FE (Somalia) v Entry Clearance Officer

Permission to appeal may be granted where a case raises an arguable legal issue that is obscured by an appeal to merits alone. The court should identify the boundary between law, policy and discretion, and consider justiciability where discretion is involved. Where a challenge under the Human Rights Act 1998 concerns delegated materials rather than primary legislation, the issue is whether those materials require reading up or down under section 3. A plainly deserving case may warrant appellate consideration even though the relevant immigration rule appears straightforward. Permission does not determine the substantive appeal.

The applicant, aged 13, was a Somali war orphan whom the sponsor had adopted de facto. The sponsor had asylum in the United Kingdom but had left the child with her husband in Ethiopia while establishing herself in a place of safety. She therefore could not show under paragraph 309A of the Immigration Rules that the child had lived with her for the required 12 months. Scott Baker LJ had refused permission to appeal. Sedley LJ granted permission because it was arguable that the rules and policy should not exclude a plainly deserving case. The central issue concerned the lawful operation of the delegated materials, including the possible relevance of section 3 of the Human Rights Act 1998.

1. Permission granted. The court granted the application for permission to appeal. The order did not determine the substantive merits of the applicant’s entry-clearance claim.
2. The court accepted that paragraph 309A of the Immigration Rules appeared to produce a straightforward result. The sponsor could not establish that the child had lived with her for the 12 months immediately preceding the application because the child had remained in Ethiopia while the sponsor sought safety. That apparent application of the rule did not end the permission question.
3. An appeal based only on the merits would not suffice. The proposed challenge required a sharp focus on the boundary between law and policy, and between policy and discretion. Questions of justiciability arose at the discretionary end of that spectrum.
4. The court considered that incompatibility with primary legislation did not arise because the difficulty was not in the primary legislation. So far as the Human Rights Act 1998 was engaged, the issue was whether the delegated rules and policy should be read up or read down under section 3.
5. Sedley LJ considered it arguable that the rules and policy should not operate to exclude a plainly deserving case, whether the argument was framed as arbitrariness or as a matter of law. He suggested that the Home Office reconsider the case promptly in light of the grant of permission. He also indicated that the appeal should be heard by three Lords Justices because a policy question was involved.

• Court of Appeal (Civil Division): Sedley LJ granted permission to appeal from the Asylum & Immigration Tribunal decisions identified as AIT Nos OA/02036/2006 and OA/02048/2006.
• Earlier permission decision: Scott Baker LJ had refused permission to appeal.