Sahara Mohammed Darbiye v. Entry Clearance Officer, Nairobi

SAHARA MOHAMMED DARBIYE
(Appellant)
v
ENTRY CLEARANCE OFFICER, NAIROBI
(Respondent)

23 October 1997

Court of Appeal: Sir Stephen Brown P
Peter Gibson LJ, Sir Roger Parker

Somali family reunion policy-application for entry clearance as dependant of sponsor-no suggestion in application or interview that appellant sought entry as a refugee-whether on appeal adjudicator had jurisdiction to refer case back to Secretary of State to determine if applicant entitled to admission as a refugee under the Somali family reunion policy-the limits to the jurisdiction of the appellate authorities. Immigration Act 1971 s. 19.

The appellant was a citizen of Somalia. She applied for entry clearance in Nairobi to join her brother who was in the United Kingdom with exceptional leave, as his dependant. Her application was considered both under the immigration rules and under the provisions of the Somali family reunion policy. The application was refused. On appeal to an adjudicator he allowed the appeal, concluding that the Secretary of State had not applied the policy in relation to the claim of the appellant to be a refugee. On appeal the Tribunal, with the benefit of the Court of Appeal judgments in Hersi, allowed the appeal of the Entry Clearance Officer. It held inter alia that the appellant had applied as a dependent relative and not as a refugee: it followed that the adjudicator had erred in considering whether she came within the provisions of the policy in that regard.

Before the court counsel argued that it was not necessary, on the wording of the policy, for an applicant seeking family reunion, specifically to claim to be a refugee before that part of the policy relating to refugees were brought into play.

Held:

1. The appellate authorities should not stray beyond the issues raised by the application which was the subject of the appeal, ex parte Uddin followed.

2. The application had been made as a dependent relative. There was no suggestion in the course of the application that the appellant was claiming to be a refugee.

3. The Tribunal had been correct in its approach and conclusions.

H Southey for the appellant

S Kovats for the respondent

Cases referred to in the judgments:

R v Immigration Appeal Tribunal ex parte El Hassanin [1986] Imm AR 148.

Hawa Bibi Uddin v Immigration Appeal Tribunal [1991] Imm AR 134.

Secretary of State for the Home Department v Dhudi Abdi [1996] Imm AR 148.

Halimo Hersi and ors v Secretary of State for the Home Department [1996] Imm AR 569.

THE PRESIDENT: I will ask Peter Gibson LJ to give the first judgment.

PETER GIBSON LJ: The civil war in Somalia caused many Somalis to leave their country. Many sought to escape to the United Kingdom. There was and is a requirement of the immigration rules that foreign nationals who need United Kingdom visas for entry into this country should apply to a British diplomatic post overseas. But it was recognised by the Home Secretary that many of those displaced by the war in Somalia would have difficulty in getting to such a post. The Crown retains prerogative power to grant leave to enter outside the immigration rules (see section 33(5) of the Immigration Act 1971) and special arrangements were made for Somalis. A United Kingdom sponsor, that is to say a Somali already in the United Kingdom who wanted relatives and dependants to join him, was able to seek a provisional view from the Home Office in advance of a formal application being made by relatives and dependants.

On 17 May 1990, by a letter that was widely promulgated, the Home Secretary set out his policy ("the policy") on Somali family reunion applications, that being the heading to the letter. It was stated in paragraph 8 that applicants might qualify to come here as falling within any of three categories. The first (in paragraph 8.1) was as a member of the immediate family of the sponsor provided that the sponsor had been recognised as a refugee here under the terms of the 1951 United Nations Convention relating to the status of refugees. The definition of refugee for the purposes of the Convention is contained in article IA as amended by protocol. A refugee is any person who

"... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his formal habitual residence, is unable, or owing to such fear is unwilling, to return to it."

The second category (and that is stated in paragraph 8.2) is as a dependant of the sponsor under the ordinary immigration rules. The sponsor must be settled in the United Kingdom and must be able to maintain and accommodate the relatives concerned without recourse to public funds.

The third category is set out in paragraph 8.3 of the policy. This category is of refugees for whom the United Kingdom is the most appropriate country of refuge. It is stated that the provision is to be capable of applying only to those who do not come within the first two categories, but have stronger ties with this country than anywhere else, and who also come within the definition of "a refugee" set out in the Convention. It was stated in paragraph 8.3.2 that normally it would be expected that such applications would be put to the Home Office through the United Nations High Commission for Refugees and that in other cases it would usually be necessary for the applicant to be interviewed so that there could be an assessment of the applicant's eligibility for refugee status and of the applicant's ties with this country.

