Barlas & Ors, R (on the application of) v British Consulate, Amsterdam

“Living” in a country in paragraph 28 of the Immigration Rules bears its ordinary meaning. The rule does not require permanent residence or comparable long-term status. It generally covers a person present in the country otherwise than as a short-term visitor who has permission from the relevant authorities to be there. Administrative guidance may assist in applying the rule, but cannot add a gloss which narrows its scope. The rule requires the application to be considered; it does not require the application to be granted.

The claimants sought judicial review of the Consul-General’s refusal to accept an entry-clearance application in the Netherlands for family reunion. The refusal proceeded on the basis that the relevant claimants were not legally resident there and therefore had to apply from Turkey. The claimants challenged the interpretation of paragraph 28 of the Immigration Rules, relied on Article 8 of the Convention, and alleged irrationality in refusing exceptionally to accept the application in Amsterdam.

1. Claim allowed. The Consul-General’s decision of 13 February 2007 was quashed. The matter was to be reconsidered in accordance with law, subject to any appeal. The defendant was ordered to pay the claimants’ costs, and permission to appeal was granted.
2. Paragraph 28 of the Immigration Rules had to be construed according to the ordinary meaning of the words “living” in a country. The court should not add a gloss which cut down that meaning.
3. The purpose of the requirement was to identify the country where the applicant was present in any capacity other than as a short-term visitor and had permission from the relevant authorities to be there. Permanent residence or a similar long-term status was not required.
4. The UK Visas manual improperly narrowed paragraph 28 by requiring permanent residence or another long-term lawful category. Guidance could assist with applying the Rules, but could not restrict their legally correct scope. Practical difficulties in obtaining information from another post did not outweigh the natural meaning of the rule. The application had to be considered, although it need not be granted.
5. The court accepted that questions concerning persons unlawfully present, including clandestine entrants or persons who had gone underground, might require separate consideration. It was unnecessary to decide that issue because the claimants’ presence while their asylum proceedings remained under consideration was not unlawful for this purpose.
6. The Article 8 and irrationality grounds were strictly unnecessary to decide. The claim succeeded on the interpretation issue.

• Administrative Court: On 3 April 2007 Forbes J directed an expedited rolled-up hearing, granted interim relief and made further directions. On 28 June 2007 the claim for judicial review was allowed, the decision of 13 February 2007 was quashed, and permission to appeal was granted.