This is an application for judicial review challenging the ongoing refusal of the Defendant to accept an application for family reunion and an application for asylum without payment of a fee. Permission was granted on the papers by Mrs Justice Nicola Davies on 16^th July 2010.

There was a history in this case which is relevant to one of the issues which I have to determine. I will set out that history in more detail later. I heard the application for judicial review on 26^th July 2012 and reserved judgment.

The Claimant was represented by Mr Edward Nicholson of counsel. The Defendant was represented by Mr Matthew Barnes of counsel. I am grateful to both counsel for their written and oral submissions. At the conclusion of the hearing both counsel indicated that they wish to make written submissions on the case of AJ (India) and Secretary of State for the Home Department [2011] EWCA Civ 1191 which was handed down on 27^th July 2011. I agreed and both counsel did so. I have taken those written submissions into account.

The Claimant, who was born on 1^st January 1995 and is now 17 years of age, is a national of Somalia. Her application is based upon her hope that she will be reunited with her mother Malyun Ismail Dahir (whose date of birth is unknown) and with her brother HA, who was born on 1^st January 1996. All members of the family are members of the sub clan Shanshi of the Reer Hamar clan.

The Claimant came from Somalia to the United Kingdom on 23^rd September 2006, when she was 11 years old. In Somalia she lived with her mother and her brother. She has not seen her father since he was taken from the family home by soldiers when she was a young child. On 24^th November 2006 she was granted discretionary leave to remain in the United Kingdom for 3 years. On 10^th November 2009 she applied for further leave to remain and on 7^th March 2011 the Claimant was granted indefinite leave to remain in the United Kingdom.

Her mother and brother live in a refugee camp in Jigjiga in Ethiopia. On or around 20 February 2010 they travelled from Jigjiga to Addis Ababa to support their applications for visas to join the Claimant in the United Kingdom. They had with them detailed representations dated 15^th December 2009, prepared by the Claimant’s solicitors in the United Kingdom. Their completed visa application forms were also enclosed with the representations.

The representations of 15^th December 2009 made it clear that the Claimant’s mother and brother were applying to join the Claimant in the United Kingdom, and that the application should be considered by the Defendant in accordance with the United Kingdom’s obligations under Article 8 of the European Convention on Human Rights (hereinafter ECHR).

The Claimant’s mother and brother also applied for asylum under the terms of the Defendant’s published policy entitled “Applications from Abroad”. However, they were told that their applications could not be considered without a fee being paid.

The Claimant made her application for permission to apply for judicial review on 1^st April 2010. There were two issues raised:

That the Defendant has acted unlawfully in requiring a fee to be paid before the Claimant’s mother and brother’s asylum application was considered, and

That the Defendant’s discretion to waive the fee for consideration of the application had to be exercised by her in order to obviate any breach of the Claimants’ and their Article 8 rights.

The Defendant filed an Acknowledgement of Service dated 14^th July 2010.

Permission was granted by Mrs Justice Nicola Davies on 15^th July 2010 and the substantive hearing of the Claimant’s application came before Mr CMG Ockelton sitting as a Deputy High Court Judge on 19^th December 2011.

Between the grant of permission and the substantive hearing there were two significant developments. First, the Defendant’s policy relating to asylum applications from abroad was removed from the UKBA’s website. This occurred between June and September of 2011. Second, by letter dated 1^st December 2011 the Defendant replied to the Claimant’s representations dated 15^th December 2009 notifying the Claimant of her decision not to exercise her discretion under the Immigration and Nationality (Fees) Regulations 2011 to waive the fee in relation to the Claimant’s mother’s and brother’s applications for entry clearance.

The Claimant amended her Grounds in support of her application to enable her to address these developments. Amended Grounds addressing the contents of the Defendant’s decision of 1^st December 2011 were issued on 6^th December 2011, and then on 9^th December 2011 a further ground 15 was added to the Claimant’s Grounds, addressing the Defendant’s withdrawal of her policy relating to asylum applications made outside the United Kingdom.