In addition to those three categories it was stated in paragraph 8.4 that exceptionally other applicants might be permitted entry if there were particularly strong compassionate circumstances but that, where the applicant asked the Home Secretary to waive more than one of the requirements in the immigration rules, the application would be likely to fail.

Although the policy was terminated on 29 February 1996, those who applied before then in reliance on the policy can continue to take advantage of its terms. There has been a series of cases in which the policy has been considered and this case is but the latest in that series.

It is an appeal brought with the leave of Simon Brown LJ by Sahara Mohammed Darbiye ("the appellant") from the order of the Immigration Appeal Tribunal on 3 December 1996. The Tribunal allowed an appeal by the entry clearance officer in Nairobi from the decision on 14 May 1996 of the adjudicator who had allowed the appellant's appeal from the entry clearance officer's refusal on 28 September 1994 of entry clearance to her.

The factual background can be summarised in this way. The appellant is a Somali national born in 1975. As the adjudicator found, the appellant, together with her brother, Musa, and other members of the family, including their parents, were all living together as a family in northern Somalia before the civil war started in 1989. They then went to Mogadishu, still together, where their only source of income was whatever Musa could get selling on the street. Musa then left for Kenya and eventually made his way here. The rest of the family, including the appellant, fled to a camp in Ethiopia. On 23 August 1989 Musa arrived in the United Kingdom and claimed asylum. He then left but returned on 7 October 1990 when he claimed asylum again. He was given leave to enter and remained until 7 October 1991 outside the immigration rules. But on 9 January 1991 his asylum application was refused. Thus he has never had refugee status here. The leave given to him to remain has been twice extended outside the immigration rules We are told that it expired on 7 October of this year but we have not been told what the position is now.

On 14 June 1993 the appellant applied to the British diplomatic post in Nairobi for an entry clearance as the dependant of Musa. She was interviewed by an entry clearance officer on 20 July 1993 and we have been supplied with the notes of that interview. They show that the questions asked of her related to her claimed dependency on Musa and not on whether she could bring herself within the Convention definition of a refugee.

On 28 June 1994 her application was refused. She did not qualify under the immigration rules as a relative of a sponsor settled in the United Kingdom. Musa was not so settled, having only limited leave to remain, and that on an exceptional basis for a limited period. Furthermore, the Home Secretary was not satisfied that she qualified under the immigration rules relating to relatives of persons not settled in the United Kingdom, nor were there any compassionate circumstances justifying an exceptional grant of entry clearance outside the immigration rules. The entry clearance officer was therefore instructed to refuse the application, which he did on 28 September 1994.

On 12 October 1994 the appellant appealed to an adjudicator. The sole ground alleged in her notice of appeal, which was prepared by solicitors on her behalf, was that she was dependent upon Musa. The adjudicator allowed the appeal on the ground that the policy had not been considered. It looks as though the adjudicator thought that paragraph 8.1 of the policy was applicable. But he expressed his decision to be subject to any contrary decision in the case of Hersi v Secretary of State for the Home Department then on appeal to this court from the Tribunal. That case, which is now reported ([1996] Imm. AR 569) involved appellants who were relatives of two Somali sponsors. The sponsors had been granted exceptional leave to remain in the United Kingdom but did not have refugee status. The relatives were refused entry clearance and the adjudicator and the Tribunal refused their appeals; so did this court. The relatives did not qualify under the immigration rules and the Home Secretary refused to depart from them. The Tribunal concluded that it had no jurisdiction to consider the application by the Home Secretary of the policy.

On the appeal to this court it was argued that the appellate authorities, that is to say the adjudicator and the Tribunal, did have jurisdiction to consider the facts and decide whether the Secretary of State had applied the policy. The appeal was dismissed because the relatives could not bring themselves within the policy. They were not within either of the first two categories of persons who might qualify under the policy, and the refusal by the Home Secretary to depart from the immigration rules could not be challenged. It was, however, argued that it was open to the appellate authorities to reconsider the refusal of the Home Secretary to grant refugee status under paragraph 8.3. But this court considered that there were two short answers to this point. First, the argument had not been raised before either of the appellate authorities and, second, the procedure, which is said in paragraph 8.3.2 to be usually necessary, of requiring an applicant to be interviewed to assess eligibility for refugee status and ties with the United Kingdom, had not been complied with.

