Post flight spouse

By On 16 September 2009 · 7 Comments · In Cases, Tribunal overturned again

Since 2005, refugees have been granted five years of limited leave, at the end of which they are eligible to apply for settlement, or ILR. Before 2005, they were granted settlement straight away, on the grounds that this policy promoted integration.

One of the consequences of this change is that refugees with limited leave are unable to sponsor a new spouse or other family members under the main immigration rules (rules 281, 297, 317 and so forth). There is provision for admission of a pre-existing spouse or child (i.e. a spouse to whom the refugee was married or a child born before the sponsor fled to the UK) but this cannot be used for a new, post flight spouse.

Whether this was an unintended or deliberate consequence is not entirely clear. However, being as the 2005 White Paper that preceded the change ranted on about the evils of ‘chain migration’ (the words of the Government, not my words) it would not be entirely surprising it this was deliberate.

In the recent case of A (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 825 the Court of Appeal were faced with an appeal by the new, post flight wife of a refugee who was seeking admission but had been refused. The judgments record a catalogue of appalling failures by either or both Treasury Solicitors and UKBA in dealing with the issues raised by the case and complying with directions; ultimately this cost them the case, which they lost solely for this reason. This should certainly happen more often in the Asylum and Immigration Tribunal, but immigration judges who have followed this course in the past have been firmly trodden on by their senior colleagues, who rather miss the broader point and find that the interests of justice are not served if the Home Office are punished for non compliance. One might have thought the reverse were actually true – the Court of Appeal certainly seem to think so.

I digress. Human rights were certainly engaged, the Court found, and therefore UKBA had to explain how and why the interference was necessary in a democratic society, the fourth of Lord Bingham’s famous five questions from Razgar. UKBA had completely failed to put forward any justification at all (and the tribunal had failed to identify any justification, but had dismissed the appeal anyway!). The appeal was therefore allowed.

However, this will not be the end of the story. Very late in the day, UKBA did put forward a justification. The Court does not record what it was, only that it was put forward too late to be considered in this particular case. We can therefore expect these arguments to crop up again. I’ve got a couple of outstanding cases raising these issues, so I’ll be very interested to see what reasons the Home Office has cooked up.

 
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7 Responses to Post flight spouse

  1. Mr T says:
    17 September 2009 at 7:35 am

    FM

    During your holiday this story popped up:
    http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2009/august/pbs-partner-age?area=Working

    Given the high profile change of the spousal visa age increase from 18 to 21, it seems strange that todays topic involves refugees having less ability than UK nationals to bring in spouses, but PBS immigrants have more ability to do so.

    Normally refugees are given preferential treatment, but more disturbing is the divergence and lack of consistency across these new immigration laws.

    I worry that this lack of consistency will have negative effects on the UK.

  2. Mr E says:
    17 September 2009 at 10:55 am

    HUH? (re: Mr T’s article)

    Ok I really have no idea what they think they are doing, this completely destroys the proportionality arguement for an age limit of 21.

    Someone is going to have fun with this in the Higher Courts, another Chickwamba is on its way.

    • Mr T says:
      19 September 2009 at 1:00 pm

      Mr E

      Hope you are being genuine here.

      I have, as well as FM, thought cases where the HO have breached rules/protocol/procedure where the applicant has not, should be allowed by the Appeal Judge on that basis alone. I think it would act as a mechanism for promoting improvement in our immigration system. Also requiring respect for these laws on both sides will stop bringing the system into disrepute, as it sadly has with me. What do you think?

    • Mr E says:
      19 September 2009 at 6:12 pm

      I think that we need a system where there are cost orders used when the courts time is wasted by failing to follow procedures/directions.

      In the UKBA’s case the PO could indicate the unit who are responsible for the failure and the fine is taken out of that units budget.

      Maybe then the units and individuals involved would become a bit more efficient.

      The problem with allowing the case because of a failure on the HO side is that for justice to be served the same would have to apply to appellant as well.

      I think you would find a lot of judges who feel that the use of costs orders would be a good way to make the system more robust

  3. Haris says:
    26 September 2009 at 10:07 pm

    Hi,

    I have refugee status (post 2005 = limited leave). I did not know that my post-flight wife will not be able to benefit from para. 281. Her application was refused in Islamabad on maintenance grounds.

    We proceeded to Court and the presenting officer conceded to it. The judge almost allowed it, but the presenting officer said “i am not sure, but i think refugees with limited leave can not sponsor their spouses. Now, because I am not sure, I am not going to pursue this point and leave to you (the judge) to decide.” The presenting officer also suggested that an alternative will be article 8.

    Presenting officer did not object to article 8. Even at that point, I thought the presenting officer was wrong to say that refugees with limited leave can not sponsor their spouses. Therefore I did not make any submissions in relation to article 8.

    As soon as I returned from Court, I talked to a colleague of mine whos is a barrister and works in Immigration. He explained to me what the problem was and I immediately faxed a copy of A Afghanistan to the Immigration Judge and asked him to take it into account while making the determination.

    The judge’s name is Dr. Satvinder Juss and he is a professor and human rights expert at King’s College London. Given his expertise in Human Rights, I am hoping that he will now allow my wife’s appeal on article 8 grounds. Without this, it will be a serious problem. My wife illegally lives in Pakistan, because she is an Afghan national nor do I have any status in Pakistan. This means we can’t live there. Furthermore, he should take note of the fact that I have had to leave my job and my family before. I have now started a new life and I am in the 2nd year of LLB law degree course.

    I really hope that Dr. Juss will take this into account.

    Any ideas, please let me know. I am really worried, because I have no answer for my wife if her appeal is dismissed.

    Thanks

  4. Haris says:
    26 September 2009 at 10:11 pm

    I forgot to say. Neither the ECO nor the entry clearance manager on appeal review ever objected to the fact that I had limited leave. It was only the presenting officer who at the end of the hearing raised it, but he said that he was not sure about it so did not make any submissions about it.

  5. Haris says:
    8 October 2009 at 9:17 am

    Hi,

    I posted some comments some days ago regarding my wife’s application being refused. I have refugee status with limited leave to remain. The AIT allowed our appeal under Article 8 on 6/Oct. I hope that the ECO will not appeal against it, because they did not object to Article 8 during the hearing.

    Regards,