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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Ilyas Elmi HODE and Hawa Aden ABDI v the United Kingdom - 22341/09 [2009] ECHR 945 (09 June 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/945.html Cite as: [2009] ECHR 945

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9 June 2009

FOURTH SECTION

Application no. 22341/09
by Ilyas Elmi HODE and Hawa Aden ABDI
against the United Kingdom
lodged on 25 March 2009

STATEMENT OF FACTS

THE FACTS

The applicants, Ilyas Elmi Hode (“the first applicant”) and Hawa Aden Abdi (“the second applicant”), are a Somali national and a Djibouti national respectively. The first applicant was born on 13 February 1980 and currently lives in Leeds. The second applicant was born on 15 January 1990 and currently lives in Djibouti. They are represented before the Court by Mr I. Thrilling of Harehills & Chapeltown, a lawyer practising in Leeds.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant arrived in the United Kingdom on 18 February 2004. He successfully claimed asylum and was granted five years’ leave to remain in the United Kingdom to expire on 16 March 2011.

In June 2006 the first applicant was introduced to the second applicant through a friend. In February 2007 he travelled to Djibouti to meet her and they married on 5 April 2007. They lived together in Djibouti until the first applicant returned to the United Kingdom on 15 May 2007.

The second applicant applied for a visa to join the first applicant in the United Kingdom. On 12 December 2007 the Entry Clearance Officer refused the application on the ground that the first applicant was not a person present and settled in the United Kingdom as required by paragraph 281 of the Immigration Rules HC 395 (as amended) (“the Immigration Rules”).

On 17 February 2008 the second applicant gave birth to a son. The first applicant was named as the father on the birth certificate.

The second applicant appealed against the decision to refuse her application for leave to enter. The Immigration Judge accepted that the applicants were married and that the first applicant had sufficient funds to accommodate and maintain his wife and child. He also accepted that the refusal of entry clearance engaged the rights of both applicants under Article 8 of the Convention. He dismissed the appeal, however, holding that the refusal of entry clearance would not interfere disproportionately with the second applicant’s rights under Article 8 of the Convention. In particular, he noted that she had never enjoyed her family life in the United Kingdom and there were no obstacles to prevent the first applicant from living in Djibouti other than that he could not speak French and would be unlikely to secure employment there.

The second applicant applied for reconsideration of the decision. In a decision dated 28 August 2008, the Asylum and Immigration Tribunal refused to order reconsideration. On 24 October 2008 the Administrative Court also dismissed the application for reconsideration.

B.  Relevant domestic law

Prior to 30 August 2005, successful asylum seekers were given Indefinite Leave to Remain as standard alongside refugee status. As they were “persons present and settled in the United Kingdom”, their spouses could join them provided the requirements set down in paragraph 281 of the Immigration Rules were met. Paragraph 281 provides that:

“The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:

(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or

(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and

(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and

(ii) the parties to the marriage or civil partnership have met; and

(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and

(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”

After 30 August 2005 the rules were changed and refugees were instead granted an initial period of five years’ leave to remain although they could subsequently be granted Indefinite Leave to Remain. As a consequence of the change of the rules, for the first five years refugees were not “persons present and settled in the United Kingdom” for the purposes of paragraph 281. They could, however, still be joined in the United Kingdom by a spouse if the marriage took place before they left their country of formal habitual residence. Paragraph 352A of the Immigration Rules contains the requirements for family reunion for refugees. It provides that:

“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that:

(i) the applicant is married to or the civil partner of a person granted asylum in the United Kingdom ; and

(ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and

(iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and

(iv) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage is subsisting; and

(v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”

Under the Immigration Rules the spouses of other categories of person granted limited leave to enter the United Kingdom may accompany or join their spouse without any requirement that the marriage took place in the country of former habitual residence. Paragraph 76 of the Immigration Rules contains the requirements for entry to the United Kingdom as the spouse of a student or prospective student. It provides that:

“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a student or a prospective student are that:

(i) the applicant is married to or the civil partner of a person admitted to or allowed to remain in the United Kingdom under paragraphs 57-75 or 82-87F; and

(ii) each of the parties intends to live with the other as his or her spouse or civil partner during the applicant’s stay and the marriage or the civil partnership is subsisting; and

(iii) there will be adequate accommodation for the parties and any dependants without recourse to public funds; and

(iv) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(v) the applicant does not intend to take employment except as permitted under paragraph 77 below; and

(vi) the applicant intends to leave the United Kingdom at the end of any period of leave granted to him.”

Similarly, paragraph 194 of the Immigration Rules contains the requirements for entry to the United Kingdom of a person with leave to remain for the purpose of obtaining employment. It provides that:

“The requirements to be met by a person seeking leave to enter the United Kingdom as the spouse or civil partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that:

(i) the applicant is married to or a civil partner of a person with limited leave to enter the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K); and

(ii) each of the parties intends to live with the other as his or her spouse or civil partner during the applicant’s stay and the marriage or civil partnership is subsisting; and

(iii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(iv) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(v) the applicant does not intend to stay in the United Kingdom beyond any period of leave granted to his spouse; and

(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”

COMPLAINTS

The applicants complain that the decision to refuse the second applicant’s application for entry clearance violates their rights under Article 8 of the Convention as she and her child will only be eligible to apply to join the first applicant if he is granted Indefinite Leave to Remain on 16 March 2011, when he will have completed five years as a refugee. The applicants further complain that there has been a violation of their rights under Article 14 of the Convention when read together with Article 8 as the first applicant has been treated differently either from a refugee who married before leaving his country of former habitual residence or from a person granted limited leave to enter the United Kingdom as a student or worker and there is no justification for such a difference in treatment.

QUESTIONS TO THE PARTIES

Would the first applicant be granted leave to enter and remain in Djibouti as the spouse of the second applicant?

If so, what impact would this have on the grant of asylum in the United Kingdom? Is there a risk that the first applicant could lose the protection against refoulement?

Did the decision to refuse the second applicant’s application for leave to remain violate the applicants’ right to respect for their family and private life under Article 8?

Did the decision violate the applicants’ rights under Article 14 of the Convention read in conjunction with Article 8?