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Post flight spouses of refugees
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Some tremendously good news for many refugees: in the new case of FH (Post-flight spouses) Iran [2010] UKUT 275 (IAC) the tribunal has found that Article 8 appeals by the spouses of refugees who married the refugee after the refugee left the country of origin should normally be allowed. Ever since refugees started being granted only five years leave to remain rather than ILR back in August 2005, this has been a real problem for some refugees. After all, why should a businessman or work permit holder with limited leave have the right to bring a spouse to the UK but a refugee should not?
See paragraph 25:
Unless there is some justification, of which we have not been made aware, of the Rules’ treatment of post-flight spouses, we think that the Secretary of State ought to give urgent attention to amending the Rules, by extending either paragraph 281 or, (perhaps preferably) paragraph 194, so as to extend to the spouses of those with limited leave to remain as refugees. In the mean time, it seems to us that although a decision based on Article 8 does have to be an individual one in each case, it is most unlikely that the Secretary of State or an Entry Clearance Officer will be able to establish that it is proportionate to exclude from the United Kingdom the post-flight spouse of a refugee where the applicant meets all the requirements of paragraph 281 save that relating to settlement.
It is unusual for the tribunal explicitly to go beyond the facts of the particular case, so the panel (which included Lord Justice Sedley) must have felt quite strongly about the issue and clearly wanted to give a strong steer to Immigration Judges.
This is one of several very interesting cases that have just emerged from the shadowy reporting committee of the Upper Tribunal Immigration and Asylum Chamber.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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8 Responses
Wow – apart from EC38, I can’t recall the last “pro marriage” change (or proposed change) to immigrations rules. Was there one under Labour?
FM
Are you able to expand on your “Shadowy” nature of the Tribunal upper tier comment? Is the replacement to the AIT better and more open, or not?
I’ve read quite a few immigration-related determinations for my own case and whenever I find something humane or just plain logical, it turns out LJ Sedley signed under it…
Let’s buy the man a beer!
I think it is remarkable that it has taken 5 years (first lot of non-ILR refugees were granted staus August 2005) for the Tribunal to report on this issue. What have we been saying in the meantime?
Pretty much what Sedley suggests above – ‘If all aspects of 281 are considered to be met, save for the requirement to be present and settled, then I am unable to point to a legitimate aim in this decision to refuse entry clearance, and accept that the appeal falls to be allowed on an article 8 basis, Sir/Ma’am’.
Has any PO really ever said otherwise?
I agree, it has taken a very long time – far too long. You would be surprised at what some of your colleagues argue. I suppose you don’t see others in action very often. Just the same as I don’t see that many Appellants reps in action, as I’m not really a hearing room lurker.
whats the reply from the home office for this? any policy changes?
for the Afgan case still the UKBA didnt change any police
they review this policy for years and years!!! many of the refugees are effected.
The way forward is now to make an application and, when it is refused, lodge an appeal or, if there is no right of appeal, an application for judicial review. Either challenge will eventually be successful. This looks like it will become another example of UKBA being kind to the immigration lawyers – rather than incorporating a proper change into the rules and making it easy and relatively cheap to make an application, they will force people to go to lawyers to win their cases the hard way.
one of my friends appeal was dismissed in the first level tribunal, then the reconciliation was dismissed and now appeal is in the upper tribunal for permission.
looks like he will get ILR before he gets a reply from tribunals!
I recently made an application for my husband who is a post flight spouse, however his application was refused by the UKBA due to article 281 (i) not being met, as the stated that your wife currently has limited leave. I made an appeal sighting recently determination in Upper Tribunal. This has left me stressed and worried if ever I will be reunited with my husband. First tribunal have sent an acknowledgement letter stating they have sent my appeal to country of application. Please advice on what my chances are of getting a positive response.