Secretary of State for the Home Department v. Dhudi Saleban Abdi

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Appellant)
v
DHUDI SALEBAN ABDI
(Respondent)

30 October 1995 Court of Appeal: Peter Gibson, Otton LJJ, Sir Roger Parker Political asylum - family reunion - application for admission of Somali family members-Secretary of State concluded applicants did not qualify under the immigration rules - likewise concluded they were outwith the provisions of the extra - statutory policy on Somali family reunion-whether principle of family uniy fell within the compass of the immigration rules-whether Ali correctly decided-whether on the facts the Secretary of State's decision was in accordance with the law-jurisdiction of the appellate authorities to determine whether a decision was in accordance with the law. Immigration Act 1971 ss. 1(4), 3, 13(2), 19: HC 251 paras. 14, 21, 52, 78, 98, 161: United Nations Convention relating to the status of refugees (1951) Protocol (1967). UNHCR Handbook on procedures and criteria for determining refugee status, para. 183. The respondent was a citizen of Somalia who had been granted refugee status in the United Kingdom. She applied for various members of her family to be granted visas to join her pursuant to the provisions of the Somali family reunion policy. The applications in respect of the applicants who were not her own children were refused: the Secretary of State concluded they did not qualify under the immigration rules nor under the Somali family reunion policy, the respondent, in relation to them not being the head of the household. When formal applications were made to the entry clearance officer, they were refused. On appeal to an adjudicator, he found as a fact that the respondent had been the head of the household in relation to the applicants, for the purposes of the Somali family reunion policy and concluded that the refusals had not been "in accordance with the law". On appeal to the Tribunal by the Secretary of State, the Tribunal, following its earlier decision in Ali concluded that the principle of family unity fell within the compass of the immigration rules pursuant to paragraph 21 of HC 251: it concluded that discretion should have been exercised in favour of the applicants under the rules, and dismissed the appeal. The Secretary of State appealed.

Held

1. Ali was wrongly decided.

2. The matter of family reunion in relation to refugees was not part of the Convention: it could not be brought within the ambit of the immigration rules.

3. In the instant case the Secretary of State had been asked to depart from the rules and had declined to do so. To that extent the decision was not appealable under section 19(1)(a)(ii) of the 1971 Act.

4. However the appellate authorities were entitled to consider whether the decision was "in accordance with the law" insofar as that involved the Secretary of State failing to act in accordance with established principles of administrative or common law, for example, failing to take account of or give effect to his own published policy. It was not obvious however that Parliament intended the appellate authorities by section 19(1)(a)(i) to have the power to examine the validity of a decision by the Secretary of State by reference to all matters that would be relevant on judicial review.

5. The Secretary of State had not ignored his published policy on family reunion but had acted under a misapprehension of the facts. The case would be remitted to him for reconsideration.

R Singh for the applicant I Macdonald QC and R Scannell for the respondent

Cases referred to in the judgments:

R v Secretary of State for the Home Department ex parte Asif Mahmood Khan [1985) 1 All ER 40: [1984] Imm AR 68. R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm. AR 352. Sonia Malhi v Secretary of State for the Home Department [1990] Imm AR 275. Ali (unreported) (10520).

PETER GIBSON LJ:

The Home Secretary appeals with the leave of the Immigration Appeal Tribunal against a determination by the Tribunal on 15 December 1994, dismissing an appeal of the entry clearance officer in Addis Ababa. The entry clearance officer had appealed against the determination on 12 May 1994 of an adjudicator who held that the decision of the entry clearance officer on 3 August 1992 refusing the eight respondents entry clearance to the United Kingdom was not in accordance with the law. Before I recite the history of this inordinately protracted matter, it is convenient to set out the statutory provisions and rules which were in force at the material time and which are germane to how the issues before us arise. Section 3 of the Immigration Act 1971 (as amended) contains general provisions for regulating the entry and stay in the United Kingdom of persons who are not British citizens. By section 3(1)(a), except as otherwise provided by or under that Act, such a person shall not enter the United Kingdom unless given leave to do so in accordance with the Act. Section 3(2) requires the Secretary of State from time to time to lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of the Act for regulating entry into and stay in the United Kingdom of persons required to have leave to enter. That is amplified by section 1(4) to require the Secretary of State to include in the rules provisions for admitting, amongst others, dependants of persons lawfully in or entering the United Kingdom. If a statement is disapproved by a resolution of either House of Parliament, then the Secretary of State is required to make changes in a further statement to be laid before Parliament. Thus the rules contained in the statement can only come into force if not disapproved by Parliament. They are the immigration rules to which the Act refers (section 33(1)). By section 13(2) a person refused an entry clearance into the United Kingdom has the right to appeal to an adjudicator against the refusal. Section 19 prescribes the jurisdiction of an adjudicator. So far as material it reads:

