AC-2025-LON-000997 - [2025] EWHC 1970 (Admin)

Fecha: 28-Jul-2025

Ground 2

Ground 2

Submissions for the claimants

68.

Tim Owen KC for the claimants submits that the Foreign Secretary has a duty under Article 8 ECHR to respect BSJ’s and the claimants’ right to respect for their family and private life. Since BSJ is in the UK, the family life that he and the claimants enjoy together is protectable even though the claimants are not themselves within the UK’s territorial jurisdiction for the purposes of Article 1 ECHR.

69.

The UT has determined that BSJ’s and the claimants’ Article 8 rights require as a matter of international law that the claimants be allowed to enter the UK and be reunited with BSJ. They cannot do so without the UK’s assistance. Israel had made clear it is willing to allow Palestinians to leave if a request is made by the UK, and indeed recently invited the UK to put forward the names of Palestinians for departure in planned evacuations.

70.

In circumstances which have not yet come before the Strasbourg Court, the domestic courts can and should anticipate how that court would decide the case, on the basis of established principles. Here, Article 8 imposes positive obligations upon the state to facilitate the reunification of the family.

71.

There is nothing in the case law of the Strasbourg Court to suggest that all inter-state contact falls outside the scope of the Convention. On the contrary, it is clear that positive obligations upon the State can include an obligation to take actions vis-à-vis another state: see Rantsev v Cyprus and Russia (2010) 51 EHRR 1; Nada v Switzerland (2013) 56 EHRR 18; Güzelyurtlu v Cyprus and Turkey (2019) 69 EHRR 12. There is therefore no authority to support the Defendant’s extreme submission that the ECHR can never impose an obligation on a state to intervene diplomatically or otherwise with another state on behalf of an individual.

72.

The refusal of assistance fails to strike a fair balance between the relevant competing public and individual interests, because:

(a)

The UT gave detailed and considered reasons which outline that the claimants’ individual interests are very weighty, which amount to “very compelling” or “exceptional circumstances”.

(b)

The consequence of the UT’s decision, which the executive has undertaken to respect, is that Article 8 ECHR requires that the claimants be allowed to enter the UK to be reunited with BSJ.

(c)

The public interests apparently relied upon by the Defendant to refuse consular assistance are not such as to outweigh the claimants’ interests, given that the Foreign Secretary’s evidence does not suggest that diplomatic engagement would be necessary at this point to secure the claimants’ exit from Gaza, the failure to review the scope of the EEC and the strong public interest in giving effect to, and avoiding the frustration of, the Upper Tribunal’s decision.