MS (Somalia) & Ors v Secretary of State for the Home Department

Paragraphs 352A and 352D of the Immigration Rules provide family reunion routes for family members of a person granted asylum. The sponsor must be a primary Convention refugee, or a person formally recognised as such by the Secretary of State. A person who obtained refugee-related leave or rights as a family member of a Convention refugee does not thereby become a Convention refugee for those purposes. The humanitarian policy is directed to the family circumstances of the primary refugee. It does not ordinarily create a further right for that refugee’s family member to sponsor additional relatives under the family reunion provisions.

Two conjoined appeals concerned Somali nationals seeking entry clearance to join husbands settled in the United Kingdom. Each husband had obtained indefinite leave to remain after joining a wife who had been recognised as a refugee. The wives in the present appeals were later spouses, and the children’s claims depended on the same alleged sponsor status.

The Asylum and Immigration Tribunal dismissed the appeals, holding that the appellants had no right of entry under paragraphs 352A and 352D of the Immigration Rules. The central issue before the Court of Appeal was whether a family member who had received refugee-related treatment could be treated as a person granted asylum or as a refugee sponsor for those provisions.

1. Appeals dismissed. The Secretary of State’s respondent’s notice was well founded.
2. Paragraph 352A contemplates a sponsor who is a Convention refugee as such. Its reference to a person granted asylum does not extend to a person who merely obtained indefinite leave to remain as the spouse of a refugee.
3. Refugee status or refugee-related rights conferred on a family member in line with a Convention refugee do not confer primary Convention refugee status for the purposes of paragraphs 352A and 352D.
4. The humanitarian family reunion policy is rooted in the particular circumstances of the primary Convention refugee. It does not permit a family member admitted in that way to introduce further family members under paragraphs 352A or 352D.
5. The reasoning was supported by ZN & Ors v Entry Clearance Officer [2010] UKSC 2, which recognised that the Rules require formal recognition by the Secretary of State before the family reunion application and that “person granted asylum” in paragraph 352A(i) has that effect.
6. The same analysis applied to the children’s claims under paragraph 352D. No separate argument was advanced on that provision.

Policy documents, travel-document endorsements and exemption from ordinary returning-resident restrictions did not alter the distinction between a primary Convention refugee and a family member treated as a refugee.

• Court of Appeal (Civil Division): The conjoined appeals from the Asylum and Immigration Tribunal were dismissed. The court upheld the conclusion that the appellants had no right to enter under paragraphs 352A and 352D of the Immigration Rules.
• Asylum and Immigration Tribunal: The reconsideration appeals were dismissed in the MS and KI cases. The proceedings bore AIT Nos OA/19807/2008, OA/19802/2008 and OA/17362/2008.