Senanayake v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE SEDLEY: This is an appeal from a decision of the Immigration Appeal Tribunal, upholding the dismissal by an adjudicator of Ms Senanayake's appeal against the refusal by the Colombo entry clearance officer of leave to enter the United Kingdom to join her parents and siblings. Her father fled Sri Lanka, arriving here in April 2001, when the applicant was 19 years old, being recognised as a refugee in January 2002. His wife and their younger children were allowed to him join him under the Immigration Rules, but the applicant was not: hence her application for entry clearance.

2. Paragraph 352D of the Immigration Rules provides for the reunion of refugees with their children, but only if they are children under the age of 18. The ECO therefore applied paragraph 317 of the rules, which in its material part provides that a daughter aged over 18 may be allowed to join parents settled in the United Kingdom only if, among other things, she is "living alone outside the United Kingdom in the most exceptional compassionate circumstances". The ECO was not satisfied that this test was met and so refused entry clearance.

3. The adjudicator, Mr James Simpson, in a brief and well reasoned decision held that the ECO had been entitled to reach this conclusion and, independently, that it was the right conclusion on the facts. He accepted that Ms Senanayake's circumstances were, in the words of Rule 317, "compassionate", but not that they could be called "exceptional", much less "most exceptional".

4. On appeal the IAT (Mr Batiste (the Vice President), Mr Smith and Mr Thursby) upheld the adjudicator. In doing so, however, they adopted from M (Croatia)[2004] UKIAT 24* the Wednesbury standard of first instance appeal. It is now accepted by the Home Secretary that this was an error of law. Not only was M (Croatia) a removal case, differing therefore from entry clearance cases (see Kugathas[2005] EWCA Civ 31), but the subsequent decision of this Court in Huang v the HomeSecretary[2005] EWCA Civ 105 makes it clear that the judgment whether the case falls within Rule 317 must be the adjudicator's own. It is therefore not enough to hold, as the IAT in substance did, that the adjudicator would have to be satisfied that no reasonable ECO could have reached the material decision.

5. But the adjudicator had not applied such a test. As I have said, he retook the decision and came to the same conclusion as the ECO. The question for this Court, therefore, is whether there was in the adjudicator's decision an error of law for which the IAT ought to have set it aside.

6. Laws LJ on sight of the papers considered that there was no such arguable error. On renewal before the President, time was enlarged and permission to appeal was granted on the footing that, although it had not been developed before the adjudicator and had formed no part of the appeal to the IAT, there had been at the end of the written submissions before the adjudicator a reference to the Home Office's family reunion policy, which, it was said, was more generous to applicants than Rule 317 and ought therefore to have been considered and applied in Ms Senanayake's favour. While Ms Senanayake might well be thought fortunate to have obtained permission to appeal on a point which had not been taken before the IAT (the President's judgment recognised as much) the point is now before us.

7. Mr Grodzinski, however, contends on the Home Secretary's behalf that the IAT, and so in turn this Court, was without jurisdiction to entertain the point on the family reunion policy in the absence of any reference to it in the grounds of appeal from the adjudicator to the IAT. He relies upon the decision of this Court in Miftari[2005] EWCA Civ 481. That decision, albeit given a month before the renewed application to the President, was not drawn to his attention. Having had it drawn to ours, it is clear that the IAT had no power to deal with the point on which Ms Naik has obtained permission to appeal to this Court. That being so, this appeal, founded as it is on the IAT's failure to deal with the point, has to fail. Nevertheless, having heard full argument on the issue on which permission to appeal was granted, I will give my view on it.

8. Ms Naik puts the essential point this way. The adjudicator's reasoning is predicated entirely on the requirement in Rule 317 of "most exceptional compassionate circumstances" if an adult daughter is to be allowed to join her daughter here. But there also exists a published Home Office document, which has been referred to in these proceedings as the Family Reunion Policy, and which, as its introductory paragraph states:

"... gives guidance to caseworkers on the consideration of applications made by family members who want to be reunited with a person in the UK who has been [among other things] recognised as a refugee."