As I have said the substantive hearing of the Claimant’s application was heard on 19^th December 2011 before Mr CMG Ockelton sitting as a Deputy High Court Judge. Following discussions in open court the proceedings were terminated on the basis of a consent order which was sealed by the Court on 2^nd February 2012. The meaning of that consent order is one of the issues which I have to decide.

On 19^th March 2012 the Defendant sent a letter of the same date to the Court and to the Claimant’s solicitors. The letter did not contain any decision on the applications which the Claimant’s mother and brother had made in accordance with the Defendant’s policy on asylum applications from abroad. The Defendant provided her reasons for not having made such a decision.

By letter dated 22^nd March 2012 the Claimant’s solicitors wrote to the Court to complain that Defendant had not complied with the terms of the consent order made following the hearing on 19^th December 2011, and to request that the Court should therefore reconvene the proceedings as soon as possible. The Defendant then wrote to the Court on 26^th March 2012 to express her view that she had so complied and that the proper course for the Claimant to take if she wished to challenge the letter of 19^th March 2012 was to issue further Amended Grounds addressing the Defendant’s description of the parameters of her withdrawn policy which was contained in that letter.

The Claimant issued Amended Grounds on 28^th June 2012. In those Grounds the Claimant maintained her position as stated in the letter of 22^nd March 2012 that the Defendant had failed to abide by the terms of the consent order. The Claimant indicated that as provided for in paragraph 2 of the order the other issues (i.e. the lawfulness or otherwise of the Defendant’s failure to waive the fees for the Claimant’s family members’ entry clearance applications to achieve reunification with the Claimant, and of her withdrawal of the ‘Applications from Abroad’ policy) remained outstanding before the Court. The Claimant’s Amended Grounds issued on 28^th June 2012 are unopposed. I grant permission for the Claimant to rely upon them as well as the earlier Grounds. Amended Detailed Grounds of Defence are dated 5^th July 2012 and were served on the Claimant’s solicitors on 11^th July 2012.

The consent order was sealed on 2^nd February 2012. What is clear from the correspondence at trial bundle pages 258-260 is that the consent order was not drafted at Court but drafted thereafter by counsel. It appears to have been drafted by Mr Nicholson and forwarded to Mr Barnes for his agreement. It was then sent on to the Administrative Court office.

The consent order appears at trial bundle page 275. It says this:

Despite the fact that the hearing before Mr CMG Ockelton took place on 19^th December 2011 I was not provided with a transcript of that hearing. Instead I was given a typed note of the hearing made by the Claimant’s solicitor who was present. The note is (a) not verbatim and (b) incomplete (there are a substantial number of question marks in the text). At 2.10 pm after the short adjournment Mr Barnes is recorded as saying:

I do not regard this as helpful. In my view the correct approach is for me to construe the words of the consent order itself which were drafted by counsel after the hearing. Both counsel had more than adequate time to consider the language agreed by them in the consent order because it was not sent to the Administrative Court to be sealed until late January 2012: trial bundle page 259.

The other document I need to refer to is the ‘Applications from abroad’ policy. It appears at trial bundle pages 74-75. The material parts read as follows:

Foreign national demonstrates a prima facie case that his/her circumstances meet the definition of the 1951 Convention;

And s/he has close ties with the UK;

And the UK is the most appropriate country of long term refuge.

Satisfies the usual criteria for refugee status as set out in 1951 Convention; and

Has close ties with the UK; and

Has established that the UK is the most appropriate country of refuge.

Spouse

Children (minors)

Parents/grandparents over 65

Mr Nicholson makes detailed written submissions in paragraphs 16-22 of his skeleton argument which he amplifies in his oral submission. He submits that the phrase in the consent order “made by the Claimant’s mother Maylun Ismail Dahir and her brother [HA] in accordance with the Defendant’s policy entitled ‘Applications from abroad’” is plainly an adjectival phrase identifying the applications upon which the Defendant was required to reach a decision by 19^th March 2012. The sentence which immediately follows in the consent order “…and shall reach a decision on those applications on or before 19^th March 2012” makes this clear. The phrase “those applications” are the applications identified in the preceding sentence. He also makes the point that in accordance with the policy document the Defendant could have processed the application and interviewed the Claimant’s mother and brother. He submits that the clear language of paragraph 1 of the consent order is that the Defendant had to consider the application and “shall reach a decision”. The Defendant was being ordered to leapfrog the acceptance of the application and reach a decision on it.

