Senanayake v Secretary of State for the Home Department

An appellate tribunal cannot determine a challenge which was absent from the grounds of appeal from the adjudicator. In an entry-clearance appeal, the adjudicator must decide for itself whether the relevant Immigration Rules threshold is met. It must not merely ask whether the entry clearance officer acted reasonably. The Family Reunion Policy requirement of compelling, compassionate circumstances imposes the same test as the Rule 317 requirement of most exceptional compassionate circumstances. Both depend on whether the established circumstances evoke compassion to a degree which compels an exception.

The appellant, an adult daughter of a recognised refugee, appealed against the refusal of entry clearance to join her parents and siblings in the United Kingdom. An adjudicator dismissed her appeal under the Immigration Rules, and the Immigration Appeal Tribunal upheld that decision.

Permission to appeal was granted on a contention that the Home Office Family Reunion Policy was more favourable than Rule 317. The point had appeared only at the end of the appellant’s written submissions to the adjudicator and had not formed part of her grounds of appeal to the Tribunal. The central issues were whether the Tribunal had jurisdiction to consider that point and whether the policy imposed a different threshold.

1. Appeal dismissed. The point concerning the Family Reunion Policy had not been included in the appellant’s grounds of appeal from the adjudicator to the Immigration Appeal Tribunal. Applying Miftari [2005] EWCA Civ 481, the Court held that the Tribunal had no power to determine it. An appeal founded on the Tribunal’s failure to deal with that point therefore had to fail.

2. The Tribunal had nevertheless erred in adopting from M (Croatia) [2004] UKIAT 24 a Wednesbury standard of first-instance appellate review. That was a removal authority, whereas an entry-clearance appeal required the adjudicator to reach an independent judgment. As Huang v the Home Secretary [2005] EWCA Civ 105 made clear, it was insufficient to ask whether no reasonable entry clearance officer could have reached the decision. The error did not assist the appellant because the adjudicator had in fact retaken the decision and reached the same conclusion.

3. Although unnecessary to the dismissal, Sedley LJ and Chadwick LJ held that the relevant Family Reunion Policy did not create a lower threshold than Rule 317(1)(f) of the Immigration Rules. “Compassionate circumstances” means circumstances which would evoke compassion in an objective decision maker. The expressions “most exceptional” and “compelling” describe the degree of compassion evoked: it must be sufficiently exceptional to compel an exception to the ordinary exclusion of adult children. The appellant’s circumstances did not meet that test.

4. Sedley LJ further observed that, where the Rule was accepted as compliant with article 8 and had not been departed from to the applicant’s detriment, no separate article 8 argument arose from the policy. In any event, an adult child in this situation had only slender family life with parents and siblings. Article 8 ordinarily protects against a disproportionate diminution of existing family life; it does not ordinarily require its restoration. The appellant’s publicly funded costs were to be subject to detailed assessment.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal from the Immigration Appeal Tribunal.

• Immigration Appeal Tribunal — upheld the adjudicator’s dismissal of the appeal against the refusal of entry clearance.

• Adjudicator — dismissed the appeal, finding that the requirements of the Immigration Rules were not met.