R v. Secretary of State for the Home Department, Ex parte Abdi and Others

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	17 July 1992
Citation / Document Symbol	[1993] Imm AR 35
Cite as	R v. Secretary of State for the Home Department, Ex parte Abdi and Others, [1993] Imm AR 35, United Kingdom: High Court (England and Wales), 17 July 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6560.html [accessed 4 November 2019]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ABDI and others

Queen's Bench Division

[1993] Imm AR 35

Hearing Date: 17 July 1992

17 July 1992

Index Terms:

Appeals -- jurisdiction of appellate authorities -- application made direct to Home Office for a visa for the dependant of a Somali refugee in the United Kingdom -- visa refused -- Home Office expressed opinion that no appeal lay to the appellate authorities from that refusal -- appeals nevertheless lodged but not yet determined -- whether appropriate meanwhile for judicial review to be sought of Home Office opinion that no appeal lay to the appellate authorities.

Held:

The applicants for judicial review were Somalis. Some members of the families had been recognised as refugees in the United Kingdom. They sought to be joined by dependants. Applications for visas were made direct to the Home Office. Some of these applications were refused. The Home Office gave as its opinion that those refusals did not attract a right of appeal to the appellate authorities. The applicants were advised to make applications for visas to the entrance clearance officer in Addis Ababa.

It seems that applications were made to the entry clearance officer but had not yet been decided: appeals against the Home Office refusal of visas were lodged with the appellate authorities, but they likewise had not yet been determined. Meanwhile judicial review was sought of the Home Office opinion that there was no right of appeal.

Held

1. The application would be refused. It was not appropriate to allow judicial review, in the circumstances, even assuming that an opinion of the Home Office were amenable to judicial review.

2. The court was being asked to leapfrog an existing procedure and "to tell the appropriate adjudicating or appellate tribunal what its own decision should be on a subject, before it has had a chance to consider the problem and to hear the arguments."

Notes:

SOMALI FAMILY REUNION APPLICATIONS -- Home Office letter to Tower Hamlets Law Centre of 17 May 1990

1. As you may already know we have recently reappraised our handling of Somali family reunion applications and I thought this would be a good time to write to you setting out in detail our policy and procedures and also attempt to address some of the concerns which have been voiced over recent months.

Background

2. All applications for visas for foreign nationals to come to the United Kingdom must be made at a British Diplomatic post overseas. However in recognition of the fact that many of those who were displaced by the war in northern Somalia were unable to get to a diplomatic post to make such an application, Ministers agreed in September 1988, to introduce a concession whereby the United Kingdom sponsor could present the facts of the case to us here so that as far as possible visa applications can be determined before the applicant set out on the difficult and hazardous journey to their nearest British Embassy. We are very much aware that the situation has improved little since then and that it is quite understandably a matter of grave concern for the Somali Community here, particularly for those whose relatives have been displaced to refugee camps in Ethiopia.

3. Ministers have recently decided that the current special arrangements should be maintained for the time being on humanitarian grounds. We see these special arrangements as an important facility for those Somalis who cannot apply for visas overseas in the normal way and we have introduced a number of procedural changes which are specifically designed to improve the service, and to make sure that it is benefitting those it is designed to benefit.

Scope of the Arrangements

4. As mentioned above, the intention from the outset has been to provide a facility for those who cannot apply for a visa themselves in the normal way -- most, if not all of whom are currently having to live in very harsh conditions. We have been receiving an increasing number of applications in respect of relatives who could follow normal entry clearance procedures -- we have for example received applications on behalf of relatives now in other Western European countries. It would clearly be wrong for us to be using our limited resources to deal with applications in respect of relatives who have found their way to a safe third country where they could follow normal entry clearance procedures, at the expense of dealing less speedily with applications in respect of relatives stranded in, say, a refugee camp in Ethiopia.

5. We will therefore be taking a stricter line in future on which applications we will consider here under these special arrangements. In general terms we will be restricting it to cases where the relatives are in Ethiopia and Djibouti. That is not to say that as a matter of course we will refuse to entertain any other cases, but a special case will have to be made for us to do so.

