CEDH · CASELAW;CLIN;ENG — 6 novembre 2012

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 157 November 2012 Hode and Abdi v. the United Kingdom - 22341/09 Judgment 6.11.2012 [Section IV] Article 14 Discrimination Inability of immigrants with limited leave to remain as refugees to be joined by post-flight spouses: violation   Facts – The first applicant was granted asylum status in the United Kingdom in 2006 and thus an initial limited period of leave to remain in the country. In 2007 he married the second applicant in Djibouti and she applied for a visa to join him in the United Kingdom. However, under the Immigration Rules only spouses who formed part of the refugee’s family unit before he or she left the country of permanent residence qualified for “family reunion”. The second applicant was later denied leave to enter the country on the ground that her husband, having only been granted five years’ leave to remain, was not a person present and settled in the United Kingdom. In April 2011 the Immigration Rules were amended to permit refugees to be joined in the United Kingdom by post-flight spouses during their initial period of leave to remain. The second applicant gave birth to two children in 2008 and 2011. Law – Article 14 in conjunction with Article   8: The Immigration Rules had obviously affected the home and family life of the applicants and their children as it had impacted upon their ability to set up home together and enjoy family life while living together in a family unit. The facts of this case therefore fell within the ambit of Article   8. The applicants, as a refugee who had married after leaving his country of permanent residence and the spouse of such a refugee, had enjoyed “other status” for the purpose of Article   14 of the Convention. Refugees who had married before leaving their country of permanent residence and students and workers, whose spouses had been entitled to join them, had been in an analogous position to the applicants for the purpose of Article   14 as they had also been granted a limited period of leave to remain. Offering incentives to certain groups of immigrants might amount to a legitimate aim for the purposes of Article   14. However, in a previous case the Upper Tribunal (Asylum and Immigration) had found no justification for the particularly disadvantageous position that refugees had found themselves in when compared to students and workers, whose spouses had been entitled to join them. In fact, the Tribunal had gone so far as to call on the Secretary of State for the Home Department to give urgent attention to amending the Immigration Rules so as to extend them to the spouses of those with limited leave to remain as refugees. The Immigration Rules had subsequently been amended in the manner suggested by the Tribunal. The Court therefore did not consider that the difference in treatment between the applicants, on the one hand, and students and workers, on the other, had been objectively and reasonably justified. Furthermore, there was no justification for treating refugees who had married post-flight differently from those who had married pre-flight. The Court accepted that in permitting refugees to be joined by pre-flight spouses, the United Kingdom had been honouring its international obligations. However, where a measure resulted in the different treatment of persons in analogous positions, the fact that it had fulfilled the State’s international obligation did not in itself justify the difference in treatment. Conclusion : violation (unanimously). Article 41: EUR 6,000 jointly in respect of non-pecuniary damage; EUR 1,000 jointly in respect of pecuniary damage.     © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes