AS (Somalia) & Anor v Secretary of State for the Home Department

The House considered whether section 85(5) of the Nationality, Immigration and Asylum Act 2002, which prevents an adjudicator from taking into account matters arising after the date of a refusal of entry clearance, is compatible with article 8 of the European Convention on Human Rights and whether it can be "read down" under section 3 of the Human Rights Act 1998. The court held that the language of section 85(5) is unequivocal and cannot be read down; in general it is not incompatible with article 8. The court accepted that delay and administrative failings in individual cases may produce disproportionate effects, but those are matters to be addressed case by case or before the Strasbourg court rather than by judicial amendment of primary legislation.

This was an appeal from the Court of Appeal ([2008] EWCA Civ 149) concerning two Somali children who had been refused entry clearance to join a relative in the United Kingdom and who contended that the statutory bar on taking into account events after the date of the refusal breached their article 8 rights. The appellants argued that section 85(5) of the Nationality, Immigration and Asylum Act 2002 was incompatible with article 8 and that it could be read in a way under section 3 of the Human Rights Act 1998 so as to permit consideration of post‑decision events.

The factual background involved long administrative delays between the refusal of entry clearance in August 2004, the lodging of appeals and the tribunal hearings; circumstances affecting the children's welfare had deteriorated after the refusal. The appellants succeeded at first instance before an immigration judge who took account of changed circumstances, but a senior immigration judge reversed that on review because of the statutory bar. The Court of Appeal upheld that approach but rejected incompatibility. The House of Lords heard the appeal.

Issues framed by the court included (i) whether section 85(5) permits an adjudicator to consider events occurring after the refusal of entry clearance, (ii) whether section 85(5) could be "read down" under section 3 of the Human Rights Act 1998 so as to allow consideration of such events in article 8 cases, and (iii) whether the statutory bar was incompatible with article 8 because it was disproportionate or insufficiently foreseeable.

The court analysed the text of section 85(5), the distinction between entry clearance and leave to enter, and the principle of legality and proportionality derived from Strasbourg authority and domestic precedents. It concluded that the statutory wording was plain, unyielding and could not be judicially re‑written; therefore an adjudicator was bound by section 85(5) and could not take post‑decision events into account on appeal. The House held that, in general, the provision pursued legitimate purposes and was not disproportionate, although it acknowledged that individual cases of acute vulnerability or procedural injustice could arise and might be susceptible to Strasbourg challenge or, in very narrowly focused circumstances, a declaration of incompatibility.

The court also noted that a fresh entry clearance application may be made while an appeal is outstanding and that administrative delay in the processing of the original decision was the principal cause of injustice in the appellants' case. The appellants were subsequently granted entry clearance before the House decided the appeal.

Appeal dismissed. The court held that section 85(5) of the Nationality, Immigration and Asylum Act 2002 is drafted in unequivocal terms and cannot be read down under section 3 of the Human Rights Act 1998; on its face it is not incompatible with article 8 ECHR as a general rule. The distinction between entry clearance and leave to enter and the availability of a fresh application supported the statutory scheme; administrative delay in the present case explained the hardship but did not demonstrate general incompatibility.

First instance: immigration judge allowed the appeal on the basis of changed circumstances; review by a Senior Immigration Judge (SIJ Spencer) reversed that decision. Court of Appeal: [2008] EWCA Civ 149 (Sedley LJ) held section 85(5) could not be read down and was not incompatible. House of Lords: [2009] UKHL 32 dismissed the appeal.