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Post flight spouse

Post flight spouse

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.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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