IMMIGRATION — Refusal of entry — Mother or grandmother — Applicant separated from husband and seeking admission to UK as dependent mother over 65 of man present and settled in UK — Whether applicant’s position to be treated analogous to that of widow — Immigration Rules (HC 251), para 317(i)

MB (Somalia) v Entry Clearance Officer: 20 February 2008 [2008] EWCA Civ 108; [2008] WLR (D) 54

CA: Laws, Dyson and Moore-Bick LJJ

It was not appropriate to construe para 317(i)(a) of the Immigration Rules (HC 251) so as to treat a woman separated from her husband as if she were a widow for the purposes of admission to the UK. It was for the Home Secretary to strike a balance between the interests of families whose dependent relatives wished to come to join them in the UK and the need for an effective system of immigration control. The fact that the policy might produce irrational results in particular cases did not make the policy as a whole irrational. The discrimination in the Rules between widows and mothers who were separated from their husbands was based on the Home Secretary’s decision in the balancing exercise and was a matter of social policy.

The Court of Appeal so held dismissing an appeal by MB from a decision of Immigration Judge Bryant in the Asylum and Immigration Tribunal on 30 June 2006 to uphold the decision of an entry clearance officer to reject her application for admission to the UK.

DYSON LJ said the applicant had become separated from her husband by the war in Somalia in 2001 and did not know his current whereabouts. She was living as a refugee in Kenya supported by remittances from her son, a refugee in the UK. The relevant part of para 317 required that a mother seeking indefinite leave to enter or remain in the UK be a widow aged 65 years or over. The applicant submitted that the rule should be construed purposively so as to include separated as well as widowed women and that alternatively the rule was unjustifiably discriminatory as between widows and separated women and thus violated the applicant’s rights under art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. His Lordship said that it was impossible to read para 317(1)(a) as including separated mothers. The Rules had to be read in conjunction with Immigration Directorate Instructions containing guidance to caseworkers on how the Rules should be interpreted. The instructions did set out a basis on which separated women who were otherwise qualified could be admitted to the UK under para 317(i)(e). It was not irrational for the Secretary of State to take the view that the range of the class of separated mothers was so wide that it should not be assimilated to widows, and so para 317(i)(a) was not irrational in excluding separated women aged 65 or over. Since it was not irrational the claim based on art 14 of the Convention must also fail. In a number of respects para 317(i) was unsatisfactory and the Secretary of State was to be encouraged to review it. It was unsatisfactory that she should make good and obvious lacuna in para 317(i) by a passage in the instructions. It ought to be possible to find all the main provisions of the policy in the Rules, including who was entitled to leave to enter and remain under the rule and in what circumstances

MOORE-BICK and LAWS LJJ gave concurring judgments.

Appearances: David Jones (Wilson & Co) for the applicant; Katherine Olley (Treasury Solicitor) for the Entry Clearance Officer

Reported by: John Spencer, barrister