Upper Tribunal (Immigration and asylum chamber), 2016-08-31, OA/11033/2014 & OA/11037/2014
| Jurisdiction | UK Non-devolved |
| Date | 31 August 2016 |
| Published date | 09 March 2018 |
| Hearing Date | 19 July 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/11033/2014 & OA/11037/2014 |
Appeal Numbers: OA110332014
OA110372014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/11033/2014
OA/11037/2014
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 19 July 2016 |
On 31 August 2016 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
ENTRY CLEARANCE OFFICER, NAIROBI
Appellant
and
AMK
FKN
(ANONYMITY DIRECTION MADE)
Respondents
Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondents: Mr C Jowett, instructed by Albany Solicitors
DETERMINATION AND REASONS
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I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended) in order to protect the anonymity of the respondents one of whom is a child. This order prohibits the disclosure directly or indirectly (including by the parties) of the identity of the respondents. Any disclosure and breach of this order may amount to a contempt of court. This order shall remain in force unless revoked or varied by a Tribunal or court.
Introduction
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In these appeals, the Entry Clearance Officer appeals against a decision of the First-tier Tribunal (Judge N J Osborne) promulgated on 20 October 2015 in which the appeals of the respondents (hereafter “the claimants” - “A1” and “A2” respectively) were allowed under Art 8 of the ECHR.
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The claimants are citizens of the Democratic Republic of Congo (“DRC”) and were born respectively on 29 May 1997 and 21 May 2002. In 2014, A1 and A2 made applications for entry clearance to join their uncle (“the sponsor”) who had come to the UK in 2008 and had been granted refugee status in April 2010. He, together with his wife (“F”) who had subsequently joined him, were granted indefinite leave to remain in May 2015. The claimants’ applications were made under para 352D of the Immigration Rules (HC 395 as amended) which allows for family reunion between a child and a parent who is a refugee in the UK.
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On 13 August 2014, the ECO refused the claimants’ applications on the basis that the sponsor was not their “parent” as required by the Rule. In addition, the ECO concluded that there were no exceptional circumstances which justified the grant of leave outside the Rules under Art 8 of the ECHR.
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Both claimants appealed to the First-tier Tribunal. It was accepted before Judge Osborne that the claimants could not succeed under the Immigration Rules, in particular para 352D or Appendix FM. The claimants’ case was made solely under Art 8 and Judge Osborne allowed both claimants’ appeals under Art 8.
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The ECO sought permission to appeal on the basis that Judge Osborne had erred in law by failing to identify “compelling circumstances” to justify the grant of leave outside the Rules.
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On 21 April 2016, the First-tier Tribunal (Judge Simpson) granted the ECO permission to appeal on that basis.
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In a notice under Rule 24 dated 9 September 2015, the claimants sought to uphold the decision of Judge Osborne.
The Issues
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In these appeals, the Entry Clearance Officer argues that Judge Osborne erred in law in his approach to Art 8. The ECO argues that, in determining whether the claimants could succeed under Art 8 outside the Rules, the judge was required to apply the well-known ‘two-stage test’ first identified in R (Nagre) v SSHD [2013] EWHC 720 (Admin) and subsequently approved on numerous occasions by the Court of Appeal, for example in SSHD v SS (Congo) and Others [2015] EWCA Civ 389 and Singh and Khalid v SSHD [2015] EWCA Civ 74. That approach required first, a consideration of whether an individual can succeed under the Immigration Rules applicable to Art 8 (in particular Appendix FM dealing with ‘family life’) and para 276ADE (dealing with ‘private life’). Then, secondly if an individual cannot succeed under the relevant Rules dealing with Art 8 then the decision maker must consider whether there are “compelling circumstances” not sufficiently recognised in the Immigration Rules to justify the grant of leave outside the Rules under Art 8. The ECO argues that approach should have been, but was not, applied by Judge Osborne in his decision who, instead, adopted a ‘free-standing’ assessment under Art 8 applying the five stage test in R (Razgar) v SSHD [2004] UKHL 27 and SSHD v Huang [2007] UKHL 11. Further, the ECO argues that, in any event, the circumstances identified by Judge Osborne though “unusual” were not “compelling” so as to justify the grant of leave outside the Rules.
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The claimants argue that the ‘two-stage test’ was not applicable as the claimants’ applications were not under Art 8 but rather for family reunion under para 352D of the Rules which is not part of the Rules which “incorporate” Art 8. Secondly, in any event, the claimants argue that if the ‘two-stage test’ is applicable, it is clear from Judge Osborne’s reasoning that, in fact, he properly identified circumstances that were “compelling” and his finding was not perverse or irrational that the public interest was outweighed by the circumstances given the unusual features of the claimants’ circumstances and the strength of their family life both with their uncle and his wife (their aunt) who are both recognised refugees with ILR in the UK.
The Rules
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The claimants’ applications were made under para 352D of the Rules which deal with the grant of entry clearance to the “child of a parent” who is currently a refugee in the UK. Para 352D provides as follows:
“352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant:
(i) is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and
(ii) is under the age of 18, and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and
(v) would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.”
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It was accepted before the judge that the claimants could not succeed under this Rule as the sponsor, their uncle was not a “parent”. He had not formally adopted the claimants and neither was there a de facto adoption (see definitions in paras 6 and 309A of the Rules). That, as I say, was not a matter in dispute. The claimants’ applications therefore necessarily failed under para 352D.
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Equally, before the judge it was accepted that the claimants could not succeed under Appendix FM. That follows, no doubt, from the reality again that the claimants could not establish that they were seeking leave to enter as the child of a “parent” within Section EC-C (see, in particular E-ECC.1.6). A further reason would be that this route under Appendix FM only applies where the parent is in the UK with “limited leave to enter or remain” and, of course, even if the sponsor was “a parent” he was in the UK with indefinite leave to remain.
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The private life provisions in para 276ADE had no application to the claimants because para 276ADE is concerned with the grant of “leave to remain” and hence is concerned with the situation of an individual already in the UK rather than someone seeking entry clearance and leave to enter the UK.
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On that basis, it was common ground before me that the claimants had no claim under the Immigration Rules.
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Whilst I am content to determine this appeal on that basis, I do note that neither representative drew my attention to para 297 of the Immigration Rules which deals with the requirements for “indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom”. That provision, albeit dealing with ILR, is not restricted to a child seeking to join a “parent” in the UK but includes “a relative” who is present and settled here. That, on its face, contemplates the sponsor’s situation. Under para 276(i)(f) ILR may be granted, inter alia, where there are “serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care”.
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As I have already indicated, I was not referred to para 297 at the hearing before me and...
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