6. This approach will obviously mostly affect applications on behalf of relatives who are still in Somalia. Our experience is that although conditions in the north of Somalia make travel to Mogadishu hazardous, the majority, if not all, of those wishing to apply for visas have already left the north and are either in a neighbouring country or living close to Mogadishu. As you probably know we have always held the view that those living in and around Mogadishu could reasonably be expected to make their applications themselves at the British Embassy in Mogadishu and we have been reluctant to consider their applications here. This modification of our special arrangements therefore formalises a line we had already been inclined towards.

7. It is often represented to us that many of the relatives living in and around Mogadishu are in hiding and that it would not be safe for them to make visa applications themselves. We do not however consider that argument tenable. Even if we were to consider those applications here, the relatives concerned would have to come out of hiding to go to the Embassy to collect their visas (and it is often necessary for them to make more than one visit to the Embassy) and then make direct approaches to the Somali authorities to obtain an exit visa and, if necessary, passport. They would then of course also have to pass through the Somali controls at the airport. If they are prepared to risk doing all that, then we do not consider it unreasonable to expect them to make what would only be an additional visit to the British Embassy.

Current policy

8. To state the obvious we cannot and do not simply authorise the issue of visas because we are asked to do so. The applicants have to meet certain criteria if they are to qualify for the issue of a visa. The applicants may qualify to come here as:

8.1 Immediate family of refugees

8.1.1 If the United Kingdom sponsor has been recognised as a refugee here under the terms of the 1951 United Nations Convention relating to the Status of Refugees then, like most countries, we follow the policy on family reunion agreed by the Conference which adopted the Convention. We will agree to the admission of the spouse and minor children of a refugee. However given the nature of the Somali family we are prepared to be flexible and if a refugee is able to show that a person not covered by that policy was a dependent member of the refugee's immediate family unit before the refugee came to the United Kingdom, then we would be prepared to consider exceptionally extending the refugee family reunion provision to cover that person.

8.2 Dependants under the normal Immigration Rules

8.2.1 Relatives of British citizens, Somali nationals who are settled in this country and refugees whose relatives do not qualify for admission under the above provision must meet the criteria laid down in the Immigration Rules. I have for ease of reference attached a copy of the relevant paragraphs of the Immigration Rules.

8.2.2 To qualify for the issue of a visa a person must meet all the requirements of the Rules. The requirement which often causes most difficulty for the United Kingdom sponsor is the one stipulating that he or she must be able to maintain and accommodate the relatives concerned without recourse to public funds. Ministers decided at the outset that it would not be right to give a general undertaking to waive that requirement in all these cases but have instead agreed to take a flexible approach and consider waiving that requirement in individual cases; in deciding whether to do this each case is considered on its individual merits, and we look, inter alia, at the degree of difficulty continuing separation of the family is causing.

8.3 As refugees for whom the United Kingdom is the most appropriate country of refuge

8.3.1 Under the terms of the 1951 United Nations Refugee Convention a person cannot be a refugee while still in his or her country of nationality. This provision can therefore only apply to those outside Somalia who do not qualify under 8.1 or 8.2, above, but still have stronger ties with this country than anywhere else and who also come within the definition of a refugee set down in the 1951 United Nations Convention.

8.3.2 In normal circumstances we would expect such applications to be put to us through United Nations High Commission for Refugees although we do of course receive them from other bodies and from individual refugees. In cases which are not put to us through UNHCR, it is usually necessary for us to have the applicants themselves interviewed so that we can assess both their eligibility for refugee status and their ties with this country before we are able to make any decision on their case.

8.3.3 It is difficult to give any firm guidance on what may constitute a sufficiently strong tie with this country for a person to qualify under this category, but in general terms if a person's family links with the United Kingdom are such that we are unable to accommodate the application under 8.1 or 8.2, above, then it is unlikely that those family ties would be sufficient for that person to qualify under this category, unless there are particularly strong reasons why he or she should not remain in their present country of residence. On the other hand ties with the United Kingdom, other than family ties, such as previous lengthy periods of time spent here or strong links with a United Kingdom organisation, may be sufficient for the United Kingdom to be regarded as the refugee's most appropriate country of refuge.

