MA (Somalia), R (on the application of) v Secretary of State for the Home Department

A consent order requiring applications to be considered under a withdrawn policy preserved the applicants’ opportunity to be assessed under that policy. It did not require the Secretary of State to bypass its first-stage screening or give the applicants a better position than they would have held while the policy was in force. A challenge to the first-stage refusal was premature where interviews had not occurred and further evidence might affect credibility and the assessment of the appropriate country of refuge. Article 8 may require a fee waiver where the applicant, sponsor and wider family cannot pay and family-life rights are sufficiently strong. Where funds are likely available, no obligation to waive the fee arises.

The appellant, a Somali minor living in the United Kingdom, sought judicial review concerning applications by her mother and younger brother to join her. They relied on Article 8 and on an asylum policy for applications from abroad. The policy had been withdrawn, but a consent order required the Secretary of State to consider the applications under it. The applications were rejected at the first stage without interviews, and fees were not waived for the Article 8 applications.

His Honour Judge Birtles QC, sitting as a deputy High Court judge, dismissed the judicial review grounds on 5 October 2012. Before the Court of Appeal, the Secretary of State conceded that interviews should have been conducted and agreed to reconsider the applications, but contested the interpretation of the consent order, the irrationality challenge and the fee-waiver claim.

The appeal was dismissed. Lord Justice Elias gave the leading judgment, with Lord Justices Davis and Jackson agreeing.

1. Consent order. The Applications from abroad policy involved two stages. An initial assessment determined whether there was a prima facie case satisfying the policy’s conditions, followed by formal acceptance and full consideration of the asylum claim. Read objectively and in context, the consent order preserved the applicants’ right to have their applications considered under the policy despite its withdrawal. It did not require the Secretary of State to proceed directly to the second stage or place the applicants in a better position than they would have occupied while the policy remained in force.
2. First-stage assessment. The court considered that there was force in the argument that the Secretary of State had confused refugee status with the status of persons seeking asylum. The court also recognised, drawing on Sufi and Elmi v United Kingdom (2012) 54 EHRR 9, that a claimed member of a minority Somali clan might face a prima facie Article 3 risk if returned to an area controlled by al-Shabaab. However, it was premature to reach a concluded view on the remaining assessment. The Secretary of State was entitled to consider the evidence after interviews and further information, without assuming that the applicants’ account was reliable or that no material affecting credibility would emerge.
3. Fee waiver. Regulation 26 of the Immigration and Nationality (Fees) Regulations 2011 conferred a discretion to waive fees. The policy required fees in principle and limited waivers to exceptional, compelling and compassionate circumstances; destitution alone was insufficient, and the resources of the sponsor and wider family could be considered.
4. The court applied the approach in R (on the application of Shueb Sheikh) v Secretary of State for Health [2011] EWCA 3390 (Admin). An Article 8 obligation to waive a fee may arise where the applicant, sponsor and family cannot pay and the family-life right is sufficiently strong. Where funds are likely available, there is no sufficient direct and immediate link between waiver and family life, and no fair balance requiring the State to forego the fee. On the evidence, the Secretary of State was entitled to conclude that financial assistance was likely available. The Article 8 challenge therefore failed, although fuller information obtained on reconsideration might require the waiver issue to be reconsidered.

The delays were described as wholly unacceptable, and the Secretary of State was urged to deal with the outstanding matters urgently.

1. Administrative Court: His Honour Judge Birtles QC, sitting as a deputy High Court judge, dismissed the judicial review grounds in a judgment delivered on 5 October 2012.
2. Court of Appeal (Civil Division): The court dismissed the appeal in [2013] EWCA Civ 966. The Secretary of State’s concession required reconsideration of the applications following interviews.