Mr Barnes took me through the history of the proceedings up to the hearing before Mr CMG Ockelton on 19^th December 2011 and made the point that the order was a concession by the Defendant as the policy had been withdrawn. He submitted that there was a distinction between accepting an application and considering it. Acceptance of the application was the gateway leading to consideration. The consent order makes no mention of the word ‘accept’ and the phrase ‘in accordance with the Defendant’s policy entitled ‘Applications from abroad’ incorporates the two stage process set out in the policy document of (1) acceptance (2) if the application was accepted consideration of it.

I have already stated that in my judgment the correct way to approach this issue is for me to construe the words of the consent order itself bearing in mind that it was drafted after the hearing apparently by Mr Nicholson and then approved by Mr Barnes before being sent to the Administrative Court office to be sealed. In other words both counsel had adequate time to consider the language used. Nothing here was done in haste.

The wording of paragraph 1 of the consent order requires the Defendant to “consider the asylum applications made by (the Claimant’s mother and brother) in accordance with the Defendant’s policy entitled ‘Applications from abroad’ and shall reach a decision on those applications on or before 19 March 2012.”

The Defendant’s decision letter is dated 19^th March 2012 and appears at trial bundle pages 193-197. I do not propose to set it out in full but paragraphs 1-3 are relevant. They say this:

The letter then goes on in some detail to consider the evidence before the Defendant which I do not need to deal with in this section of my judgment.

I agree with Mr Barnes that the policy guidance “Applications from abroad” draws a distinction between accepting an application and consideration of it. That is clear from the passage under section two that I have read. Only when the British diplomatic post accepts an asylum application made overseas (which these were) then the documents will be forwarded to ICD for full consideration of the asylum claim. As Mr Barnes says the first stage is acceptance of the application and one obvious consequence of acceptance of the application is that if it is then considered and rejected there will be a right of appeal to a First Tier Tribunal in the UK. A refusal to accept an asylum application made overseas conveys no such right of appeal. If the judge (and the parties) had taken the view that these two asylum applications were to be treated as accepted for consideration by the Defendant then I would have expected the consent order to say so. In my judgment what the language of the consent order does is to require the application of the two stages of the “Applications from abroad” policy that is (a) acceptance (b) consideration. The difference is that for acceptance the foreign national needs to demonstrate a prima facie case that his/her circumstances meet the definition of the 1951 Convention. When one reaches the consideration stage the applicant must satisfy the usual criteria for refugee status as set out in the 1951 Convention. The latter test is clearly higher than the former test.

For the sake of avoidance of doubt I can see nothing in Mr Nicholson’s point that there was a failure by the Defendant to interview the Claimant’s mother and brother. That could only be done at the British diplomatic post in Addis Ababa. No such request was made by the Claimant’s solicitor at any time either at the hearing on 19^th December 2011 or at any time thereafter. It was not part of the consent order.

The result of the action carried out by the Defendant was to assess whether the two applications for asylum were to be accepted as subject to consideration. For the reasons given in the Defendant’s letter of 19^th March 2012 those applications were rejected for consideration. In my judgment the Defendant complied with the consent order sealed on 2^nd February 2012.

I have set out the policy earlier in this judgment. As is clear from sections 1.1 (Key points) and 3.1 (Considering the claim) there are three criteria. Although as I have pointed out there is a difference between the acceptance stage for the first criterion i.e. the applicant need demonstrate a prima facie case that is his/her circumstances meet the definition of the 1951 Convention and on consideration whether the applicant satisfies the usual criteria for refugee status set out in the 1951 Convention. The second criterion is that the applicant has close ties with the United Kingdom (the same test in both cases) and the third criterion is that the UK is the most appropriate country of long-term refuge (the acceptance stage) and the applicant has established that the UK is the most appropriate country of refuge (the consideration stage). I can see little if any difference between the third criterion in each case.

