241 Pizza

“(5) But in relation to an appeal against refusal of entry clearance (a) subsection (4) shall not apply, and (b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.”

Mr Manjit Gill, QC, Mr Declan O’Callaghan and Ms Sophie Weller for the applicants; Ms Elisabeth Laing, QC and Ms Joanne Clement for the Home Secretary.

LORD PHILLIPS said that the applicants were two young Somalis born in 1991 and 1995. When leave to appeal to the House had been granted they were living in Ethiopia.

They were appealing against the refusal of entry clearance which would have permitted them to enter the United Kingdom to live with their cousin, Ms Omar, who sponsored their application. Ms Omar was a recognised refugee who was settled in the United Kingdom.

On October 30, 2008, the applicants were granted entry clearance. They travelled to the United Kingdom on November 21, 2008, and now lived with Ms Omar. The House had decided to entertain their appeal despite that because it raised an issue that was likely to affect a substantial number of other applicants.

Where a person outside the country wished to enter the United Kingdom, his proper course was to apply to an entry clearance officer in the country where he was living. If entry clearance was granted, leave to enter followed automatically.

Where a person managed to enter the United Kingdom without entry clearance and wished to remain, his appropriate course was to make an application for leave to enter to an immigration officer in this country.

The applicants had drawn attention to the delay that the procedure under section 85(5) of the 2002 Act had involved in their case. They submitted that no sensible reason could be advanced for precluding the consideration, on an appeal against a decision refusing entry clearance, of matters arising after the date of the decision.

If such matters could be considered on an appeal against refusal of leave to enter there was no reason why they should not equally be considered on an appeal against a refusal of entry clearance, for there was in reality no longer any significant distinction between entry clearance and leave to enter.

The effect of such a requirement was to cause unreasonable and lengthy delay in bringing a family together. That was incompatible with the respect for family life required by article 8 of the Convention.

It seemed to his Lordship that the complaint was of a defect of procedure rather than of substance, albeit that defects in procedure might be capable of leading to an infringement of a substantive right.

In the instant case there had been inordinate delay. But the delay was not endemic in the system and it was certainly not a consequence of the prohibition, on an appeal against a decision on entry clearance, of consideration of matters arising since the date of the decision.

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