AH (Article 8 _ ECO _ Rules)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 17 February 2004 |
| Neutral Citation | [2004] UKIAT 27 |
| Court | Immigration Appeals Tribunal |
| Date | 17 February 2004 |
[2004] UKIAT 27
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Miss B Mensah
His Honour Judge N Huskinson
For the Appellant: Mr R Toal, instructed by Wilson & Co
For the Respondent: Ms C Hanrahan, Home Office Presenting Officer
AH (Article 8 — ECO — Rules) Somalia
This is an appeal against the decision of an Adjudicator, Mr B M Suchak, who, in a determination promulgated on 16 th December 2002, dismissed the appeal of the four Appellants against the refusal of entry clearance by the Entry Clearance Officer Addis Ababa of 4 th December 2001, refusing them entry clearance to the United Kingdom. (The date of decision in the Adjudicator's determination of 4 th July 2001 is wrong.)
The first two Appellants are the siblings of the sponsor. The third and fourth Appellants are her nephew and niece through her sister. The Appellants are citizens of Somalia and were born respectively on 8 th February 1985, 5 th November 1986, 4 th July 1992 and 10 th October 1993. The sponsor is a citizen of Somalia but she fled Somalia in December 1999 arriving in the United Kingdom on 4 th January 2000 and made an application for asylum in February 2000. She was granted indefinite leave to remain as a refugee on 26 th June 2000.
The Entry Clearance Officer refused entry clearance under the Immigration Rules HC 395 paragraph 297 because he was not satisfied that they would be maintained or accommodated without recourse to public funds in accommodation owned or occupied exclusively by the sponsor. There is no dispute about that. The Entry Clearance Officer also said that he was not satisfied that the Appellants' parents were settled in or would be admitted for settlement to the United Kingdom, or that a parent whom they intended to join was the sole surviving parent. That is true. Sadly the parents of the first two Appellants and of the sponsor are dead. The identity and whereabouts of the father of the third and fourth Appellants is unknown and the mother, the sponsor's sister, has no real interest in them and may be unable to care for them in any event.
The Entry Clearance Officer also concluded that there were no “ serious or compelling family or other considerations which made the Appellants' exclusion from the United Kingdom undesirable”. Accordingly, the case fell outside the scope of the Immigration Rules.
It was accepted by Mr Toal, who appeared for the Appellants both before the Adjudicator and before us, that the Appellants could not satisfy the requirements of paragraph 297 of the Immigration Rules. However, he contended that they did not fail at every hurdle in the way in which the Entry Clearance Officer's decision had suggested. In particular, he submitted that there were serious and compelling family or other considerations which made the Appellants' exclusion undesirable, although that, by itself, was not sufficient to satisfy the requirements of the Immigration Rules.
His primary case was that the Adjudicator had failed to make findings of fact arising from the evidence of the Appellants as to their relationship to the sponsor, and as to the circumstances in which the sponsor departed from Somalia as a refugee. He had erroneously approached the assessment of family life on the basis that she had decided to come to the United Kingdom voluntarily and therefore that the family life they led was one of her making. Mr Toal submitted that properly analysed, the evidence showed that the interference with or respect for the Article 8 rights of the Appellants and sponsor had to be judged against the fact that she was a refugee, as to which there was no dispute. This meant that in addition to Article 8 rights, the Respondent's family reunion policy for refugees ought to have been considered, including whether there were compelling compassionate circumstances for the grant of entry clearance to these Appellants.
The sponsor's evidence was that she had lived in Somalia with her parents, siblings, and her nephew and niece (the third and fourth Appellants) as a single family unit. The first Appellant was now, at the date of the hearing before the Tribunal, eighteen and the second Appellant was seventeen. The sponsor's sister had been abducted during the civil war and held against her will and when she had returned to the family home in 1993 she had a child, the third Appellant, and was pregnant with the fourth. Her mental state was not very good when she returned and she required attention all the time. Her children had always been regarded as part of her parent's family; they were now eleven and ten. One of the sponsor's brothers was killed in 1991 and another died due to a heart condition for which he was unable to obtain treatment. Her father was shot dead in the family home in mid-1996 and her mother and her remaining brother were also now dead, probably following a shooting incident in December 1999. The mother of the third and fourth Appellants disappeared from the family home after the shooting of her father in 1996, although contact was re-established in about August 2002. She was in Mogadishu but when the sponsor spoke to her, her sister did not mention her own children. The sponsor was raped by two of the men who shot her mother and brother in December 1999.