The Defendant’s decision prior to the hearing on 19^th December 2011 is contained in her letter dated 1^st December 2011: trial bundle pages 158-166. The Defendant’s decision in accordance with the consent order sealed on 2^nd February 2012 is in her letter dated 19^th March 2012: trial bundle pages 193-197. Those letters are of considerable length and rather than set them out in full I propose to set out such parts as seem to me to be relevant.

Mr Nicholson’s submissions are contained in paragraphs 24-44 of his skeleton argument and in his oral submissions. Before considering those submissions and Mr Barnes’ reply I remind myself that this is an application for judicial review. It is only if I am satisfied on conventional judicial review grounds that the decision of the Secretary of State is unlawful that I can quash her decision. I am not here to substitute my view for that of the Secretary of State. Mr Nicholson’s first submission relates to the first criterion namely whether the applicants have demonstrated a prima facie case that his/her circumstances meet the definition of the 1951 Convention.

By Article 1 (A)(2) of the 1951 Convention relating to the status of refugees as amended by the New York Protocol of 31^st January 1967 the term “refugee” shall apply to any person who:

Mr Nicholson points out that the Claimant’s mother and brother explained their departure from Somalia in 2007 in their visa applications forms at section 6.2: trial bundle page 46. There they stated that they had come to Ethiopia to flee persecution in Somalia. In their representations of 15^th December 2009 the Claimant’s solicitors told the Defendant that the Claimant’s mother and brother had a prima facie case for asylum on the basis of what was then current country guidance issued by the Asylum and Immigration Tribunals.

Mr Nicholson further submits that the Defendant has not asked herself whether the Claimant’s mother and brother have demonstrated a prima facie case for asylum, but instead “whether they are genuine asylum seekers”: Amended Detailed Grounds of Defence paragraph 67. Mr Nicholson submits that the Defendant has asked the wrong question and has therefore erred in law. He also criticises the fact that there was no interview with the Claimant’s mother and/or brother either before or after the consent order sealed on 2^nd February 2012.

Mr Barnes refers me to the background to the case as contained in the trial bundle. Although there are four witness statements from the Claimant they provide little detail. There is no evidence from either the mother or the brother apart from two documents. The first are the application forms at trial bundle pages 27-42 (for the mother) and 43-57 (for the brother). Neither are signed or dated. Second, there is the medical certificate at page 64 which says that the Claimant’s mother is “suffering with pain in her breast for a period”. The Claimant in her witness statement dated 15^th December 2009 paragraph 15 states that her mother has breast cancer but there is no medical evidence to support this. Mr Barnes submits that the assertion by the Claimant that her mother and brother are refugees is precisely that: an assertion. That point is taken up in the Defendant’s letter of 19^th March 2012 at paragraphs 6-14: trial bundle pages 194-196 and in the Defendant’s Amended Detailed Grounds of Defence at paragraphs 6 and 17: trial bundle pages 194 and 196.

I remind myself that I am not here to substitute my decision for that of the Secretary of State. Whether one looks at this issue as (a) a decision to accept, outside of the immigration rules, an application for entry clearance for the United Kingdom where a foreign national demonstrates a prima facie case that his/her circumstances meet the definition of the 1951 Convention or (b) as considering the claim the Defendant must be satisfied that the usual criteria for refugee status as set out in the 1951 Convention apply then in my judgment the Defendant is entitled to have regard to the fact that the Claimant’s mother and brother have been in Ethiopia since 2007, have not claimed asylum, or made contact with the UNHCR and to regard those factors as relevant to the question of whether or not they have demonstrated a prima facie case that his/her circumstances meet the definition of the 1951 Convention and/or satisfy the usual criteria for refugee status as set out in the 1951 Convention. Putting the matter another way there is simply a dearth of factual material provided by the Claimant or her solicitors in support of the application by her mother and brother. In my judgment the Defendant did not ask herself the wrong question but was clearly entitled to take account of the genuineness of the application and the credibility of the Claimant and her mother and brother. What weight the Defendant chooses to place on that issue is a matter for her within the exercise of her discretion.