The appeal by the entry clearance officer in the present case from the decision of the adjudicator was heard by the Tribunal after the decision by this court in Hersi had been given. The Tribunal noted that it was common ground that, at the date of the decision of the entry clearance officer, the sponsor was not settled in the United Kingdom and that the appellant in any event had been unable to meet a number of other requirements of the immigration rules. Her case therefore could not succeed under those rules. The only issue argued before the Tribunal was whether the appellant could succeed under the terms of the policy. The Tribunal said that the appellant could not bring herself within the terms of paragraph 8.1 and that was decided in the Hersi case. She did not fall within the terms of paragraph 8.2, nor within the terms of paragraph 8.4. However, the Tribunal said this about paragraph 8.3 of the policy:

"... we note that the [appellant] had applied for entry clearance as a dependant of her brother, and not as a refugee. In the circumstances, it is our view that it was not open to the adjudicator to consider whether the [appellant] came within the terms of paragraph 8.3."

Accordingly the Tribunal allowed the appeal.

Before this court counsel for the appellant accepts that paragraphs 8.1, 8.2 and 8.4 of the policy cannot be relied on but he does rely again on paragraph 8.3. He referred us to the decision of this court in Secretary of State for the Home Department v Abdi [1996] Imm AR 148 and submits that the appellate authorities had jurisdiction to consider whether the Home Secretary had properly taken account of the policy. Counsel for the Home Secretary is content before us to assume for the purposes of this appeal that that is correct. It is pointed out by counsel for the appellant that paragraph 8.3 does not in terms require the sponsor to have refugee status. He submits that the policy read as a whole does not require an applicant taking advantage of the policy to apply for entry as a refugee: it is sufficient that the applicant merely applies for family reunion. He says that the reasons for the refusal of entry, which are set out in the explanatory statement of the Home Office, make no reference to the policy and he says that, because the possibility that the applicant might have been entitled to admission under paragraph 8.3 has not been explored, the case should be remitted to the Home Secretary for fresh consideration.

In arguing that it is sufficient for an applicant merely to make an application for family reunion, counsel for the appellant places reliance on the heading of the letter of 17 May 1990. In paragraph 9 of the policy it is stated:

"In submitting applications it would be helpful to us if it could be made clear under which of the three categories outlined above the application is being made."

It is suggested that the wording "it would be helpful" shows that it is not necessary to make the application expressly as a refugee.

For my part, I am unable to accept these submissions. The function of the adjudicator is to allow or dismiss the appeal from the entry clearance officer in accordance with section 19 of the Immigration Act 1971. This provides, so far as material:

"1.... an adjudicator on an appeal to him under this part [that is sections 12 to 23] 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 l(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 appellate authorities are confined to considering evidence which existed at the time of the decision under appeal: see R v Immigration Appeal Tribunal ex parte El Hassanin [1986] 1 Imm AR 502. The appellate authorities should not stray beyond the issues raised by the application which is the subject of the appeal: see Uddin v Immigration Appeal Tribunal [1991] Imm AR 134 and especially pages 144 and 145.

In the present case the basis on which the appellant applied for entry clearance was as a dependant of Musa and it was on that basis that the entry clearance officer refused her application. She did not apply as a refugee and there is nothing in what she put before the entry clearance officer to suggest that she ever considered herself to be a refugee. True it is that she was interviewed by the entry clearance officer and that is a factual distinction from the Hersi case. But, as I have already indicated, that interview was to establish whether or not she was a dependant of Musa and not to establish that she was a refugee. Had she suggested anything to indicate that she did qualify as a refugee within the Convention meaning, I have no doubt but that the entry clearance officer would have asked her different questions.

It seems to me, therefore, that the factual distinction from the Hersi case is not in fact a true distinction and that the position on that point is precisely the same as that in the Hersi case. In my judgment, the policy when fairly read as a whole does not suggest that it is sufficient for an applicant merely to apply for family reunion without giving some factual basis on which it could be seen that the applicant had a valid claim to be considered as qualifying for entry under one of the headings in paragraph 8. That only stands to reason. It would otherwise require entry clearance officers to spend a great deal of time in considering whether each and every category set out in the policy was appropriate to the applicant concerned, notwithstanding that the applicant had himself indicated one, and only one, category as being appropriate to his circumstances.

There are simply no facts on which it could be said that there was even the possibility that the appellant in the present case might be held to be a refugee within the Convention. Indeed, it seems to me that, in seeking a remission to the Secretary of State to find further facts, the appellant is in effect acknowledging that that is the position.

In my judgment there was no error in the Tribunal's approach and, therefore, for my pan, I would dismiss this appeal.

SIR ROGER PARKER: I agree and have nothing to add.

THE PRESIDENT: I agree.

Appeal dismissed

Solicitors: Jane Coker & Partners, London, N15; Treasury Solicitor