9. Under the heading "Eligibility of applicants for family reunion" it says:

"[a] Only pre-existing families are eligible for family reunion i.e. the spouse and minor children who formed part of the family unit prior to the time the sponsor fled to seek asylum.

[b] We may exceptionally allow other members of the family (e.g. elderly parents) to come to the UK if there are compelling, compassionate circumstances."

10. It can be seen, says Ms Naik, that the paragraph I have lettered [b] affords a different test from Rule 317 and one which is more generous to the applicant for entry clearance. Had the adjudicator applied it, and Mr Grodzinski accepts that were there a true difference he should have done, he would, or might, have come to a different conclusion.

11. The facts to which the ECO and, in turn, the adjudicator had to apply the appropriate test were in brief these. Ms Senanayake, born on 29th June 1982, is the eldest child in a Sinhalese family, which, apart from her, was in February 2003 reunited in the United Kingdom following the grant of asylum to the father. It is not acceptable for a young woman to live on her own in Sri Lanka. The applicant went to live with an aunt, but because of difficulties in the household has since become a paying guest in a family known to her parents. She was a student at the time of the hearing before the adjudicator, but her father, at least, intends her to marry on completion of her studies.

12. The adjudicator saw no reason why in the newly stable situation in Sri Lanka the father could not return there in order to arrange the applicant's marriage, or, if not, why not another family member or friend could do it for him.

13. I would agree with the submission of Mr Grodzinksi for the Home Secretary that it is not conceivable that, on these or similar facts, the ECO or the adjudicator might nevertheless have decided that, in the words of the policy, these were "compelling, compassionate circumstances". Despite the inapposite comma between the two adjectives, it is clear that they are intended to be read cumulatively. They look to circumstances which not only invoke compassion but do so at a level which demands -- in effect compels -- a departure from the rule which excludes adult children from the scope of family reunion. On no view of the facts was this such a case.

14. What I have said so far assumes that the difference in wording signifies a difference of substance between the material part of Rule 317 and the material paragraph of the family reunion policy. I want to enter a caveat about this. The policy document has to be read for what it is. Where a ministerial discretion exists, departmental policy is usually indispensable if it is to be exercised, as the law requires it to be, both consistently and flexibly; and where such a policy is documented it is ordinarily fundamental to good government that it be published. In some cases it will fill a true gap in legal provision, or implement a true power to vary existing provisions, and in such cases its proper application will be justiciable. In others, it may do no more than try to explain to the officials who have to apply it what is already the law. The document with which this case is concerned seems to me to have very much the latter character. I note that its rubric contains both the word "policy" and the word "instructions". The paragraph of it which I have marked [a] summarises Rule 352D. The one I have marked [b] seems intended to do no more than summarise Rule 317.

15. But the explanation may not be so straightforward. Mr Grodzinski tells us that paragraph [a] antedates rules 352A to D. His instructions do not enable him to say whether paragraph [b] antedates or post-dates Rule 317. One cannot therefore say with any confidence whether either paragraph has legal life outside the rule to which it now relates. I would simply observe that it is extremely difficult to envisage a case which fails to reach the Rule 317 threshold but passes muster under what I have called paragraph [b] of the family reunion document. The present case is certainly not one.

16. It has been accepted throughout that Rule 317 is compliant with the European Convention on Human Rights, Article 8. If so, then provided the rule has not been departed from to the applicant's detriment, no question of a breach of Article 8 arises. Likewise, in my view, no separate argument arises under Article 8 on the policy. But I would add that I doubt in any event whether there is anything in a case like the present for Article 8 to bite upon. The applicant, an adult, enjoys only a slender family life with her parents and siblings because her father has had to flee Sri Lanka and her mother and siblings have been allowed to join him. Respect for family life ordinarily entails doing nothing disproportionate to diminish it, not, as alleged here, failing to restore it: see Kugathas (above). I would dismiss this appeal.

