MK (Family reunion policy: scope)
| Jurisdiction | England & Wales |
| Judge | Allen |
| Judgment Date | 08 November 2007 |
| Neutral Citation | [2008] UKAIT 20 |
| Court | Asylum and Immigration Tribunal |
| Date | 08 November 2007 |
[2008] UKAIT 20
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Allen
For the Appellant: Ms S Love, Counsel, instructed by Pickup & Jarvis Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer
MK (Family reunion policy: scope) Somalia
The wording of paragraph 16.2 of Diplomatic Services Procedures on family reunion is clear with regard to the family members who are entitled to family reunion under that policy. There is no scope for arguing that other family members fall within it.
The appellant, together with her sister MM (appeal no. OA/11372/2006) and her sister MH (appeal no. OA/11378/2006) appealed to an Immigration Judge against the Entry Clearance Officer's decision of 16 March 2006 refusing to grant entry clearance under paragraph 297 of HC 395. The appellants are the nieces of AG, who has been recognised as a refugee. Her husband applied for entry clearance to join her together with their own children, and that application was successful. The evidence, which it seems the Immigration Judge accepted, was that the three appellants lived with the sponsor and her husband from July 1997 when they were aged respectively three, one and five days old, when their mother was killed, until 2003. The sponsor came to the United Kingdom in 2003 and, as I have noted above, was recognised as a refugee. She did not ever officially adopt the children in Somalia but looked after them until the time when she left there. The sponsor's husband was interviewed by the Entry Clearance Officer in Addis Ababa and he said that his wife still had a mother and brother living in Somalia. As regards other siblings, there was a brother in the United Kingdom and he was aware of the whereabouts of two others and another sister was in Kenya. He said that the three girls had been living with him since July 1997 in the house next door, and his wife had been sending US$100 since December 2005 and prior to that his brother had been sending vegetables to help to support the family.
In cross-examination at the hearing before the Immigration Judge the sponsor confirmed that the children were being looked after by her brother-in-law's mother and they had been living there for about three months since her husband had come to the United Kingdom. She said that she was only there on a temporary basis. Her husband had made the arrangements for them all to travel to Ethiopia together.
Counsel before the Immigration Judge conceded that the appellants could not come within paragraph 352D of HC 395 as they were not the blood children of the sponsor. He also accepted that paragraph 297 was not the strongest part of his argument, given difficulties with regard to maintenance and accommodation, but he argued that because of the Diplomatic Service Procedures Policy (DSP) at paragraph 16.2 the decision made by the Entry Clearance Officer was not in accordance with the law as it was inconsistent with the DSP. It was said that the evidence showed that they had all been living as a family unit and this left a difficulty for the three young children in Ethiopia now living with the mother of an in-law.
The Immigration Judge found that the appeal could not succeed under the Immigration Rules as the children were neither the blood children of the sponsor nor was she their stepmother, and they could not succeed as dependants as the maintenance and accommodation test could not be met.
She went on to refer to the decision of the Tribunal in H (Somalia) [2004] UKIAT 00027 where consideration was given to the wording of the DSP policy. She noted paragraph 17 of that decision where, as she said, the Tribunal had found in the context of that policy that the reference was clearly to the spouse of the minor children of the sponsor refugee. The appellants therefore could only come within the definition of other members of the family and it was clear that the Entry Clearance Officer had considered them under this part of the policy and had correctly found that there were no compassionate circumstances of a compelling nature to warrant the grant of entry clearance. She also noted paragraph 46 of H (Somalia) where it was said that it would normally be the position that the combination of the provisions of the Immigration Rules and extra statutory policy and discretion would provide a proportionate basis for any interference with a lack of respect for family life. She found the sponsor and the appellant credible in their evidence. She found that there had been family life previously but it could not any longer be said that family life existed between the appellants and the sponsor. Even if it could, she concluded following what had been said in Huang (this must be a reference to the decision in the Court of Appeal, given the date of determination) that the circumstances were not truly exceptional as the appellants were not the sponsor's own children, they were accommodated by extended family, the sponsor was able to fund them from the United Kingdom and whilst arguably the sponsor might not be able to live legally in Ethiopia, she could indeed visit and in turn the appellants could visit the sponsor. She therefore dismissed the appeal.
The appellant sought reconsideration of this decision, arguing firstly that a proper interpretation of the policy should have led the Immigration Judge to conclude that the appellants were minor children who formed part of the family until prior to the time the sponsor fled to seek asylum, and therefore issues of maintenance and accommodation did not have to be satisfied. Secondly it was argued, in the alternative, that the Immigration Judge applied the wrong approach to the policy in that she had erred in limiting her enquiry to whether the policy had been considered by the decision-maker and in this regard a decision of the Tribunal in IA [2006] UKAIT 00082 was cited. Thirdly it was argued that the Immigration Judge erred in finding there was not family life, quoting from paragraph 14 of H (Somalia), referred to above, and fourthly, that as a consequence the Immigration Judge erred in not taking into account the policy with regard to family life, bearing in mind what was said in IA that the substance of a policy was extremely relevant when considering a case under Article 8. Reconsideration was ordered on all grounds.
Ms Love relied upon and developed the grounds. She argued that the Immigration Judge had incorrectly applied the policy. The children had been part of the family unit of the sponsor since 1997 when their mother died and had remained so until 2003. She had effectively been their mother for that period. H (Somalia) could be distinguished, as in that case the mother of the children disappeared in the same month as the sponsor fled to the United Kingdom, so the children were never part of the family...
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