No point is taken by Mr Nicholson in relation to the application by the Defendant of the second criterion namely close ties with the United Kingdom. Indeed, the point is not taken in either of the Defendant’s letters dated 1^st December 2011 and 19^th March 2012.

However, Mr Nicholson does take issue with the Defendant’s application of the third criterion namely the Defendant’s decision that the United Kingdom is not the most appropriate country of long-term refuge. The point is flagged up in the Defendant’s letter of 1^st December 2012 paragraph 13: trial bundle page 161 and her letter of 19^th March 2012 at paragraphs 15-17: trial bundle pages 196-197. In the latter letter the Defendant says this:

Mr Nicholson’s submissions are contained in paragraphs 41-44 of his skeleton argument and in his oral submissions. He submits that the policy is silent as to how this criterion is to be assessed and it would be very curious if the desirability of ensuring the unity of a family was not prominent in the assessment of whether it was appropriate or otherwise for applicants instead to approach the local authorities and to apply for asylum there. He refers to The Final Act of the UN Conference on the Status of Refugees which recommended governments to take the necessary measures for the protection of a refugee’s family. In particular he submits that the principle of the best interests of the Claimant and her younger brother [HA] are not referred to in either of the Defendant’s letters of 1^st December 2012 and 19^th March 2012. Those best interests are he submits best served by the families being reunited and this is a relevant material factor which the Defendant has ignored and which should have weighed heavily in favour of deciding that the UK was the most appropriate country of long-term refuge for the Claimant’s mother and brother. He also says that the decision on that point was irrational.

Mr Barnes refers me to paragraphs 15-16 of the Defendant’s letter dated 19^th March 2012 which I have set out above. He submits that the Secretary of State is entitled or required to take the interest of the child into account and refers me to section 55 of the Borders, Citizenship and Immigration Act 2009. The relevant parts of this provide as follows:

Mr Barnes refers me to AJ (I) India v. Secretary of State for the Home Department and associated cases [2011] EWCA Civ 1191 and to the remarks made by Pill LJ and paragraph 43. He also relies in his subsequent written submissions on the decision of Mr Justice Langstaff in R (Asefa) v. Secretary of State for the Home Department [2012] EWHC 56 (Admin) at paragraph 46.

In ZH (Tanzania) v. SSHD [2011] UKSC 4 Baroness Hale said this at paragraph 33:

Lord Brown of Eaton-under-Heywood and Lord Mance JJSC agreed with Baroness Hale’s judgment. Lord Hope JSC said the same thing at paragraph 44 of his judgment and Lord Kerr of Tonaghmore JSC said the same thing in his judgment at paragraph 46.

The point was recognised by Mr Justice Sales in R (Shueb Sheikh) v. SSHD [2011] EWHC 3390 (Admin) at paragraph 74.8 of his judgment to which I will refer later.

In AJ (India) v. SSHD [2011] EWCA Civ 1191 at paragraph 43 Pill LJ giving the main judgment of the Court said this:

The passage in paragraph (b) above is a summary of an earlier part of the judgment of Pill LJ at paragraphs 35-38 where he considers earlier authorities.

