Share it

Another case in the growing number of immigration appeals to reach the House of Lords. The Home Office took over a year to determine the young Somali appellants’ claim for entry clearance and during that time their living conditions in Somalia dramatically deteriorated. On appeal, s.85(5) of the Nationality, Immigration and Asylum Act 2002 prohibited the Tribunal from considering the change in circumstances. The appellants argued that this breached their rights under Article 8.

The House of Lords agreed with a forceful single judgment from the Court of Appeal upholding the compatibility of s.85(5) on the grounds that it was right that change of circumstances in an out of country appeal be determined by an entry clearance officer. Lord Hope accepted that there might be a case in which the application of the rule could lead to disproportionate delay and expense. Then a declaration of incompatibility would be justified; it was not possible to read down the statute as it was “unequivocal and unyielding”.

The real interest in this case lies in Baroness Hale’s judgment. Neither Lord Phillips nor Lord Hope, who gave substantive judgments, discussed the appellants’ background as war orphans who had been subject to serious neglect during the year it took to consider their claim. Hale fills in these details; she has become a self-professed judicial “story teller” particularly in cases involving children, bringing much needed context and humanity to Lords’ decisions. Just look at the recent case on the age of criminal responsibility, in which she didn’t sit (R v JTB  [2009] UKHL 20) – the glaring absence of any discussion of the broader context desiccates the decision.

Tags: , , ,