ECtHR - Hode and Abdi v. the United Kingdom, Application No. 22341/09
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Country of Applicant:
Djibouti
Somalia
Date of Decision:
06-02-2013
Citation:
Hode and Abdi v. the United Kingdom, Application No. 22341/09
Court Name:
ECtHR, Fourth Section
Keywords:
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 14
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 35
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 41
Headnote:
The case concerns discrimination against a refugee and his post-flight wife in the enjoyment of their right to family life because she was not allowed to join him in the UK. This was owed to more restrictive rules for the reunification of the spouses of refugees in comparison to workers or students, or to refugees married at the time of the flight.
Facts:
The first applicant obtained asylum in the UK in 2006 and was granted leave to remain for five years. In 2007 he married the second applicant in Djibouti. The second applicant applied for a visa to join the first applicant in the UK. This was rejected because family reunification rules only applied to spouses who formed part of the refugee’s family before he or she had left his/her country. Reunification would not be possible in the initial period of residence of five years. In 2011, this rule was amended to permit refugees to be joined by post-flight spouses during the initial five-year period of leave to remain.
The applicants alleged that they had been treated differently in respect of the enjoyment of their rights under Article 8 from other persons with temporary leave to remain (students and workers) who could be joined by their spouses regardless of the marriage being prior or subsequent to their stay in the UK. They had also been treated differently from refugees married at the date of flight. Such differences lacked an objective and reasonable justification. They also argued that the denial of the entry clearance to the second applicant had violated their right to respect for their family life.
Decision & Reasoning:
Violation of Article 14 read together with Article 8
The Court considered that the facts of the case fell within the ambit of Article 8 and that the first applicant’s position as a refugee who married after leaving his country constituted a status upon which an individual could be discriminated against in the sense of Article 14.
The Court concluded that the applicants had been in a situation analogous to that of refugees who had married before leaving their country and had obtained a limited period of leave to remain in the UK, the only difference being the time of their marriage. They were also in an analogous situation to students and workers enjoying a limited period of leave to remain in the UK.
The Court found that the different treatment accorded to refugees with respect to the reunification of post-flight spouses lacked objective and reasonable justification. The Court relied on a judgment of the British Upper Tribunal in a different case to come to this conclusion.
Outcome:
Violation of Article 14 read together with Article 8 ECHR.
No need to examine the complaint under Article 8.
Just satisfaction: €1000 awarded as pecuniary damage and €6000 awarded as non-pecuniary damage.
Subsequent Proceedings :
In January 2014 the CoE Committee of Ministers adopted a final resolution (CM/ResDH(2014)5) wherein it found that adequate execution measures had been adopted by the United Kingdom. Indeed, the CM noted that the Immigration Rules had been amended to allow refugees who enjoy time-limited leave to remain to be joined in the United Kingdom by post-flight spouses during the period of validity of their leave. On the individual level, the CM observed that Ms Abdi and her children had been able to profit from the new regulations.
Case Law Cited:
ECtHR - Paulik v. Slovakia, Application No. 10699/05
ECtHR - Bah v. the United Kingdom, Application No. 56328/07
ECtHR - Larkos v. Cyprus [GC], Application No. 29515/95
ECtHR - Pine Valley Developments Ltd and Others v. Ireland, Application No. 12742/87
ECtHR - Clift v. the United Kingdom, Application No. 7205/07
ECtHR - Burden v. the United Kingdom [GC], Application No. 13378/05
ECtHR - D.H. and Others v. the Czech Republic [GC], Application No. 57325/00
ECtHR - Carson and others v. the United Kingdom, Application No. 42184/05
ECtHR - Engel and others v. The Netherlands, Application Nos. 5100/71, 5101/71/, 5102/71 and 5354/72
UK - A (Afghanistan) v the Secretary of State for the Home Department, [2009] EWCA Civ 825
ECtHR - Stec and Others v United Kingdom [GC], Application No. 65731/01 and 65900/01
ECtHR - Abdulaziz, Cabales and Balkandali v United Kingdom (Application no. 9214/80; 9473/81; 9474/81)
UK - FH (Iran) v. Entry Clearance Officer, Tehran, [2010] UKUT 275 (IAC)
Attachment(s):
Authentic Language:
English
State Party:
United Kingdom
National / Other Legislative Provisions:
UK - Immigration Rules - Para 352A HC 395
UK - Immigration Rules - Para 11 HC 395
UK - Immigration Rules - Para 13(1) HC 395
UK - Immigration Rules - Para 20HC 395
UK - Immigration Rules - Para 76 HC 395
UK - Immigration Rules - Para 194 HC 395
UK - Immigration Rules - Para 281 HC 395
UK - Immigration Rules - Para 319L HC 395
