Case No. UKUT-00227-(IAC)

s is that, having arrived in the United Kingdom as an unaccompanied minor in 2012, then aged 16, he succeeded in his appeal against a refusal of asylum, with the result that the Secretary of State for the Home Department (the “ Secretary of State ”) granted him five years limited leave to remain in the United Kingdom, as a refugee, a period which will expire on 07 April 2018. M aspires to achieve family reunification with his mother and brother, the two Appellants, in the United Kingdom. He does so primarily through the vehicle of Article 8 ECHR. The Impugned Decisions 3. The decisions underlying these proceedings and to which the origins of these combined appeals can be traced were made by the Entry Clearance Officer of Abu Dhabi (the “ ECO ”), the alter-ego of the Secretary of State, in December 2013. By his decisions the ECO refused to grant the Appellants entry clearance to join the sponsor in the United Kingdom. In refusing the mother’s application, the ECO stated: “ I have considered your application under paragraph 352 of the …… Immigration Rules ….. I have used all the information provided by you to determine if the Immigration Rules have been met ….. Immigration Rules for family reunion only apply to dependent partners and children of sponsors, not for [sic] parents and siblings. As such you have applied in a category that is not covered by Rules [sic] and your application falls for refusal under paragraph 320(1). ” The refusal decision as regards the second Appellant was framed in precisely the same terms, albeit he was described erroneously as the sponsor’s “ son ”. Factual Framework 4. The factual matrix is a mixture of certain uncontentious facts and my further findings, infra. 5. When they lived in Eritrea the family unit consisted of the three protagonists and the first Appellant’s husband. He was imprisoned there for political reasons and, fearing persecution by the Government she and her two sons fled Eritrea. This occurred in two stages. First, in April 2012, M left Eritrea, accompanied by his uncle. Later, in January 2013, the two Appellants fled, travelling on foot to Sudan. There they were accommodated in the UNHCR refugee camp in Shagarab. They were given UNHCR identity cards. The first Appellant considered this an unsafe place on account of the phenomena of kidnapping refugees and human trafficking. 6. In May 2013 the first Appellant succeeded in contacting M by telephone, from the camp, assisted by a UNHCR aide. The same person assisted the two Appellants in travelling to Khartoum, some 650 kilometres away, for the purpose of making their entry clearance applications to the United Kingdom. The first Appellant decided that it would be safe to remain in Khartoum and, further, preferred to be close to the Embassy. She borrowed money to pay the visa fees. Thereafter, the two Appellants lived on the streets of the city, occasionally managing to sleep in shelters or on church floors. She succeeded in getting some limited, illegal work. Both remained in Khartoum at the time of the First-tier Tribunal (“FtT”) hearing giving rise to this appeal. 7. Pausing at this juncture, I acknowledge that the FtT did not accept certain aspects of the factual case put forward on behalf of the Appellants. The basis upon and terms in which some of their assertions were rejected formed one of the grounds upon which the decision of the FtT was subsequently set aside by this Tribunal. In remaking the decision, I have considered the same evidence as that available to the FtT. Having done so, I am satisfied to the requisite standard of the truth and accuracy of the Appellants’ account. 8. I have considered in particular the evidence bearing on the family bonds and the inter-dependency of its members. From this it is clear to me that this is a close, loving and mutually supportive family unit all of whose members would be overjoyed if reunification could be achieved. There is clearly discernible interdependence. The enormous efforts to which the first Appellant went, the hardships which she has borne and the sacrifices which she has made, all in pursuit of family reunification, bear eloquent testimony to the virtues and character of the mother and the strength and stability of the family unit. Notably the ECO did not suggest that the Appellants are economic migrants and I am satisfied that there is no evidence from which this could be inferred in any event. In this context it is appropriate to highlight a passage in the statement of a teacher who has formed part of M’s life during almost two years: “ He was devastated when he received the news that the initial application had been rejected and actually had to take time off school to pull himself together. His foster parents are very caring, but I know that his real mother has a special place in his heart and he does not feel the same sense of belonging to his foster parents. ” This evidence has the supreme virtues that it is manifestly objective, independent and measured. In passing, the teacher concerned deserves commendation for taking the trouble to provide her detailed and balanced witness statement. 