OA (Somalia) v Entry Clearance Officer

In a two-stage statutory reconsideration, the first stage ordinarily determines conclusively whether there is a material error of law. The second stage incorporates that decision and should not permit re-argument unless exceptional circumstances exist. A comment comparing an applicant’s account with those of other applicants of the same nationality, without imposing a condition on persons outside that group, was not capable of amounting to race discrimination. Where the underlying entry-clearance claim is conceded to fail, and the discrimination issue offers only an insubstantial possible route to damages, there is no practical utility in pursuing it. The renewed application for permission was refused.

The appellant challenged refusal of entry clearance to join an alleged spouse who had refugee status in the United Kingdom. The application had been refused under paragraph 352A of the Immigration Rules because the marriage and intention to live together permanently were not accepted.

An Immigration Judge dismissed the appeal. On first-stage reconsideration, the AIT treated a complaint under the Race Relations Act 1976 as outside its jurisdiction following a concession. At second stage, Immigration Judge Dawson refused to reopen the issue and found that the Entry Clearance Officer’s wording was not discriminatory. Senior Immigration Judge Grubb considered the jurisdiction ruling erroneous but regarded the error as immaterial and the claim as meritless. The central issues were whether the race point could be re-argued at the second stage and whether the wording could amount to discrimination.

1. Disposition. The renewed application for permission to appeal was refused. The appellant accepted the adverse findings on the claimed marriage, accepted that he had no claim under paragraph 352A of the Immigration Rules, and accepted that a claim under the Human Rights Convention could take the matter no further.
2. Two-stage reconsideration. The division of function between the two stages is important. The first stage ordinarily determines conclusively all matters concerning the existence of a material error of law. The second stage incorporates that decision. Re-argument at the second stage is generally unavailable save in exceptional circumstances. The limited opening identified in Wani and in JA (Practice on Reconsideration: WANI applied) Ecuador [2006] UKAIT 00012, including overlooked binding authority or material country guidance, did not apply. The appellant had been represented and had an opportunity to advance the argument at the first stage. Nothing exceptional justified reopening it.
3. Discrimination. The court agreed with Senior Immigration Judge Grubb’s substantive assessment. The Entry Clearance Officer’s statement contrasted the appellant’s evidence with that of other Somali applicants and commented on the evidential state of his claim. It did not impose a requirement or condition on persons outside the relevant social group or nationality. The statement was therefore not capable of amounting to race discrimination. Its evidential impact disappeared once the Immigration Judge determined the facts independently and dismissed the appeal. The court considered that the view that the AIT had jurisdiction, and that the statutory exemption did not apply, might be right, but it did not need finally to determine that issue.
4. Utility. The race issue was pursued only because it might provide a gateway to a damages claim, which would lie in the county court: Emunefe v SSHD [2005] EWCA Civ 1002. Damages could not compensate for loss of a right to enter the United Kingdom because no such right existed. The appellant’s status was unaffected and any damages claim would be ephemeral. There was no substantial basis for further proceedings.
5. Fresh evidence. The application to adduce evidence that similar wording had been used in other cases was refused. Order: application refused.

1. Court of Appeal (Civil Division): Laws LJ and Wall LJ refused the renewed application for permission to appeal. [2009] EWCA Civ 492.
2. Senior Immigration Judge: SIJ Grubb refused permission, considering that any jurisdictional error was immaterial and that the discrimination claim had no merit.
3. Asylum and Immigration Tribunal: On second-stage reconsideration, Immigration Judge Dawson refused to reopen the race-discrimination issue and dismissed the appeal.
4. Asylum and Immigration Tribunal: The first Immigration Judge had dismissed the appeal against refusal of entry clearance. Reconsideration was ordered on 4 March 2008, and the first-stage reconsideration hearing took place on 30 April 2008.