The sponsor's maternal aunt was concerned for the sponsor's safety and it was decided that, in view of the sponsor's age and the risk to her, the sponsor should be the first to leave. She fled from Somalia via Kenya. Her maternal aunt and the four Appellants left Somalia in around January 2001 and now live in Addis Ababa. The four Appellants have no right to live in Ethiopia. They are there unlawfully, but they live there with the sponsor's aunt, who is now 71. The evidence was that she was “ quite elderly and too ill to work”. They have no relatives in Somalia, save for the mother of the third and fourth Appellants whose position is rather uncertain.
The Appellants relied on a remittance of $100 a month sent to them by the sponsor. The evidence from the sponsor and from the first two Appellants was that the remittances were the Appellants' sole source of income and that that money had been provided since 2000. They are in regular contact. The eldest Appellant's evidence at interview was that he regarded the sponsor, his elder sister, as a mother, even though she is only six years older. The sponsor's evidence as to the relationship was “ I am here and I want them to come to live with me. I need them and they need me.”
Most, but not all, of what we have set out above is referred to one way or another in the Adjudicator's determination. The rest is supported by the Appellants' answers to questions at interview by the Entry Clearance Officer or by material provided to the Adjudicator in a letter to the Entry Clearance Officer on behalf of the sponsor and Appellants.
Having set out much of the evidence as we have described, the Adjudicator referred to the Appellants' claim, based on Article 8 of the ECHR. Mr Toal had relied upon the judgment of the Court of Appeal in R (Mahmood) v SSHD [2001] INLR 1, on the recommendations in a report of 15 th December 1999 that a refugee's rights to respect for his family life could only be enjoyed through family union in a country where they could lead normal family life, and on the Home Office Practice contained in the family reunion guidelines, exceptionally to allow members of the family other than dependent children to enter if there were compelling compassionate circumstances. Mr Toal had submitted that they all fell within that latter category.
The Adjudicator first addressed himself to the question of whether there was family life as between the Appellants and sponsor. He commented that family life may not be static, that disruption and changes can take place through a variety of ways over time. He concluded, in paragraph 28, as follows:
“I find on the evidence before me that there was no family life in existence as between the sponsor and the appellants at the date of the decision on 4 th December 2001. In my view, the family life which they had was disrupted when the sponsor left Somalia in December 1999. It was her decision to leave the family – the arrangements having been made by her aunt who continued to reside with the appellants in Somalia until they all left Somalia to go to Ethiopia in January 2001 and they have continued to live together as a family since their arrival in Ethiopia. Family life between siblings and other relatives is more likely to disrupted as family members grow older and leave home to form their own relationships in order to form a new life for themselves. This is exactly what has happened insofar as the sponsor is concerned. She moved out of the family home in order to form a new life for herself. … I should state that the appellants do have a family life, but they have this not only amongst themselves but also with their aunt in Ethiopia. There was at the date of decision no family life as between the sponsor and the appellants.”
Mr Toal's first ground of appeal was that the Adjudicator had failed to make findings in relation to the circumstances in which the sponsor had come to the United Kingdom as a refugee and as to the circumstances in which the disruption to family life had occurred. He had also failed to make findings in relation to the relationship between the sponsor and the Appellants, both at the time she left Somalia and now. Ms Hanrahan did not really contest the failing of the Adjudicator in that respect. Mr Toal was initially inclined to urge that the matter go back before another Adjudicator in order for findings of fact to be made. However, we took the view that there probably had been an acceptance by the Adjudicator of...
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