Upper Tribunal (Immigration and asylum chamber), 2019-06-27, HU/04911/2017 & HU/04913/2017
| Jurisdiction | UK Non-devolved |
| Date | 27 June 2019 |
| Published date | 23 August 2019 |
| Hearing Date | 16 April 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/04911/2017 & HU/04913/2017 |
Appeal Number: HU/04911/2017
HU/04913/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04911/2017
HU/04913/2017
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 16 April 2019 |
On 27 June 2019 |
|
|
|
Before
UPPER TRIBUNAL JUDGE CANAVAN
Between
S K and A K
(ANONYMITY DIRECTION MADE)
Appellants
and
ENTRY CLEARANCE OFFICER
Respondent
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
It is appropriate to make an anonymity order because the case involves protection and child welfare issues. Unless and until a tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellant and to the respondent.
Representation:
For the appellants: Mr E. Fripp, instructed by Morden Solicitors
For the respondent: Ms J. Isherwood, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellants appealed the respondent’s decision dated 27 February 2017 to refuse a human rights claim in the context of an application for entry clearance as the adult dependent children of a refugee.
2. First-tier Tribunal Judge Davey dismissed the appeal with reference to the immigration rules and Article 8 outside the rules. The Upper Tribunal set aside the First-tier Tribunal decision on 15 January 2019 (annexed). The appeal was listed for a resumed hearing before this panel to remake the decision.
3. The panel heard evidence from the appellants’ parents and their younger sister. It is not necessary to set out the evidence in any detail because the family circumstances are not in any serious dispute and their evidence is a matter of record. Where it is necessary to make findings of fact we shall give reasons for our findings with reference to the evidence.
4. The background was summarised at [3] of the previous Upper Tribunal decision:
“3. … The appellants’ father was recognised as a refugee because he had a well-founded fear of persecution as an Ahmadi. After he was granted refugee status he applied for his wife and five children to be reunited with him in the UK. His wife and the three children who were still under 18 years old were granted entry clearance. The two older children (the appellants) were refused entry clearance because they were over 18 years old. The family took the difficult decision to join the sponsor in the UK leaving the appellants behind [5]. The judge went on to consider the evidence given by the appellants and the other witnesses as to their situation in Pakistan and the effect of family separation. The appellants are living with their elderly grandmother and attend university in Pakistan. They both claimed to have received threats from members of the Khatme Nabuwat group at university because of they are Ahmadi [6-7].”
Legal Framework
5. The immigration rules make provision for a refugee to be reunited with family members who formed part of their family unit before they fled their country of origin. The rules distinguish between close pre-flight family members and other pre-flight family members. In the case of close family members such as a spouse or children under 18 years old a refugee does not have to show that they can adequately maintain and accommodate family members (paragraph 352D of Part 11 of the immigration rules). In the case of other dependent family members, the rules require them to meet additional requirements including maintenance and accommodation (paragraph 319V of Part 8). A range of post-flight family members can apply for leave to enter (but not leave to remain) under the immigration rules but must meet the additional requirements contained in the rules (paragraph 319L-319U of Part 8). Other post-flight family members must apply for leave to remain through the usual immigration rules for family members (Appendix FM).
6. The appellants’ younger siblings were granted entry clearance under paragraph 352D of the immigration rules. It may be worth setting out the requirements to place the other considerations in context.
‘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 currently has refugee status are that the applicant:
(i) is the child of a parent who currently has refugee status granted 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 their habitual residence in order to seek asylum; and
(v) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.’
7. It is accepted that the appellants did not meet the requirements of paragraph 352D of the immigration rules for entry clearance as the children of a refugee because they were over 18 at the date of the application.
8. Paragraph 319V contains provisions allowing entry of other dependent relatives of a refugee in certain specified circumstances. The relevant parts are as follows:
‘319V. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person with limited leave to enter or remain in the United Kingdom as a refugee or beneficiary of humanitarian protection are that the person:
-
is related to a refugee or beneficiary of humanitarian protection with limited leave to enter or remain in the United Kingdom in one of the following ways:
…
(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances; and
(ii) is joining a refugee or beneficiary of humanitarian protection with limited leave to enter or remain in the United Kingdom; and
(iii) is financially wholly or mainly dependent on the relative who has limited leave to enter or remain as a refugee or beneficiary of humanitarian protection in the United Kingdom; and
(iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and
(v) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and
(vi) has no other close relatives in his own country to whom he could turn for financial support; and
(vii) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity, or, if seeking leave to remain, holds valid leave to remain in another capacity.’
9. Paragraph GEN 1.1. of Appendix FM of the immigration rules makes clear that the rules contained in Appendix FM reflect the respondent’s position as to how the balance will be struck between an applicant’s family and private life and relevant public interest considerations. However, the provision makes clear that the rules relating to family and private life under Article 8 contained in Appendix FM only apply to family members of a refugee when they do not meet the requirements of Part 11 i.e. the rules relating to refugee family reunion.
‘GEN.1.1. This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection (and the applicant cannot seek leave to enter or remain in the UK as their family member under Part 11 of these rules). It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others (and in doing so also reflects the relevant public interest considerations as set out in Part 5A of the Nationality, Immigration and Asylum Act 2002). It also takes into account the need to safeguard and promote the welfare of children in the UK, in line with the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009.’ [emphasis added]
10. The observation made by the Upper Tribunal at [10] of the previous decision needs to be amended slightly because paragraph 319V is contained in Part 8 of the immigration rules relating to ‘family members’ and not Part 11. Nevertheless, paragraph 319V is a discrete area of the immigration rules providing entry for certain categories of dependent family members of a refugee which pre-dated the introduction of Appendix...
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