In R (Asefa) v. SSHD [2012] EWHC56 (Admin) Mr Justice Langstaff applied AJ (India) v. SSHD and said this at paragraph 46 of his judgment:

In his later written submissions Mr Nicholson sought to rely on the concession made by counsel for the Defendant in the substantive hearing on AJ by the same Court which took place later and is reported at [2011] EWCA Civ 1081. Mr Nicholson has submitted that the remarks made by Pill LJ in the early hearing of the same case did not have any application to decisions made by the Defendant in the Claimant’s case. For the reasons given in Mr Barnes’ written submissions I reject Mr Nicholson’s argument. In the second AJ decision the same Court of Appeal made it clear that section 55 of the 2006 Act should be taken into account in non-appealable decisions as well as in appealable decisions: Pill LJ at paragraph 12. There is nothing in the second judgment in AJ where any judge in the Court of Appeal seeks to resile from what Pill LJ said in the first AJ decision at paragraphs 35-38 or 43. See also the remarks of Sir Mark Potter at paragraph 52 of the first AJ decision

Applying that law to the facts of the present case I am satisfied that the Defendant did take account of the best interests of the Claimant and her younger brother. A close reading of the Defendant’s letters dated 1^st December 2011 and 19^th March 2012 (and in particular paragraphs 15-16 of the second letter) show that there was consideration of section 55 albeit it is not specifically referred to in either letter. By the date of the decision letter of 19^th March 2012 the Secretary of State had all of the material contained in the applications of the Claimant’s mother and brother as well as her four witness statements. I agree with Mr Justice Langstaff that this is a matter of substance not of form. In my judgment the failure to mention section 55 of the 2006 act does not invalidate the decision in this case. There was consideration of the best interests of the Claimant and her brother.

Section 51 of the Immigration, Asylum and Nationality Act 2006 provides as follows:

The current statutory instrument is the Immigration and Nationality (Fees) Order 2011 (SI 2011 No 445). The 2011 order replaced the Immigration and Nationality (Fees) Order 2007 on 18^th February 2011. The 2007 Order had been in force at the date of the application. Both the 2007 and 2011 Orders provide as follows:

The regulations made under section 51(3) of the 2006 Act, referred to in the 2007 and 2011 Orders are currently the Immigration and Nationality (Fees) Regulations 2011. The 2011 Regulations replaced the Immigration and Nationality (Fees) Regulations 2010 which had in turn replaced the Immigration and Nationality (Fees) Regulations 2009. The 2009 Regulations had been in force at the date of the request to make applications without the payment of the fee i.e. 15^th December 2009.

The 2011 Regulations deal with the fees for entry clearance applications in Regulations 25-27. These provide as follows:

In so far as it is material, and save as to the level and fees chargeable, the 2011 Regulations replicate the provisions of the 2009 and 2010 Regulations.

On 22 September 2010 the Defendant published a policy in her Entry Clearance Guidance, in sections ECB 6.6 and ECB 6.7 dealing with the circumstances in which the discretion to waive fees for entry clearance should be exercised. It said this:

The Defendant’s decision to refuse to waive fees is contained in her letter of 1^st December 2011 at paragraphs 2-18 (excluding the Article 8 point which I will deal with later): trial bundle pages 158-162. The letter begins by stating that the Claimant’s solicitor’s representations have been considered, sets out the fees payable and summarises the Immigration and Nationality (Fees) Regulations 2011 and the Entry Clearance Guidance sections ECB 6.6 and 6.7. The letter then goes on to deal with the financial provision made by the Claimant’s aunt to her mother and brother and the fact that the Defendant has taken account of the mother’s and brother’s personal and financial circumstances. The letter concludes in this way:

Mr Nicholson refers me to R (on the application of Elmi) v. SSHD [2010] EWHC 2775 (Admin) at paragraphs 42-47 where Mr Justice Ousely held that whatever policy the Defendant may adopt she is not able to exclude from her consideration matters which may apparently fall outside it without fettering her general discretion under regulation 25C of the 2011 Immigration and Nationality (Fees) Regulations.

Mr Nicholson submits that the Defendant failed to take ‘full account’ of the following material factors:

Mr Nicholson goes on to make detailed criticisms of the Defendant’s letter dated 1^st December 2001 in relation to s55 of the 2006 Act and Article 8. I will deal with Article 8 later in this judgment.

