The case AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32; [2009] HRLR 27; [2009] 1 WLR 1385¹ was a decision of the House of Lords on the interpretation of section 85 (5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The appellants were two young Somalis who applied for entry clearance to join their cousin, Ms Omar, who was a recognised refugee in the UK. Their application was refused by the Secretary of State on the ground that they did not meet the requirements of the immigration rules at the date of decision. The appellants appealed to the Asylum and Immigration Tribunal (AIT), which had the power to consider not only the immigration rules but also any other matter raised by the appellants, such as their human rights under article 8 of the European Convention on Human Rights (ECHR). However, section 85 (5) of the 2002 Act provided that the AIT could only take into account evidence that was in existence at the date of decision, unless there were exceptional circumstances.
The appellants argued that section 85 (5) was incompatible with article 8, as it prevented them from relying on evidence of their situation in Ethiopia after the date of decision, which had deteriorated significantly. They also argued that section 85 (5) could be read down in accordance with section 3 of the Human Rights Act 1998 to allow the AIT to consider any relevant evidence, regardless of when it came into existence.
The House of Lords unanimously allowed the appeal and held that section 85 (5) should be read down to permit the AIT to take into account any evidence that was relevant to the appeal, whether or not it was in existence at the date of decision. The House rejected the argument that section 85 (5) was clear and unyielding, and found that it was possible to give it a meaning that was compatible with article 8. The House also rejected the argument that reading down section 85 (5) would undermine the immigration rules or create uncertainty or inconsistency in their application.
The relevance of this case is that it established an important principle of statutory interpretation in relation to human rights. It showed that where a statute is ambiguous or capable of more than one meaning, it should be interpreted in a way that is compatible with the ECHR, unless there is a clear intention of Parliament to the contrary. It also showed that the courts have a duty to give effect to human rights in immigration cases, even if this means departing from the strict application of the immigration rules.
¹: https://publications.parliament.uk/pa/ld200809/ldjudgmt/jd090617/assom.htm
(1) House of Lords – AS (Somalia) (FC) and another (Appellants) v Secretary …. https://publications.parliament.uk/pa/ld200809/ldjudgmt/jd090617/assom.htm.
(2) R (on the application of ZO (Somalia) and others) (Respondents) v …. https://www.supremecourt.uk/cases/docs/uksc-2009-0151-judgment.pdf.
(3) A v Secretary of State for the Home Department – Wikipedia. https://en.wikipedia.org/wiki/A_v_Secretary_of_State_for_the_Home_Department.
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