R v. Secretary of State for the Home Department, Ex parte Namusisi

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	15 April 1994
Citation / Document Symbol	[1994] Imm AR 399
Cite as	R v. Secretary of State for the Home Department, Ex parte Namusisi, [1994] Imm AR 399, United Kingdom: High Court (England and Wales), 15 April 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6364.html [accessed 30 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte NAMUSISI

Queen's Bench Division

[1994] Imm AR 399

Hearing Date: 15 April 1994

15 April 1994

Index Terms:

Wife -- political asylum -- marriage applicant granted temporary admission pending consideration of claim for asylum made on arrival in United Kingdom -- marriage while on temporary admission application for leave to remain on basis of marriage -- no entry clearance as wife -- application refused -- whether Secretary of State's approach to application reasonable. HC 251 paras 50,180 O.

Held:

The applicant for leave to move for judicial review was a citizen of Uganda who had applied for political asylum on her arrival in the United Kingdom. She was granted temporary admission for a limited period while her claim was considered. She married another Ugandan and then applied for leave to remain as a wife. Her husband was in the United Kingdom with exceptional leave.

The Secretary of State refused her application, relying on paragraph 50 of HC 251: settlement on the basis of marriage was a purpose for which the applicant required entry clearance before admission to the United Kingdom.

Counsel argued that the approach by the Secretary of State was unreasonable. It was not possible for an asylum seeker to return to her own country to secure entry clearance. For the Secretary of State it was submitted that it was fair and reasonable for the Secretary of State not to consider the application based on marriage before the applicant's position as a refugee had been determined. If she were recognised as a refugee she would not require variation of leave on the basis of marriage: if she were not found to have a well-founded fear of persecution in Uganda, it would follow that she would have no difficulty in returning there to secure entry clearance.

Held

1. The facts were unusual and did not fit easily into the immigration rules.

2. Nevertheless the Secretary of State was obliged to be fair as between one applicant and another: his approach in the circumstances was neither unreasonable nor unlawful.

Counsel:

D Abbott for the applicant; R Tam for the respondent

PANEL: Pill J

Judgment One:

PILL J: This is an application for leave to apply for judicial review. Mrs Jane Namusisi applies to quash a decision of the Secretary of State made on 29 January 1994 refusing the applicant leave to enter or to remain in the United Kingdom, and a decision whereby an admission to the United Kingdom of a temporary nature was limited to 29 April 1994.

The applicant is a Ugandan who arrived in the United Kingdom from Uganda in June 1993. She claimed political asylum. Her husband, she claimed, had been assassinated in 1992 by the Ugandan authorities, and threats had been made against her.

In November 1993 she married Mr Mutagubya, who is a Ugandan asylum claimant. He had been granted exceptional leave to remain in the United Kingdom until 30 August 1996. She has since lived with Mr Mutagubya, and the couple wish to bring over to the United Kingdom their children who are still living in Uganda.

The applicant sought leave to enter the United Kingdom on the basis of her marriage to a person permitted to remain. That application was refused on 29 January 1994 in these terms:

"You have asked for leave to enter the United Kingdom as the spouse of Mr Michael Angelo Mutagubya, but under the immigration rules you are required to have an entry clearance for this purpose and you have no such entry clearance."

The immigration officer did not go on to consider the matters set out in rule 50 of the immigration rules because no entry clearance had been obtained. There is no right of appeal within the United Kingdom against that decision.

The claim for asylum is still under consideration, and it was in relation to that claim that the applicant was permitted to remain in the United Kingdom until 29 April 1994. The applicant submits that she is prejudiced by the fact that her application to remain as a spouse has been considered prior to her application for asylum. If the claim for asylum fails, she will have to return to Uganda.

It is submitted that paragraph 180 O of the immigration rules applies. It is submitted that the applicant's husband must be treated as a person whose asylum application has been accepted. It is submitted that the Home Office have not had regard to the facts of the situation because the rules which deal with the entry of spouses cannot, and should not, apply to a situation where an applicant is already within the United Kingdom with a claim for political asylum. Neither the applicant nor her husband had sought to enter the United Kingdom as a spouse, and the application for entry as a spouse ought not to have been considered in the way it was.

Without objection from Mr Abbott (who has said all that could be said on behalf of the applicant) Mr Tam has addressed me on behalf of the proposed respondent. He has submitted a detailed skeleton argument. He submits that the applicant's husband's claim for asylum has been rejected. The exceptional leave to remain which the husband has obtained is something quite separate from a grant of asylum or a grant of refugee status. I accept that submission. The position of those with exceptional leave is set out at page 314 of Macdonald. I will not set out fully in this judgment (having regard to the time of day, and the remaining matters in my list) the points set out in Mr Tam's skeleton argument.

I put to him on the basis of Mr Abbott's submissions that the applicant may be prejudiced by the fact that she could not obtain entry clearance in Uganda because her belief that she was entitled to refugee status made it impossible and impracticable for her to seek entry clearance. Mr Tam's response is that if the fear of persecution was, and is, a genuine one, then asylum will be granted in the United Kingdom and the applicant will not be prejudiced. If the claim is not a justified one, then the applicant should be in no better position than others seeking entry, and they have to seek entry by obtaining entry clearance at the place of origin -- in this case, Uganda.

Mr Abbott makes the further related point that the applicant will not have her claim on the merits of her marriage considered at any stage. They were not considered in January of this year because she was in no position to jump the first hurdle which is contemplated by the rules before the question of the status of the marriage and other factors are determined.

Mr Tam has stressed the need for fairness as between applicants. The fact that, having applied for political asylum, the applicant has married here should not put her in a better position as a spouse than someone who does not have that claim for asylum. Various possibilities were considered. It is clear that the applicant's husband has been here for a considerable period of time. He may have further claims contemplated in the paragraphs at page 314 of Macdonald, and those claims may have an impact upon the applicant. She, too, may, as a result of her asylum application and of course, I am not considering the merits of that in any way, but the possibilities as to what might happen upon that application were also considered.

I have come to the conclusion that it is not arguable that the Home Office have acted unlawfully in this case. The case is of an uncommon factual situation, and I bear in mind that the applicant should not be prejudiced by the fact that the rules naturally deal with more general categories of cases, and that there may be cases in which the interrelation of rules requires careful consideration to see whether the interrelation may prejudice an applicant. At the same time the Home Office must be fair as between applicants, and that is a factor which I take into consideration.

I have come to the conclusion that the Home Office were entitled to act in the way that they did, and it is not arguable that there has been any procedural impropriety or illegality which permits the grant of leave to the applicant. Accordingly, the application is refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Bala & Ari, London E6; Treasury Solicitor