Mr Barnes refers me to R (on the application of Shueb Sheikh) v. SSHD [2011] EWHC3390 (Admin) which was a decision of Mr Justice Sales delivered on 16^th December 2011 where he rejected a full scale attack upon the discretion to refuse to waive an entry clearance fee. He also refers me to the history of the matter and the allegedly scant material provided by the Claimant or her solicitors to justify the exercise of the discretion to waive the entry clearance fees for the Claimant’s mother and brother.

It is quite clear from the Regulations and Guidance I have set out above that the discretion to waive entry clearance fees is exercised only in the most exceptional circumstances. There is no challenge by the Claimant to the lawfulness of the policy as such but to the exercise of it on the facts of this particular case. It is important to note that the fees are charged for the entry clearance visas and not for the asylum claim. There are good reasons for that policy and as I say the policy itself is not under attack in this case.

A close analysis of the Defendant’s letter of 1^st December 2011 shows the following:

paragraphs 2, 9 and 11 show that in the Defendant’s view on the material before her that the Claimant’s aunt could make a greater financial contribution towards the costs of the two entry clearance visas. It is notable there is no financial evidence from the aunt at all either then or subsequently.

there was no other evidence of impecuniosity either then or now before the Defendant from either (a) the Claimant’s mother or (b) other members of the family.

one person unknown paid for the Claimant to come by plane to the United Kingdom in 2006. No evidence about this was placed before the Defendant.

the Defendant made reference to the fact that the UNHCR had indicated that the Ethiopian authorities respect the right of asylum seekers to be protected from refoulement and it was not clear why they had not sought refugee status in Ethiopia.

paragraph 14 of the letter shows that the Claimant’s mother and brother were not fleeing persecution and there was no risk of it in Ethiopia.

paragraph 15 of the letter comments on the lack of evidence that the Defendant’s mother was suffering from breast cancer.

paragraphs 17-18 deal with the issue of destitution which is specifically referred to in ECB 6.7 as not being valid grounds for waiving a visa fee.

I agree with Mr Barnes’ submission that this reasoning is both compelling and legally unassailable. I can see no error of law in the way the Defendant has reached her decision to refuse to exercise her discretion to waive the entry clearance fees for the Claimant’s mother and brother. All of the matters referred to by Mr Nicholson in paragraph 68 of his skeleton argument and set out by me above were matters of which the Defendant had cognisance. They were all clearly matters in front of her, albeit she took a different view from the Claimant when applying ECB 6.7 on the facts of the case. I can see no error of law.

The Claimant’s case is that Article 8 is engaged in this case and the Defendant’s failure to waive the entry clearance fees for her mother and brother violates their Article 8 rights. The result is that the family will remain separated as a consequence. Mr Nicholson develops his submissions at length in his skeleton argument paragraphs 57-65 and 83-101 as well as in his oral submissions. In the context of waiver of entry clearance fees Mr Nicholson particularly relies upon the judgments of Elias J (as he then was) in R (on the application of J) v. Enfield LBC [2002] EWHC 432 (Admin) at paragraph 72 (not a fees waiver case); R (on the application of QB) v. SSHD [2010] EWHC 483 (Admin) Black J (as she then was) at paragraphs 30 and 32; and finally R (on the application of Shueb Sheikh) v. SSHD [2011] EWHC 3390 (Admin) at paragraph 74 and especially at 74(10) per Sales J.

Mr Nicholson submits that there is no distinction in EU law between positive and negative support for the family and in this case the family were separated by persecution and the Defendant is wrong to say that they are safe in a refugee camp in Ethiopia. The discretion to waive the entry clearance fees would protect the Claimant and her family’s Article 8 rights because that would enable them to make applications for entry clearance to the United Kingdom without payment of a fee which they cannot afford to pay. He subjects the Defendant’s letter of 1^st December 2011 to a detailed analysis.

Mr Barnes refers me to the Shueb Sheikh case which is now the leading authority on the subject. In particular he refers me to paragraphs 73-80 where Mr Justice Sales considers Article 8 in a case such as this. Mr Barnes goes on to submit that prior to the decision letter of 1^st December 2011 the Defendant (a) had very limited evidence in the present case compared to that before Mr Justice Sales in Shueb Sheikh and (b) there was no evidence provided by the Claimant about the availability of funds from various members of the family. He goes on to analyse the letter of 1^st December 2011 and says that Article 8 was not engaged on the facts of this case.

