LM, Re Judicial Review

Judicial Review of a decision dated 16 August 2010 by the Upper Tribunal (Immigration and Asylum Chamber) to refuse the Petitioner permission to appeal

[1] The petitioner is a 65 year old widow. She is a citizen of Zimbabwe . She avers that she is HIV positive. She has recently suffered from cholera. Her home was deliberately destroyed by the Zimbabwean government as part of a policy directed against those they view as their opponents. The respondent is the Secretary of State for the Home Department, as represented by the Advocate General for Scotland

"The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33 (5) of the 1971 Act provides that: 'This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.' The Secretary of State's immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control."

"People recognised as refugees immediately become eligible to be joined by their spouse and minor children, provided that they have lived together as a family before the sponsor travelled to seek asylum. Families of refugees are not required to satisfy the maintenance and accommodation requirements that normally apply when families seek admission to join a sponsor here. Other dependent relatives may be admitted if there are compelling compassionate circumstances."

[7] Mr Lindsay further accepted that irrespective of where he was located when he exercised his functions (here or in Zimbabwe), section 6 of the Human Rights Act 1998 required the ECO to act in a way which was not incompatible with the European Convention on Human Rights and, in particular, article 8.