FS (Somalia) v Secretary of State for the Home Department

On a renewed application for permission to appeal in an asylum and family-reunion case, the Court of Appeal held that a tribunal conducting reconsideration may decide the appeal on established written evidence where no tangible fresh evidence has been identified or submitted. Whether circumstances are truly exceptional is a conclusion of law, not a further finding of fact requiring oral evidence. Where entry is unavailable under the Immigration Rules and the Family Reunion Policy, Article 8 still requires a proportionality assessment. If the undisputed evidence permits only the conclusion that exclusion is proportionate to immigration control, the appeal must fail.

A Somali family sought entry clearance to join MH, a minor daughter with refugee status in the United Kingdom. The entry clearance officer refused the applications under the relevant Immigration Rules and under the Family Reunion Policy. An Immigration Judge allowed the appeal, relying on the absence of reasons addressing family reunion and finding truly exceptional circumstances under Article 8 of the ECHR.

On reconsideration, the Asylum and Immigration Tribunal found that the Immigration Judge had erred in law. It declined to receive oral evidence because the proposed evidence had not been reduced to writing and no additional factual matter had been identified. The Tribunal held that the case failed under the Rules and policy and that refusal was proportionate under Article 8. The issue was whether the renewed application disclosed an arguable legal error or any other compelling reason to grant permission.

1. Application refused. The determination of the Asylum and Immigration Tribunal disclosed no arguable legal error. There was no real prospect of a successful appeal or other compelling reason to grant permission.
2. The Tribunal was entitled to conduct the reconsideration on the undisputed written evidence. Rule 32(1) required notice identifying the nature of evidence proposed for reconsideration and explaining why it had not been submitted previously. The proposed oral evidence merely repeated facts already accepted by the Immigration Judge. The assertion that it might establish truly exceptional circumstances concerned a conclusion of law, not an unresolved factual issue.
3. The Immigration Judge had erred in allowing the appeal by reference to the Family Reunion Policy. Rules 319 and 317, read together, required, among other matters, the relevant exceptional and compassionate circumstances and the required financial dependence. The applicants could not satisfy those requirements. The policy likewise required compelling compassionate circumstances, which the evidence did not establish.
4. Article 8 was engaged, but the Tribunal was entitled to carry out the proportionality assessment itself on the undisputed evidence. The daughter was close to majority and received emotional guidance and support from her aunt. Refusal was proportionate to the proper purpose of enforcing immigration control, leaving no realistic alternative outcome.
5. MS (Somalia), identified as part of the group of cases known as DK (Serbia) [2006] EWCA Civ 1747, did not assist. Paragraph 71 illustrated the same difficulty: there was no tangible fresh evidence requiring consideration where the alleged further oral evidence had not been reduced to writing and submitted in advance.

Despite the court’s sympathy for the family, the renewed application was refused.

• Court of Appeal (Civil Division): Permission to appeal was refused on the papers by Sir Henry Brooke. On renewal, the application was refused.
• Asylum and Immigration Tribunal: The Immigration Judge allowed the appeal on 12 September 2005. On reconsideration, in AIT No. IM/14050/2005, the Tribunal held that the Immigration Judge had erred in law, rejected the appeal under the Immigration Rules and Family Reunion Policy, and concluded that refusal was proportionate under Article 8.