I turn first to the Shueb Sheikh case. Having set out a number of “main points to be borne in mind in structuring consideration of the case under Article 8” in paragraphs 74(1)-74(6) of his judgment Mr Justice Sales goes on to say this:

I respectfully agree with those passages I have cited and with the remarks made Mr Justice Sales at paragraphs 75-76 of his judgment. The learned judge goes on to consider the facts of the case as they were before the Secretary of State when she gave her decision in that case and found that they fell within the marginal category referred to in paragraph 74 (11) above. He found that the Secretary of State was entitled to form the view that on the materials before her not to waive the application fee could not properly be impugned as unlawful and in violation of Article 8. She was also entitled to form the view that even though the family were on state benefits, there was a reasonable prospect on the financial information presented to her that they would be able to raise the funds necessary to pay the application fee within a reasonable time.

The learned judge also went on to examine the Article 8 claim on the evidence available before him which included material not available to the Secretary of State on the facts of the case the Article 8 claim also failed.

Applying the analysis of Mr Justice Sales to the facts of this case it seems to me I have to consider two situations. The first was the material before the Secretary of State when she made her decision on 1^st December 2011: trial bundle pages 158-166 on the facts as known to the Secretary of State at that date there were various potential sources of monies to pay the entry clearance fees of £2,620. The first was the Claimant herself. She was a school student who is currently aged 17. She lives with her aunt in north London. The Secretary of State appears to have accepted that she did not have any income of her own. The second source is her aunt, Fadumo Mahmud Dahir. The evidence is clear that she made a payment of 60 dollars a month to her sister, the Claimant’s mother in Ethiopia: trial bundle page 30 and 46. There is no witness statement or documentary evidence of any kind from either Mrs Dahir or her solicitor about Mrs Dahir’s income and expenditure. The evidence from the Claimant is that her aunt is living on state benefits but there is no information at all about the family’s income and expenditure. The Claimant’s mother has a brother-in-law (the Claimant’s uncle), Furar Omar Abdi who has been living in the United Kingdom since April 2006. He apparently lives in Leeds. There is no evidence from him or the Claimant’s solicitor about his income or expenditure or his ability to assist in paying the whole or part of the entry clearance fees. For the purposes of this analysis I discount the absence of any witness statement from the Claimant’s mother. If she is living in a refugee camp in Ethiopia then it would appear that she would have little or no independent income of her own.

This was the information the Secretary of State had before her when the decision letter dated 1^st December 2011 was signed. The aunt’s income is specifically referred to in paragraph 11. And the reasoning is at paragraph 29 which says this:

Mr. Nicholson relies on the fact that in paragraph 28 there is an error of fact because the letter states that the Claimant was not present and settled in the UK. That error was recognised in paragraph 44 of the Detailed Amended Grounds of Defence. It is not integral to the decision because of paragraph 29 of the letter which I have just set out.

In my judgment the present case fell into the marginal category referred to in paragraph 74 (11) of the judgment of Mr Justice Sales in Shueb Sheikh and on the material before her the Secretary of State had wholly inadequate evidence to accept the Claimant’s argument that there was no or no adequate funding to raise the funds necessary to pay the application fees within a reasonable time.

I then proceed to examine the claim under Article 8 on the evidence available before me. In my judgment, the claim for waiver of the application fee again fails on the evidence before me. There is no fresh material placed before me which was not before the Secretary of State when she made her decision on 1^st December 2011. I still have no information about the income and expenditure of the Claimant’s aunt with whom she is living or any information at all from or about the Claimant’s uncle. The Article 8 claim therefore fails.

For these reasons the claim is dismissed.

I will hear counsel’s submissions on costs when judgment is handed down in open court. If the parties are able to agree an order including dealing with costs then I will excuse the parties from attending when judgment is handed down.