MB (Somalia) v Entry Clearance Officer

Immigration Rules are statements of the Secretary of State’s immigration policy. Their ordinary language ordinarily gives effect to that policy. A court may correct an absurd lacuna, but it may not enlarge a rule on merits grounds to reduce an impediment to family life.

Guidance may fill a lacuna without changing the meaning of the Rule. A distinction between widows and separated parents aged 65 or over was rational because immigration rules may draw clear policy lines. A close analogy with a rule, or a near miss, does not itself make refusal of entry disproportionate under article 8.

The appellant, a Somali national aged 73, sought entry clearance to join her son, who was present and settled in the United Kingdom. She had been separated from her husband during the conflict in Somalia and was living with friends in Kenya.

An Immigration Judge found that she had not proved that she was a widow and therefore did not qualify under paragraph 317(i)(a) of the Immigration Rules. The judge also found that she did not satisfy the exceptional compassionate circumstances requirement in paragraph 317(i)(e), and dismissed her article 8 claim.

On reconsideration, the Asylum and Immigration Tribunal dismissed her appeal. The Court of Appeal considered the construction and rationality of paragraph 317(i), article 14 discrimination, and whether refusal of entry disproportionately interfered with family life under article 8.

1. Appeal dismissed unanimously. Dyson LJ gave the principal judgment, with which Moore-Bick LJ and Laws LJ agreed.

2. Paragraph 317(i)(a) could not, on its ordinary meaning, include separated mothers. The Rules state the Secretary of State’s policy on the balance between family reunion and immigration control. The court could not alter that policy by adopting a construction designed to impose no greater impediment to family life than necessary.

3. The literal Rules left an absurd lacuna for separated, single and certain divorced parents aged 65 or over. That lacuna was filled by the Immigration Directorate’s Instructions. The instruction that widowed, single, separated and divorced parents of any age might be considered under paragraph 317(i)(e) assimilated separated parents to that provision. It did not rewrite paragraph 317(i)(a). They therefore had to meet the requirement of living alone in the most exceptional compassionate circumstances.

4. The distinction between widows and separated mothers was not irrational. Separated persons form a broad and variable class. The Secretary of State could rationally use a bright-line rule rather than create an uncertain category of persons whose separation was analogous to widowhood. The distinction was consequently justified for article 14 purposes, applying the approach in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37.

5. The article 8 claim also failed. The tribunal had assessed the actual quality of the family life, including the ten-year separation, occasional visits and financial support. Although the appellant’s circumstances were close to those of a widow within paragraph 317(i)(a), the Rules and article 8 are not coextensive. A near miss under a rule does not itself establish disproportionate interference. Applying the correct approach in Huang v Secretary of State for the Home Department [2007] UKHL 11, refusal was proportionate to the legitimate aim of immigration control.

Dyson LJ added, obiter, that paragraph 317(i) and the relevant Instructions were unsatisfactory and should be reviewed.

• Court of Appeal (Civil Division): Dismissed the appeal: [2008] EWCA Civ 102.
• Asylum and Immigration Tribunal: On reconsideration, dismissed the appellant’s appeal in a determination promulgated on 11 April 2007.
• Asylum and Immigration Tribunal: Immigration Judge Bryant dismissed the entry-clearance appeal in a determination promulgated on 30 June 2006.