Case No. UKUT-00227-(IAC)

a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight.” 21. In decision making contexts in which the public interest engaged has the democratic stamp of parliamentary scrutiny, debate and decision, culminating in primary legislation, the public interest is especially strong and the role of the court or tribunal as arbiter of proportionality is correspondingly reduced: see SS (Nigeria) v SSHD [2013] EWCA Civ 550, per Laws LJ at [42]: “ But the margin of discretionary judgment enjoyed by the primary decision maker, though variable, means that the Court’s role is kept in balance with that of the elected arms of government and this serves to quieten constitutional anxieties that the Human Rights Act draws the Judges onto ground they should not occupy ….. ” [and at 47]: “ Upon the question whether the principle of minimal interference is fulfilled, the primary decision maker enjoys a variable margin of discretion, at its broadest where the decision applies general policy created by primary legislation. ” The variable nature of the primary decision maker’s margin of appreciation, or discretionary area of judgment, is illustrated in R (Quila) v SSHD [2012] 1 AC 621 where the legal rule in play which precluded the claimants from securing leave to remain in the United Kingdom was a provision of the Immigration Rules which do not, of course, have the status of parliamentary legislation and do not, therefore, attract the equivalent imprimatur of democratic approval: Huang v SSHD [2007] 2 AC 167, at [17]. Furthermore, it is appropriate for the court or tribunal to take into account whether the Secretary of State had access to “ special sources of knowledge and advice ” in formulating the rule or rules under scrutiny: per Lord Wilson JSC at [46]. 22. Moreover, as noted by this Tribunal recently in ZAT and Others v SSHD (Article 8 ECHR – Dublin Regulation – Interface – Proportionality) IJR [2016] UKUT 61 (IAC), after [57]: “ Lesser weight is to be accorded to the Secretary of State’s assessment to the balance to be struck between the public interest and the rights of the individual in circumstances where the Secretary of State’s insistence upon full adherence to the [rule in question] embodies a generalised assessment, a broad brush, to be contrasted with a specific, considered response and decision on a case by case basis. ” The ensuing sentence in the same paragraph resonates, as it applies fully to the present appeals: “ …. The platform upon which the Secretary of State has contested these proceedings is quite unrelated to the individual circumstances, the needs and merits of any of the seven Applicants. ” As in ZAT and Others , the present proceedings concern a blanket exclusion, or prohibition. 23. In Secretary of State for the Home Department v SS (Congo) and Others [2015] EWCA Civ 387 the Court of Appeal paid specific attention to the factor of children in the context of applications for leave to enter and leave to remain in the United Kingdom. Having noted that the “Article 8 code”, contained in Appendix FM to the Immigration Rules, constituted an “ attempt ” by the Secretary of State to reflect “ more precisely than before ” the relevant balance to be struck between the public interest and the interests of the individual in Article 8 cases, the Court formulated some general principles in [39]. These include the principle, expressed in [39](iii) that: “ A Court will be slow to find an implied positive obligation which would involve imposing on the State significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the State in the public interest, a matter which usually calls for consideration under democratic procedures ”. This is followed immediately by the following passage: “(iv) On the other hand, the fact that the interests of a child are in issue will be a countervailing factor which tends to reduce to some degree the width of the margin of appreciation which the state authorities would otherwise enjoy. Article 8 has to be interpreted and applied in the light of the UN Convention on the Rights of the Child (1989): see In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] AC 144, at [26]. However, the fact that the interests of a child are in issue does not simply provide a trump card so that a child applicant for positive action to be taken by the state in the field of Article 8(1) must always have their application acceded to; see In re E (Children) at [12] and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, at [25] (under Article 3(1) of the UN Convention on the Rights of the Child the interests of the child are a primary consideration – i.e. an important matter – not the primary consideration). It is a factor relevant to the fair balance between the individual and the general community which goes some way towards tempering the otherwise wide margin of appreciation available to the state authorities in deciding what to do. The age of the child, the closeness of their relationship with the other family member in the United Kingdom and whether the family could live together elsewhere are likely to be important factors which should be borne in mind.” The Court further noted that Article 3(1) of UNCRC forms part of municipal law