"19(1)Subject... to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act-

(a)shall allow the appeal if he considers-

(i)that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or

(ii)where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and

(b)in any other case, shall dismiss the appeal.

(2)For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so."

The Home Secretary has laid before Parliament in accordance with section 3(2) a statement of the rules and from time to time statements of changes in the rules, and the relevant statement for the purpose of this dispute is HC 251 laid before Parliament on 23 March 1990. That is of course prior to the changes in the law brought about by the Asylum and Immigration Appeals Act 1993 and to the elaboration of provisions relating to asylum in more recent changes in the rules. In HC 251 only one paragraph (paragraph 173) is directed to asylum and that in a manner not relevant to this appeal. However paragraph 21 (in the section on control on entry) is in this form:

"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmnd 9171 and Cmnd 3096). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments."

For the sake of completeness I should mention that paragraph 98 in the section relating to control after entry and paragraph 161 in the section relating to deportation are in the same terms. The Convention is the 1951 Convention relating to the status of refugees and the Protocol is the 1967 Protocol to the Convention. No provision of the Convention or of the Protocol is of direct relevance to the present case. However in the Final Act of the Conference (attended by representatives of the United Kingdom) which concluded the 1951 Convention, there was a resolution in the following terms:

"The Conference,

Considering the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unity is constantly threatened . . .

Recommends Governments to take the necessary measures for the protection of the refugee's family especially with a view to:

(1)Ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country ...

It will be noted that this resolution did not seek to define who should be included in the refugee's family. I return to HC 251. By paragraph 14 citizens of Somalia (among other countries) are required to have United Kingdom visas and should be refused leave to enter if they have no such visas. Applications for such visas have to be made at a British Diplomatic post. Part IV deals with passengers coming for settlement. Paragraph 52 covers the admission of relatives (other than spouses) of "a person who is present and settled in the United Kingdom". By paragraph 78 a passenger who does not qualify for admission under the foregoing provisions of the rules is to be refused leave to enter. Despite the detail of the immigration rules, it is common ground that the Home Secretary retains a discretion to allow persons who do not qualify under the rules to enter the United Kingdom. Further it is common ground that the Home Secretary can properly formulate policies outside the rules allowing particular categories of persons in particular circumstances to be admitted to the United Kingdom and stating the procedures to be followed. Sometimes such policies are brought into being in response to an emergency. One such emergency arose when Somalia was racked by civil war. In recognition of the fact that many of those who were displaced by war in Northern Somalia were unable to get to a British Diplomatic post to apply for visas, in September 1988 the Government introduced a concession whereby a sponsor legally in the United Kingdom could present the facts here so that visa applications could be determined before the applicant attempted to journey to a British Embassy. On 17 May 1990 the Home Office wrote a letter headed "Somali Family Reunion Applications" to community organisations and law centres who regularly submitted such applications to the Home Office. The letter set out in detail what were the current special arrangements and in a section headed "Current Policy" gave details of that policy in the following terms:

"8.To state the obvious we cannot and do not simply authorise the issue of visas because we are asked to do so. The applicants have to meet certain criteria if they are to qualify for the issue of a visa. The applicants may qualify to come here as:

8.1.Immediate family of refugees

8.1.1.If the United Kingdom sponsor has been recognised as a refugee here under the terms of the 1951 United Nations Convention relating to the Status of Refugees then, like most countries, we follow the policy on family reunion agreed by the Conference which adopted the Convention. We will agree to the admission of the spouse and minor children of the refugee. However given the nature of the Somali family we are prepared to be flexible and if a refugee is able to show that a person not covered by the policy was a dependent member of the refugee's immediate family unit before the refugee came to the United Kingdom, then we would be prepared to consider exceptionally extending the refugee family reunion provision to cover that person."