9. The mother and younger son plainly live in deprived and dangerous circumstances. They are destitute. The second Appellant has been unwell for a long time. This is a fractured family. Neither son has had the benefit of a father, or father figure, for several years. The mother struggles on, battling against the odds, deprived of the immense assistance and support which the sponsor would be capable of providing. Meanwhile, M has become increasingly stressed and preoccupied. He appears to be under-achieving academically and his social activities have become limited. Having reached his 18 th birthday, the sponsor is no longer in foster care. Some three years have elapsed since he last saw his mother and younger brother. His status is that of a former looked after child. He cuts an isolated and unsupported figure, a teenager living in an unfamiliar foreign country without any family support whatsoever. I am satisfied that his need for reunification with his mother and younger brother has not diminished since his advent and is, if anything, greater than ever. Family Reunification: the Secretary of State’s Policy 10. The Secretary of State’s policy in the realm of family reunification, as expressed in the Immigration Rules, dates from the year 2000. Its most important feature, for the purposes of these appeals, is that no provision has ever been made for family reunification in the case of a child who has gained refugee status in the United Kingdom. This discrete regime is currently contained in Part 8 of Appendix FM to the Rules, at paragraphs 352A – 352G and 819L – 819U. In short, spouses and minor children of a “sponsor” can, subject to satisfying the governing conditions, secure family reunification in the United Kingdom by the grant of leave to enter. However, this possibility does not exist where the sponsor is a child. 11. Thus a blanket prohibition is in operation. Historically, there was a short lived exception to this prohibition relating to the parents of unaccompanied children who had fled Kosovo and secured asylum in the United Kingdom. This concession was confined to the short time frame of July to September 1999. With effect from 02 October 2000, the family reunification regime enshrined in the Immigration Rules contained the aforementioned blanket prohibition. From then to 2006 the Secretary of State operated a policy of permitting the parents or siblings of unaccompanied minor refugees to enter the United Kingdom for the purpose of reunification only where compelling and compassionate circumstances were demonstrated. Since 2006 the Secretary of State’s policy has extinguished this possibility. While these appeals have generated much documentary evidence pertaining to this discrete issue, it is striking that there is no evidence bearing directly on the policy aims and justification underpinning this exclusion. I shall revisit this discrete issue infra . Legal Framework 12. As appears from the above, the refusal decisions of the ECO were made solely by reference to the Immigration Rules. The appeal to the FtT was based on Article 8 ECHR. One of the salient features of the legal framework is that the Immigration Rules contain no provision for family reunification in the case of a child refugee. Nor does the Secretary of State operate any policy to this effect. There is (very properly) no dispute about the existence of family life and the interference with Article 8(1) wrought by the decisions of the ECO. Thus the fundamental question for this Tribunal is whether such interference is necessary in a democratic society viz is a proportionate means of securing the legitimate aim in play, namely immigration control. The statement of Lord Bingham of Cornhill in Huang v SSHD [2007] 2 AC 167, at [18], applies fully to these appeals: “ The Strasbourg Court has repeatedly recognised the general right of States to control the entry and residence of non-nationals and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their Article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of Article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate aim sought to be achieved. ” The balance to be struck involves an exercise of weighing the rights of the individual and the interests of the community: see [19]. Furthermore, this Tribunal is the arbiter of proportionality, which is to be judged objectively: R (SB) v Governors of Denbigh High School [2007] 1 AC 100, per Lord Bingham at [30]. 13. Article 8 ECHR is in the following terms: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” By section 3 of the Immigration Act 1971 it is provided (insofar as material): “(1) Except as otherwise provided by or under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely— (i) a condition restricting his employment or occupation in the United Kingdom; (ia) a condition restricting his studies in the United Kingdom; (ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; (iii) a condition requiring him to register with the police; (iv) a condition requiring him to report to an immigration officer or the Secretary of State; and (v) a condition about residence. (2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances …” Section 117A of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act ”) provides: “(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts— (a) breaches a person's right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. (2) In considering the public interest question, the court or tribunal must (in particular) have regard— (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. (3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).” By section 117B: “(1) The maintenance of effective immigration controls is in the public interest. (2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English— (a) are less of a burden on taxpayers, and (b) are better able to integrate into society. (3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons— (a) are not a burden on taxpayers, and (b) are better able to integrate into society. (4) Little weight should be given to— (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious. (6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom. ” 14. M was a child, present in the United Kingdom, when the impugned decisions of the ECO were made. Accordingly, section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act ”) is engaged. This provides in material part: “(1) The Secretary of State must make arrangements for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to