![[2024] UKUT 00234 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
Section 1
The appellants appealed with permission against the decision of First-tier Tribunal Judge Komorowski, dismissing their appeals against decisions made on 11 August 2021 to refuse their applications for Entry Clearance as the family members of Ms Faten Al-Helwani (“the sponsor”), a Syrian national recognised as a refugee in the United Kingdom. For the reasons set out below, that decision was set aside by the Upper Tribunal ( a panel consisting of Upper Tribunal Judge Macleman and Upper Tribunal Judge Rintoul), and the decision was remade by Upper Tribunal Judge Rintoul sitting alone following a hearing on 30 April 2024.
The appellants are all members of one family who state that they had lived together as one household in Syria before the civil war began and that they then fled to Jordan at various times, becoming separated from the sponsor who fled for the United Kingdom in 2014.
The appellants are related to the sponsor as follows:
Manhal Fehmi Alwani (appellant 5), the sponsor's brother.
Hala Al Badwi (appellant 6) is his wife.
They have two children: a daughter Sham Manhal Fehmi Al Halawani (appellant 9) (born 2016) and a son Hamza Manhal Al Halawani (appellant 8) (born 2019).
Hala Al Badwi (appellant 6) has three children from her previous marriage (her husband is deceased). They are: two sons, Abdulmalil Abdulrazzak Al Hassan (appellant 7) (born 2008) and Osama Abdulrazzak Al Hassan (appellant 10) (born 2009); and a daughter, Lojein Abdulrazzak Al Hassan (appellant 1) (born 2011). Manhal is their stepfather.
Laila Fehmi Al Helwani (appellant 3) is the widowed sister of the sponsor and Manhal. She has two children: a daughter, Ola Suliman Al Halwani (appellant 4) (born 2007) and a son, Alaa Suliman Al Halwani (appellant 2) (born 2008) (a boy) are her children.
The appellants’ case is that they are entitled to Entry Clearance as a family life exists between the appellants and their sponsor, and that to refuse them would be a breach of their rights to respect for their family life as protected by article 8 of the Human Rights Convention.
The respondent concluded that the appellants could not meet the requirements of the immigration rules, or that refusing entry clearance was a breach of their rights under the Human Rights Convention.
Proceedings in the First-tier Tribunal
The judge heard evidence from the sponsor and her daughter; he also had before him five inventories of productions.
The judge found [8] that:
There were more than normal emotional ties between the sponsor and her brother, Manhal and between the sponsor and her sister, Laila;
There were more than normal emotional ties between the sponsor’s daughter, Bushra and her cousins, Ola and Alaa (Laila’s children);
It was doubtful [9] that a family life existed between Hala and any of her children with the sponsor, her husband or her children.
The judge nonetheless proceeded [9] on the basis that sufficiently close ties exist between each of the appellants and the sponsor, her husband and children such that their exclusion constitutes a significant interference in terms of article 8 of the Human Rights Convention. The judge concluded [10], however, this interference was not disproportionate, identifying [11] three issues relevant to proportionality:
the benefit there would be to the sponsor’s and her husband’s mental health if the family were admitted;
the risk of refoulement to Jordan and the discrimination they face there; and,
the separation of the family had been occasioned by the Syrian civil war.
The judge found that:
The appellants did not meet the requirements of the immigration rules [22];
Having considered the medical evidence, it was not intuitively obvious [17], nor was there clinical opinion that admitting the “in-laws” would make a difference, in contrast with KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413;
The appellants are at a real risk of serious harm including a risk to their lives, given the serious risk of refoulement and serious discrimination in Syria [18] and that their best interests lay in being admitted; but,
This had only a limited and indirect bearing on the seriousness of the interference with the family life represented by refusal of entry clearance, “these matters having more of an effect on the qualify of the individual lives rather than the quality of their lives with each other as a family”;
The appellants’ private lives fell outside the scope of article 8 (see KF (Syria)) and their plight had only a limited bearing on the private and family lives of the family in the United Kingdom [19];
The appellants’ inability to speak English and their dependence on public funds were factors counting against them [21], by operation of section 117B of the Nationality, Immigration and Asylum Act 2002;
The appellants were note assisted by the respondent’s policy on “Family Reunion: for refuges and those with humanitarian protection”.
The judge therefore dismissed the appeal on the basis that the interference posed was not disproportionate.
Grounds of appeal & subsequent procedural developments
The appellants sought permission to appeal on the grounds that the judge had erred:
In concluding that the appellants’ situation had only a limited bearing on the seriousness of the interference in the family life; and, insofar as he relied on KF (Syria) to reach such a conclusion, it was contrary to what was held by the Court of Appeal in SSHD v Abbas [2017] EWCA Civ 1393, the Upper Tribunal having wrongly conflated jurisdiction under Article 1 of the Convention and the scope of family life once jurisdiction was engaged;
In concluding that the interests of overseas children are not relevant, contrary to the established case law;
In his approach to the relevant policy;
On 15 May 2023, Upper Tribunal Keith granted permission on a renewed application, observing that:
While KF is a reported decision of this Tribunal and its reasons and conclusions should be accorded significant weight, it is at least arguable that the Judge erred in concluding that the minor children’s interests “cannot be of any relevance to appeals heard in this forum” (paragraph 19) and in concluding that the respondent’s policies could not be read as permitting consideration of the human rights of out-of-country appellants. While any arguable error may not ultimately be material, as to whether the Judge’s decision is not safe and cannot stand, the grounds are of sufficient arguable merit to warrant consideration at a full hearing.
On 7 June 2023, the respondent served a response pursuant to rule 24, arguing that the judge had not misdirected himself, not had the Upper Tribunal erred in KF (Syria). It is also submitted that there is no merit in either of the other grounds; there is no challenge to the findings of fact by the judge.
On 27 June 2023 further directions were issued requiring the parties to provide skeleton arguments. The appellants complied; the respondent did not.
The hearing on 23 August 2023
We heard submissions from both representatives.
Mr Aslam relied on his skeleton argument, submitting that the Upper Tribunal had erred in KF (Syria) in its approach to how, once it had been established that family life with a person abroad exists, interference with that was to be assessed. It was incorrect to focus solely on the rights of those present in the United Kingdom, that being contrary to the established case law. The compelling circumstances of those outside the United Kingdom were relevant, given family life was to be construed as a whole.
Mr Basra submitted that KF (Syria) was correctly decided, and that SSHD v Abbas should be distinguished on its facts.
We reserved our decision.