Upper Tribunal (Immigration and asylum chamber), 2020-10-27, HU/04112/2019 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 27 October 2020 |
| Published date | 10 November 2020 |
| Hearing Date | 19 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/04112/2019 & Ors. |
Appeal Numbers: HU/04112/2019
HU/04114/2019, HU/04119/2019
HU/04127/2019, HU/04131/2019
HU/04132/2019, HU/04136/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/04112/2019
HU/04114/2019, HU/04119/2019
HU/04127/2019, HU/04131/2019
HU/04132/2019, HU/04136/2019
THE IMMIGRATION ACTS
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At: Manchester Civil Justice Centre (remote) |
Decision & Reasons Promulgated |
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On: 19th October 2020 |
On: 27th October 2020 |
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Before
UPPER TRIBUNAL JUDGE BRUCE
Between
AS
SZ
C1-C5
(anonymity direction made)
Appellants
And
Entry Clearance Officer (Sheffield)
Respondent
For the Appellant: Ms M. Knorr, Counsel instructed by Wilson & Co
For the Respondent: Mr C. Bates, Senior Home Office Presenting Officer
DECISION AND REASONS
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The Appellants are a family of Palestinians currently living in a refugee camp in Tyre, Lebanon. The first and second Appellants are husband and wife; the remaining five are their minor children, currently aged between and 4 and 17.
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The family seek entry clearance to the United Kingdom in order to settle here with two other children of the family, both of whom have been recognised as refugees. These refugees, now adults aged 18 and 20, are referred to hereinafter as S1 and S2.
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The linked appeals were dismissed by the First-tier Tribunal (Judge Traynor) on the 7th May 2020. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Coker on the 10th August 2020 who found there to be several arguable errors of law in the First-tier Tribunal decision.
Background and Matters in Issue before the First-tier Tribunal
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S1 arrived in the United Kingdom in October 2017, when he was 17. S2 arrived in the United Kingdom in January 2018, aged 16. They both claimed asylum on the basis that they had a well-founded fear of persecution in Lebanon for reasons of their membership of a particular social group/imputed political opinion. They had become embroiled in a vicious dispute with the children of a powerful Hezbollah commander, which led to the family as a whole attracting the adverse attention not only of Hezbollah but of their allies in Fatah and the Lebanese authorities. S1 and S2 being at the centre of the dispute their parents arranged for their departure to the United Kingdom. By July 2018 they had both been recognised as refugees.
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The applications for entry clearance were made on the 21st November 2018 when S1 was still a minor.
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The Respondent, having found no category under the rules which could avail the Appellants, considered whether there were “exceptional circumstances” that would justify granting entry. Finding there to be none, the applications were refused on the 3rd February 2019.
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The case before the First-tier Tribunal was that it would be a disproportionate interference with the family and private lives of all members of this family to refuse to grant entry clearance. Particular reliance was placed on the following matters, which the Tribunal was asked to weigh cumulatively:
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That S1, at the date of the appeal still living in foster care, has been diagnosed with very severe PTSD, moderate depression and anxiety. Medical opinion was provided attributing these conditions to both the trauma experienced by S1, but also to his ongoing separation from his family and his overwhelming fears for their safety;
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The targeting of the family in Lebanon is ongoing. An uncle of S1 and S2 wrongly arrested in the dispute remains in custody. In the absence of S1 and S1 the adverse attention of the agents of persecution has transferred to A3 and A4 who are unable to leave Lebanon illegally due to lack of funds;
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Until S1 and S2 are married and found families of their own they are, in the cultural context from which they come, considered to be members of their father’s household;
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A2 is finding is their continued separation particularly difficult. Her mental and physical health has declined and she “cries all the time”;
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Because S1 and S2 are recognised as refugees (and indeed because the Appellants are themselves refugees in Lebanon) the only realistic prospect of family reunification lies in the United Kingdom;
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It is contrary to the best interests of the minor Appellants to be separated from their siblings, but also to witness the ongoing emotional pain experienced by their parents as a result of that separation.
The Decision of the First-tier Tribunal
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Having directed itself that the matter in issue was whether the decision was a proportionate response under Article 8, the Tribunal found as follows:
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In respect of the claim that the family continue to face difficulties in Lebanon “they have never been specific in identifying the form of harassment, who perpetrates it and in what circumstances” [§65]: such evidence that there is is found to be “vague and in some respects self-serving”. The Appellants are not facing any particular difficulties in accessing food, medication or treatment [§79].
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The parents of this family made a “conscious decision” to send their eldest sons to the United Kingdom because they already had family here, namely their maternal aunt who is settled here by marriage [§67, 80]. This aunt visited Lebanon on several occasions in the years before the boys arrived and the Judge deduces from this that during these visits the family discussed together the “clear attraction” of the whole family moving to the United Kingdom.
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As to the opinion of the Consultant Clinical Psychologist Dr Heke that S1 is suffering complex mental health problems as a result of his experiences, the Tribunal postulates that “it is clear” that a contributing factor to this would be his “physiological development and maturing” as an adolescent, something that the doctor does not appear to have taken into account. The Tribunal further attributes S1’s emotional difficulties to the family’s “decision” to place him into foster care. Finally the Tribunal deduces from the doctor’s comment that S1 appeared smartly dressed and “calm” that his symptoms are being exaggerated: if he needed more mental health support he would have sought it [§70, 71, 76].
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S1 is supported by his aunt, college friend, brother and foster carer, with whom he enjoys a good relationship. He also maintains contact with his parents and siblings by telephone and social media. He is moving towards independence and has good self-care [§75, 77]
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No weight can be given to the “threat” that in the event that these appeals fail C1 and C2 will be sent abroad by their parents using illegal smuggling networks contra to their best interests.
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Having weighed all of those matters in the balance the Tribunal concludes that the appeals must be dismissed.
Error of Law: Discussion and Findings
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Ms Knorr’s first complaint is that the Judge was wrong to state that there was no credible evidence before him demonstrating that the Appellants, and in particular the two eldest children left in Lebanon , are experiencing harassment and threats from the Hezbollah family who caused S1 and S2 to flee. The evidence is described by the Judge as “vague”, “self-serving” and “not credible”. Ms Knorr rightly takes issue with each of these terms.
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The evidence cannot rationally be described as vague. The Tribunal was not faced with unparticularised assertion. The witness statements detailed a number of specific incidents, for instance the eldest daughter being surrounded by a number of boys, sworn at, touched, and having her school books knocked out of her hand. About 2 months before the appeal both she and her brother were approached at school by outsiders who asked them where S1 and S2 were: the headmaster intervened and had the individuals removed from the school property. The children did not attend school for 20 days after this incident because they were fearful for their safety. Both S1 and S2 gave unchallenged evidence about their fears for their family, and that they genuinely hold such subjective fear was confirmed by their aunt and the medical report. Although the decision acknowledges that some of the Appellants have provided witness statements, it does appear that the Tribunal may have missed some of the contents:...
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