Court of Appeal

Published April 14, 2008

AS (Somalia) and Another v Entry Clearance Officer, Addis Ababa and Another

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 (Lord Justice Waller, Lord Justice Sedley and Lord Justice Moore-Bick) so stated on February 29, 2008 when allowing the appeal on a different issue, of AS and BS (Somalia) against the dismissal by Judge Spencer on March 9, 2007, of their appeals against a refusal by the entry clearance officer in Addis Ababa in 2004 to grant clearance.

LORD JUSTICE SEDLEY said that the prescription contained in section 85(4) and (5) of the 2002 Act was unequivocal and unyielding. There was no explanation for the distinction created by the two subsections, where 85(4) relating to refusal of leave to enter, allowed a tribunal to consider evidence concerning matters arising after the date of the decision, whereas 85(5) relating to refusal of entry clearance allowed consideration only of circumstances appertaining at the time of the decision to refuse.

The differential provision did not involve any necessary interference with Convention rights. In section 85(5) cases any postdecision 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. That procedure denied no access to Convention rights by comparison with section 85(4).

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