Other paragraphs dealt with dependants under the normal immigration rules and refugees for whom the United Kingdom is the most appropriate country of refuge. The letter then continued:

"8.4.The above outlines the criteria which must be met if an individual is to qualify for the issue of a visa. However, as you will know from your own experience, we are prepared to exercise discretion and consider going beyond those limits in individual cases where there are particularly strong compassionate circumstances. By its very nature it is difficult to set down any firm guidance on how far we are prepared to step outside the limits outlined above, but clearly the more criteria we are being asked to waive, the less likely we will be able to accede to the request. As a general rule of thumb if we are being asked to waive more than one of the requirements in the Rules then the expectation should be that the request will be turned down.

8.5.When we do exercise discretion in this way it should of course be seen for what it is-an exceptional decision in a particular case rather than as being the norm or a precedent."

I turn to the facts. On 18 April 1989 Dhudi Saleban Abdi ("Mrs. Abdi"), a Somali citizen, came to the United Kingdom from Somalia. She brought with her three of her children. She stated that her husband was a soldier with the Somali National Movement Army. She claimed asylum and on 10 October 1989 she was granted formal leave to enter for four years as a refugee without restriction on employment. On 19 February 1990 Mrs. Abdi wrote to the Home Office asking that 10 persons, viz two other children of her own, a brother of hers and the second to eighth respondents, be allowed to join her here "for family reunion". Those respondents, like the first respondent, are all Somali citizens, and are the orphan children of her deceased brother. Their ages on 3 August 1992 ranged from 21 to 14. By her letter Mrs. Abdi asked the Home Office to consider her application on a humanitarian basis. Her own two children were given entry clearance. But there appears to have been a lengthy delay by the Home Office in responding to the application relating to the second to eighth respondents. The Leytonstone Citizens' Advice Bureau on Mrs. Abdi's behalf contacted the Home Office in January 1991. In a letter of 23 January 1991 the Bureau told the Home Office that Mrs. Abdi no longer wished her brother to be allowed entry, but although the Bureau said that the respondent children were suffering extreme hardship, no response appears to have been forthcoming until 25 November 1991 when the Home Office requested information from Mrs. Abdi about the respondents and their family. That information was promptly supplied as was further information sought from her. On 7 January 1992 Mrs. Abdi asked "exceptionally outside the immigration rules" that the first respondent, her elder sister, be included. The first respondent was described as being under Mrs. Abdi's care for a long time and as having looked after Mrs. Abdi's children since Mrs. Abdi left. On 14 January the Home Office wrote to Mrs. Abdi that it was not believed that the respondents would qualify under the immigration rules for the issue of visas and that there were insufficient grounds to justify the respondents being issued with visas exceptionally outside the rules. Mrs. Abdi was advised to submit a letter of application to the British Embassy in Addis Ababa. Solicitors for Mrs. Abdi wrote on 27 February 1992, suggesting that the respondents' case fell within the Somali family reunion concessionary policy and asking the Home Office to reconsider its decision, but by letter dated 25 March 1992 the Home Office explained that the respondents did not qualify as dependants under the immigration rules. The letter continued:

"The application was also considered under the principles of family unity as recommended by the 1951 United Nations Convention relating to the status of refugees. The principle of family unity normally covers the spouse and minor children of a refugee but can be extended to cover other relatives where the refugee is the head of the household. Mrs. Abdi was not the head of the household and the principle of family unity does not therefore cover the present application.

Consideration was also given as to whether Mrs. Abdi's relatives should be admitted to the United Kingdom exceptionally but there are no grounds to justify this course of action given the presence of Mrs. Abdi's brothers in Ethiopia."

