YT v Secretary of State for the Home Department

A refusal of entry for a spouse of a refugee requires a fact-sensitive Article 8 assessment. A post-flight marriage falls outside paragraph 352A of the Immigration Rules. Paragraph 281 also requires specified sponsor status and adequate accommodation and maintenance without recourse to public funds. Where family life can reasonably be enjoyed in another country, and the applicant cannot satisfy the no-public-funds requirements, refusal may be proportionate. Article 8 may impose positive obligations, but it does not generally guarantee family reunion in the United Kingdom or permit married couples to choose the state of residence. On the facts, there was no disproportionate interference or discriminatory treatment.

The appellant, an Ethiopian national with asylum and residence in Italy, sought entry clearance to join his wife and daughter in the United Kingdom. His wife was an Ethiopian refugee with limited leave to remain and was not settled. The couple had married in Italy after the wife had left Ethiopia, and the appellant could not be maintained or accommodated in the United Kingdom without recourse to public funds.

The Entry Clearance Officer refused the application. Following reconsideration, Immigration Judge Parkes accepted the appellant's identity and marriage but dismissed the appeal, finding that family life could be exercised in Italy and that the requirements of the Immigration Rules were not met. The appeal concerned whether Articles 8 and 14 required the Rules to be overridden and entry to be granted.

The appeal was dismissed.

1. Immigration Rules. Paragraph 352A of the Immigration Rules excludes a marriage entered into after the refugee left the country of former habitual residence to seek asylum. The appellant's marriage was therefore a post-flight marriage and fell outside that provision. Paragraph 281 was also unavailable because the sponsor was not settled and the appellant could not meet the accommodation and maintenance requirements without recourse to public funds.
2. Articles 8 and 14. The question was whether the Rules could be set aside because refusal caused disproportionate and unjustifiable interference with family life. The tribunal's findings were decisive. The appellant had asylum, employment and accommodation in Italy. Family life had been established and exercised there, and there was no evidence preventing the sponsor and child from joining him. Italy was therefore an available place for family life. Given the failure to satisfy the no-public-funds condition, the court found no discriminatory treatment in comparison with other unsettled migrants whose spouses could enter only if that condition was met.
3. Authorities. A (Afghanistan) [2009] EWCA Civ 825 and FH (Post-flight spouses) Iran v Entrance Clearing Officer, Tehran [2010] UKUT 271 (IAC) were materially different. In each, there was no other country where the couple could enjoy family life and no difficulty concerning maintenance or accommodation. Those decisions did not resolve the wider public-interest issues concerning post-flight marriages. The court also applied the Strasbourg approach in Gül v Switzerland [1996] 22 EHRR 93, referring to the fair balance between individual and community interests, the State's margin of appreciation and the absence of a general obligation to authorise family reunion in the country chosen by a married couple.
4. Unresolved issues and order. The court left unresolved whether refusal of entry engages Article 8 in the same way as removal, whether positive obligations require the State actively to promote family life, and whether refugees should be treated differently from other temporary migrants. The appeal was dismissed.

1. Court of Appeal (Civil Division) — Appeal dismissed on 28 June 2011.
2. Asylum and Immigration Tribunal — Immigration Judge Parkes dismissed the appeal on 15 December 2009 after reconsideration, accepting the appellant's identity and marriage but finding that the Immigration Rules were not satisfied and that family life could be exercised in Italy.
3. Entry Clearance Officer — Application for entry clearance refused on 9 October 2008.