8.4 The above outlines the criteria which must be met if an individual is to qualify for the issue of a visa. However, as you will know from your own experience, we are prepared to exercise discretion and consider going beyond those limits in individual cases where there are particularly strong compassionate circumstances. By its very nature it is difficult to set down any firm guidance on how far we are prepared to step outside the limits outlined above, but clearly the more criteria we are being asked to waive, the less likely we will be able to accede to the request. As a general rule of thumb if we are being asked to waive more than one of the requirements in the Rules then the expectation should be that the request will be turned down.

8.5 When we do exercise discretion in this way it should of course be seen for what it is -- an exceptional decision in a particular case rather than as being the norm or a precedent.

Information required in support of applications

9. In submitting applications it would be helpful to us if it could be made clear under which of the 3 categories outlined above the application is being made. In all applications we need to have the full details of the United Kingdom sponsor including their full name, date of birth, immigration status and Home Office reference number. We must also have the full names, dates of birth and exact relationship of the relatives concerned, together with their ethnic origin (clan), present location, when they arrived there (and if in a UNHCR Refugee camp, their Registration Number), and the Embassy at which the formal application for a visa would be made.

10. We appreciate that the very nature of the problem means that there is often no evidence available as proof that the United Kingdom sponsor is related as claimed to the applicants, but wherever such evidence is available we would expect it to be presented (eg copies of marriage certificates, birth certificates, passport etc). Where appropriate we would also expect to see evidence that the sponsor is able to maintain and accommodate the applicants without recourse to public funds (eg bank statements etc), evidence of previous dependency and evidence to show that the other appropriate criteria can be met. If that evidence is not available or the particular requirements of the Rules cannot be met, it would be helpful if a statement to that effect could be made rather than making no reference to it. If after an application is made to us, any new information arises which you would like us to take into account or if there are any material changes to the application, then it should of course be put to us promptly, preferably in writing.

11. If we require further information about a particular application we will contact you rather than the sponsor direct and by the same token any enquiries or changes to the application we would expect the sponsor to put to us through yourselves. On a similar note we receive a large number of cases where the same application is put to us through two or more different representatives. This often leads to confusion and a lot of unnecessary work. It would be helpful if before submitting an application you could confirm with your client that it is not a duplicate application.

Delays in dealing with applications

12. The large number of these applications received has generated a substantial amount of new work for the African Section of the Refugee Unit here. These applications require very careful and individual consideration and it is inevitable that they will take some time to resolve. We accept that there are strong humanitarian grounds for giving these cases priority but we cannot overlook our responsibility for examining the very high levels of new asylum applications we receive or our obligations to applicants of other nationalities whose cases, for a number of different reasons, also call for priority attention. Nevertheless, recently we have been able to divert additional staff resources to deal with these cases and we will continue to strive to reduce the time taken before a decision is reached. The modifications to these special arrangements which I outlined above should also serve to improve the service. In the interests of fairness we are now dealing with these applications strictly in the order in which they are received. There will be cases which can justify extra priority treatment -- for example when the applicants are young unaccompanied children or very elderly or sick. If you wish us to consider dealing with a particular case out of turn then please write to us giving the reasons why. However given the very harsh conditions nearly all the applicants are having to endure, it will I regret only be in the most exceptional circumstances that we could agree to such a request.

13. We all wish that it was possible to deal with these applications without any delay at all and we will continue to aim to achieve that. In the meantime there will inevitably be delays. We will in future send you a letter acknowledging the receipt of applications so that you can be sure that they have reached us safely and are being dealt with. We hope this will reassure the sponsor that the matter is receiving attention and greatly reduce the need for telephone calls to this office seeking such confirmation.