via section 55 of the 2009 Act, in observing that some of the principles and obligations contained in this international law measure have influenced domestic law. 24. There is a further, discrete dimension of the Article 8 jurisprudence which the Court of Appeal noted en passant in SS (Congo) , at [39](v), namely the principle, or test, of the “ direct and immediate link ” forging a nexus between the measures requested by an applicant and his family life. This principle approximates to the familiar common law concept of casual nexus. In Draon v France ( supra ), the Grand Chamber, having reiterated certain well established principles, stated at [106]: “ ’Respect’ for family life …. implies an obligation for the State to act in a manner calculated to allow ties between close relatives to develop normally. The Court has held that a State is under this type of obligation where it has found a direct and immediate link between the measures requested by an Applicant, on the one hand, and his private and/or family life on the other. ” This direct and immediate link is unlikely to be established in circumstances where family life can be carried on elsewhere: see Botta v Italy [1998] 26 EHRR 241 and Gül v Switzerland [1996] 22 EHRR 93, at [42]. 25. The scope for further development and refinement of the principles, tests and touchstones to be applied in Article 8 cases of this genre , in the context of what is of course a “ living instrument ”, is illustrated by a trilogy of decisions of the ECtHR. It is unnecessary to dwell on the first of these, Sen v Netherlands [2003] 36 EHRR 7. In the second, Tuquabo-Tekle and Others v Netherlands [2005] ECHR 803 [Application No 60665/00], which followed two years later, the Court emphasised, firstly, that every case is fact sensitive: see [43](a). In formulating an inexhaustive list of touchstones to be applied, it highlighted the age of the children concerned, their current situation in their country of origin and the extent of their dependency on their parents. In [47] it formulated the test of “ the most adequate means for the various members to develop family life together ”. The Court also acknowledged, in [49], the relevance of the age of the child or children concerned, the extent of the child/parent dependency, whether the child had been reared in the cultural and linguistic environment of his country of origin, whether there are relatives there and whether it could be expected of the parents to return there: see [49]. 26. This was followed by Mayeka and Mitunga v Belgium [2008] 46 EHRR 23 in which the main factors were pre-existing family life between the separated persons concerned, an unaccompanied minor and special vulnerability. Both decisions illustrate the Court’s willingness, in appropriate cases, to recognise Article 8 ECHR as the vehicle for achieving family reunification on the territory of the Council of Europe State where one of the family members is present or established. 27. As the sponsor was a child (aged 17) when the impugned decisions of the ECO were made, section 55 of the 2009 Act applied. Accordingly, his best interests had the status of a primary consideration. As in so many cases involving children, there is no evidence that the statutory duty imposed by section 55(2) to have regard to the Secretary of State’s statutory guidance was discharged. I readily infer that it was not. This, sadly, seems to be the rule rather than the exception in cases of this kind. This, notwithstanding that the decisions of this Tribunal in JO and Others (Section 55 Duty) Nigeria [2014] UKUT 517 (IAC) and MK (Section 55 – Tribunal Options) [2015] UKUT 223 (IAC) have drawn attention emphatically to this aspect, and others, of section 55. 28. Section 55 has been considered by the United Kingdom Supreme Court in ZH (Tanzania) v SSHD [2011] 2 AC 166 and Zoumbas v SSHD [2013] 1 WLR 3690. As these decisions make clear, no other material consideration can be treated as inherently more significant than the best interests of any affected child, albeit this can be outweighed by the cumulative effect of other considerations and it does not rank as the primary, or paramount, consideration. Per Lord Kerr in ZH (Tanzania) at [46]: “ It is not merely one consideration that weighs in the balance along side other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. ” Notably, while section 55 did not apply directly to the second Appellant when the decisions were made, as he was outside the United Kingdom, the Secretary of State’s Immigration Directorate Instruction (“IDI”) invites ECOs to consider the aforementioned statutory guidance, as noted by this Tribunal in Mundeba (Section 55 and paragraph 297(i)(f)) [2013] UKUT 88 (IAC), at [36] and [37] especially: see further [31] infra . 