BM and AL
(352D(iv); meaning of "family unit") Colombia [2007] UKAIT 00055 . Contrary to the ECO’s assertion in the present case, the Tribunal held that there was no requirement that an applicant child had to have been living in the same household as the refugee sponsor at the relevant time. Such a limitation, if intended, could have been expressly included in the Rule, but had not been. Whether a child was part the refugee “family unit” was a matter of fact , to be assessed in light of the child’s individual circumstances , and having full regard to what were described as “wide ranging childcare and child protection issues” likely to arise in cases where a decision to grant entry clearance may lead to a pre-existing family unit being broken up. 51. In our view, para 352D(iv) provides no real assistance to the ECO ’s case. There is no proper analogy to be drawn between that provision and para 352A(iii). Not only does the passage in the grounds of appeal overlook the central conclusion in BM and AL , but the absence of express words in para 352D (iv) in fact lends support to the Claimant’s argument as to the proper interpretative approach to the provision with which we are concerned. 52. Thus far, we see very little by way of clear support for the ECO ’s contentions in this appeal . The wording of para 352A(iii), together with its place in the overall structure of the Rule, leads us a long way down the interpretive path signposted by the Claimant. 53. Are there wider contextual factors that draw us back and compel us to take a different direction? 54. Given that para 352A deals with family reunion in the context of one of the parties being a refugee, it is appropriate to have regard to legal instruments relating to that status and its consequential benefits. 55. The Refugee Convention itself does not contain a reference to the principle of family unity. However, the Final Act of the Conference of States adopting the Convention recommended that signatory states took “necessary” measures to ensure family unity (the relevant excerpts are set out in Annex I to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, February 2019. We note that Chapter VI of Part 1 of the Handbook itself offers nothing by way of material assistance ) . 56. As European law has sought to apply obligations arising out of the Refugee Convention, we have considered relevant provisions of Council Directive 2004/83/EC (“the Directive”) . 57. The relevant provisions of Article 23 of the Directive, under the heading “Maintaining family unity”, state: “1. Member States shall ensure that family unity can be maintained. 2. Member States shall ensure that family members of the beneficiary of refugee or subsidiary protection status, not individually qualify for such status, are entitled to claim the benefits referred to in Articles 24 to 34, in accordance with national procedures and as far as it is compatible with the personal legal status of the family member. … 5. Member States m ay decide that this Article also applies to other close relatives who live together as part of the family at the time of leaving the country of origin, and who were wholly mainly dependent on the beneficiary of refugee or subsidiary protection status at that time.” 58. Insofar as Article 23(1) is concerned, it takes the ECO’s case no further. There is nothing incompatible with the need to “ensure that family unity can be maintained” and the interpretation of para 352A(iii) which we are inclined to adopt. 59. Article 2(h) of the Directive states: “ ‘family members’ means, insofar as the family already existed in the country of origin, the following members of the family of the beneficiary of refugee or subsidiary protection status who are present in the same Member State in relation to the application for international protection: the spouse of the beneficiary of refugee or subsidiary protection status or his or her unmarried partner in a stable relationship, whether legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens.” 60. Of potential significance is the use of the term “existed” in Article 2(h) when defining “family members”; that being the same word used in para 352A(iii). Whilst terms used in EU law are not subject to the same relatively narrow interpretive approach as the Rules, we see no inconsistency between the definition in Article 2(h) and the natural and ordinary meaning of “existed” in para 352A(iii). In fact, we note that the definition of “unmarried partner” imposes the qualitative requirement of having to show stability, a characteristic that is in our view equivalent to such a relationship having “subsisted” within the meaning of para 352A(ii). Thus, the reasoning we have set out earlier in our decision relating to the interaction between sub-paras (ii) and (iii) and the proper meaning of “existed” is compatible with the Directive. It follows that our assessment of the wider refugee context does not compel us to the interpretive outcome sought by the ECO. 61. What then of the very presence of para 352A(iii) itself? If sub-para (ii) requires the relevant relationship (whether a marriage, a civil partnership, or a “relationship akin to” either) to have taken place or been present prior to the refugee’s departure from the country of his/her former habitual residence, why then seemingly replicate that temporal restriction in sub-para (iii)? 62. The ECO’s argument that para 352A(iii) should be interpreted so as to avoid it being superfluous is on the face of it a strong one. However, it does not, in and of itself, provide a sufficiently compelling justification for substantially rewriting the sub-para in order to give it a n effect different from that which is apparent from the natural and ordinary meaning of the words used , when viewed in their proper context. 63. We fully appreciate that a consequence of this is that para 352A(iii) has little, if any, utility. In effect, it repeats the temporal requirement imposed on relationships by sub-para (ii). Yet, as alluded to earlier in our decision, the insertion of sub-para (iii) into para 352A does not appear to have been the subject of sufficiently close attention by the Secretary of State at the time or thereafter. A provision which served a clear purpose in the context of relationships akin to marriages or civil partnerships was moved, unchanged , from one rule to another only, on our analysis, to lose its raison d’être .