as favourably as those with full refugee status in so far as family reunion is concerned.
31. In reaching my conclusions I start with the fact that neither of the sponsors was "settled" in the United Kingdom at the date of the decisions, accordingly, the appellants cannot bring themselves within the general family admission provision of House of Commons Paper 251, nor within the more limited provisions for those who have a limited leave to remain in a capacity that may lead to settlement. Accordingly, in so far as the adjudicator and the tribunal decided that the appeals should be dismissed because the refusals of entry clearance were in accordance within the Rules, no arguable point of law can arise. Similarly, in so far as the appeals were dismissed because the Secretary of State was being asked to exercise a discretion in departure from the Immigration Rules, no point arises.
32. There is a fundamental distinction between the facts in Abdi's case and the present case:

(1) in Abdi the Court was concerned with a recognised refugee and consequently paragraph 8.1.1 applied which provides that where a sponsor has been recognised as a refugee the Secretary of State follows the policy of Family Reunion agreed by the Conference and Convention. The United Kingdom will agree to the admission of the spouse and minor children of the refugee;

(2) although the appellants were not a spouse or minor children, the appellate process explored the question of dependency because the policy required this to be done in the case of a refugee. Thus the Secretary of State had not acted in accordance with established principles of Administrative Common Law in failing to take account of his policy.

33. In the present case the applicants failed to clear the first obstacles:

(1) the sponsors were not recognised refugees but had only exceptional leave to remain;

(2) none of the applicants fell within the spouse or minor children category.

34. Inevitably, the sponsors (and the applicants) had a very difficult task to persuade the Secretary of State to permit the indulgence they sought. It is true that the letter of 20th May 1993 suggested:

"In the case of Somalia, we have gone further and will admit other family members where it can be shown that they were dependent on the refugee-s immediate family unit before the refugee came to the United Kingdom. We apply the same criteria to requests from Somali sponsors in the United Kingdom who have been refused asylum but granted exceptional leave."

35. However, this letter did not amount to an extension, amendment, or relaxation of the policy. As Peter Gibson LJ put it in Abdi at page 158:

"A letter written by a Home Office Minister to another Member of Parliament but not shown to have been circulated or intended to be circulated more widely would appear to be an unlikely vehicle for a definitive statement of policy, particularly when it is contrasted with the terms of the earlier letter; the letter of 17th May 1990 was plainly intended to publicise the policy contained therein. Nor can I see how the final sentence of paragraph 8.1.1 which plainly reserves a discretion to the Home Secretary can be interpreted by reference to the later letter to mean a promise to admit other dependent family members."

36. Any lingering doubt, to my mind, is expelled by the letter from the Parliamentary Under Secretary of State dated 27th March 1995 to the same MP (Ms Mildred Gordon), when after referring to the letter of 20th May 1993 he continued:

"This letter has been quoted at appeal hearings recently in a number of unrelated cases and is being cited as a definitive statement of our policy in respect of requests made under the (now withdrawn) Somali Family Reunion Concession. It was of course never intended as such, but in the circumstances, I thought that we should write to you again to clarify some confusion to which it appears to have given rise. Paragraph 2 of Charles' letter quite rightly explained that we have been willing to admit family members other than spouse and minor children in some Somali cases. What it did not do, perhaps, was to make it sufficiently clear that such decisions are only made on a discretionary basis where exceptional circumstances can be shown. This has always been our policy, and my predecessor's letter to you was not intended to represent any departure from the well-known and well-understood provisions of the Family Reunion Concession as they had applied since 1990."

37. On the same day he answered a Parliamentary Question clarifying the issue in similar teens. I am satisfied therefore that it cannot be said that the letter of 20th May 1993, even if construed generously as policy, extended the indulgence of exceptional leave to remain sponsors so as to equate them with recognised refugees.
38. It is clear from the terms of the initial decision letters that the Secretary of State did not ignore the Somali Family Reunion policy but considered the applications in each case in the light of the policy on the preliminary application and when the matters were referred to him subsequently. He indicated that he was prepared to go further and consider whether to go beyond the limit, but the more criteria he was asked to waive the less likely were the prospects of success. As paragraph 8.4 states:

"Clearly the more criteria we are being asked to waive, the less likely we will be able to accede to the request. As a general rule of thumb if we are being asked to waive more than one of the requirements in the rules then the expectation should be that the request will be turned down."

39. In both cases all the applicants were asking him to waive more than one of the requirements. Thus, in my view, it cannot be said that the decisions were not "in accordance with the law". The Secretary of State did not fail to act in accordance with established principles of Administrative or Common Law by failing to take account or give effect to his policy.
40. Thus when the matter came before the appellate authorities there was no jurisdiction to consider or determine such matters as whether:

(1) the appellants were not of necessity dependent upon the sponsor for financial or physical support;

(2) the appellants could be supported in the United Kingdom without recourse to public funds;

(3) there were exceptional compassionate circumstances justifying the grant of entry clearance outside the Rules;

(4) the appellants themselves qualified for entry into the United Kingdom as refugees.

41. When the prospects of success were so dismal there was no purpose or point in investigating these matters. In particular, it was not appropriate, in my view, by this route to seek to upgrade the sponsors to refugee status. Thus even if those issues were resolved as facts in their favour, there was no basis upon which the Secretary of State could or would exercise his discretion in their favour. Consequently the appeals were doomed to fail. Paragraph 8.1, which is confined to refugees, "gets the appellants nowhere" (as Mr Rabinder Singh put it) nor does the waiver of the dependency requirement. The criteria in paragraph 8.2.1 did not apply to these appellants. Even if they had been able to meet the requirements under the Rules, the flexible approach under the last sentence under 8.2.2 could not be invoked.
42. Even if it is assumed that the jurisdiction existed, the appellants contentions as to any expectation, or hope, are ill-founded. The appellants did not satisfy the pre-conditions for consideration under the policy. This stark fact cannot be circumvented and to pursue these applications in spite of the fact that the sponsors were only granted exceptional leave to remain, had not been here for at least four years, and the relationship did not fall within the spouse and minor children category meant that the applications were highly unlikely to succeed. It may well be that the views of those supporting them led to expectations of hope or hopes which were wholly unfounded. In his final submissions, Mr Blake QC suggested that it would have been open to the appellate authorities to reconsider, in the case of the Hersis, the refusal of the Secretary of State to grant them refugee status under Paragraph 8.3. There are, to my mind, two short answers to this point. First, it does not appear that this argument was raised before either of the appellate authorities. Second, under paragraph 8.3.2 when dealing with refugees for whom the United Kingdom is the most appropriate country of refuge, it is stated:

"It is usually necessary for us to have the applicants themselves interviewed so that we can assess if their eligibility for refugee status and their ties with this country before we are able to make any decision on their case."

43. This procedure has not been complied with.
44. In my judgment, none of the grounds has been made out. Both of the appeals should be dismissed.
45. MILLETT LJ: I agree.
46. STAUGHTON LJ: I agree.

Order: Both appeals dismissed. Leave to appeal to the House of Lords refused. No order as to costs. Legal aid taxation.