29. The issue of the status of unincorporated or partly incorporated international treaties in domestic law continues to intrigue. It has proved nothing if not organic during recent years. The determination of these appeals does not require a detailed treatise. Rather, it suffices to draw attention to three matters. The first is the opinion of Lord Wilson in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, at [42] – [44], which merit reproduction in full: “[42] In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, Lady Hale at para 21 quoted with approval the observation of the Grand Chamber of the ECtHR in Neulinger v Switzerland (2010) 28 BHRC 706, para 131, that "the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law". The Court of Appeal concluded, however, that the circumstances of the present case left no room for either of the international conventions to give a steer to the proper interpretation of Cameron's rights. Consistently with that conclusion, the Secretary of State proceeds to submit that it is in principle illegitimate to have regard to the conventions and in this regard he relies upon the recent decision of this court in the SG case cited at para 39 above. [43] It is clear that in the SG case the Secretary of State submitted that, while an international covenant might inform interpretation of a substantive right conferred by the Convention, it had no role in the interpretation of the parasitic right conferred by article 14 and thus, specifically, no role in any inquiry into justification for any difference of treatment in the enjoyment of the substantive rights. But his submission was not upheld. While Lord Reed did not expressly rule upon it, it was rejected by Lord Carnwath (paras 113-119), by Lord Hughes (paras 142-144), by Lady Hale (paras 211-218) and by Lord Kerr (paras 258-262). Lord Carnwath, for example, pointed out at paras 117-119 that the Secretary of State's submission ran counter to observations in the Court of Appeal in the Burnip case, cited at para 23 above, and indeed to the decision of the Grand Chamber in X v Austria (2013) 57 EHRR 405. The decision of the majority in the SG case was not that international conventions were irrelevant to the interpretation of article 14 but that the UN Convention on the Rights of the Child was irrelevant to the justification of a difference of treatment visited upon women rather than directly upon children: para 89 (Lord Reed), paras 129-131 (Lord Carnwath) and para 146 (Lord Hughes). [44] The noun adopted by the Grand Chamber in the Neulinger case, cited above, is "harmony". A conclusion, reached without reference to international conventions, that the Secretary of State has failed to establish justification for the difference in his treatment of those severely disabled children who are required to remain in hospital for a lengthy period would harmonise with a conclusion that his different treatment of them violates their rights under two international conventions.” In short, certain provisions of international treaties, in particular the UNCRC, have gently, seamlessly and progressively influenced and seasoned domestic law via the Human Rights Act 1998, as a result of the duty imposed on courts and tribunals by section 3(1) thereof and the long established practice of the ECtHR of taking into account relevant provisions of international law. 30. Second, bearing in mind section 55 of the 2009 Act, it is clear that Article 3(1) of UNCRC cannot be considered in a vacuum, isolated from the remaining provisions of the Convention. The meaning and reach of Article 3(1) must take their colour from, and be informed by, other provisions of this instrument. Article 31 of the Vienna Convention on the Law of Treaties requires no less. It provides, in material part: “General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes …. “ 31. Third, decisions which give proper effect to both of the duties enshrined in section 55 may legitimately be influenced by unincorporated provisions of international law, having regard to the expression of the Secretary of State’s policy in the statutory guidance made under section 55(2). This is found in “ Every Child Matters: Change For Children ”, which contains, at paragraph 2.6, the following passage: “ The UK Border Agency acknowledges the status and importance of the following: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the EU Reception Conditions Directive, the Council of Europe Convention on Action against Trafficking in Human Beings and the UN Convention on the Rights of the Child. The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies. ” [Emphasis added] Within this passage one finds the clearest of assurances that, as a matter of policy, these several instruments of international law will be given effect when the Secretary of State and her various alter egos , which include UKBA, UKVI and ECOs, are making immigration (and related) decisions which affect children. Moreover, the absence of any territorial limitation comparable to that contained in section 55(1) is notable. 32. Thus the principle enunciated in R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839 applies fully. Applying orthodox principles of public law, it matters not that the materials, or considerations, identified in ”Every Child Matters (etc)” have the status of unincorporated international treaties. If this publication had the standing of a (mere) governmental policy, the Secretary of State would be expected to give effect to it: Lumba v Secretary of State for the Home Department [2011] UKSC 12 at [26], per Lord Dyson JSC. I consider that this duty applies a fortiori given that the publication is an instrument made pursuant to a duty imposed by primary legislation. By formulating the statutory guidance in this way the executive has chosen to give indirect status in domestic law to certain measures of international law which have not been incorporated by legislation. 