IMMIGRATION — Appeal — Entry clearance — Claimants refused entry clearance — Appeal taking some time to be heard — Claimants in meantime suffering changed circumstances — Whether appeal tribunal able to consider circumstances arising after date of refusal — Whether consideration confined to circumstances appertaining at time of decision to refuse entry — Nationality, Asylum and Immigration Act 2002, ss 82(1), 85(4)(5)

AS (Somalia) and another v Entry Clearance Officer, Addis Ababa and another [2008] EWCA Civ 149; WLR (D) 67

CA: Waller, Sedley and Moore Bick LJJ: 29 February 2008

While section 82(1) of the Nationality, Asylum and Immigration Act 2002 permitted an appeal against any immigration decision, in the case of refusal of entry clearance, as opposed to refusal of leave to enter, the tribunal could consider only the circumstances appertaining at the time of the decision to refuse.

The Court of Appeal so stated when allowing the appeal on a different issue, of AS and BS (Somalia), minors, by their litigation friend Fawsiya Sharif Omar, against a decision of Judge Spencer in the Asylum and Immigration Tribunal on 9 March 2007 to dismiss their appeals against a refusal by the entry clearance officer in Addis Ababa in 2004 to grant entry clearance.

SEDLEY LJ said that there was no explanation for the distinction created by the two subsections, where s 85(4) of the 2002 Act (relating to refusal of leave to enter) allowed a tribunal to consider evidence concerning matters arising after the date of the decision, whereas s 85(5) (relating to refusal of entry clearance) allowed consideration only of circumstances appertaining at the time of the decision to refuse. The prescription contained in s 85(4)(5) was unequivocal and unyielding. The differential provision did not necessarily involve any interference with Convention rights. In s 85(5) cases any post-decision events which generated or enhanced a human-rights based claim for entry clearance could be the subject of a fresh claim and, if necessary, a fresh appeal. While it might prolong matters, that procedure denied no access to Convention rights by comparison with s 85(4).

WALLER and MOORE-BICK LJJ agreed.

Appearances: Manjit Gill QC and Declan O’Callaghan (Hersi & Co) for AS; Elisabeth Laing (Treasury Solicitor) for the Secretary of State for the Home Department.

Reported by: Alison Sylvester, barrister