Legal Update: In a Nutshell - Refugee family reunion rule

What was the case about?

AA (Somalia) v Secretary of State for the Home Department [2013] UKSC 81 concerned an application by a child, "AA", for entry clearance to the UK to join her de facto adoptive parents, one of which had been recognised in the UK as a refugee. AA was born in Somalia in 1994. Her family were "torn apart" by the conflict there, and her father was killed in the mid 1990s. She became separated from her mother and siblings during the conflict, and around 2002, went to live with her brother-in-law and their two children, both girls. Her sister had, prior to this, travelled to the UK and been granted indefinite leave to remain on compassionate grounds. In 2007, the "adoptive" father, Mohamed, went to the UK and was granted asylum. They then made an application for all three girls, who were living with a neighbour in Somalia, for entry into the UK. AA was refused entry by the Home Office. She appealed to the First Tier Tribunal, which allowed her appeal, but was defeated at the Upper Tribunal, following an appeal by the Home Secretary and later, at the Court of Appeal.

What was the issue?

The application was made under paragraph 352D of the Immigration Rules, which provides for the grant of leave to enter the UK for a child of a parent who has been admitted to the UK as a refugee. A "parent" can include an adoptive parent or a "de facto" adoptive parent. However, to qualify as a de facto adoptive parent, paragraph 309A provides that the child must: (a) have lived together with her "adoptive" parents for a minimum period of 18 months, including for the 12 months immediately preceding the application; and (b) the "adoptive" parent must have assumed the role of the child's parent, since the beginning of the 18-month period.

The Supreme Court accepted that Mohamed had assumed the role as AA's parent, despite this arrangement never having been formally registered. The adoption had not been formally registered, as Islamic law does not recognise such a status - instead, it has a status of "Kafala", which is a legal guardianship akin to adoption. Also, there were no functioning administrative structures in Somalia at which the arrangement could have been formalised. However, AA could not satisfy the other requirement (that she had lived together for 12 months with Mohamed immediately before the application was made). The Supreme Court therefore refused the appeal, but accepted that this led to a "harsh" outcome.

What are the implications?

The court commented that paragraphs 352D and 309A were not drafted with refugee applicants in mind, as they "assume a degree of stability in the home country which is likely to be wholly inappropriate to those like AA seeking refuge from war-torn Somalia, and indeed for most asylum seekers." The court strongly suggested that "in the interests of both applicants and those administering the system, it seems much preferable that the rules should be amended to bring them into line with the practice actually operated by the Secretary of State, including that dictated by her obligations under international law".