Pursuant to the Home Office's advice formal application was made to the British Embassy in Addis Ababa by letter dated 13 May 1992 from Mrs. Abdi's solicitors for the respondents to have entry to join Mrs. Abdi. In support of that application the solicitors sent a copy of their letter dated 27 February 1992 as well as a copy of the letter dated 17 May 1990. The entry clearance officer referred the application to the Home Office and the Home Secretary considered the application. In the explanatory statement put before the adjudicator by the Home Office the history of Mrs. Abdi's application was set out and reference was made to the fact that Mrs. Abdi, having only limited leave to remain in the United Kingdom, was not settled in the United Kingdom, and to the fact that she had other relations in Ethiopia. It was stated that as the Home Secretary was not prepared to exercise his discretion in the respondents' favour, he instructed the entry clearance officer to refuse the application under paragraph 52 of HC 251. That was done on 3 August 1992 by formal notices to the respondents of the refusal by the Secretary of State. The first and second respondents were told that the basis of the decision was that the Secretary of State was not satisfied that Mrs. Abdi was settled in the United Kingdom because she only had limited leave to remain, and the third to eighth respondents, entry for whom was sought as the dependants of their brother, the second respondent, were told that as his application for a visa had been refused their applications were refused. The respondents were also told that the Secretary of State had also considered whether they should be issued with visas to enter the United Kingdom exceptionally outside the immigration rules but could find no grounds to justify this. On 20 August 1992 the respondents appealed against that refusal. By then the second respondent, the oldest of the respondents other than the first respondent had been killed in Somalia. There was a hearing before the adjudicator in February 1994 and he gave his written determination on 31 March 1994. Before him it was conceded by counsel for the surviving respondents that they could not bring themselves within the requirements of the immigration rules. The adjudicator considered whether he had power to review the decision of 3 August 1992 taken outside the immigration rules. He decided that there existed "a certain circumscribed jurisdiction in the adjudicator to examine the facts upon which the decision had been based and to consider whether the decision is in accordance with the law or is the result of an excess or misuse of the Secretary of State's powers." He referred to the Home Office policy on Somalia family reunion as contained not only in the letter of 17 May 1990 but also in a letter dated 20 May 1993 from the Parliamentary Under Secretary of State to another Member of Parliament. That letter contained the following paragraph:

"Our policy on family reunion is that the spouse and minor children of refugees should not be separated. We also consider requests from single adult or widowed daughters, a single adult son if all other relatives are in the United Kingdom, and parents over 65 who have been living in the same household. In the case of Somalia, we have gone further and will admit other family members where it can be shown that they were dependent on the refugee's immediate family unit before the refugee came to the United Kingdom. We apply the same criteria to requests from Somali sponsors in the United Kingdom who have been refused asylum but granted exceptional leave".

