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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

31 OCT 2012

R (on the application of Chen) v Secretary of State for the Home Department & Anor [2012] EWHC 2531 (Admin) (2012) PLLR 132

Immigration - Support - Assistance - ECHR

Requiring unmarried persons to live together for two out of three years before they qualify as dependants under section 94 of the Immigration and Asylum Act 1999 was held not to be a breach of the Claimant's Article 8 or Article 14 ECHR rights.

14 September 2012

Administrative Court

Beatson J

1.         By these proceedings, the Claimant challenged a decision given by the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal on 1 March 2011, which had dismissed her appeal against the Secretary of State's refusal to treat her ‘off/on' partner, Mr Wu, as her dependant. If treated as her dependant, the Secretary of State would have been obliged to provide her with additional support, including permitting Mr Wu to live with the Claimant in accommodation provided with the National Asylum Support Service.

2.         The Claimant had a dependant minor child in the UK, and as such, under section 94(5) of the 1999 Act was entitled to continue to be treated as an asylum seeker whilst the child was under 18 years of age and remained in the UK. Mr Wu's asylum application had been refused, and his subsequent appeal dismissed. The relationship between the Claimant and Mr Wu was not a consistent one, and the decisions of the First Tier Tribunal had made adverse findings of credibility in relation to both the Claimant and Mr Wu.

3.         The matter to be determined by the Court was whether the common law interpretation of regulation 2(4)(f) was compliant with Articles 8 and 14 of the ECHR.

4.         It was submitted on behalf of the Claimant, that to avoid breaching Articles 8 and 14 of the ECHR, the definition of dependent must be read so as to include Mr Wu. The Claimant alleged that regulation 2(4)(f) failing to consider factors other than the length of cohabitation was arbitrary and inflexible and could not be justified as a difference in treatment. It was further submitted that the provisions applied effectively frustrated the Secretary of State's duty to safeguard and promote the welfare of the child under section 55 of the Borders, Citizenship and Immigration Act 2009.

5.         The Defendant alleged that section 94 of the Immigration and Asylum Act 1999 provides categories of persons to be considered to be dependants. Mr Wu did not qualify under section 94, nor any ordinary reading of regulation 2(4)(f) of the Asylum Support Regulations 2000 SI 2000 No 704 (‘the 2000 Regulations').

6.         The Defendant maintained that there was no incompatibility with the Claimant's ECHR rights, and the qualification criteria applied (living with the relevant person for a minimum of two out of the last three years) were a legitimate and proportionate means of balancing the recognition of relationships and minimising abuse of the asylum support system.

7.         HELD: The Court could not find, on the basis of the evidence available, that to refuse to consider Mr Wu as the Claimant's dependant and reside with her would have a sufficiently severe impact and effectively disrupt the Claimant's family life (as required by Article 8 ECHR). There was nothing to indicate that Mr Wu would not have been able to obtain local accommodation or travel to visit the Claimant and their child. The Defendant's refusal to treat Mr Wu as a dependant of the Claimant was therefore not found to be an interference with her Article 8 rights, but even if it was, the Court stated that it would be justified as proportionate

8.         The Court found that the difference in treatment between the Claimant and a married couple (requiring an unmarried couple to live together for at least two of three years before the application was held to be justified) did not fall within the ambit of Article 14, because the treatment was based on the length of the cohabitation, not the cohabitation itself. The Court determined that it was legitimate for the Regulations to require a qualifying period of cohabitation, which was used as a threshold to determine of the nature of the relationship.

9.         The Court determined that the Regulation was ‘a proportionate means of achieving [a] legitimate aim'. In relation to the ECHR claims, the Court held that the material supplied would not lead the Tribunal to make a different conclusion. As the Claimant had not qualified on the basis of the threshold criteria, if remitted, unless the Tribunal rejected this Court's findings of law, it would be inevitable that this claim would be dismissed. It was stated that there would too be little prospect of different factual findings being made due to the serious adverse credibility findings made by the Tribunal.

10x.     As such, the Court found there to be no prospect, based on either the law or the facts, that the Tribunal would reach the conclusion contended by the Claimant.

Claim dismissed

Key paragraphs

[30] - Insufficiently severe impact.

[45] - Article 14.

[55] - Qualifying period.

[62] - Regulations workable.

[65] - Proportionate.

[69] - Findings of fact.

[70] - Conclusions.     

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