Hersi & Ors v Secretary of State for the Home Department

Under section 19 of the Immigration Act 1971, an appellate authority may examine whether an entry-clearance refusal was in accordance with law, including compliance with established administrative-law principles and the Secretary of State’s own published policy. That jurisdiction does not permit review of a refusal simply because the Secretary of State declined to depart from the Immigration Rules.

A family-reunion concession confined to recognised refugees and specified immediate family members is not extended to sponsors with exceptional leave to remain merely by a general ministerial letter. Where the policy’s threshold conditions are absent, the appellate authority need not investigate dependency, maintenance, compassionate circumstances or an attempted collateral upgrade to refugee status. Both appeals were dismissed.

Two families of Somali nationals appealed from refusals of entry clearance made by an Entry Clearance Officer in Addis Ababa. Their sponsors had exceptional leave to remain in the United Kingdom, rather than recognised refugee status. The adjudicator dismissed the appeals without determining the facts or whether the Somali Family Reunion Policy had been applied. The Immigration Appeal Tribunal upheld that approach and refused leave to appeal.

Following permission from the Court of Appeal, the central questions were whether the appellate authorities had jurisdiction under section 19 of the Immigration Act 1971 to examine compliance with the policy, and whether the Secretary of State had failed to apply it. The court considered the guidance in R v D S Abdi [1996] IAR 148, but found materially different policy preconditions.

The appeals were dismissed unanimously. Otton LJ delivered the reasons, with Millett LJ and Staughton LJ agreeing. The refusals were in accordance with law and there was no basis for remittal.

1. Scope of appellate review. Under section 19(1)(a)(i) of the Immigration Act 1971, an appellate authority may examine whether a decision was in accordance with law. That includes established administrative or common-law principles requiring the Secretary of State to take account of, and give effect to, his own published policy. Section 19(2), however, prevents a refusal to depart from the Immigration Rules from being treated as an appealable exercise of discretion under section 19(1)(a)(ii) merely because such a departure was requested.
2. Policy scope. The court distinguished R v D S Abdi [1996] IAR 148, which concerned a recognised refugee and the policy provisions for refugee family reunion. Here, the sponsors had only exceptional leave to remain and none of the applicants was a spouse or minor child. The letter of 20 May 1993 did not amend, extend or relax the concession so as to equate exceptional-leave sponsors with recognised refugees. The later ministerial clarification confirmed that admissions outside the immediate-family category remained exceptional and discretionary.
3. Application. The Secretary of State had considered the policy. The applications sought waiver of more than one requirement, which the policy identified as making success unlikely. The appellate authorities therefore had no useful jurisdiction to investigate dependency, maintenance and accommodation, compassionate circumstances or the applicants’ refugee eligibility. The appeal could not be used to upgrade the sponsors to refugee status. In any event, the refugee route contemplated applicant interviews, and that procedure had not been followed.
4. Orders. Both appeals were dismissed. Leave to appeal to the House of Lords was refused. There was no order as to costs, subject to legal aid taxation.

1. Court of Appeal (Civil Division): Granted permission on the renewed application, dismissed both appeals, refused leave to appeal to the House of Lords and made no order as to costs.
2. Immigration Appeal Tribunal: Dismissed the appeals and refused leave to appeal, holding that the Somali Family Reunion Policy could not affect decisions falling within or wholly outside the Immigration Rules.
3. Adjudicator: Dismissed the appeals, holding that the appellate authority lacked jurisdiction to examine the policy or the proposed collateral refugee-status claim, but granted leave to appeal.
4. Entry Clearance Officer: Refused entry clearance following the Secretary of State’s consideration of the applications under and outside the Immigration Rules.