AS (Somalia) & Anor v Entry Clearance Officer, Addis Ababa & Anor

On an appeal against refusal of entry clearance, section 85(5) of the Nationality, Immigration and Asylum Act 2002 confines the tribunal to the circumstances existing when the refusal was made. Post-decision events must be pursued through a fresh application.

Section 3 of the Human Rights Act 1998 does not permit a court to reverse that unequivocal statutory restriction. Reading in an exception for claims engaging Convention rights would alter the substance of the legislation. The restriction does not itself deny access to article 8 rights because later circumstances may support a fresh application and appeal.

An article 8 family-reunion claim is determined by proportionality, not exceptionality. On a fresh application, the decision-maker must give full weight to an undisturbed immigration judge’s earlier assessment of compelling compassionate circumstances.

Two minor Somali war orphans sought entry clearance to join their cousin and de facto adoptive parent, who had refugee status in the United Kingdom. The entry clearance officer refused their applications in August 2004. By the time of the appeal hearing in April 2006, their living conditions and care had deteriorated significantly.

An immigration judge relied on those later circumstances and allowed the appeals under the Home Secretary’s family-reunion policy and article 8. On reconsideration, a senior immigration judge held that section 85(5) of the Nationality, Immigration and Asylum Act 2002 excluded post-decision evidence. He also applied an exceptionality test to article 8 and dismissed the appeals.

The principal issue was whether section 85(5) could be read down under the Human Rights Act 1998 so that the tribunal could consider later events. The court also considered the correct article 8 test and a claim under rule 352D of the Immigration Rules.

1. The appeal was allowed only to the extent that the article 8 issue was remitted to the Asylum and Immigration Tribunal. The tribunal was required to determine proportionality by reference to the circumstances existing when entry clearance was refused in August 2004. Sedley LJ gave the judgment, with which Moore-Bick and Waller LJJ agreed.

2. Section 85(5) of the Nationality, Immigration and Asylum Act 2002 unequivocally excludes section 85(4) from entry-clearance appeals and permits consideration only of the circumstances appertaining at the date of refusal. The immigration judge therefore erred by deciding the existing appeal on evidence of the children’s subsequent deterioration.

3. Section 3(1) of the Human Rights Act 1998 did not permit section 85(5) to be read as inapplicable whenever refusal would breach Convention rights. Applying Ghaidan v Godin-Mendoza [2004] UKHL 30, that qualification would reverse the substance of Parliament’s direction and amount to legislation. If an enactment cannot be interpreted compatibly, the statutory scheme provides for a declaration of incompatibility rather than judicial rewriting.

4. In any event, section 85(5) did not necessarily interfere with article 8. Post-decision events generating or strengthening a human-rights claim could support a fresh entry-clearance application and, if required, a fresh appeal. The process might cause delay, but it did not deny access to Convention rights.

5. The senior immigration judge nevertheless made a separate error by applying an exceptionality test. The article 8 question was one of proportionality, consistently with AG (Eritrea) [2007] EWCA Civ 801. The issue was therefore remitted for reconsideration on the facts as they stood in August 2004, without later evidence.

6. The rule 352D argument was unarguable. Although rule 6 recognised de facto adoption, rule 309A required the adoptive parent and child to have lived together for at least 18 months, which the appellants could not establish. Humanitarian cases falling outside those requirements were addressed by the family-reunion policy.

7. The appellants remained entitled to make a fresh application relying on later circumstances. The entry clearance officer was legally obliged to give full weight to the immigration judge’s undisturbed finding that the circumstances existing in 2006 satisfied the family-reunion policy. The Home Office’s serious delay also created a moral, and potentially legal, obligation to deal speedily with that application.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 149, unanimously allowed the appeal to the limited extent of remitting the article 8 issue for determination by proportionality on the circumstances existing in August 2004.

2. Asylum and Immigration Tribunal on reconsideration: A senior immigration judge held that post-decision events were inadmissible under section 85(5) of the Nationality, Immigration and Asylum Act 2002. Applying an exceptionality test to article 8, he substituted decisions dismissing both appeals.

3. Asylum and Immigration Tribunal at first instance: An immigration judge considered the children’s deteriorated circumstances at the April 2006 hearing. He allowed the appeals under the family-reunion policy and article 8.