Wed, 18 Dec 2013
The Supreme Court has today strongly indicated to the Home Secretary in its judgment in AA (Somalia) v Secretary of State for the Home Department  UKSC 81 that she should amend the immigration rules concerning family reunion of children with refugees in the United Kingdom.
The Court held that it could not itself re-write the rules to achieve a fair result and so had to dismiss the appeal. But Lord Carnwath, in giving the judgment of the Court, said:
“In the interests of both applicants and those administering the system, it seems much preferable that the rules should be amended to bring them into line with the practice actually operated by the Secretary of State, including that dictated by her obligations under international law.”
The case concerned an application by a child for entry clearance to come to the UK to join her de facto ‘adoptive’ parents, one of whom was a recognised refugee. Rule 352D of the Immigration Rules provide for the ‘pre-flight’ children of refugees, who formed part of the refugee’s family unit in the home country, to come and join the refugee in the UK. But that beneficial rule is so framed that it is subject to other rules. The effect of those other rules is that children who may have been adopted in a de facto sense and treated as the children of the refugee in all material respects, can only qualify under the rule where the refugee has spent a period of 18 months living in the child’s country immediately prior to the application for entry clearance (and has cared for the child for 12 of those months). This residence requirement, which appears in rule 309A, may be capable of being achieved in other foreign de facto adoption cases; but it plainly cannot be achieved in refugee cases as it will mean that the refugee will have to go back to the country in respect of which he has been granted asylum. This is plainly unrealistic and can give rise to further dangers for the refugee. A refugee is only a refugee when he is outside the country of persecution and thus return to his country will mean that he will lose his refugee status, as well as being difficult in practice to achieve.
This was the factual problem which faced AA and her de facto ‘adoptive’ parents. She had lost her biological parents in the war in Somalia, a failed state. She had been taken in by her sister’s husband who had treated her just like his own daughters. Formal adoption in the British sense could not be obtained as Islamic law does not have such a status, although it has the concept of kafala which, in all respects that are material for present purposes, is akin to adoption. Moreover, there were no functioning administrative authorities or judicial structures in Somalia to which AA’s adoptive father could have turned. Whilst his wife and then he were able to come to the UK, and their two biological daughters were also later able to obtain entry clearance, AA was refused entry. She appealed to the First tier Tribunal where she relied on expert evidence from Dr Prakash Shah of Queen Mary, University of London and the late Dr Virginia Luling. The FTT accepted there had been a ‘genuine transfer of parental responsibility’ and allowed the appeal under both the Immigration Rules and under Article 8 of the European Convention on Human Rights.
The Secretary of State’s appeal to the Upper Tribunal succeeded under the Immigration Rules but failed on Article 8. The matter proceeded to the Court of Appeal as AA wished to also succeed under the Immigration Rules because it carried additional advantages for her status in the UK. However, the Court of Appeal, followed by the Supreme Court, held that it was not possible to interpret the Rules to ensure that the residence requirement in Rule 309A did not apply to Rule 352D.
Lord Carnwath held:
“I would accept that the requirements of paragraph 309A (b)(i) and (ii) seem ill-adapted to the purposes of paragraph 352D. They assume a degree of stability in the home country which is likely to be wholly inappropriate to those like AA seeking refuge from war-torn Somalia, and indeed for most asylum-seekers. Mr Eadie did not argue otherwise, although he suggested some theoretical scenarios in which the requirements might be achievable. As appears from its introduction the definition seems to have been designed principally to deal with ordinary applications to enter by adopted children, covered by the immediately following paragraphs. It finds its way into paragraph 352D by a somewhat circuitous route, which suggests that careful thought may not have been given to its practical implications. If there were any way in which we could legitimately rewrite the rule to produce a fairer result, I could see a persuasive case for doing so. Unfortunately I do not think this possible.”
Paragraph 309A was never designed to deal with asylum cases and yet the way in which the Rules are drafted leads to the anomalous result that it does apply to them, making it impossible for some of the children of refugees to come within the protection of Rule 352D. This includes children who are in parent-child relationships under kafala, or children who come from countries where there is no functioning state. Such children suffer a discrimination under Article 14 of the ECHR, as against other categories of children such as biological children or children adopted via procedures recognised in the UK.
The Court importantly highlighted at paragraph 24 that such discrimination exists after as well as before entry. This suggests that, if the Secretary of State refuses to take another look at the rules, there may well be future litigation by children who are in a similar position to AA. This is because children who are admitted to the UK under the Rules are entitled to leave to enter and to reside in the UK in line with their sponsor (the refugee-parent), whereas those who are admitted under Article 8 get only discretionary leave to remain (DLR). Lord Carnwath said:
“In exercising any discretion in relation to the grant or extension of DLR, the Secretary of State is obliged to act in conformity with the Convention, including article 14. It is not necessary to reinterpret the rules to achieve that result.”
The Court also expressed clear unease with the line of defence of the rules put forward by the Secretary of State, namely that Article 8 provides an adequate remedy. Lord Carnwath said:
“As I have made clear, I see great force in Mr Gill’s criticisms of the use of the paragraph 309A definition in the context of a rule which is concerned with the treatment of refugees and their dependants. Mr Eadie’s only answer, as I understood him, was that clear definitions were needed to establish “bright lines”. That answer loses most of its force if the bright lines are drawn so restrictively that they have in practice to be supplemented by the much fuzzier lines drawn by article 8.”
The court has thus indicated that the Secretary of State should re-draft the immigration rules to make them Article 8 compliant and to cater for de facto 'adopted' children such as AA within the Rules. As for AA herself, she thankfully was belatedly granted indefinite leave to enter the UK after the Court of Appeal’s decision.
Manjit Singh Gill QC and S. Chelvan, of No5 Chambers, appeared for the Appellant, instructed by Derek McConnell and Marie-Christine Allaire-Rousse of South West Law (Bristol).