FH v Entry Clearance Officer, Tehran

A post-flight spouse of a refugee with limited leave cannot qualify under either paragraph 352A or paragraph 281 of the Immigration Rules. Paragraph 352A is confined to a spouse who married the refugee before the refugee left the country of former habitual residence. Paragraph 281 requires the sponsor to be settled, which a refugee with time-limited leave is not.

Nevertheless, where the applicant meets every other requirement of paragraph 281 and no legitimate justification for exclusion is shown, refusal of entry clearance will be most unlikely to be proportionate under Article 8. Each case requires an individual assessment. The Tribunal cannot make a declaration of incompatibility concerning the Immigration Rules under section 4 of the Human Rights Act 1998.

The appellant, an Iranian national, married an Iranian refugee in Turkey after he had fled Iran and obtained limited leave to remain in the United Kingdom. Her application for entry clearance as his spouse was refused on 4 March 2009. Immigration Judge Rose dismissed her appeal.

The appellant obtained reconsideration, treated as permission to appeal to the Upper Tribunal under paragraph 4 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010. The marriage was valid, genuine and subsisting, and the parties met the accommodation and maintenance requirements of paragraph 281 other than the requirement that the sponsor be settled.

The central issue was whether the gap in the Immigration Rules for post-flight spouses of refugees with limited leave could lawfully result in refusal of entry clearance consistently with Article 8.

1. Appeal allowed. The Immigration Judge made a material error of law. The Tribunal substituted a decision allowing the appeal and directed that entry clearance issue in the usual form.

2. The appellant could not succeed under the Immigration Rules. Paragraph 352A did not apply because the marriage took place after the sponsor left Iran. Paragraph 281 did not apply because its opening requirement was that the sponsor be present and settled in the United Kingdom. Under paragraph 6, settlement required freedom from any restriction on the period of stay; the sponsor held limited leave until May 2011.

3. The Rules made no provision for post-flight spouses of refugees with limited leave, although they permitted spouses of other temporary migrants to join them. A refugee was in a particularly disadvantageous position because he could not return to his country of nationality to enjoy married life there. No public interest justifying that differential treatment was identified.

4. Article 8 required entry clearance in this case. The appellant met all paragraph 281 requirements apart from settlement, the marriage was genuine and subsisting, no alternative country for family life was suggested, and the respondent advanced no case that exclusion was proportionate. Although Article 8 decisions remain individual, it would be most unlikely to be proportionate to exclude a post-flight spouse who satisfies all other paragraph 281 requirements.

5. The Tribunal could not make a declaration of incompatibility. Section 4 of the Human Rights Act 1998 concerns primary legislation and courts no lower than the High Court. The Immigration Rules were not subordinate legislation within section 21, and the Tribunal lacked power to make such a declaration. The Tribunal urged urgent amendment of the Rules.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside Immigration Judge Rose’s decision for material error of law, substituted a decision allowing the appeal, and directed entry clearance to issue: [2010] UKUT 275 (IAC).

• Asylum and Immigration Tribunal: Immigration Judge Rose dismissed the appeal against the Entry Clearance Officer’s refusal of entry clearance dated 4 March 2009. Reconsideration was ordered and took effect as permission to appeal under paragraph 4 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010.