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Upper Tribunal slams Home Office for inability to read dictionary


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The Upper Tribunal has rejected an attempt by the Home Office to ignore the clear meaning of an Immigration Rule. Sahebi (Para 352(iii): meaning of “existed”) Pakistan [2019] UKUT 394 (IAC) is about paragraph 352A(iii), which covers reunion for the family members of people who have been granted refugee status in the UK. It states that in order for someone to qualify for refugee family reunion as a partner, the relationship must have existed before the refugee left their country of origin.

Mrs Sahebi is from Pakistan. She is married to Mr Sahebi, who successfully claimed asylum in the United Kingdom. Before Mr Sahebi left Pakistan their relationship broke down due to domestic violence and they separated, but remained married. The couple reconciled after Mr Sahebi left Pakistan and applied for refugee family reunion. The First-tier Tribunal ruled that the marriage clearly “existed” before Mr Sahebi left Pakistan to come to the UK and allowed the appeal, granting the couple family reunion.

In the Upper Tribunal, the Home Office argued that the word “existed” in paragraph 352 actually means “subsisted”. Since the couple were separated at the point of Mr Sahebi’s departure, the Home Office argued that the marriage was no longer subsisting and did not meet the family reunion requirements.

The Upper Tribunal consulted the Shorter Oxford English Dictionary (6th Ed, 2007) and concluded that “existed” merely refers to a condition objectively being fulfilled, whereas “subsisted” implies an additional qualitative element. When drafting the Immigration Rules the Home Office had deliberately used the term “existed”. Interpreting it to mean “subsisted” would amount to re-writing the rules. The Upper Tribunal therefore concluded:

On its true construction, para 352A(iii) of the Immigration Rules is satisfied by showing nothing more than the formal existence of a marriage or civil partnership as at the time of the refugee’s departure from his/her country of former habitual residence. In contrast to less formal relationships, there is no requirement to show that the relationship had the qualitative character of it having subsisted at the time of the refugee’s departure.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers