Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005240

First-tier Tribunal No: HU/00390/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4th of March 2025

Before

UPPER TRIBUNAL JUDGE GLEESON
DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

MEHRIT GHEBREIBANOS GHEBREMESKEL
[NO ANONYMITY ORDER]
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Robert Bircumshaw (Central England Law Centre)
For the Respondent: Ms Susana Cunha (Senior Home Office Presenting Officer)

Heard at Field House on 10 February 2025

DECISION AND REASONS

1. This is an appeal by the appellant against the decision of the First-tier Tribunal, in which the appellant’s human right’s appeal was dismissed.

Summary of the application to the entry clearance officer and the appeal before the First-tier Tribunal

2. The appellant is a national of Eritrea and had applied for entry clearance on 7 September 2023 as the spouse of Michele Abrhale Eyob, the sponsor, pursuant to Appendix Family Reunion (Protection) of the Immigration Rules. The sponsor, also an Eritrean national, explained as part of the application that he had fled Eritrea on 19 October 2015, traveling through a number of countries before he arrived in Germany in November 2017 where he was granted refugee status with three years leave to remain there. The sponsor and appellant married on 3rd May 2021.

3. The sponsor explains in his evidence that he was unable to renew his status in Germany upon expiry because the German authorities asked him to produce some evidence from the Eritrean Embassy. However, since he left Eritrea illegally, he could not obtain any identity document from the Embassy and he was unable to stay in Germany. Therefore, he came to the United Kingdom and claimed asylum on 20 April 2022. He was granted refugee status here on 20 June 2023.

4. The appellant’s application was refused by the entry clearance officer because she married the sponsor after he fled Eritrea, the country he fears, and Eritrea is considered to be his country of habitual residence. Therefore, this was considered to be a post-flight marriage and as such did not meet paragraph FRP 4.1 (b) of the Appendix Family Reunion (Protection) of the Immigration Rules, which provides:

“FRP 4.1 …The applicant must: …
(b) have formed part of the family unit of P before P left the country of their habitual residence in order to seek protection; …”

5. It was further concluded that there were no exceptional circumstances which meant that the refusal would result in unjustifiably harsh consequences for the appellant or her partner.

6. The appeal came before the First-tier Tribunal. The appellant was not legally represented but her sponsor husband attended as a witness and asked the Tribunal to allow the appeal. There was no dispute as to the facts of the case.

7. The issues were whether the appellant satisfied paragraph FRP 4.1(b) of the Appendix Family Reunion (Protection) of the Immigration Rules or were there exceptional circumstances under GEN.3.1 of Appendix FM of the Immigration Rules.

8. The First-tier Judge dismissed the appeal on the basis that the couple had married years after the sponsor left Eritrea and therefore the requirements of Appendix Family Reunion (Protection) were not met. Whilst accepting that family life was engaged, the factors raised by the appellant did not outweigh the public interest in maintaining immigration control.

Summary of grounds

9. The appellant raises a short but important point of interpretation in her grounds of appeal. She submitted that the Judge had misunderstood the requirements of FRP 4.1 (b) of Appendix Family Reunion (Protection) and conflated the country of nationality with the country of habitual residence. She referred to the reported decision of the Upper Tribunal in AA (marriage, Country of Nationality) [2004] UKIAT 31, which concerns an earlier, but similarly worded version of the Immigration Rules and which we deal with in further detail below. The appellant submitted that Germany should be considered the reference country of habitual residence and not Eritrea.

10. There was no challenge the Judge’s findings on exceptional circumstances.

11. There was no rule 24 response, but Ms Cuhna confirmed that the appeal was resisted. We heard submissions from both representatives and reserved our decision.

Submissions

12. Mr Bircumshaw for the appellant relied upon the grounds for appeal and the case of AA. That decision was reported because it concerned the interpretation of paragraph 352A of the Immigration and found as follows (AA paragraph 1):

“The Tribunal finds that, where a person (‘A’) leaves the country of her nationality and subsequently marries a man (‘B’) in another country where A has become habitually resident, B is not precluded from relying upon paragraph 352A in order to join A in the United Kingdom by reason only of the fact that the country in which A and B were married is not the country of A’s nationality, in relation to which she has been recognised by the United Kingdom as a refugee.”

13. The relevant part of paragraph 352A that was in issue states:

“ii) the marriage did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum;”

14. The factual situation in that case was that the Sponsor had fled Somalia to Ethiopia where she resided for a number of years. There she married her husband before traveling onwards to the United Kingdom and was granted refugee status. An application for entry clearance as the spouse of a refugee was made and refused on the basis that the marriage took place post-flight.

15. The Adjudicator (as he then was) found that for the purposes of paragraph 352A, the words “country of habitual residence” in sub-paragraph (ii) could only mean “the country from which the asylum seeker was fleeing persecution in order to seek asylum.” However, having considered the purpose underlying the rule, the Upper Tribunal concluded that there was no justification for construing the provision in so narrow a manner (AA paragraph 29).

16. It was noted that in many cases, the country of habitual residence, which they leave in order to seek asylum will be the same country from which they have a well-founded fear of persecution. However, if the drafter of the rules had intended the reference country to be confined to the country from which the person has sought refuge, it would have been easy to say so (AA paragraph 34):

“In many cases, the country of a person’s former habitual residence, which he or she leaves in order to seek asylum, will be the country in which the person granted asylum in the United Kingdom, has a well-founded fear of persecution. If, however, the drafter of paragraph 352A had intended the reference to such a country in sub-paragraph (ii) to be so confined, it would have been an easy matter to have said so.”