17. LORD JUSTICE CHADWICK: I agree that this appeal should be dismissed for the reasons which have been given by Sedley LJ. There is one point on which I wish to add some observations of my own.

18. The appellant's submissions were founded upon the premise that the test to be applied under the relevant paragraph of the Asylum Policy Instruction relating to Family Reunion differed from the test to be applied under paragraph 317(1)(f) of the Immigration Rules (HC395). In my view, that premise is not established.

19. I do not base that conclusion upon an inference that the relevant paragraph of the API was intended to be no more than a paraphrase of paragraph 317(1)(f) of the rules. The material before this Court does not permit that inference to be drawn. In any event, it is plain that the API does have a standing which is independent of the rule; if only because the API made clear -- in advance of the introduction into the Rules of paragraphs 352A to 352F -- that the "no recourse to public funds" provision in subparagraph (4) of paragraph 317, as it then was, was not applied in the case of a refugee sponsor.

20. I reach the conclusion that the test under the two provisions is the same by seeking to ascertain the meaning of each in accordance with conventional principles of construction.

21. It is, first, necessary to understand what is meant by the phrase "compassionate circumstances"; a phrase used both in the relevant paragraph of API and in Rule 317(1)(f). A circumstance cannot, of itself, have the quality of compassion; at least it cannot do so in the context with which we are concerned here. But a circumstance -- for example the circumstance that the applicant for leave to enter is living alone, separated from family by many thousands of miles, perhaps without financial support -- can evoke or excite compassion in the mind of the decision maker. In the present context there is no doubt -- and the appellant does not suggest otherwise -- that the phrase "compassionate circumstances" means circumstances which would evoke compassion in the mind of an objective decision maker.

22. The question, then, is what are the words "most exceptional" intended to qualify in the context of Rule 317(1)(f)? Do those words require that the circumstances are themselves most exceptional; or do they require that the circumstances evoke exceptional, or most exceptional, compassion in the mind of the decision maker? That question can be answered, as it seems to me, by postulating circumstances in which, although in themselves most exceptional, compassion is evoked only to a degree which is not exceptional. What policy objective could the rule maker have intended to be served by permitting the grant of leave to enter in a case where a low degree of compassion is evoked by circumstances which are themselves exceptional; but denying leave to enter in a case where an exceptional degree of compassion is evoked by circumstances which are not of themselves unusual. The answer, as it seems to me, is that the words "most exceptional" are used in that context to describe the degree of compassion which the circumstances evoke in the mind of the decision maker. It is because the circumstances of the applicant evoke compassion to an exceptional, or most exceptional, degree that leave to enter is to be granted. The degree of compassion compels a decision that leave to enter be granted.

23. Analysis of the relevant paragraph in the API leads to the same conclusion. The general rule is that only the spouse and minor children who formed part of the family unit prior to the time when the sponsor fled to seek asylum are eligible to benefit from the family reunion policy; they are the primary class eligible to benefit under the policy, but exceptionally other members of the family may be allowed to do so. The requirement which prompts the exception is:

"If there are compelling, compassionate circumstances."

Again, it is not the circumstances which are of themselves compassionate, rather it is that the circumstances excite a degree of compassion which compels the conclusion that an exception should be made to the general rule. The test is indistinguishable from that applicable under rule 317(1)(f).

24. In each case, as it seems to me, the decision maker is required to ask himself whether the circumstances which he has found to exist should evoke compassion to such an exceptional degree that, in the one case, leave to enter should be granted under the Rules and, in the other case, the benefit of the family reunion policy should be extended to a family member who does not fall within the primary class. There is no difference in the test to be applied under the relevant paragraph of the API and the test to be applied under Rule 317(1)(f).

25. In the present case the adjudicator applied that test and found that the applicant did not meet it. There is no basis for this Court to interfere with that decision.

26. THE PRESIDENT: I agree with both judgments.

ORDER: Appeal dismissed. Detailed assessment of the appellant's publicly funded costs.