Abdi v Secretary of State for the Home Department [1995] EWCA Civ 27

Somali refugee Mrs Abdi sought entry clearance for her orphaned nieces and nephews under the Somali family reunion policy. The Home Secretary refused, not being satisfied they were her dependants. The Court of Appeal held the decision was not in accordance with law as it was based on a factual misapprehension regarding dependency, and remitted the case for reconsideration.

Facts

Mrs Dhudi Saleban Abdi, a Somali citizen, was granted refugee status in the United Kingdom in October 1989. She applied for entry clearance for the respondents, who were the orphan children of her deceased brother (her nieces and nephews), to join her under the Somali family reunion policy. The Home Office had published a concessionary policy in a letter dated 17 May 1990 stating that whilst spouses and minor children of refugees would be admitted, the Home Office would ‘consider exceptionally extending the refugee family reunion provision’ to cover other dependent members of the refugee’s immediate family unit.

The Entry Clearance Officer refused the application on 3 August 1992 on the basis that Mrs Abdi was not settled in the United Kingdom and that the Home Secretary found no grounds to issue visas exceptionally outside the immigration rules. The adjudicator found that Mrs Abdi was the de facto head of her household and that all respondents were dependent on her.

Issues

Primary Legal Issues

1. Whether paragraph 21 of HC 251 (the immigration rules) incorporated the principle of family unity from the 1951 Refugee Convention, thereby making the family reunion policy part of the immigration rules.

2. Whether the adjudicator and Tribunal had jurisdiction to review the Home Secretary’s exercise of discretion outside the immigration rules.

3. Whether the Home Secretary’s decision was ‘not in accordance with the law’ within section 19(1)(a)(i) of the Immigration Act 1971.

Judgment

Peter Gibson LJ, delivering the lead judgment, held that the Immigration Appeal Tribunal had erred in following its earlier decision in Ali. The Court found that paragraph 21 of HC 251 did not incorporate the family unity principle into the immigration rules because:

“there is no provision in the Convention or Protocol about family unity and so the Home Secretary is not constrained when taking decisions under the immigration rules. Nor is there any obligation under the Convention or the Protocol relating to family unity.”

The Court further held that the Home Office policy published in the letter of 17 May 1990 was not part of the immigration rules as it had not been laid before Parliament pursuant to section 3(2) of the Immigration Act 1971. The Court stated:

“The policy which has not been laid before Parliament pursuant to section 3(2) is not part of the immigration rules.”

However, the Court accepted, following Lord Bridge’s obiter remarks in R v Immigration Appeal Tribunal ex parte Bakhtaur Singh, that a decision could be ‘not in accordance with the law’ if the Home Secretary failed to act in accordance with established principles of administrative law, including failing to give effect to his own published policy.

The Court found that the Home Secretary had proceeded on a misapprehension of material facts regarding the respondents’ dependency on Mrs Abdi:

“the Home Secretary in considering the application of the policy published in the letter of 17 May 1990 proceeded on a misapprehension of the material facts and in particular of the fact of dependency which was crucial to the applicability of the final sentence of paragraph 8.1.1. I therefore agree with the adjudicator and the Tribunal that in consequence the Home Secretary did not properly take the policy into account and so did not give effect to it. That was an error which made his decision not in accordance with the law.”

Implications

This case established important principles regarding the relationship between immigration rules, extra-statutory Home Office policies, and the scope of appellate review. It confirmed that concessionary policies outside the immigration rules do not create enforceable rights equivalent to the rules themselves, but that failure to properly apply such policies when exercising discretion can render a decision ‘not in accordance with the law’. The case also clarified that the 1951 Refugee Convention’s family unity principle, being merely a recommendation rather than an obligation, does not form part of UK immigration rules through paragraph 21 of HC 251.

Verdict: Appeal allowed; case remitted to the Secretary of State for reconsideration of the application in light of the true facts regarding the respondents’ dependency on Mrs Abdi.

Source: Abdi v Secretary of State for the Home Department [1995] EWCA Civ 27