SA (Somalia) v Entrey Clearance Officer

This is a renewed application for permission to appeal following an adverse determination by an Immigration Judge, Mrs Dean, on 12 December of last year.

The three applicants were at the material time aged 17, 16 and 14 and the background is the entry clearance officer’s refusal to admit them to the United Kingdom as dependent relatives under paragraph 297 of HC 395.

The applicants are the sponsor’s siblings. They lived in the same household in Somalia until the sponsor came to the United Kingdom in January 2004 after the death of their father and the disappearance of their mother in 1998. The sponsor was the oldest of the siblings and took responsibility for looking after her younger brother and two sisters. She married, and after her departure her husband continued to look after the siblings.

The sponsor was granted refugee status in the United Kingdom, and her husband has subsequently been allowed leave to enter but at present has not exercised that right because he remains in Somalia looking after the household. I would add that the children are growing up fast and, at any rate the two older children, will not now need very much looking after.

The grounds of appeal are that the immigration judge failed to deal adequately with the family reunion policy, both on its own and in relation to Article 8, that the immigration judge did not deal at all with the expert evidence of Dr Lulling about family life in Somalia and that the immigration judge did not properly address Article 8.

Although the applicants are the siblings of the sponsor, it is argued that they are de facto her adopted children because she took over the role of their mother. It is, so it is submitted, arguable that they fall within the definition of children who formed part of the family unit in paragraph 16.2 of the family reunion policy. The issues in this case surround paragraph 297 of the Immigration Rules, also 352D of the Immigration Rules and the relationship between the Rules and the family reunion policy. I have been persuaded by Ms Asanovic that there are issues in relation to the Rules and the policy and how they relate to each other and the correct interpretation of the policy that warrant permission to appeal.

I also note that the immigration judge made no reference whatsoever to the expert evidence of Dr Lulling, save to record that he had her report; and Miss Asanovic argues that her evidence is important in setting the scene for family life in Somalia.

The other ground of appeal relates to Article 8, and since the decision of the immigration judge we have the advantage of the recent decision of the House of Lords in Beoku-Betts v SSHD [2008] UKHL 39 which makes it clear that for Article 8 purposes, the impact of a decision on the whole family has to be looked at rather than focussing on the impact indirectly on other members onto the particular applicant. In that regard the immigration judge made no findings in relation to the sponsor’s husband who is plainly, it seems to me, a member of the wider family and who, at the time of the hearing, had not exercised his right to join his wife, the sponsor, in this country.

This case raises similar issues to MK (Somalia) UKAIT 00020, which is currently awaiting a hearing of the appeal under reference C5/2008/0890. That case is listed for hearing at the end of November, and also raises the ambit of paragraph 16.2. This present case, however, has the additional feature of the expert evidence of Dr Lulling. It seems to me that because of the similarity of the issues that are involved, it would be desirable for the same court, if possible, to hear both appeals, either at the same time, consolidated or consecutively, and I invite the office to look into the possibility of achieving that.

Now, that leaves the estimated length of this appeal, (a) on its own and (b) with MK (Somalia). So if we said that this case was half a day or, if it was with MK (Somalia), one day for the two cases. And it should be heard by either three Lords Justices, or two Lords Justices and a High Court judge.