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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	21 January 1994
Citation / Document Symbol	[1994] Imm AR 447
Cite as	R v. Secretary of State for the Home Department, Ex parte Fahmi, [1994] Imm AR 447, United Kingdom: High Court (England and Wales), 21 January 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6182c.html [accessed 30 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte FAHMI

Queen's Bench Division

[1994] Imm AR 447

Hearing Date: 21 January 1994

21 January 1994

Index Terms:

Political asylum -- application by husband -- wife and children applicants as dependants -- husband 's application refused -- appeal dismissed -- whether wife and children entitled subsequently to make fresh applications in their own rights -- the meaning of "who would otherwise be refused leave to enter or remain" in HC 251 para 180O. HC 251 paras 180B and 180O.

Held:

The applicant for judicial review was the wife of a citizen of the Sudan. She and her children had arrived in the United Kingdom with her husband. He had applied for political asylum, his wife and children in that application being associated as his dependants. His application was refused and his appeal dismissed.

His wife then sought asylum in her own right. That application was refused. The Secretary of State concluded that she having been a party to her husband's appeal, she had no right of appeal in relation to her own application. That decision was challenged on the basis of the terms of paragraph 180O of HC 251.

Held

1. On a true construction of paragraph 180O of HC 251 a person who was the dependant of another was entitled to apply for asylum in their own right as well as being a party, (as a dependant) in the appeal, of the person of whom they were a dependant.

2. On the refusal of such an application, the applicant would have a right of appeal to a special adjudicator.

Counsel:

A Riza QC and L Daniel for the applicant; R Singh for the respondent

PANEL: Jowitt J

Judgment One:

JOWITT J: This application raises a very short point of construction in relation to paragraph 180O of the Statement of Changes in Immigration Rules laid before Parliament on 5 July 1993 being consequent on the passing of the Asylum and Immigration Appeals Act 1993.

The relevant facts can be stated very shortly. The applicant and her husband arrived in this country from Sudan. The husband, Mr Fahmi, applied for asylum for himself and his wife and children on the basis that he should not be expected to return to the Sudan where he would be at risk of persecution. The Secretary of State refused his application on the basis that he was entitled to Egyptian nationality, and were he to be returned to Egypt he would not be required to leave that country and would be accepted there.

There was an appeal to the special adjudicator under section 8 of the 1993 Act which failed. Accordingly, Mr Fahmi faces deportation. The adjudicator having dismissed Mr Fahmi's appeal, Mrs Fahmi then made her own application. She made her application for asylum pursuant to rule 180O of the new rules. The minister considered her application and rejected it. It is submitted that following his rejection there is no right of appeal because Mrs Fahmi was covered by the umbrella of her husband's appeal and indeed is named in the adjudicator's report as a party to the appeal.

Whether that is right or not turns in my judgment on the true construction of the particular paragraph in the new rules which I read so far as relevant:

"A husband or wife or minor children accompanying a principal applicant may be included in an application for asylum. If the principal applicant is granted asylum, any such dependants will be granted leave to enter or remain of the same duration." -- Then this sentence which is of crucial importance: "The case of any dependant who claims asylum in his own right and who would otherwise be refused leave to enter or remain will be considered individually in accordance with paragraph 180B."

Paragraph 180B takes one back to the more usual kind of application for asylum. What Mr Riza for the applicant submits is that at any time from the moment when the husband first makes his application to the time after his application fails and the appeal process in his case fails, the dependent wife, or for that matter dependent children, are entitled to make their own independent applications.

Mr Singh for the respondent submits that such a construction would be lacking in common sense and that it would be open to abuse. I accept that this construction of the rule would certainly be open to abuse. It would be possible for a husband and wife and a large number of dependent children to make successive applications. However, if the wording of the rule allows that, then it is not for me to rewrite it. No doubt a simple amendment could be made to avoid such abuse.

I have to look, however, at the words used and to decide what is their meaning. I turn to the third sentence again:

"The case of any dependant who claims asylum in his own right and would otherwise be refused leave to enter or remain will be considered individually."

I ask myself what that phrase "and who would otherwise be refused leave to enter or remain" means. It seems to me that the sentence is referring to a dependant who, were he or she not to claim asylum in his own right, would be refused leave to enter or remain. If there is no other basis than asylum for leave to enter or remain, then such a dependant would be within the sentence if the person upon whom he or she is dependent is refused asylum, because not coming within the umbrella of that person, he or she will be removed from the country unless he or she can make a claim for asylum in his or her own right.

Mr Singh was prepared, upon consideration, to concede that a dependant can simply rely upon her spouse's or his spouse's claim for asylum or can make her or his own independent claim under the paragraph. He submits, though, that a dependant cannot do both. A spouse or parent and a dependant may have separate claims to asylum, and I do not see why the dependant should not seek asylum both as a dependant and in his or her own right. Mr Singh submits that the right to make one's own application (whether instead of or, if this be permissible, in addition to relying upon the application of the person upon whom one is dependent) comes to an end once the adjudicator's decision upon the principal asylum seeker's appeal is determined.

That is a construction, it seems to me, which requires one to read the third sentence as though it contained additional words and to read it in this way:

"The case of any dependant who [at any time before any appeal by the person upon whom he or she is dependent has been determined] claims asylum in his own right and who would otherwise be refused leave to enter or remain will be considered individually in accordance with paragraph 180B."

I do not for myself see that I would be justified in reading that qualification into the paragraph. Moreover, it seems to me that the dependant may not know whether he or she would be refused leave until the outcome of the application by the person upon whom he or she is dependent is known. The entitlement of a dependant to claim asylum in his or her own right and the consequent right of appeal under section 8 was not lost upon the determination of Mr Fahmi's appeal.

In those circumstances it seems to me that the application must succeed.

DISPOSITION:

Application granted

SOLICITORS:

Holden & Co, Brighton; Treasury Solicitor