Outcome of applications

14. As soon as a decision has been reached on an application we will write informing you of the outcome. As previously mentioned an application for a visa to come to the United Kingdom can only be made at a British diplomatic post overseas and the decision to grant or refuse any such application is vested in the Entry Clearance Officer at that diplomatic post. If on the basis of the information provided it is decided to agree to the request to authorise the issue of a visa in advance of a formal application being made, we will at the same time issue appropriate instructions to the relevant British Diplomatic post overseas. When the individuals concerned are ready to travel they should make a formal application for their visas at that Diplomatic post and if the Entry Clearance Officer is satisfied that everything is in order he will go ahead and issue the visas. The visas have a limited validity and must be used within 6 months of them being issued. There is no time limit attached to the authorization which we send to the appropriate diplomatic post. The applicants are therefore strongly advised not to make their formal applications for a visa until they are in a position to travel. Indeed from the time the initial requests are put to us here, the applicants are urged to remain where they are until a decision had been reached -- doing otherwise leads to an unnecessary movement of refugees which creates enormous difficulties on the ground for the various relief agencies.

15. If we decide to refuse the request to authorise the issue of visas in advance of the formal application being made, then it will be for one of two reasons. Firstly, because we believe that the applicants are able to make an application for visas overseas in the normal way, are not therefore beneficiaries of this concession and their cases should not be considered here. Secondly, there will be cases which we have considered, but where we believe that the individuals concerned would not qualify for the issue of visas. We will in future make it clear for which of these two reasons the request has been rejected.

16. The whole purpose of these special arrangements is to facilitate the issue of visas to people who cannot apply for visas overseas themselves but who would, given their particular circumstances, qualify for the issue of visas. By their very nature therefore the arrangements do not make any provisions for those who cannot qualify and in the disputed cases which inevitably arise there is no formal right of appeal. (Because formal applications for visas cannot be made here, we here cannot formally refuse the issue of visas -- there is therefore no appealable decision.) In these cases if the individuals wish to pursue their application for a visa, they or their representative, should make a formal application for a visa overseas in the normal way and if the relevant Entry Clearance Officer then decides to refuse the application, that refusal will attract a formal right of appeal to the independent appellate authorities which have been established by Parliament to resolve disputed cases of this kind. That is not to say that where we here have made a negative decision we are not prepared to reconsider the case if there are new and compelling factors which need to be taken into account or where you feel that we have given insufficient weight to certain factors which should have led us to exercise discretion differently. If you wish to make any representations to us along those lines, they should be put to us in writing and we will of course reconsider the case.

17. There have been a number of cases in which we have authorised the issue of visas in advance of a formal application being made, only to discover when the individual concerned is interviewed by the Entry Clearance Officer when making the formal application, that the facts presented to us at this end were clearly and knowingly false. These special arrangements are designed to benefit those who through no fault of their own have found themselves in very dire circumstances and abuse of the system cannot be tolerated. I am sure that you will agree with me that we must take a firm and uncompromising line on this and not allow this facility to fall into disrepute. In cases where we have authorised the issue of a visa on the basis of what turns out to be false representations, then obviously that authority is negated and the Entry Clearance Officer will make a decision on the application on the totality of the information available to him.

Travel documentation and visa fees

18. I understand from the Foreign and Commonwealth Office that no fee is charged for visas to enable people to come to the United Kingdom as a refugee, but visa fees are normally chargeable for people coming to the United Kingdom in any other capacity. Similarly if the Entry Clearance Officer issues a declaration of Identity (one way travel document), then a fee is normally chargeable.

Cases referred to in the Judgment:

No cases are referred to in the judgment

Counsel:

O Davies for the applicants; I Burnett for the respondent

PANEL: Judge J

Judgment One:

JUDGE J: There are three applicants. The issue which they have each pursued on the hearing is whether there is a right of appeal to an adjudicator in respect of an adverse decision reached on an application submitted directly to the Home Office.

In each case the relief sought is a declaration that the applicant is entitled to appeal to an adjudicator against the decision of the Home Office.

Each of the cases has, on the face of it, a sad, anxious and distressing background. Each case goes back to the early part of 1990.

Taking the case of Abdi as an example only, the application for a family reunion was dated 19 February 1990. The applicant states that she is a refugee and she then sets out some of the problems which faced those whose names she listed:

"I would very much appreciate the Home Office to consider my application on humanitarian basis and with due urgency grant them permission to join me in the United Kingdom."

The result of that application was partially successful and partially unsuccessful.

On 14 January 1992 a letter was sent to Mrs Abdi referring to two particular names in her list and indicating:

"We have very carefully considered this request and you will be pleased to hear that on the basis of the information provided, we are prepared exceptionally to authorise the issue of visas. We have notified the British Embassy in Addis Ababa."

