ZN (Afghanistan) and others v Entry Clearance Officer (Karachi) and one other action

Under the family-reunion provisions of the Immigration Rules, a spouse or child may rely on a sponsor's historic grant of asylum even though the sponsor subsequently became a British citizen. Paragraphs 352A and 352D require the sponsor to have been formally granted asylum. They contain no additional requirement that the sponsor retain refugee status when the application is made or determined.

The Rules are construed sensibly according to their natural and ordinary meaning, in the context of the Rules as a whole and their function as statements of immigration policy. A fraudulent grant is implicitly excluded: a person who obtained asylum by fraud is not treated as having been granted asylum for these purposes.

The appellants were the wife and children of an Afghan national who had been granted indefinite leave to remain as a refugee and later acquired British citizenship. They applied for entry clearance under paragraphs 352A and 352D of the Immigration Rules. The Entry Clearance Officer instead applied the ordinary family-member provisions, including their maintenance and accommodation requirements, because the sponsor was then a British citizen.

The Asylum and Immigration Tribunal dismissed their appeals. The Court of Appeal, in [2008] EWCA Civ 1420, held that paragraphs 352A and 352D required the sponsor to possess current refugee status. It also rejected the appellants' claim under article 8 of the European Convention on Human Rights.

Before the Supreme Court, the article 8 issue became academic following concessions granting discretionary leave. The live question was whether the family-reunion provisions continued to apply after the sponsor acquired British citizenship.

1. The appeals of the first to fifth appellants were allowed. Lord Clarke delivered the judgment of the Court. Paragraph 352A applied to the sponsor's wife, and paragraph 352D applied to the four children who were under 18 at the relevant time. The sixth and seventh appellants' appeals had become academic following the respondent's article 8 concession.

2. Immigration Rules are construed from their language, read against the relevant background and in the context of the Rules as a whole. As explained in Odelola v Secretary of State for the Home Department [2009] UKHL 25 and Ahmed Mahad v Entry Clearance Officer [2009] UKSC 16, they should be read sensibly according to the natural and ordinary meaning of their words, recognising their function as statements of administrative policy.

3. The natural meaning of paragraphs 352A and 352D refers to the historic event of a formal grant of asylum. Expressions such as “a person granted asylum” and “a parent who has been granted asylum” do not import an additional requirement that the sponsor remain a refugee when entry clearance is sought or determined. Reading such a requirement into the provisions would add words which they do not contain.

4. The sponsor must nevertheless have been formally granted asylum by the Secretary of State. The wording confines the provisions to sponsors whose refugee claim has received official recognition. It does not extend them to cases involving only an assertion that the sponsor is a refugee.

5. The references to article 1F of the Refugee Convention in paragraphs 352A and 352D concern exclusion of the applicant, not the continuing status of the sponsor. They therefore provide no support for construing the sponsor's status as necessarily current. Equally, the possibility of asylum obtained by fraud did not make the appellants' construction absurd. Read as a whole, the Rules implicitly prevent a fraudulent grant from being treated as a grant of asylum for family-reunion purposes.

6. Acquisition of British citizenship does not alter the historical fact that the sponsor is a person who has been granted asylum. The Court therefore displaced the Court of Appeal's construction. It expressed no view on whether refugee status otherwise ceases automatically upon acquisition of a new nationality or only through a prescribed procedure.

1. United Kingdom Supreme Court: Allowed the appeals of the first to fifth appellants and displaced the Court of Appeal's construction of paragraphs 352A and 352D. The remaining appeals were academic.
2. Court of Appeal: In [2008] EWCA Civ 1420, dismissed the appeal. It held that the family-reunion provisions required the sponsor to have current refugee status and rejected the article 8 case.
3. Asylum and Immigration Tribunal, reconsideration: Held that the Immigration Judge had made no error of law, so the original decision stood.
4. Asylum and Immigration Tribunal: Dismissed the appeals because the sponsor had acquired British nationality and paragraphs 352A and 352D therefore did not apply. It also rejected the article 8 claim.