FE (Somalia) v Entry Clearance Officer

The applicant, who is now 13 years old and is represented today by Mr David Jones, was adopted de facto by the sponsor as a war orphan, one of the many human casualties of the civil war in Somalia, when she was only a few weeks old. The full story is told in the case papers and does not need to be repeated by me here. Having come through many vicissitudes, the sponsor now has asylum here and wants the child at last to rejoin her. She has failed in this endeavour because, in view of the need first to establish herself in a place of safety, she left the child with her husband in Ethiopia. In consequence she has been unable to establish, as required by paragraph 309A of the Immigration Rules, that the child had been living with her for the 12 months immediately preceding the application for admission. This seems a straightforward application of the rule, and Scott Baker LJ has refused permission to appeal accordingly.

Mr Jones has persuaded me nevertheless that I should grant it, because I consider it arguable that, with or without the leverage afforded by section 3 of the Human Rights Act 1998, the rules and policy should not operate so as to exclude a plainly deserving case such as the present one. Whether the argument is put on arbitrariness, which seems to me more in point than discrimination, or on hard law, the issue in my judgment merits this court’s attention.

A great part of the grounds and much of the skeleton argument is an appeal to the merits alone. This is no doubt a good start but by itself it will not bring the case home. A sharp focus is needed on where law ends and where policy begins and on where policy ends and where discretion begins. At the latter end of the spectrum issues of justiciability have to be addressed; but on no view, as it seems to me -- and I think Mr Jones accepts this -- does a question of incompatibility arise because the problems do not lie in the primary legislation. The question, so far as it lies under the Human Rights Act, is one of reading up or reading down the delegated materials.

I therefore propose to grant permission to appeal. I would add, however, that if the case for the grant of leave outside the Rules is as strong as at present at least it seems to me to be, the Home Office might do well to reconsider the case in that light and to do so sooner rather than later.

We will give it a day, and it ought to be three Lords Justices because I think there is a policy question involved.