Case of Hode and Abdi v United Kingdom  EHCR, Application no. 22341/09 (6 November 2012) Summary
The European Court of Human Rights has held that the United Kingdom Government’s refusal to allow the family reunion of a refugee and his wife under relevant immigration rules was unlawfully discriminatory against the refugee on the basis of his immigration status.
Mr Hode claimed asylum in the UK in 2006 and was granted five years’ leave to remain in the UK. In 2007 Mr Hode travelled to Djibouti and married Ms Abdi before returning to the UK. Ms Abdi applied for a visa which was rejected on the grounds that although Mr Hode was a refugee, the applicants did not qualify for “family reunion” under section 352A of the Immigration Rules HC 395 as they married after Mr Hode left his country of permanent residence. Ms Abdi applied for leave to enter the UK as a spouse of a person present and settled in the UK (section 281, Immigration Rules). This was later refused on the grounds that Mr Hode was not a person present and settled in the UK, having only been granted five years’ leave to remain. Ms Abdi appealed this decision a number of times but was refused reconsideration of the decision.
In April 2011 the Immigration Rules were amended to permit refugees to be joined in the UK by post-flight spouses during their initial period of leave to remain, provided certain other conditions were met. Ms Abdi has not re-applied for leave to enter the UK as the spouse of Mr Hode.
The European Court of Human Rights found that there had been a violation of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms read together with article 8 at the time when the Immigration Rules precluded refugees to be joined in the UK by post-flight spouses during their initial period of leave to remain.
Article 8 provides that “everyone has the right to respect for his private and family life, his home and his correspondence”. Article 14 concerns the “enjoyment of the rights and freedoms set forth in [the] Convention without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
In considering whether the applicants’ complaint fell within one of the attributes protected under article 14 of the Convention, the Court stated that “other status” has been given wide meaning and is not limited to different treatment based on characteristics which are personal in the sense that they are innate or inherent. The Court relied on its decision in Bah v United Kingdom where it specifically held that the fact that immigration status is a status conferred by law rather than one which is inherent to the individual, does not preclude it from amounting to an “other status” for the purposes of article 14.
The Court considered, but could not find, a justification for treating refugees who married post-flight differently from those who married pre-flight.
Relevance to Australian immigration policy
The Special Humanitarian Program provides resettlement in Australia for people who are living outside their home country, are subject to substantial discrimination amounting to a gross violation of their human rights in their home country and who have family or community ties to Australia. It also provides resettlement for immediate family of persons who have been granted protection in Australia.
The Migration Amendment Regulation 2012 (No 5), introduced following the release of The Report of the Expert Panel on Asylum Seekers, prevents Irregular Maritime Arrivals from being eligible to propose family members for entry to Australia under the SHP. The decision in Hode and Abdi v United Kingdom calls into question the Regulations’ compatibility with article 2 of the International Covenant on Civil and Political Rights (the equivalent of article 14 of the ECHR).
The decision can be found online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114244
Emily Brott is a lawyer from King & Wood Mallesons on secondment with the Human Rights Law Centre