AS (Somalia) (FC) and another (Appellants) v Secretary of State for the Home Department (Respondent)

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. Its unequivocal language cannot be read down under section 3 of the Human Rights Act 1998 to admit later events.

The restriction is not generally incompatible with article 8. It serves the legitimate purpose of allowing locally placed entry clearance officers to assess evidence, and an applicant may make a fresh application when circumstances change. General compatibility does not, however, preclude an individual finding that administrative delay, expense or conduct has produced a disproportionate interference with family life. Public authorities remain obliged to act compatibly with Convention rights so far as primary legislation permits.

Two Somali children applied for entry clearance to join their cousin, a recognised refugee settled in the United Kingdom. Entry clearance was refused. While their appeal was delayed, their living conditions deteriorated substantially.

An immigration judge allowed their appeals after considering the later circumstances and article 8. On reconsideration, a senior immigration judge held that section 85(5) of the Nationality, Immigration and Asylum Act 2002 prohibited reliance on post-decision events and dismissed the appeals. The Court of Appeal, in [2008] EWCA Civ 149, held that section 85(5) could not be read down but was not incompatible with the Convention. Following remittal on a separate error concerning the article 8 test, the tribunal allowed the appeals and the children entered the United Kingdom.

The House nevertheless heard the appeal because of its wider importance. The issue was whether section 85(5) was incompatible with article 8 or could be read down under section 3 of the Human Rights Act 1998.

1. Appeal dismissed unanimously. Lord Phillips delivered the principal speech. Lord Hoffmann, Lord Hope, Baroness Hale and Lord Brown agreed that section 85(5) of the Nationality, Immigration and Asylum Act 2002 was not generally incompatible with article 8 and that the appeal must be dismissed.

2. Per Lord Phillips, the distinction between entry-clearance and leave-to-enter appeals had a rational practical basis. When an applicant remains abroad, the local entry clearance officer will often be best placed to evaluate changed circumstances, credibility and reliability. A fresh application may be made while an appeal is pending. The exceptional delay in this case arose from poor administration, not from section 85(5).

3. Per Lord Hope, primary legislation cannot be reviewed merely for irrationality or unreasonableness. It must nevertheless be read compatibly with Convention rights where possible under section 3(1) of the Human Rights Act 1998. The words excluding section 85(4) and permitting consideration of “only” the circumstances at the date of refusal were unequivocal. Reading them down would cross the boundary between statutory interpretation and amendment identified in Ghaidan v Godin-Mendoza [2004] UKHL 30. An adjudicator complying with the restriction would be protected by section 6(2)(a).

4. Per Lord Hope, the rule pursued a legitimate purpose and was not generally disproportionate. Many entry-clearance cases do not engage article 8; others can be addressed promptly through a fresh application. Local assessment also assists the effective operation of immigration control. There was therefore no basis for a general declaration of incompatibility under section 4(2).

5. Lord Hope nevertheless left open the possibility of a declaration in a precisely focused individual case. Delay and expense might be plainly inconsistent with the urgent needs of young children or vulnerable adults, producing a disproportionate interference with family life. Baroness Hale similarly emphasised that the decision did not immunise the conduct of public authorities. Those authorities remained obliged to consider changed circumstances and respect Convention rights so far as statute permitted.

6. Baroness Hale observed that article 8 required the family life of all affected family members to be considered together. There was no exceptionality test for claims falling outside the Immigration Rules. The children’s prolonged separation resulted partly from the earlier mistaken approach to article 8, rather than from section 85 alone.

1. House of Lords: Dismissed the appeal unanimously. It upheld the conclusion that section 85(5) could not be read down and was not generally incompatible with article 8.

2. Court of Appeal: In [2008] EWCA Civ 149, held that section 85(5) was unequivocal and incapable of the proposed Convention-compliant reading. Following the Secretary of State’s concession that the tribunal had used an erroneous exceptionality test, the matter was remitted.

3. Asylum and Immigration Tribunal on remittal: Allowed the appeals in August 2008. Entry clearance was granted on 30 October 2008.

4. Senior immigration judge: On reconsideration in March 2007, held that the first immigration judge had erred by considering post-decision events and substituted decisions dismissing both appeals.

5. Immigration judge: In April 2006, considered the children’s deteriorating circumstances and initially allowed their appeals on article 8 grounds.