The adjudicator found as a fact that Mrs. Abdi was the de facto head of the household and that all the respondents were dependent on her. His conclusion was that either the Secretary of State failed to give any consideration to his own stated policy on Somali family reunion, within the terms of which the respondents fell, or, if he did, he misunderstood that policy or in applying it took into account matters which he ought not to have taken into account. He was therefore satisfied that the decision was not in accordance with the law. The Home Secretary appealed to the Tribunal. The respondents' counsel withdrew the concession made before the adjudicator that the respondents could not succeed under the immigration rules, relying on another Tribunal decision, Ali, of 20 December 1993. In that case the Tribunal had held that the principle of family unity of refugees fell within the compass of the immigration rules because of paragraph 21 of HC 251. That decision was followed by the Tribunal in the present case. The Tribunal held that the merits of the discretion exercised by the Secretary of State might be considered on appeal. The Tribunal said that the letter of 20 May 1993 extended the scope of the policy explained in the letter of 17 May 1990, in particular because it made clear that the Home Office "will admit" family members shown to have been dependent on the refugee's immediate family unit before the refugee came to the United Kingdom. The Tribunal held that the adjudicator was wrong to have considered the merits of the exercise of discretion by the Secretary of State outside the rules and that at most he could have referred the matter back to the Secretary of State for reconsideration outside the rules. But the Tribunal considered that the letter of 20 May 1993 was a statement of the policy in operation and that it reflected the view of the Home Office at 3 August 1992 and was "arguably" and "may well have been" the policy at that date. The Tribunal accepted the adjudicator's findings of fact and applying the Ali decision held that discretion should be exercised under the rules to admit the respondents. It said that even under the policy as set out in the letter of 17 May 1990 there was a strong case for admission as an extension of the policy to spouses and minor children. Accordingly the appeal was dismissed. The Home Secretary now appeals to this court. For him Mr. Rabinder Singh submitted that the Tribunal in the Ali case erred in law and that the Tribunal in the present case erred in following the earlier case. For my part I have no doubt that that submission is correct. The obligation of the Home Secretary under paragraph 21 is to take full account of the provisions of the Convention and the Protocol and not to take a decision under some other provision of the immigration rules that would contravene the United Kingdom's obligations under the Convention and Protocol. But there is no provision in the Convention or Protocol about family unity and so the Home Secretary is not constrained when taking decisions under the immigration rules. Nor is there any obligation under the Convention or the Protocol relating to family unity. The highest it can be put is that in the resolution in the Final Act of the Conference that concluded the Convention there was a recommendation in the terms which I have already set out. But it is plain beyond argument that the recommendation was not a provision of the Convention nor an obligation under it. Indeed in the 1988 Handbook on procedures and criteria for determining refugee status under the Convention and Protocol, issued by the Office of the United Nations High Commissioner for Refugees, paragraph 183 states that the Convention does not incorporate the principle of family unity in the definition of the term refugee. In my judgment therefore Ali was wrongly decided and the basis of the decision of the Tribunal in the present case, following as the Tribunal did the Ali decision, is also flawed and cannot stand. Mr. Macdonald QC for the respondents submitted that the Home Office policy published in the letter, of 17 May 1990, as clarified, as he put it, by the letter of 20 May 1993, was a free-standing set of rules parallel to the immigration rules and giving rise to similar rights. That cannot be correct. The policy which has not been laid before Parliament pursuant to section 3(2) is not part of the immigration rules. Indeed anyone applying for entry in accordance with the policy rather than relying on an immigration rule seems to me to be impliedly seeking the exercise of discretion in his favour by the Home Secretary by way of a departure from the immigration rules. There can be no doubt that the respondents were relying on the concessionary policy when the formal application on their behalf was made by the letter of 13 May 1992. In my judgment it is plain that by reason of section 19(2) the Home Secretary's exercise of discretion was not reviewable by the adjudicator under section 19(1)(a)(ii). His decision to refuse entry was in accordance with the immigration rules (see paragraphs 52 and 78 of HC 251), he had impliedly been requested to depart from the immigration rules and had refused to do so. Mr. Macdonald submitted that section 19(2) leaves untouched the jurisdiction of adjudicators and Tribunals to review the exercise of ministerial discretion on the merits in three situations. The first was where there was no applicable immigration rule. I need not take time to consider this as Mr. Macdonald concedes that there was an applicable rule in paragraph 78. The second was where there was no request to depart form the immigration rules. Again that is inapplicable in the present case where there was such a request. The third was where the Home Secretary agreed to apply a revised legal framework by making his decision by reference to a policy or concession outside the immigration rules. For this he relied on R v Secretary of State for the Home Department ex parte Khan [1985] 1 All ER 40. But that was not a decision on section 19 at all. It was a judicial review case in which the refusal by the Home Secretary of entry clearance for a child who satisfied criteria for entry laid down in a Home Office circular was quashed as unfair and unreasonable. To my mind the only substantial point taken on behalf of the respondents was that the decision of the Secretary of State was "not in accordance with the law" within the meaning of section 19(l)(a)(i) in that the adjudicator and the Tribunal found that he had ignored or acted in contravention of the Somali family reunion policy in reaching that decision. In R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm AR 352 Lord Bridge (with whose speech Lord Brandon, Lord Brightman, Lord Mackay and Lord Goff agreed) said at p. 360:

"Mr. Laws' argument encounters its final and, to my mind, insurmountable hurdle, in a consideration derived from the general law. On classic Wednesbury-v principles (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), in exercising his discretion whether to implement a court recommendation for deportation or whether to decide to make a deportation order against an overstayer, the Secretary of State is bound to take account of all relevant considerations. If, therefore, some interest of third parties which is known to the Secretary of State and which would be adversely affected by deportation is in truth relevant to the proper exercise of the discretion, a decision made without taking it into account would in any event be open to challenge by judicial review and consequently would be open, in the case of an overstayer, to appeal under section 19(1) as being "not in accordance with the law" quite apart from the immigration rules. It follows that to construe the rules in the sense for which the Appeal Tribunal contends would not only conflict with the general law but would also be ineffective to restrict the relevant matters which the appellate authorities may, and indeed must, take into consideration. "