17. The Tribunal concluded (at paragraph 39):

“Against this factual background, the Tribunal finds that the sponsor was habitually resident in Ethiopia. She left that country in 2000, in order to seek asylum in the United Kingdom. On 30 July 2000, she was granted that status. The marriage in 1999 preceded her departure from Ethiopia. Accordingly, the requirements in paragraph 352A(ii) are met.”

18. Mr Bircumshaw submitted that although the provisions have changed slightly, the matter in issue in this case is essentially the same as that considered by the Tribunal in AA. He said that there has always been a distinction between the country of origin and the country of habitual residence. This is probably to take account of the fact that people from countries like Eritrea are likely to have gone to third countries and formed families before seeking asylum in other places. He submitted that had the marriage taken place in Sudan, for example, before the sponsor sought protection in Germany this would not have been an issue, the matter has arisen simply because the sponsor had sought and been granted protection in Germany before the marriage took place.

19. Mr Bircumshaw urged us to consider the ordinary meaning of the rules. The sponsor had come to the United Kingdom from Germany, the country of his habitual residence, to seek asylum and his marriage occurred before that. Therefore, he says, the appellant satisfies the rules.

20. Ms Cunha for the respondent submitted that the appellant’s interpretation of the rules was incorrect. She invited us to read the rules in context and that family reunion is tied to the habitual residence from which protection was sought and that we have to look at the intention of Refugee Convention. She referred us to the reported decision of this Tribunal in MS and others (family reunion: “in order to seek asylum”) Somalia [2009] UKAIT 00041, which also concerned paragraph 352A of the rules, as they then were. However, the issue in that case was a different one, namely whether a sponsor who had themselves entered the United Kingdom with entry clearance under the family reunion provisions could show they had left the country of his habitual residence “in order to seek asylum”. The Tribunal concluded that they could not.

21. In reply, Mr Bircumshaw again highlighted that if it was intended to tie the pre-flight relationship to the country of nationality then the rules would say so. We were urged not to apply different interpretation of the rules that fall outside their ordinary meaning.

Conclusions

22. The issue is a narrow point of interpretation but one which we are surprised has not been addressed more recently in the authorities.

23. We have found some assistance in the decision of AA which concerns an earlier version of the refugee family reunion immigration rules and a similarly worded provision to that in issue in this appeal. We note that it is a reported decision of this Tribunal and as such gave it careful consideration.

24. We have not found any assistance from decision in MS since that was dealing with a different issue.

25. The question in the particular circumstances of this case is which is the reference “country of their habitual residence”, Eritrea or Germany? There is no dispute that the appellant became a part of the sponsor’s family unit after he left Eritrea but before he left Germany to seek protection in the United Kingdom.

26. There is no definition of “country of their habitual residence” contained within Appendix Family Reunion (Protection) or the general interpretation provisions at paragraph 6.1. There is also no definition of “protection” within those provisions either. Although “protection claim” is defined at paragraph 6.1 by reference to s.82 (2)(a) of the Nationality Immigration and Asylum Act 2002 as a claim that removal of a person from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention or obligations to persons eligible for a grant of humanitarian protection.

27. The first sentence of Appendix Family Reunion (Protection) states:

“This Appendix applies to a partner or dependent child of a person who holds protection status in the UK”

28. What we draw from those parts of the rules is an inference that the reference to “protection” in FRP 4.1(b) is to a protection claim or protection status in the UK. If it was meant to refer to seeking protection anywhere, it would say so.

29. In common with the Tribunal in AA, we note the choice of wording within FRP4.1 (b) and that it is curious that the reference is to “habitual residence”, rather than, for example, “country or origin”, “country of nationality” or “country from which the person sought protection”, all of which would demonstrate a clear or at least clearer intention to limit the family reunion of refugees to those who formed part of their family unit in the country from which they have been recognised as refugees. The use of the words “habitual residence” and those alone are in our view deliberate.

30. We agree with Mr Bircumshaw that these words must be given their ordinary meaning. If the rules were to apply in the way contended for by Ms Cuhna, they would say so. We take note of the Tribunal’s examination of the purpose underlying the old provision of paragraph 352A in AA (paragraphs 19-26) by reference to the Refugee Convention and have been provided no reason to depart from that reasoning in this case, indeed Ms Cuhna submitted we should look to the intentions of the Refugee Convention.

31. This leaves open a fact sensitive assessment, which in turn is flexible enough to take account of the varied situations of refugees fleeing persecution. This interpretation is supported by paragraph 34 of AA.

32. There is no doubt that Germany was the country of the sponsor’s habitual residence before he left to seek protection in the United Kingdom. He had lived there for a number of years with refugee status. There is no doubt that the marriage took place during this period and the sponsor left Germany in order to seek protection in the United Kingdom because his refugee status in Germany had expired and he was unable to renew it.

33. Therefore, we find that the appellant did form part of the sponsor’s family unit of the sponsor before the sponsor left the country of his habitual residence in order to seek protection.

34. As such, the Judge materially erred in law to treat Eritrea as the reference country of habitual residence and in consequence to conclude that the appellant did not meet the requirements of FRP.4.1.

Error of law conclusions

35. We are satisfied that there is a material error of law identified in the grounds of appeal. Having found that the immigration rules are satisfied on the facts as found before the Judge we are able to proceed to remake the decision without further hearing.

Notice of Decision

36. The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.

37. The appellant’s appeal is re-made and allowed on article 8 human rights grounds.

E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 February 2025