Unfortunately, from her point of view, there was an unsuccessful limb to her application and the letter setting out the answer is also dated 14 January. There are a number of names on the application and the letter reads:

"We have very carefully considered this request but given the particular circumstances of the case we do not believe that the individuals concerned would qualify under the Immigration Rules for the issue of visas. We have also considered whether they should be issued with visas to enter the United Kingdom exceptionally outside the Immigration Rules but we do not believe that there are sufficient grounds to justify this."

That matter was taken up on behalf of Mrs Abdi, and on 25 March 1992 the reply was unfavourable:

"As explained in our letter of 14 January 1992 the circumstances of the application do not warrant prior approval of the authority to issue visas. Mrs Abdi is still subject to immigration control and is therefore not settled in the United Kingdom. Her relatives cannot qualify for admission as her dependants under the Immigration Rules. The relevant paragraph of the Immigration Rules also states that people seeking entry to the United Kingdom as dependent relatives must be without other close relatives to turn to."

That is the end of the quotation, although the letter continues to answer some of the points that were made.

To return to the letter of 14 January 1992 containing the refusal, it was stated:

"Applicants do not have a right of appeal where adverse decisions have been reached on visa applications submitted direct to the Home Office."

It is that sentence, in this particular application, which is of paramount significance. The other sentence is to be found in the letter of 25 March 1992. That, it will be remembered, is the letter which explains the refusal. It ends with this sentence:

"If Mrs Abdi wishes to pursue this application further, she, or a representative acting on her behalf, should submit a letter of application to the British Embassy in Addis Ababa as advised earlier."

It is unnecessary to go through the various letters which passed in the case of the Diria application and the Hussain application or, indeed, to set out some of the distinctions which arise in the three cases, because, as indicated at the outset of this judgment, the issue to be decided is the same.

The Home Office indicated as long ago as May 1990 how it would approach applications for Somali family reunions. I do not propose to read out the whole of that letter. The document is no doubt available to any member of the public who wishes to obtain a copy. (The letter of 17 May 1990 is set out in the notes segment). My attention was drawn to it in detailed analysis by Mr Owen Davies on behalf of the applicants. It sets out the relevant considerations, and recognises the difficulties of some of those living in the Horn of Africa.

So far as the current policy was concerned, there were particular policies relating to the immediate family of refugees (which applies to Mrs Abdi) and to dependants under normal immigration rules, considerations which would have applied both to the Hussain and to the Diria applications.

My attention was drawn to the section in the letter which deals with the outcome of applications and in particular paragraph 14, which concerns applications for a visa to come to the United Kingdom after formal application was made to the entry clearance officer, the problem that would arise if it was decided to refuse the request and, in each case, the possibility of there being one of two reasons, the second of which applies in each of the present cases. The text there reads:

". . . there will be cases which we have considered, but where we believe that the individuals concerned would not qualify for the issue of visas."

Then I continue with the quotation from paragraph 16:

"(Because formal applications for visas cannot be made here, we here cannot formally refuse the issue of visas -- there is therefore no appealable decision.)"

The letter then goes on to deal with the exercise of discretion and reconsideration of the case.

The only other matters to which it is necessary to refer in the narrative are that an affidavit has recently been sworn and filed following the granting of leave, which sets out how the matter has developed. Taking Mrs Abdi's case again by way of example, a letter dated 10 June 1992 sets out in a letter to the immigration appeals office:

"We wish to enter notice of appeal in respect of the said decision" -- that is the decision of 14 January with the refusal -- "and this letter should be treated as such (and as an application for leave to appeal out of time). We should say at once that the Home Office do not accept that there is a right of appeal in this case because they contend that there has been no 'refusal' of the application."

The letter continues to describe the present proceedings and the leave to apply for judicial review, and then it continues:

". . . if that stance is maintained in the form of explanatory statement that is presented, we would ask that the case be listed for a ruling on the preliminary point as to whether an appeal will lie.

We ask that this preliminary point be listed together with the cases of Hussein and Diria, which raise a precisely similar point."