These remarks are only obiter dicta and it is not obvious that Parliament by section 19(1)(a)(i) intended adjudicators to have the power to examine the validity of the Home Secretary's decision by reference to all the matters that would be relevant for a judicial review of the decision. But Mr. Singh did not suggest that Lord Bridge's remarks were wrong and they are supported by similar comments by Mustill LJ in Malhi v Secretary of State for the Home Department [1990] Imm AR 275 at p 283. I shall therefore proceed on the footing that if it can be shown that the Home Secretary failed to act in accordance with established principles of administrative or common law, for example if he did not take account of or give effect to his own published policy, that was not "in accordance with the law". The first issue that arises under this head is what was the relevant policy of the Home Secretary. It is not in dispute that the letter of 17 May 1990 was a policy statement by the Home Secretary which was widely published and intended to be acted upon. In paragraph 8.1.1 there is a clear statement that where the United Kingdom sponsor has been recognised as a refugee here, the United Kingdom follows the policy on family reunion agreed by the Conference which adopted the Convention and that the United Kingdom will admit the spouse and minor children of a refugee. It will be recalled that the resolution in the Final Act of the Conference did not define how far the family of a refugee extended. In the final sentence of paragraph 8.1.1 the only promise that was made was that where a person not covered by that policy (ie not a spouse or minor child) was a dependent member of the refugee's immediate family unit, the Home Office would "consider exceptionally extending the refugee reunion provision to cover that person." Thus all that any of the respondents could expect by reason of the letter of 17 May 1990 was consideration by the Home Secretary of an exceptional extension of the policy to cover them if they could show they were dependent members of Mrs. Abdi's immediate family unit. The adjudicator however took account of the letter of 20 May 1993 as being "some elaboration of the policy" and the Tribunal also had regard to it as a policy statement extending the scope of the policy in the letter of 17 May 1990. Mr. Macdonald submitted that it clarified the earlier letter. For my part, I cannot see how a letter written in May 1993 can be said to be relevant to a decision taken in August 1992 when it had not been shown, nor conceded by the Home Office, that the content of the later letter reflected the policy current at the earlier date. A letter written by a Home Office Minister to another Member of Parliament but not shown to have been circulated, or intended to be circulated more widely would appear to be an unlikely vehicle for a definitive statement of policy' particularly when it is contrasted with the terms of the earlier letter; the letter of 17 May 1990 was plainly intended to publicise the policy contained therein. Nor can I see how the final sentence of paragraph 8.1.1 which plainly reserves a discretion to the Home Secretary can be interpreted by reference to the later letter to mean a promise to admit other dependent family members. I can deal shortly with another point taken by Mr. Macdonald, that the letter of 20 May 1993 creates a legitimate expectation of a right to family reunion if certain necessary factual preconditions are fulfilled. They were that the applicants were dependent on the refugee's immediate family unit before the refugee came to the United Kingdom; and the adjudicator found, and the Tribunal agreed, that the respondents were dependent on Mrs. Abdi, the de facto head of her household, before she came here. But in my judgment there could be no legitimate expectation founded on the letter of 20 May 1993, given that the respondents applied more than a year before the letter was written and that the refusal pre-dates the letter by nearly 9 months. As I have already pointed out, the respondents expressly relied on the policy contained in the letter of 17 May 1990. I come back to the question whether the refusal was in accordance with the law. According to the refusal notice of 3 August 1992, the Home Secretary's basis for refusal was the requirement of paragraph 52, that is to say in accordance with the immigration rules. However the refusal notice also stated that the Home Secretary considered whether the respondents should be issued with visas to enter the United Kingdom exceptionally outside the immigration rules but that he could find no grounds to justify this. Although there is no express reference to the letter of 17 May 1990 in the refusal notice or explanatory statement, for my part I have little difficulty in inferring that the Home Secretary did not ignore the Somali family reunion policy in considering whether to allow entry exceptionally outside the immigration rules. I say that because of the following indications in the explanatory statement:

