R (Ahmed) v SSHD
[2019] EWCA 1070 at [15].) The corollary of this is that the absence of words is also a consequence of a conscious act. 32. We think it is important to consider this provision in its full context. Having considered the Explanatory Memorandum to the Statement of Changes HC667 (which inserted sub-para (iii) into para 352A and had effect in relation to decisions taken on or after 24 November 2016. ), we find no support for the ECO’s case from this source . 33. We then turn to examine another aspect of para 352A itself. The argument put forward by the ECO in the renewed grounds of appeal relates to the wording of paragraph 352A(ii). It is said that the requirement that a “ relationship akin to marriage or civil partnership ” must have “subsisted” for at least two years prior to the refugee’s departure from the country of their former habitual residence goes to show that a marriage or civil partnership must also have been subsisting as at the departure date , and that the term “existed” in sub-para (iii) should be interpreted accordingly . 34. This argument faces at least four significant obstacles. 35. First, as discussed previously, it was open to the Secretary of State when inserting sub-para (iii) into para 352A in 2016 or at any time thereafter, to have actually used the term “subsisted” rather than “existed”. The choice of one over the other is telling. 36. Second, if there had been an intention to impose a requirement that a marriage or civil partnership had to be subsisting before the refugee sponsor left his/her country of former habitual residence, this could have been expressly stated in sub-para (ii) itself , as it is in respect of a “ relationship akin to marriage or civil partnership ” . 37. Third, on the ECO’s case, para 352A(iii) would effectively involve not simply the substitution of “subsisted” for “existed”, but also the inclusion of additional qualificatory words. On its face, sub-para (iii) applies to all three types of relationship described in sub-para (ii): marriages, civil partnerships, and relationships akin to either. There is, as we have seen, already a requirement in sub-para (ii) that the third category of relationships must have “subsisted” prior to the refugee’s departure. If, as contended by the ECO, the term “existed” in sub-para (iii) were to be given the meaning “subsisted”, the result would be that the requirement could not apply to that third category because it had already been imposed in the previous sub-para. Otherwise, the re would in effect be an anomalous and unnecessary replication of requirements for one category of relationships. 38. In order to avoid this unsatisfactory state of affairs, one would have to qualify which relationships were subject to the subsisting requirement by either reading in to para 352A(iii) the words “in respect of a marriage or civil partnership,” before “the relationship”, or the words “if a marriage civil partnership ” after “the relationship”. The upshot of this is that a significant rewriting of the sub-para would be required, itself an undesirable course of action, in order to create an overall sense of consistency within the Role as a whole. 39. Fourth, the history of para 352A(iii) does not assist the ECO’s case. In fact, it lends support to the Claimant ’ s position. Prior to the changes brought about by HC667 in 2016, the Rule did not include relationships akin to marriages or civil partnerships. These were dealt with in para 352AA, the relevant provisions of which read as follows: “(ii) the parties have been living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more; and (iii) the relationship existed before the person granted asylum left the country of his former habitual residence in order to seek asylum” 40. The interaction between sub-paras (ii) and (iii) was logical: the former described the type of relationship and its qualitative character; the latter imposed a temporal requirement. 41. HC667 deleted para 352AA in its entirety and such relationships were brought within the purview of para 352A by way of an amendment to sub-para (ii). In addition, what was clearly a temporal requirement in para 352AA(iii) was effectively brought over in substantially the same terms to para 352A. For our part, we are not been provided with any compelling argument as to why what was a temporal requirement under para 352AA should have somehow acquired a qualitative character during its journey from one Rule to the other . On the contrary, in our view there is a strong case for saying that the insertion of para 352A(iii) was undertaken without due thought to its relevance or utility within the amended para 352A as a whole. 42. There is an important consideration that might at first sight be thought to point the other way. If all that an applicant need show is that the marriage or civil partnership existed prior to the refugee’s departure from his/her country of former habitual residence, the Family Reunion provisions may be laid open to abuse. The relationship in question may not have had any real substance prior to departure , but would entitle an applicant to rely on it for the purpose of family reunion, a concept which, as its name suggests, might be thought to rely on real relationships. 43. The danger of such abuse is , however, met by para 352A(v). This presents an important and necessary safeguard by requiring an applicant to show that he/she intends to live permanently with the refugee sponsor and that the relationship “ is genuine and subsisting”. The applicant referred to in the previous paragraph would be shut out by virtue of the failure to satisfy this qualitative criterion at the time of the decision on the application . 44. The present appeal provides an illustration of the safeguard in operation . Here, there had been a long-standing marriage. Due to his misconduct, the Claimant separated from the Sponsor and this separation continued up until the point of the latter’s departure from Pakistan. The Claimant was only able to succeed before the First-tier Tribunal because the judge, having quite rightly carefully considered the possibility of there having been pressure applied to the Sponsor, accepted that the couple had reconciled , and that the relationship was now “genuine and subsisting” , with reference to para 352A(v) . 45. It may be said that there is a further opportunity for potential abuse. At the hearing, Mr Singh acknowledged the absence of the adverb “immediately” in front of “before” in para 352A(iii). We were not provided with any submissions on this point by either representative, but it m ay be suggested that if the term “existed” is given the meaning contended for by the Claimant, an applicant who had married or entered into a civil partnership, but then formally dissolved that relationship prior to the refugee’s departure, could rely on the historical fact of its existence to obtain entry clearance under para 352A. To guard against this, so the argument would run, the term “immediately” should be read into sub-para (iii). 46. Rewriting sub-para (iii) yet again is an unattractive proposition . It would be the third occurrence, following the substitution of “subsisted” for “existed” and the qualificatory words distinguishing marriages and civil partnerships from relationships akin to either. Having said that, in seeking to navigate a sensible path through para 352A as a whole, it appears to us as though there must be a connection between the relationship relied on under sub-paras (ii), (iii), and (v). Therefore, the applicant whose marriage or civil partnership had been formally dissolved prior to the refugee’s departure would not be able to show that “the relationship” relied on either “existed” (in the sense contended for by the Claimant) or was “genuine and subsisting”. In respect of relationships akin to marriages or civil partnerships, there is, as we have seen, a n express qualitative element (in the sense that they must have be e n subsisting) . If such a relationship had ceased to subsist by the time the refugee sponsor left the country, a core characteristic would have fallen away and it is difficult to see how “the relationship” could be “genuine and subsisting” at the point at which an entry clearance application was made. 47. Thus, the better reading of para 352A(iii) is that the term “existed” implies a state of affairs (i.e. a marriage, a civil partnership, or a subsisting cohabiting relationship) present as at the time of the refugee’s departure from his/her country of former habitual residence. 48. Another provision of the Rules said by the ECO to be relevant is para 352D. The o riginal grounds of appeal to the First-tier Tribunal contain the following passage : “It must be remembered that the purpose of the Family Reunion provisions is to ensure that families which have been split up due to persecution or ill-treatment can be reunited in a country of refuge. Those who were already living separately for other reasons do not come within the scope of these provisions, as is perhaps more clearly demonstrated by the terms of 352D, by which children of refugees who were not living in their household at the point of departure are ineligible for family reunion.” 49. P ara 352D(iv) of the Rules requires that a child applicant: “(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of their habitual residence in order to seek asylum .” 50. This particular provision was considered in