AT and another (Article 8 ECHR – Child Refugee – Family Reunification)
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 09 February 2016 |
| Neutral Citation | [2016] UKUT 227 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 February 2016 |
[2016] UKUT 227 IAC
The Hon. Mr Justice McCloskey, President
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
While the Immigration Rules make no provision for family reunification in the United Kingdom in the case of a child who has been granted asylum, a refusal to permit the family members of such child to enter and remain in the United Kingdom may constitute a disproportionate breach of the right to respect for family life enjoyed by all family members under Article 8 ECHR.
For the Appellants: Ms K Cronin and Ms A Smith, of counsel, instructed by the Joint Council for the Welfare of Immigrants
For the Respondent: Mr T Poole, of counsel, instructed by the Government Legal Department
In this appeal, the Appellants are two of the three protagonists concerned. All three are members of the same family unit and all are nationals of Eritrea. They consist of a mother and her two sons. The two Appellants currently reside in Sudan. The first Appellant is the mother, now aged 34 years. The second Appellant is her younger son, now aged fifteen years. The third family member, M, is aged 19 years. He is described in many parts of the evidence as the “ sponsor”.
One stand out feature of M's circumstances is that, having arrived in the United Kingdom as an unaccompanied minor in 2012, then aged 16, he succeeded in his appeal against a refusal of asylum, with the result that the Secretary of State for the Home Department (the “ Secretary of State”) granted him five years limited leave to remain in the United Kingdom, as a refugee, a period which will expire on 07 April 2018. M aspires to achieve family reunification with his mother and brother, the two Appellants, in the United Kingdom. He does so primarily through the vehicle of Article 8 ECHR.
The decisions underlying these proceedings and to which the origins of these combined appeals can be traced were made by the Entry Clearance Officer of Abu Dhabi (the “ ECO”), the alter-ego of the Secretary of State, in December 2013. By his decisions the ECO refused to grant the Appellants entry clearance to join the sponsor in the United Kingdom. In refusing the mother's application, the ECO stated:
“ I have considered your application under paragraph 352 of the …… Immigration Rules …..
I have used all the information provided by you to determine if the Immigration Rules have been met …..
Immigration Rules for family reunion only apply to dependent partners and children of sponsors, not for [sic] parents and siblings. As such you have applied in a category that is not covered by Rules [sic] and your application falls for refusal under paragraph 320(1).”
The refusal decision as regards the second Appellant was framed in precisely the same terms, albeit he was described erroneously as the sponsor's “ son”.
The factual matrix is a mixture of certain uncontentious facts and my further findings, infra.
When they lived in Eritrea the family unit consisted of the three protagonists and the first Appellant's husband. He was imprisoned there for political reasons and, fearing persecution by the Government she and her two sons fled Eritrea. This occurred in two stages. First, in April 2012, M left Eritrea, accompanied by his uncle. Later, in January 2013, the two Appellants fled, travelling on foot to Sudan. There they were accommodated in the UNHCR refugee camp in Shagarab. They were given UNHCR identity cards. The first Appellant considered this an unsafe place on account of the phenomena of kidnapping refugees and human trafficking.
In May 2013 the first Appellant succeeded in contacting M by telephone, from the camp, assisted by a UNHCR aide. The same person assisted the two Appellants in travelling to Khartoum, some 650 kilometres away, for the purpose of making their entry clearance applications to the United Kingdom. The first Appellant decided that it would be safe to remain in Khartoum and, further, preferred to be close to the Embassy. She borrowed money to pay the visa fees. Thereafter, the two Appellants lived on the streets of the city, occasionally managing to sleep in shelters or on church floors. She succeeded in getting some limited, illegal work. Both remained in Khartoum at the time of the First-tier Tribunal (“FtT”) hearing giving rise to this appeal.
Pausing at this juncture, I acknowledge that the FtT did not accept certain aspects of the factual case put forward on behalf of the Appellants. The basis upon and terms in which some of their assertions were rejected formed one of the grounds upon which the decision of the FtT was subsequently set aside by this Tribunal. In remaking the decision, I have considered the same evidence as that available to the FtT. Having done so, I am satisfied to the requisite standard of the truth and accuracy of the Appellants' account.
I have considered in particular the evidence bearing on the family bonds and the inter-dependency of its members. From this it is clear to me that this is a close, loving and mutually supportive family unit all of whose members would be overjoyed if reunification could be achieved. There is clearly discernible interdependence. The enormous efforts to which the first Appellant went, the hardships which she has borne and the sacrifices which she has made, all in pursuit of family reunification, bear eloquent testimony to the virtues and character of the mother and the strength and stability of the family unit. Notably the ECO did not suggest that the Appellants are economic migrants and I am satisfied that there is no evidence from which this could be inferred in any event. In this context it is appropriate to highlight a passage in the statement of a teacher who has formed part of M's life during almost two years:
“ He was devastated when he received the news that the initial application had been rejected and actually had to take time off school to pull himself together. His foster parents are very caring, but I know that his real mother has a special place in his heart and he does not feel the same sense of belonging to his foster parents.”
This evidence has the supreme virtues that it is manifestly objective, independent and measured. In passing, the teacher concerned deserves commendation for taking the trouble to provide her detailed and balanced witness statement.
The mother and younger son plainly live in deprived and dangerous circumstances. They are destitute. The second Appellant has been unwell for a long time. This is a fractured family. Neither son has had the benefit of a father, or father figure, for several years. The mother struggles on, battling against the odds, deprived of the immense assistance and support which the sponsor would be capable of providing. Meanwhile, M has become increasingly stressed and preoccupied. He appears to be under-achieving academically and his social activities have become limited. Having reached his 18 th birthday, the sponsor is no longer in foster care. Some three years have elapsed since he last saw his mother and younger brother. His status is that of a former looked after child. He cuts an isolated and unsupported figure, a teenager living in an unfamiliar foreign country without any family support whatsoever. I am satisfied that his need for reunification with his mother and younger brother has not diminished since his advent and is, if anything, greater than ever.
The Secretary of State's policy in the realm of family reunification, as expressed in the Immigration Rules, dates from the year 2000. Its most important feature, for the purposes of these appeals, is that no provision has ever been made for family reunification in the case of a child who has gained refugee status in the United Kingdom. This discrete regime is currently contained in Part 8 of Appendix FM to the Rules, at paragraphs 352A – 352G and 819L – 819U. In short, spouses and minor children of a “sponsor” can, subject to satisfying the governing conditions, secure family reunification in the United Kingdom by the grant of leave to enter. However, this possibility does not exist where the sponsor is a child.
Thus a blanket prohibition is in operation. Historically, there was a short lived exception to this prohibition relating to the parents of unaccompanied children who had fled Kosovo and secured asylum in the United Kingdom. This concession was confined to the short time frame of July to September 1999. With effect from 02 October 2000, the family reunification regime enshrined in the Immigration Rules contained the aforementioned blanket prohibition. From then to 2006 the Secretary of State operated a policy of permitting the parents or siblings of unaccompanied minor refugees to enter the United Kingdom for the purpose of reunification only where compelling and compassionate circumstances were demonstrated. Since 2006 the Secretary of State's policy has extinguished this possibility. While these appeals have generated much documentary evidence pertaining to this discrete issue, it is striking that there is no evidence bearing directly on the policy aims and justification underpinning this...
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