(1)The correspondence between Mrs. Abdi and the Home Office which is referred to in and annexed to the explanatory statement repeatedly describes her application as a Somali family reunion application, and in the Home Office's letter of 14 January 1992 refusing her request to obtain the issue of visas to the respondents in advance of a formal application at a British Diplomatic post overseas, the refusal, so far as it related to the issue of visas exceptionally outside the immigration rules, was in precisely the same words as those used on 3 August 1992.

(2)When asked to reconsider that decision with express reference to the letter of 17 May 1990, the Home Office by the letter of 25 May 1992 (also referred to and annexed to the explanatory statement) explained the refusal, and after stating why the immigration rules did not assist went on in the passage already cited to refer to the principle of family unity.

(3)The formal letter of application (also referred to in and annexed to the explanatory statement) relied on the letter of 17 May 1990.

(4)In paragraph 8 of the explanatory statement the conclusion that the Home Secretary was not satisfied that Mrs. Abdi was settled in the United Kingdom was immediately followed by a discussion of whether the respondents were supported by brothers of Mrs. Abdi; the point was taken that one brother was close enough to have been included in Mrs. Abdi's initial application and, in the letter dated 23 January 1991 written on her behalf, had been said to have taken responsibility for the minor respondents, further eight other siblings were said to be in the refugee camp in Ethiopia. These are matters which go to the issue of whether the respondents were dependants of Mrs. Abdi. The paragraph then concluded that as the Secretary of State was not prepared to exercise his discretion in the respondents' favour, the entry clearance officer was instructed to refuse entry under paragraph 52.

I infer therefrom that the reason why the Home Secretary was not prepared to exercise his discretion to allow the respondents entry was not that he ignored the Somali family reunion policy but that he did not consider the respondents to be dependants of Mrs. Abdi, and accordingly they did not fall for consideration within the final sentence of paragraph 8.1A of the letter of 17 May 1990. The adjudicator was entitled under section 19(2) to review any determination of a question of fact on which the decision was based, and he makes it clear that there was a factual issue before him in relation to "the finding by the [Rome Secretary] that he was not satisfied that the appellants were dependent on their sponsor at the material time." That issue was resolved in favour of the respondents by the adjudicator and his finding was supported by the Tribunal. Before us Mr. Singh has not sought to challenge that finding nor has he suggested that the Home Secretary has considered exceptionally extending the family reunion policy on the footing that the respondents qualify as dependants of Mrs. Abdi. It follows therefore that the Home Secretary in considering the application of the policy published in the letter of 17 May 1990 proceeded on a misapprehension of the material facts and in particular of the fact of dependency which was crucial to the applicability of the final sentence of paragraph 8.1.1. 1 therefore agree with the adjudicator and the Tribunal that in consequence the Home Secretary did not properly take the policy into account and so did not give effect to it. That was an error which made his decision not in accordance with the law for the purpose of s. 19(1)(a)(i). What follows? I cannot accept Mr. Macdonald's submission that this is one of the rare cases where it is appropriate that the court should substitute its own decision for that of the decision-taker. It is not inevitable that the respondents will be given entry clearance. Nor do I accept Mr. Singh's submission that a remission of the matter to the Home Secretary would make no difference. If the Home Secretary reconsiders the application as one relating to dependants of Mrs. Abdi, it is not inevitable that the application will be refused. To my mind the Tribunal was correct in saying that on the footing that the decision was not in accordance with the law the matter must go back to the Home Secretary for him to reconsider the application in the light of the true facts. It falls to him "to consider exceptionally extending the refugee family reunion provision to cover (the respondents]" in accordance with paragraph 8.1.1. I would hear counsel on the form of the order that is appropriate in these circumstances.

OTTON LJ:

I agree.

SIR ROGER PARKER:

I also agree.

DISPOSITION

Appeal allowed case remitted to Secretary of State

Solicitors:

Treasury Solicitor; Wallace Bogan & Co, London, E3

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