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

Paragraph 349 of the Immigration Rules does not require a dependant partner to receive refugee status merely because the principal applicant has been granted asylum. Its requirement is that the dependant receive leave to enter or remain for the same duration as the principal applicant. A person who has pursued an independent asylum claim remains entitled to an individual determination, even where administrative errors or informal descriptions have suggested dependency. Where an immigration judge rejects that person’s asylum claim but grants humanitarian protection in his or her own right, the Secretary of State is not required to grant refugee status by reference to the partner’s successful claim.

The claimant, a Pakistani national, challenged the Secretary of State’s refusal to grant him refugee status as the dependant partner of a woman whose asylum appeal had succeeded. The claimant and his partner had originally made separate asylum applications and had received separate determinations. On a later appeal, the immigration judge allowed the partner’s appeal on asylum grounds but rejected the claimant’s asylum claim, allowing his appeal only on humanitarian protection grounds. The claimant received leave to remain for the same period as his partner but not refugee status.

The central issues were whether the claimant had been a dependant within paragraph 349 of the Immigration Rules and, if so, whether that paragraph required refugee status rather than leave for the same duration.

1. The claim was dismissed. The claimant was entitled to humanitarian protection and leave to remain until the same date as his partner, but paragraph 349 did not require the grant of refugee status.
2. Paragraph 349 distinguishes between a dependant’s entitlement to leave for the same duration as the principal applicant and a claim made by the dependant in his own right. The Rule does not require the dependant to receive leave in the same capacity as the principal applicant.
3. The claimant had pursued an independent claim throughout. His original application and later submissions were not formally made as a dependant application. The immigration judge had separately considered the two appeals, rejected the claimant’s asylum claim, and found that he qualified for humanitarian protection in his own right.
4. The Secretary of State’s failure to issue a separate refusal notice in 2010, and occasional descriptions of the claimant as dependent, did not alter the substance of the claims or create a legal duty to grant refugee status. The claimant had not appealed the rejection of his asylum claim.
5. The alternative legitimate-expectation argument failed because no policy or practice requiring asylum status for every dependant was established. The guidance relied upon did not support that contention.

The Secretary of State was awarded costs, subject to detailed assessment if not agreed.

This was a first-instance judicial review. The judgment records that a previous judicial review application in 2009/2010 had been withdrawn by consent. Leave to bring the present claim had previously been refused on the papers by Hickinbottom J in December 2012.