This website uses cookies

This website uses cookies to ensure you get the best experience. By using our website, you agree to our Privacy Policy

Jean-Yves Gilg

Editor, Solicitors Journal

Update: immigration

Update: immigration


Jane Coker reviews the latest cases on family reunion, right to family life, the UN's refugee convention, students, and the recognition of Muslim divorces

Family reunion/children

YS & YY(Ethiopia) [2008] UKAIT 93 held when considering paragraph 352D of the Immigration Rules '“ the requirements to be met by a child seeking to join a parent 'who has been granted asylum in the UK' (352D(i)) - that the words should be given their ordinary meaning and that 'clearly led to the conclusion that it applies to a parent who has been granted asylum and makes no qualification as to any need for that status to be current at the date of application of the child to join the parent in the UK'(paragraph 31). A week later DL (DRC) & ZN (Afghanistan) [2008] EWCA Civ 1420 was handed down and Laws LJ confirmed that interpretation of the Rules precluded a purposive approach. He however held that the ordinary meaning of the words used in Paragraph 352D of the Rules meant that the sponsoring parent had to be a refugee at the date of application and decision.

The current position therefore is that an application for family reunion for refugee families will not succeed if the sponsor has acquired a citizenship which enables him or her to obtain protection.

Article 15c EU's Qualification Directive (2004/83)

The European Court of Justice gave its first judgment on Article 15c of the Qualification Directive in case C-465/07 Elgafaji on 17 February 2009. The case considered the definition of serious harm, which includes under Article 15(c): 'serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict'.

Iraq and Afghanistan being subject to internal armed conflict (KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023, GS (Existence of internal armed conflict) Afghanistan CG [2009] UKAIT 00010), the latter section of the criteria in Article15c is fulfilled. The court held:

  • the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances:
  • the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place '“ assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a member state to which a decision refusing such an application is referred '“ reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country, or as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.

'Indiscriminate violence' was not specifically defined but at paragraph 34 the ECJ said it was 'a term which implies that it may extend to people irrespective of their personal circumstances.'

The ECJ then described the situation in which such violence may occur as 'an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.' More than internal armed conflict must be shown to succeed.

The judgment does not refer to the Refugee Convention but considers Article 15c in the context of the ECHR, stating that it has a different content to Article 3. This indicates a 'new' ground which may enable individuals who do not qualify under the Refugee Convention or Article 3 to still obtain protection.

Article 8

VW (Uganda) v SSHD; AB(Somalia) v SSHD [2009] EWCA Civ 5 considered the correct approach to Article 8 for both entry clearance appeals and removals. It finally puts to rest the reliance on paragraph 55 of R (on the application of Mahmood) v Secretary of State for the Home Department [2001] INLR 1 requiring insurmountable obstacles to be shown before removal would be disproportionate. The issue is not whether the proposed interference is proportionate to the legitimate aims of the respondent; it is whether the removal of the appellant notwithstanding its effects on her and others was proportionate to the legitimate aims of immigration control. If a removal is to be held to be disproportionate 'what must be shown is more than a mere hardship or a mere difficulty or mere obstacle. There is a seriousness test which requires the obstacle or difficulties to go beyond matters of choice or inconvenience'¦ The question in any one case will be whether the hardship consequent upon removal will go far enough beyond this baseline to make removal a disproportionate use of lawful immigration controls' (paragraph 31). In an entry clearance appeal the appropriate question to be asked is not whether it is reasonable to expect the sponsor to rejoin his or her family rather than bring them to the UK to join him but rather would that course involve no more than a degree of hardship (paragraph 44).

