PROCEDURE

The case originated in an application (no. 22341/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Somali national, Mr Ilyas Elmi Hode, and a Djibouti national, Ms Hawa Aden Abdi (“the applicants”), on 25 March 2009.

The applicants were represented by Mr I. Thrilling of Harehills and Chapeltown Law Centre, a charitable organisation based in Leeds. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan of the Foreign and Commonwealth Office.

On 2 June 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant was born on 13 February 1980 and currently lives in Leeds. The second applicant was born on 15 January 1990 and currently lives in Djibouti.

The first applicant arrived in the United Kingdom on 18 February 2004. He claimed asylum and that claim was accepted in March 2006. Prior to 30 August 2005, successful asylum seekers were granted Indefinite Leave to Remain in the United Kingdom along with refugee status. However, after 30 August 2005 the Immigration Rules were amended and refugees were granted an initial period of 5 years’ Leave to Remain, following which they could apply for Indefinite Leave to Remain. Consequently, the first applicant was granted five years’ leave to remain in the United Kingdom, to expire on 16 March 2011. At the same time, he was provided with a Refugee Convention Travel Document (“CTD”), also to expire on 16 March 2011.

In June 2006 the first applicant was introduced to the second applicant through a friend. In February 2007 he travelled to Djibouti to meet her and they married on 5 April 2007. They lived together in Djibouti until the first applicant returned to the United Kingdom on 15 May 2007.

The second applicant applied for a visa to join the first applicant in the United Kingdom. Although the first applicant was a refugee, the applicants did not qualify for “family reunion” under the Immigration Rules HC 395 (as amended) (“the Immigration Rules”) because paragraph 352A of the Immigration Rules only applied to spouses who formed part of the refugee’s family unit before he or she left the country of permanent residence. The second applicant therefore applied for leave to enter the United Kingdom under paragraph 281 of the Immigration Rules, as the spouse of a person present and settled in the United Kingdom.

On 18 November 2007 the Entry Clearance Officer refused the application on the ground that the first applicant, having only been granted five years’ Leave to Remain, was not a person present and settled in the United Kingdom for the purposes of paragraph 281.

On 17 February 2008 the second applicant gave birth to a son. The first applicant was named as the father on the birth certificate.

The second applicant appealed against the decision to refuse her application for leave to enter. The Immigration Judge accepted that the applicants were married and that the first applicant had sufficient funds to accommodate and maintain his wife and child. He also accepted that the refusal of entry clearance engaged the rights of both applicants under Article 8 of the Convention. He dismissed the appeal, however, holding that the refusal of entry clearance would not interfere disproportionately with the second applicant’s rights under Article 8 of the Convention. In particular, he noted that she had never enjoyed her family life in the United Kingdom and there were no obstacles to prevent the first applicant from living in Djibouti other than that he could not speak French and would be unlikely to secure employment there.

The second applicant applied for reconsideration of the decision. In a decision dated 28 August 2008, the Asylum and Immigration Tribunal refused to order reconsideration. On 24 October 2008 the Administrative Court also dismissed the application for reconsideration.

The first applicant’s leave to remain in the United Kingdom expired on 16 March 2011. He was subsequently granted Indefinite Leave to Remain.

In April 2011 the Immigration Rules were amended to permit refugees to be joined in the United Kingdom by post-flight spouses during their initial period of leave to remain, provided certain other conditions were met.

The second applicant has not re-applied for leave to enter the United Kingdom as the spouse of the first applicant.

The second applicant gave birth to the applicants’ second child on 17 July 2011.