Upper Tribunal (Immigration and asylum chamber), 2019-12-11, [2019] UKUT 413 (IAC) (KF and others (entry clearance, relatives of refugees))
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Nicol, Upper Tribunal Judge Coker |
| Status | Reported |
| Date | 11 December 2019 |
| Published date | 18 February 2020 |
| Hearing Date | 21 November 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | entry clearance, relatives of refugees |
| Appeal Number | [2019] UKUT 413 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 00413 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 21st November 2019 |
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………………………………… |
Before
MR JUSTICE NICOL
UPPER TRIBUNAL JUDGE COKER
Between
Appellants
KF
KH
AF
FF
MF
ZF
(ANONYMITY ORDER MADE)
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms C Meredith instructed by The Migrants Law Project,
For the Respondent: Mr Z Malik instructed by GLD
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellants in this determination. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings
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In applications for entry clearance, the starting and significant point in applications for entry clearance is the Article 8 rights of the sponsor or others in the UK. A fact sensitive analysis is essential.
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There is no blanket prohibition on the relatives of refugees other than a spouse and/or children.
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As was made clear in Agyarko [2017] UKSC 11 the purpose of the Immigration Rules is to enable decision makers to understand and apply the appropriate weight to be given to the public interest. That the appellants in an application for entry clearance do not meet the Immigration Rules is an adverse factor.
4. It is Mathieson v Secretary of State for Work and Pensions [2011] UKSC 4 rather than AT and AHI v Entry Clearance Officer Abu Dhabi [ 2016] UKUT 00227 (IAC) which should guide the Tribunal in relation to the role of international treaties which have not been incorporated into domestic law, so that it may be material that an outcome is in harmony with such international instruments rather than that they should be accorded substantial weight.
DECISION AND REASONS
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For reasons set out in a decision promulgated on 18th June 2019, Upper Tribunal Judge Coker found errors of law in the decision of First-tier Tribunal Judge Paul, who had allowed their appeals against a decision of the respondent refusing them entry clearance, such that the decision was set aside to be remade. The remaking of the decision came before Mr Justice Nicol and Upper Tribunal Judge Coker on 21st November 2019.
Background
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The following, briefly outlined, background is not subject to challenge.
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The appellants in this decision, are the mother, father and younger siblings of an 18-year-old young man, date of birth 31st January 2000, who is recognised as a refugee in the UK. He and his family are Syrian nationals. In 2013, when the sponsor was aged 13, the family fled Syria and lived in Jordan. During their time in Jordan the family lived in difficult conditions; the sponsor experienced exploitative labour arrangements, arrest and detention for working without permission while trying to support his family and was sexually assaulted. In August 2015, aged 15, he left his family in Jordan and travelled across Europe to Calais where he lived for several months. Whilst in Calais he witnessed violence including a fight in which a man was killed. He then travelled to Germany and, following a ‘take charge’ request by Germany, he was admitted to the UK to join a maternal aunt, her husband and their sons on 1st July 2016 at which time he was aged 16. That relationship broke down and in August 2016 the sponsor left that home; he was taken into Local Authority care in accordance with s20 Children Act 1989.
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The last Children in Care Review meeting took place on 7th November 2017 which stated, inter alia, that the sponsor would continue to be supported by the Onwards and Upwards Team (OUT) after his 18th Birthday but there would be no further review meetings. That report refers to him meeting the Support Housing Worker (Tom Conway) at his then accommodation every three to four weeks for ‘key work sessions’ but they also saw each other two to three times a week. Although the review recommended that he be visited by a social worker every 6 to 8 weeks, there were no disclosed records that this had in fact occurred. The sponsor continued to live at the supported accommodation until March 2019 and then moved to his current address – permanent independent accommodation. The outreach support continued until September 2019. The sponsor is no longer eligible for ‘add-ons’ such as psychotherapeutic counselling, bursary allowance for travel to college or help with education and employment advisors.
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Mr Conway has continued to see him occasionally, for example when the sponsor is passing his previous accommodation; these meetings are not under any formal arrangement. Mr Conway expressed his concern that the sponsor’s previous social network, described in the last Review as being active with regular visits to his extended family members is no longer in place because he lives some distance away from them. He expresses concern that the sponsor, who previously had difficulty opening up to staff at his previous supported accommodation, was not able to seek support from his allocated personal advisor, whom he only sees every three months or so in any event and this is likely to end soon.
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On 1st September 2016 the sponsor was assaulted by three men whilst walking in Willesden with his cousin; the police had been called but no further action resulted.
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The sponsor has been examined by Dr Datta, a specialist registrar in Child and Adolescent Psychiatry and two reports are relied upon – 21st November 2018 and 13th September 2019. The respondent did not, in her grounds of appeal against the decision of the First-tier Tribunal Judge, challenge the qualifications of Dr Datta or the findings made. Dr Datta’s second report was prepared after the First-tier Tribunal decision was set aside; there was no request by the respondent for Dr Datta to be called to be cross-examined and no challenge to her report. Dr Datta, in her first report concludes that the sponsor
“presents with post-traumatic stress disorder and co-morbid major depressive disorder. The aetiology for his PTSD are the traumas described in his history which include: his experiences of the war in Syria; his exploitative labour arrangements and sexual assault in Jordan; and a traumatic and lengthy journey to the United Kingdom which included a stay in the Calais jungle camp (as an unaccompanied minor) where he witnessed extreme violence. There is an ongoing significant exacerbation of these symptoms due to his current separation from his family…he will not be able to fully recover from his PTSD or depressive disorder without long terms social stability, a key component of which is family support. This is because social stability is a necessary pre-requisite to the specialist psychological treatment that I recommend…”.
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In her second report, Dr Datta concluded, inter alia,
“…The inability to reunite with his family promptly has resulted in further deterioration in his mental state and is a barrier to effective treatment at present….it is highly likely that this deterioration will continue if continued separation occurs and the risk will only be reduced with long term supportive social stability now, which undoubtedly involved reunification with his family. In my opinion, [the sponsor’s] clearly worsening PTSD and depression in relation to the ongoing separation from his family is preventing him from discussing his sexual assault in detail as is required for treatment of the associated post traumatic symptoms.”
Dr Datta refers to the sponsor’s loneliness his accommodation, his profoundly different perspective to college, that he doesn’t really have friends, feelings of lack of settlement and worry about his family. She concludes that that his symptoms are consistent with PTSD and Major Depressive Disorder – severe subtype. She states
“..[she] can no longer recommend a trial of anti-depressant medication; this on the basis of how [the sponsor’s] symptoms have developed….at present medication would be contraindicated unless [the sponsor] was in a highly supported environment such as accommodation where he has access to 24 hour professional support, as he does not have the proximal support of his family….in order for [the sponsor] to receive from his psychiatric disorders; he requires as a necessity a safe and stable social situation for significant period of time and this equates to him being reunited with his family in the UK.”
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