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By Taffy Nyawanza
Posted to the web: 23/03/2009 12:26:12
THIS is a short commentary on a recent interesting case called YS and YY (Paragraph 352D, British national sponsor former refugee) Ethiopia [2008] UKAIT 00093.
In brief, the Tribunal ruling in that decision is that an appellant may succeed under the family reunion provisions even though his sponsor has since acquired British nationality.

The brief facts were that a Mrs Ayele came to the UK from Ethiopia in 1993 and claimed asylum. She was granted refugee status, and in 1998, she obtained Indefinite Leave to Remain in the UK. She then proceeded to naturalise as a British citizen.

In 2005, her two children who she had left behind in Ethiopia and in the care of her mother applied for family reunion. Mrs Ayale had not been able to bring them to the UK sooner than that, but had visited them in Ethiopia in 2002, and again in 2005, after obtaining British nationality.

The family reunion application by her two children was refused on the basis that their mother was no longer a refugee and could therefore not enjoy the benefits of family reunion.

The appeal was initially allowed. The Home Office applied for reconsideration and the matter came before two senior Immigration Judges at reconsideration.

The Home Office argued that because the appellant’s mother had become a British citizen at the date of the application, she could not apply for her children to join her in the UK as dependants of a refugee.

The argument was that someone who naturalises as a British citizen could not benefit from the family reunion provisions in paragraph 352 of the Immigration Rules, even if at some point in the past they had been a refugee.

The Home Office based their argument on the basis that the purpose of the specific rule was to give effect to the concept of family reunion for refugees and to enable family members to join those who have been granted refugee status in the UK.

Here, because the mother had acquired British citizenship, she had not retained her refugee status, and because she had travelled back to Ethiopia, she had therefore ceased to be a refugee.

Because she had become a British citizen, she could not at the same time be a refugee, it was argued, and she should therefore bring her children under different provisions of the Immigration Rules.

The decision of the Tribunal came down to a question of statutory interpretation. The Tribunal was persuaded to adopt the ordinary meaning of the words in paragraph 352D(i) and concluded that the words:-

"352D The requirements to be met by a person seeking leave to enter or remain in the United Kingdom [in order to join or remain with the parent who has been granted asylum in the United Kingdom] are that the appellant:

(i) is the child of a parent who has been granted asylum in the United Kingdom…”

meant that once a person had been granted asylum, they would always be able to show that they are refugees regardless of what may happen subsequently, e.g. the grant of British citizenship. In short, once a refugee always a refugee for this purpose. The grant of asylum was a fact that remained unchanged by any new status.

The Tribunal said, therefore, that what the sponsor needed to demonstrate, and which she had done, was that she was a person who had, in the past, been granted asylum in the United Kingdom.

This is an important decision, preserving as it does the benefits of family reunion to those whose immigration status may change with time.

I will put this in context. Those that have tried to bring their loved ones to join them in the UK under the Immigration Rules will know what an uphill task it is. There is a fee to pay at the point of application, and the sponsor must invariably prove that they can maintain and accommodate the applicant adequately, without recourse to public funds and third parties.

Family reunion, in sharp contrast, is free of charge at the point of application, and the sponsor does not even need to demonstrate that they work.
These are the real benefits that the YS and YY case has preserved for refugees who become British nationals.

Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
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