33. The international law/domestic law dichotomy in United Kingdom law traditionally conjured up notions of polarisation and insularity. Having regard to the developments mapped above, the gulf between the two notional extremes has narrowed significantly and this is illustrated by the decision making context under scrutiny in these proceedings. The so-called dualist doctrine has evolved and has undergone some dilution in consequence. All of this is, ultimately, a reflection of the intrinsically organic nature of the common law. Conclusions 34. At this juncture I remind myself of the fundamental question to be determined in these conjoined appeals: is the interference with the family life of the Appellants and M, brought about by the refusal decisions of the ECO, a proportionate means of securing the legitimate aims in play? Or, alternatively, one might ask which is to prevail: the interests of the three family members or the public interest? 35. On one side of the scales there is a strong family unit whose members are clearly united and fortified by strong bonds of love, affection and interdependency. They long to be reunited and have gone to substantial lengths and have made considerable sacrifices to achieve this goal. For as long as separation continues, this will be a disfunctioning, debilitated and under achieving family. The main feature of this under achievement will be the family’s inability to attain its potential as one of the key elements of modern societies throughout the world. The under performance of family members and family units, in this respect, does not further any identifiable public interest. On the contrary it is antithetical to strong and stable societies. These features of the family unit under scrutiny in these appeals are exposed in a context where M, being the older of the two male sons, is, culturally, considered to be the head of the family. This family, bereft of its natural head by circumstances and not by choice, is now deprived of his successor and has been thus bereft for almost four years. 36. The evidence establishes clearly that the sponsor is under achieving as a person. This means that his contribution, actual and potential, to United Kingdom society is diminished. This arises in circumstances where he has demonstrated his willingness to adapt to United Kingdom culture and to study earnestly in this alien country. The prediction that society will secure some benefit if the sponsor achieves family reunification in this country is readily made. Thus reunification will promote, rather than undermine, the public interest in this respect. It will be manifestly better for society than maintenance of the status quo. 37. Furthermore, if family reunification cannot be achieved in the United Kingdom, M will be driven to consider alternatives, some of them manifestly dangerous given his youth and unaccompanied and unsupported status. These include the precarious journey involved in attempting to reunite with the Appellants wherever they may be at present. The evidence points to the probability that they are either in Khartoum or the UNHCR refugee camp several hundred kilometres away. The situations in both locations are fraught with danger and imbued with deprivation. Reunification of this family in their country of origin, Eritrea, is not a feasible possibility, having regard to the factual framework rehearsed in [5] – [9] above. 38. I consider it distinctly possible that if family reunification cannot be secured in the United Kingdom, the sponsor will depart these shores in the dangerous pursuit of one of the alternatives mooted above. This would deprive him of the protections which he has obtained as a result of being recognised a refugee. This would be manifestly undesirable for him, contrary to the public interest and incompatible with the philosophy and rationale of the Refugee Convention. It would also expose him to a risk of violating his Convention rights, in particular those protected by Articles 3 and 4. In the real world, recognition of this possibility is far from fanciful. I consider this to be a potent factor in the balancing exercise. Resort to this Tribunal is very much a measure of last resort for him. 39. Next, it is necessary to give effect to the principles enunciated in Mathieson – ( supra ) together with those aspects of the Secretary of State’s statutory guidance noted in [31] above. I do not deduce from any of these principles or sources that the Secretary of State is under a duty to facilitate reunification for this family in the United Kingdom with the result that the impugned decisions of the ECO are vitiated. The existence of an absolute duty of this nature was not argued and I do not consider that such duty exists. However, in my view the orientation of these principles and policies is to favour, rather than undermine, what the Appellants seek to achieve by these appeals. They qualify for substantial weight in the proportionality balancing exercise. 