Entry Clearance Officer v Rasool Jan Sahebi

Paragraph 352A(iii) of the Immigration Rules requires only that a marriage or civil partnership formally existed when the refugee left their country of former habitual residence. It does not require that formal relationship also to have been subsisting at that time.

The distinct requirement for a qualifying cohabiting relationship to have subsisted for two years cannot be read across to marriages and civil partnerships. The present-tense safeguard in paragraph 352A(v), requiring an intention to live together permanently in a relationship that is genuine and subsisting, prevents abuse. The repeated temporal wording in paragraph 352A(iii) may have little practical utility, but that does not justify rewriting the Rule.

The Entry Clearance Officer appealed against a First-tier Tribunal decision of 31 May 2019 allowing Mr Sahebi's human-rights appeal against refusal of entry clearance as the spouse of a recognised refugee.

The parties had married in 1996. They were estranged when the sponsor left Pakistan in 2012, but the First-tier Tribunal found that they had genuinely reconciled and that their relationship was genuine and subsisting when the application was made. The Entry Clearance Officer did not challenge those factual findings.

The central issue was whether paragraph 352A(iii) of the Immigration Rules, which requires that the relationship existed before the refugee's departure, also required the marriage to have been subsisting at that earlier date.

1. The Entry Clearance Officer's appeal was dismissed. Although the First-tier Tribunal had failed expressly to address paragraph 352A(iii) of the Immigration Rules, that omission was immaterial. Its decision was correct and stood.

2. Applying the sensible, natural and ordinary construction of the Rules identified in Mahad [2009] UKSC 16, the Tribunal held that “existed” in paragraph 352A(iii) denotes an objectively existing state of affairs. For a marriage or civil partnership, formal existence at the time of the refugee's departure is enough. The provision does not add a requirement that the relationship then had the qualitative character of being subsisting.

3. The structure and history of paragraph 352A supported that reading. Paragraph 352A(ii) expressly requires a relationship akin to marriage or civil partnership to have subsisted for two years before departure. Reading the same qualitative requirement into paragraph 352A(iii) would require substituting words and adding qualifications which the drafter did not use. The temporal wording had been transferred substantially unchanged from former paragraph 352AA(iii), where it had a coherent temporal function. Its limited utility after amendment did not warrant judicial rewriting.

4. Potential abuse was addressed by paragraph 352A(v). At the date of decision, each party must intend permanently to live with the other and the relationship must be genuine and subsisting. A formally dissolved relationship could not satisfy the connected requirements in paragraphs 352A(ii), (iii) and (v).

5. On the unchallenged findings, the marriage had formally existed when the sponsor left Pakistan and had later become genuine and subsisting. All requirements of paragraph 352A were met. Nothing further was required for the Article 8 appeal to succeed.

• Upper Tribunal (Immigration and Asylum Chamber): The Entry Clearance Officer's appeal was dismissed. The First-tier Tribunal's decision allowing the appeal on human-rights grounds was upheld.
• First-tier Tribunal: On 31 May 2019, the Tribunal allowed the claimant's appeal against the refusal of entry clearance under paragraph 352A of the Immigration Rules.