Exclusion from international protection '“ Article 1F Refugee Convention

Al-Sirri v SSHD [2009] EWCA Civ 222 considered Article 1F (c) '“ 'guilty of acts contrary to the purposes and principles of the UN.' It was accepted that it is for the Secretary of State for the Home Department to establish that the exclusion provisions apply. The phrase 'serious reasons for considering' does not require a criminal standard of proof but is more than 'mere suspicion'. Sedley LJ said the words should be 'treated as meaning what it says' (paragraph 33). At paragraph 29 Sedley LJ held the meaning of Art 1F(c) as set out in s.54 of Immigration, Asylum and Nationality Act 2006 (paragraph 29) as including various 'terrorist'-type acts as defined by s.1 of the Terrorism Act 2000 had to be read consistently with Article 12 of the Qualification Directive and in particular, by virtue of Article 12(2(c) that entailed reference to the 'Preambles and Articles 1 and 2' of the UN Charter in determining the 'purposes and principles' of the UN. Although in this case the 'terrorist acts' predated the coming into force of the 2006 Act, s54 could still be applied. At paragraph 31 Sedley LJ considered that a working definition of terrorism was 'the use for political ends of fear induced by violence'.

MH (SYRIA) v SSHD: DS (AFGHAN-ISTAN) v SSHD [2009] EWCA Civ 226 considered the principles to be applied in considering whether an individual who has been involved with or a member of a group which is committed to armed struggle or utilises violence as a means of achieving its political ends is excluded from the protection of the Refugee Convention. It reiterates the principles set out in Gurung (Exclusion '“ risk '“ Maoist) Nepal [2002] UKIAT 04870 namely that there is no accepted international definition of terrorism and Article 1F is not to be equated with a simple anti terrorism clause; mere membership of such a group is not enough; where there is sufficient proof that an asylum seeker belongs to an extremist international terrorist group voluntary membership could be presumed to amount to personal and knowing participation or at least acquiescence amounting to complicity in the crimes in question; it remains essential to establish that the appellant has been a voluntary member who fully understands its aims, methods and activities.

Regard has to be had to s54 Immigration, Asylum and Nationality Act 2006 (paragraph 29). Nurses and other medical personnel enjoy special status and protection under international humanitarian law but that does not take them automatically outside the scope of the exclusion clauses.

It was common ground that there was an evidential burden on the SSHD to establish serious reasons for considering whether DS had committed a crime against humanity or other crime within Article 1F (a).


YS (Paragraph 57(iv): 'external student') India [2009] UKAIT 00015 considered paragraph 57(iv) of HC395 '“ '(iv) if he has been accepted to study externally for a degree at a private education institution, he is also registered as an external student with the UK degree awarding body'.

An external student is defined in paragraph 6 of HC395 as 'a student studying for a degree from a UK degree awarding body without any requirement to attend the UK degree awarding body's premises or a UK Listed Body's premises for lectures and tutorials.' The consequences of this are that a student who intends to study at a private college must be registered as studying for a degree from a UK degree awarding body.


NC (bare talaq - Indian Muslims '“ recognition) Pakistan [2009] UKAIT 00016 is a helpful determination which sets out relevant legislation in determining whether a bare talaq divorce is recognised. The determination concludes:

1. The Muslim Family Laws Ordinance 1961 applies to Muslim divorces in Pakistan (other than the part of Kashmir which is in Pakistan) (Baig v Entry Clearance Officer, Islamabad (Pakistan) [2002] UKIAT 04229);

2. There is no similar restriction on divorce in India, and Indian Muslim husbands may lawfully divorce their wives by bare talaq, as may Pakistani Muslim husbands in that part of Kashmir which is in Pakistan;

3. Such divorces are recognised by the United Kingdom (subject to the rules on domicile and habitual residence therein set out) pursuant to s.46 (2) of the Family Law Act 1986.

SM (Domicile of choice; Scots law) Pakistan [2008] UKAIT 00092 looked at the question of change of domicile and the consequent validity of a marriage, but with specific reference to Scots law in terms of the ensuing validity of a marriage. Paragraph 10 set out the general principle that ''¦it is for the person who seeks to establish that a domicile of origin has been lost and replaced by a domicile of choice to show that'¦the standard of proof is on no issue higher than the balance of probabilities'. The determination goes on to state 'A domicile of choice is acquired by the person deciding that his permanent home, for all purposes, is to be the new one. A person who intends his home to be the new one for certain purposes only does not acquire a new domicile'¦it is important to look at the evidence including all relevant conduct and statements of the person in question, as a whole' (paragraph 16).

Although specific to Scots law the general propositions will be valid for the UK generally.