40. On the other side of the scales lies the public interest. This engages the provisions in sections 117A and 117B of the 2002 Act, reproduced in [13] above. Thus, in summary: the public interest in the maintenance of effective immigration controls is engaged; I shall assume that neither of the Appellants speaks English; and I further assume that neither Appellant is, or will be, financially independent, at least for the foreseeable future. Section 117B(4) does not apply. Nor does section 117B(5), given the concession – properly made – of Mr Poole on behalf of the Secretary of State that the M’s immigration status in the United Kingdom has not been precarious, given the grant of five years leave to remain qua refugee. Nor does section 117B(6) apply. 41. Is any other public interest engaged? Mr Poole, in his skeleton argument, sought to identify two such interests: (a) the safeguarding of children, specifically those in the position of the sponsor, who would be at risk of trafficking and exploitation in their quest to reach the United Kingdom; and (b) additional pressure on publicly funded childrens’ services. There is no primary legislation underpinning either of these asserted public interests. Moreover, there is no evidence underlying them – in the form of, for example, reports or commentaries. I recognise that evidence of this kind is not a prerequisite to the recognition of a public interest in the Article 8(2) balancing exercise. However, I cannot overlook that these public interests are advanced through the medium of counsel’s written and oral submissions. 42. Furthermore, this unsatisfactory dimension of the Secretary of State’s case is highlighted by the belated production of certain data. While I have considered this material, I observe that it does not have the benefit of related reports or the illumination or elaboration of witness statements. Nor is there any financial data even at a general level. In addition, the figures require clarification, which is lacking. In my judgment, the only conclusion which can safely be made is that there has been some increase in the advent of unaccompanied children to the United Kingdom during the past two years. That said, the figures are substantially smaller than those applicable to the years 2008 and 2009. While I take all of this evidence, including counsel’s submissions, into account, I consider that its potency is questionable for the reasons given. Furthermore, I reiterate my analysis of the governing legal principles above. 43. This brings me to my overarching conclusion. Taking into account the considerations, assessments and reasons highlighted in [34] – [42] above, it is my conclusion that, balancing everything, the impugned decisions of the ECO, acting on behalf of the Secretary of State, interfere disproportionately with the right to respect for family life enjoyed by the Appellants and M. As the ultimate arbiter of proportionality I decide accordingly. Thus I re-make the decision of the FtT by allowing the appeals. Decision The appeals are allowed under Article 8 ECHR. Signed: THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Dated : 29 February 2016 APPENDIX EVERY CHILD MATTERS CHANGE FOR CHILDREN Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children Issued under section 55 of the Borders, Citizenship and Immigration Act 2009 November 2009 Fo r ewo r d Int r oduction Pa r t One – General A r rangements to Safegua r d and P r omote W elfa r e Pa r t T w o – A r rangement s i n th e Unite d Kingdo m Bo r de r Agenc y t o Safegua r d an d P r omot e Child r en’ s W elfa r e 14 Annex A: Indicators of T raffickin gIt is the duty of Government and of society as a whole to keep children safe. Public agencies have a particular responsibility to do this, both within their own area of business and in the way in which they work together.Section 11 of the Children Act 2004 places a duty on specified public bodies and key individuals to carry out their functions having regard to the need to safeguard and promote the welfare of children. This applies across a wide range of public activity, from schools to prisons.Section 55 of the Borders, Citizenship and Immigration Act 2009 now places a similar duty on the UK Border Agency. This is a naturalprogression for the Agency which has been steadily improving how it works with children. Last year, the Government lifted its general reservation relating to immigration on the UN Convention on the Rights of the Child, and in January of this year we introduceda statutory Code of Practice for the UK Border Agency on Keeping Children Safe from Harm. The Code is superseded by this new duty which now places the UK Border Agency on the same footing as other public bodies working with children.As Ministers for Immigration and Children, we welcome this coming together and are confident that it will help to support more effective joint working.The UK Border Agency undertakes difficult and sensitive work on behalf of society as a whole. Working with children presents particular challenges. To meet these challenges effectively, the UKBorder Agency needs the support of all those with an interest in children. The development of this guidance has been greatly assisted by the input ofa range of or