UK - Supreme Court, 12 May 2010, ZN (Afghanistan) (FC) and Others (Appellants) v. Entry Clearance Officer (Karachi) (Respondent) and one other action, [2010] UKSC 21

Facts:

The applicants were the wife and the six children of a man who fled Afghanistan in 1999. He was subsequently recognised as a refugee in 2001 and became a British national in 2005. He had previously unsuccessfully tried to bring his family to the UK and shortly after he was granted UK citizenship, the family applied to join him on the basis of being the spouse and children of a person granted asylum.

The application was considered and refused under the rules relating to entry of the family of people settled in the UK, which included requirements to show that there was suitable accommodation and maintenance. The applicants appealed on the basis that they should have been considered under the rules providing for family reunion for refugees. They also claimed that refusal of permission to enter the UK would breach their Art 8 rights of the European Convention on Human Rights (ECHR).

The applicants appealed to a first tier immigration tribunal and their appeal was dismissed. Their application to the next tier of the immigration tribunal was also dismissed but they were granted permission to appeal to the Court of Appeal. The Court of Appeal dismissed the appeal both on the question of the interpretation of the Immigration Rules and on Art 8 ECHR. Before the matter was heard by the Supreme Court the United Kingdom Border Agency finally conceded the Art 8 ECHR point and granted the applicants three years discretionary leave to enter without any restrictions on employment or recourse to public funds.

Decision & reasoning:

The Supreme Court allowed the applicants’ appeal. The matter turned on the construction of the paragraphs of the Immigration Rules which permitted family reunion for refugees. The Court referring to its own judgements held that construction of rules, designed to implement policy was a more flexible exercise than interpretation of a statute or statutory instrument and they permitted themselves the freedom to consider the intentions of the Secretary of State.

The Supreme Court, taking a broader view, rejected the Court of Appeal’s construction and held that to fall within the provisions of the asylum rules, the sponsor must have been granted asylum. "The fact British Citizenship has been granted to the spouse or parent does not change the fact that the spouse or parent is a person granted asylum or a person who has been granted asylum."

Outcome:

Appeals allowed.

Observations/comments:

Since the decision was said to be based simply on the construction of the Immigration Rules, there was no more than a passing reference to the Qualification Directive and the Procedures Directive.

The reference to the Final Act of the Conference that adopted the Refugee Convention and to the UNHCR Handbook (Chapter VI, entitled “The Principle of Family Unity”) came in submissions from the Applicants and was not taken further in the judgment.