House of Lords

Published June 22, 2009

AS (Somalia) v Secretary of State for the Home Department

Before Lord Phillips of Worth Matravers,

Lord Hoffmann, Lord Hope of Craighead,

Baroness Hale of Richmond

and Lord Brown of Eaton-under-Heywood

Speeches June 17, 2009

The statutory provision that on hearing an appeal against a refusal of entry clearance the adjudicator or tribunal could have regard only to the circumstances appertaining at the time of the decision to refuse and could have no regard to any subsequent change in the applicant’s circumstances, was not incompatible with article 8 of the European Convention on Human Rights, even though its effect could lead to delay in bringing a family together in the United Kingdom.

The House of Lords so held in dismissing an appeal by the applicants, two Somali children, against a decision of the Court of Appeal (Lord Justice Waller, Lord Justice Sedley and Lord Justice Moore-Bick) (The Times April 14, 2008) dismissing in part their appeal against a decision of the Asylum and Immigration Tribunal (Senior Immigration Judge Spencer), given on March 2, 2007, reversing a decision of Immigration Judge Oliver, promulgated on April 20, 2006, that he was entitled to take into account the change in the applicants’ circumstances since the refusal of entry clearance in 2004.

Section 85 of the Nationality, Immigration and Asylum Act 2002, in its original form and so far as relevant, provides:

“(4) On an appeal against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

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