It ends by stressing the urgency of the matter and commenting that:

"We are dealing with people in the direst straits through no fault of their own."

There was then a telephone conversation and some uncertainty about what was happening. Mrs Abdi made an application to the entry clearance officer before leave was granted and, as I understand it, the other two applicants have made their application since leave was granted.

On 13 July the Deputy Chief Adjudicator, commenting on a telephone conversation that he had had with the applicant's solicitors and the papers which he had been sent, said:

". . . it seems to me that your clients have actually obtained what they sought but they have received it at discretion as opposed to as of right. The reason why they have received it in this way is because the Home Office contend that the application should have been made at the Mission and not to the Home Office itself.

However, be that as it may, visas have actually been issued by the Secretary of State for the Home Department therefore there can be no appeal against any decision refusing such an application because they did not refuse. There can be no appeal against the decision of the Entry Clearance Officer at the Mission in question because no application was made to him. Under the circumstances therefore I do not see how this Authority can be seized of any appeal at all, even to decide on a preliminary point."

That letter is based on a clear misunderstanding of the practical position. It arises from muddle and it does not seem to me to be a decision which would prevent the applicants from exercising or continuing to exercise two avenues which they have already started to explore.

The first avenue is the statutory procedure which arises under the immigration appeal rules. I do not propose to read them out as part of the judgment, but an appeal procedure exists, it has been invoked in each case and, as yet, no decision has been made. In addition, on the basis of the suggestions made by the Home Office, applications have been made in each case to the entry clearance officer, that procedure has apparently been invoked and again has not yet been concluded.

In essence, the application for judicial review arises at this early stage because of a number of practical problems faced by the applicants. It is, I think, clear and I proceed on the basis that there are urgent reasons for a decision in this case.

I accept also that the issue which arises for decision, as defined at the beginning of this judgment, is something which will require the attention of certainly one part of the appeal system and it is likely that when all the necessary statutory or other procedures have been exhausted that the case will end up in the Crown Office List for adjudication and decision.

I also recognise, although this perhaps is less obvious from the papers, that these three cases may not be and probably are not the only three cases in which the problems which I have attempted to explain in the course of this judgment are likely to arise. Any decision which is reached about the issue in the case is one which may have general consequences.

Those considerations have been advanced with some care by Mr Owen Davies. The reality of what I am being asked to do is to accept an attempt to leapfrog an existing procedure which is clearly set out and to use judicial review of an expression of the opinion of the Home Office, and, having given my conclusion on the expression of the opinion of the Home Office, then to foresee that that opinion will be placed before an adjudicating or an appellate tribunal before the adjudicating or appellate tribunal has had a chance to consider the matter on the basis that the view which I have expressed will bind. In other words, the matter comes before the High Court to tell the appropriate adjudicating or appellate tribunal what its own decision should be on the subject before it has had a chance to consider the problem and to hear the arguments.

Even assuming that it is appropriate judicially to review an opinion expressed by the Home Office in the decision letters to which I have referred, it would in my judgment be far more useful for everyone involved (that does not merely include these three applicants, though it is their case which I have in mind primarily) if the whole of each case could be considered in proper form and a decision reached on the basis of consideration of all relevant factors with the positive advantage of following normal procedure stage by stage when, as experience shows, points become clearer or their significance is more readily appreciated. To make the decision that I am invited to make now is likely to lead to a multiplicity of different procedures, which is a positive disadvantage. Judicial review is normally the final stage in the appropriate process.

Although it is possible in an appropriate case to go behind this principle, in my judgment, notwithstanding the personal circumstances which arise here and notwithstanding the fact that the case may eventually return to the Crown Office List for a decision, this is not a case in which it would be right for me, as a matter of discretion, to judicially review and consider the point of law which arises and to give my judgment on it before the appropriate procedures laid down first of all by statute and possibly also in the suggestions made by the Home Office have been exhausted properly in the ordinary way.

In those circumstances, without in any way wishing to express any view at all about the legal side of this matter, carefully and shortly summarised in the outline argument, this application for judicial review must fail.

DISPOSITION:

Application dismissed

SOLICITORS:

Wallace Bogan & Co, London, E3; Treasury Solicitor