SM and Others (Somalia) v Entry Clearance Officer (Addis Ababa)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Beatson,Lord Justice Elias |
| Judgment Date | 17 March 2015 |
| Neutral Citation | [2015] EWCA Civ 223 |
| Date | 17 March 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/2196 |
[2015] EWCA Civ 223
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGES McGEACHY AND KEBEDE
OA/48590/2009 and linked cases
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lord Justice Beatson
and
Lord Justice Bean
Case No: C5/2013/2196
Mr James Collins (instructed by Hersi & Co) for the Appellant
Ms Susan Chan (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 2nd March 2015
The five appellants are nationals of Somalia and were born on 4 December 1993, 8 May 1994, 15 July 1996 and 19 May 1995 and 18 November 1995 respectively. The first, third and fourth appellants are children of the United Kingdom sponsor. The second and fifth appellants are her niece and nephew respectively.
The United Kingdom sponsor was born on 1 January 1959. She arrived in the United Kingdom in 2004 with leave to enter as a spouse. In April 2009 the appellants applied for leave to enter as the dependants of the United Kingdom sponsor. Their applications were refused by an Entry Clearance Officer ("ECO") in June 2009. The ECO found that the appellants did not meet the requirements of the Immigration Rules for entry as family members and there is no longer an appeal against that decision. As to article 8, the refusal letter stated:
"Although there may be perceived interference with your right to family life under Article 8, such interference is justified for the purpose of maintaining an effective immigration control, is proportionate to that aim and does not therefore breach your convention rights. I can see no insurmountable obstacles to your sponsor returning to Addis to maintain family ties and I note that she has now divorced her husband in the UK; the reason for her going to settle in the UK is therefore no longer relevant."
The claimants appealed to the First-Tier Tribunal ("FTT"). The case was heard by Immigration Judge ("IJ") Wiseman. In his determination promulgated on 29 March 2010 he summarised the relevant facts as follows:
"The sponsor was born on 1 January 1959 and first married Sharif Salim but they were divorced in 1991. She then married her second husband Nur Muse in Mogadishu in July 1992. Three of the appellants were children of that marriage, but the sponsor was divorced again in 1996, her second last having been heard of as being at sea.
The sponsor's half brother, Mohammed Sabriye and his wife were divorced in 1996 and she has not seen him since. From that time onwards the sponsor and Mohamed Sabriye helped each other to look after the three children and his two children together. They shared a home and their responsibilities.
In 1997 the sponsor remarried her first husband Salim, and he came to the United Kingdom in January 2003. In 2004 he applied for the appellant [the sponsor] to join him in the United Kingdom. The sponsor believed that the children were part of that application. She didn't speak English and could not follow any documents. She was never interviewed and when she was issued with a visa and not her children she spoke to her husband. He explained that it was impossible to bring all of them here at the same time and that they would apply later for the children to come. On this basis she agreed to leave her children with Sabriye and his children until she could apply for them. When she got here her husband insisted that he was not going to apply for them as they were not his children and he did not want to look after somebody else's children. The sponsor and her husband divorced under Islamic law in 2006; one of the main reasons leading to that was the fact she regarded him as having tricked her into leaving her children behind and then would not apply for them to come here.
In 2008 Sabriye (who was looking after all five children at the time) was killed tragically. A neighbour, Farah, immediately took care of the children and contacted the sponsor whom he already knew as they were neighbours before she left for the United Kingdom. He told her he was leaving for Ethiopia to flee the violence and killing and asked the sponsor if there was anyone else he could take the children to. There was no such person, and she pleaded with him to take the children with him to Ethiopia so that she could apply to have them join her in the United Kingdom. The neighbour had more than done enough as a friend of the family but could not look after them for any further length of time.
The sponsor regarded the niece and nephew as her de facto adopted children. She could not join the appellants in Ethiopia because she had no status there, nor indeed did they. She could not join them in Somalia as she was still in danger of persecution. There had been no formal adoption procedure in relation to the children of her half brother. There were not the facilities for that in Somalia.
In the sponsor's witness statement she said that on 10 September 2008, a month after her brother's death, the children arrived in Addis Ababa with Farah. They were arrested by Ethiopian police on the day of their arrival and were held in cells for 18 days before being released. They were threatened with deportation. They told the police that they had come to Ethiopia to apply to join the sponsor in the United Kingdom. She also said that they had no legal status in Ethiopia and could be removed back to Somalia at any time. They did not go to school and spent all their time in one room accommodation. They could not venture outside because they were abused by local Ethiopian youths. They were very vulnerable and needed her love, care and support.
She applied for the children to come here after meeting her legal advisor in April 2009. If she had found out the position sooner she would have applied at any earlier date. DNA evidence has established the relationship between herself and her own children and the children of her half brother. She has never lost contact with the children. She called them at least twice a week on the telephone using disposable telephone cards.
She had visited the children twice since coming to the United Kingdom; she went to Djibouti on 1 May 2008 and stayed with the children for six weeks on that occasion, corning back to this country on 13 June 2008. Her half brother was still alive at that time. She visited the children again on 21 July 2009 in Addis Ababa and by then her half brother had been dead for almost a year. She was there for one month as that was the only accrued holiday time she was able to take. She had returned to the United Kingdom on 21 August 2009.
She had been sending money to the children for their maintenance ever since she arrived in the United Kingdom in December 2004. She had not needed to send so much money while her half brother was still alive and able to cover most of their living costs. Once she started working in August 2009 as a cleaner she was able to send her children money from her own income. She and her other half brother Sabriye were the only ones who sent money to the appellants. Their money was sent to a neighbour who had helped so that he could collect the money; if they were able to do so themselves they would be beaten and mugged by local Ethiopian youths. Her remaining brother would give £100 a week for the children's maintenance if they were in the United Kingdom. Her half brother was a Dutch national working and residing in the United Kingdom. He earned about £1040 a month after tax and he had savings of £4000. She worked full time as a cleaner and had £1400 in savings."
IJ Wiseman dismissed the appeal on all grounds. The claimants sought and were granted permission to appeal to the Upper Tribunal ("UT") which dismissed their appeals on 19 January 2011. They applied for and were granted leave to appeal to the Court of Appeal on two grounds. The first ground related to whether it was reasonable to expect the sponsor to move to Ethiopia and settle there with the applicants. The second ground concerned whether sufficient weight had been given to the best interests of the minor children.
On 18 January 2012, this court allowed the appeal and remitted the matter to the FTT for a fresh hearing. Toulson LJ (with whom Etherton and Kitchin LJJ agreed) said:
"The case law at Strasbourg and in the UK places a high value on the ability of families to live together. It is well established that in this regard there is both a positive and a negative obligation under article 8. The positive obligation requires the state, in particular, to admit to its territory children of settled immigrants who are minors unless there are sufficiently strong countervailing reasons to make it proportionate to refuse entry. In the leading case of Huang [2007] UKHL 11, [2007] 2 AC 167 Lord Bingham said at para 20:"
"In an article 8 case where this question [i.e. the question of proportionality] is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices to the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide."
In stating that principle he drew no distinction between refusal of leave to enter and refusal of leave to remain. However, that is...
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