![[2024] UKUT 00234 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
The law
The law
These are appeals brought from outside the United Kingdom in which it is argued that the refusal of entry clearance is in breach of article 8 of the Human Rights Convention.
It is established law that the jurisdiction of the Human Rights Convention is primarily territorial, but, as the Court of Appeal observed in SSHD v Abbas at [16]- [17]:
There is no dispute that the Strasbourg jurisprudence supports the proposition that a person outside the territory of an ECHR state may rely upon the family life aspect of article 8 (albeit in very limited circumstances) to secure entry into an ECHR state. The principle was established firmly in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. The Strasbourg Court rejected the argument that article 8 was not engaged at all in immigration cases involving husbands who wished to join their wives in the United Kingdom. However, the ECHR held that article 8 did not give them a right to choose where to live together. In the cases before the court there were no obstacles to the couples establishing their family life in the husbands' countries of origin and not the United Kingdom. The claims failed. Similar cases have concerned parents who lived in an ECHR state but had left their children abroad. In Gül v Switzerland (1996) 22 EHRR 93 the Strasbourg Court concluded that family life could be enjoyed in the country of origin; in Sen v Netherlands (2001) 36 EHRR 81 the conclusion was to the contrary, with the result that family life would be enjoyed by the unit in the Netherlands.
The underlying basis on which the family life aspect of article 8 falls within the jurisdiction of the ECHR in an immigration case, even though the person seeking entry is not in an ECHR state, was explained in Khan v United Kingdom (2014) 58 EHRR SE15. It concerned a Pakistani national whose leave to remain in the United Kingdom was cancelled on national security grounds whilst he was in Pakistan. He argued that he was at risk of treatment contrary to article 3 ECHR if he remained in Pakistan and was not allowed to return to the United Kingdom:
"There is support in the Court's case law for the proposition that the Contracting State's obligation under art.8 may, in certain circumstances, require family members to be reunified with their relatives living in the Contracting State. However, that positive obligation rests, in large part, on the fact that one of the family members/applicants is already in the Contracting State and being prevented from enjoying his or her family life with their relative because that relative has been denied entry to the Contracting State … The transposition of that limited art.8 obligation to art.3 would, in effect, create an unlimited obligation on Contracting States to allow entry to an individual who might be at real risk of ill-treatment contrary to art.3, regardless of where in the world that person might find himself. The same is true for similar risks of detention and trial contrary to arts 5 and 6 of Convention." (paragraph 27)
The Court of Appeal also held:
The passage from Khan set out above recognises the unitary nature of a family for article 8 purposes with the consequence that the interference with the family life of one is an interference with the rights of all those within the ambit of the family whose rights are engaged. That is a feature of family life recognised, for example, in Beoku-Betts v Secretary of State for the Home Department [2009] AC 115 which held that the rights of all family members, and not only the person immediately affected by a removal decision, must be considered in the article 8 balance. As Lord Brown of Eaton-under-Heywood observed:
"Together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of the removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims." (paragraph [20]).
Lady Hale put it this way:
" … the central point about family life … is that the whole is greater than the sum of its individual parts. The right to respect for family life of one necessarily encompasses the right to respect for family life of others, normally a spouse or minor children, with whom the family life in enjoyed." (paragraph 4)
Although these observations are technically obiter, they are an accurate statement of the law endorsed by the Lord Chief Justice and the Senior President of Tribunals.
It is difficult to reconcile these statements of the law with what was said in KF (Syria) at [14]:
First, it is the sponsor's rights under Article 8 which are engaged. It is he, and only he, who is in the UK. By Article 1 of the ECHR the UK undertook 'to secure to everyone within [its] jurisdiction the rights and freedoms defined in section 1 of this Convention'. Those rights and freedoms include, of course, Article 8. There are certain exceptions where the Convention has an extra-territorial reach, but none of them is relevant in the present context. As Ms Meredith submitted, there are cases where Article 8 has been held to require the admission of someone who is outside the UK, but that is because their exclusion would be an impermissible interference with the private or family life of a family member who is in the UK -see for instance Secretary of State for the Home Department v Tahir Abbas [2017] EWCA Civ 1393. We do not therefore agree with Ms Meredith that the Appellants themselves have Article 8 rights for present purposes since they are all in Jordan.
With due respect to the panel, while the rights of the person or persons in the United Kingdom may well be a starting point, and that there must be an intensive fact-sensitive exercise to decide whether there would be disproportionate interference, we do not accept that it is correct law to focus exclusively on the sponsor’s rights; to do so risks a failure properly to focus on the family unit as a whole and the rights of all of those concerned. It is also to be borne in mind that it is the appellant’s rights which are in issue in these appeals, not the sponsors, given the terms of the ground of appeal, something the panel in KF (Syria) appears to have overlooked at [23].
We have not been taken to any other reported decisions which cite KF (Syria) and we observe that it was not referred to in SD (British citizen children - entry clearance) Sri Lanka [2020] UKUT 43.
In these appeals, the judge found that a family life existed between the appellants and the sponsor (and her family). On that basis, the Human Rights Convention applies, and on the facts of this case, article 8 was engaged, and the judge considered that the only issue was proportionality.
Where we consider that the judge made an error was at [19]. Having accepted [9] that a family life exists, and that the appellants are all at serious risk, he fails properly to consider it as a unit as he was required to do, and wrongly characterises that risk as being to their private lives. It is difficult to comprehend how such a serious risk, including of death which would extinguish family life, is not an interference with family life, and to the extent that the judge does so, his approach is irrational.
To the extent that the judge relied on KF (Syria) as authority for the proposition that the children’s interests in this case are attenuated and attract little weight per se, he erred, in that he failed to treat them as part of the family unit and what is written at [20] is beside the point.
Was this error material? We consider that it is. Although the judge was correct to apply section 117B of the 2002 Act, and to bear in mind that the appellants do not meet the requirements of the Immigration Rules, do not speak English and would be reliant on public funds, the weighing of that significant public interest is flawed. That is because of the failure properly to assess the effect on the appellants as a whole in the light of the severity of the harm likely to occur to them, and it is not inevitable that the result would be the same.
For these reasons, we find that the decision of the First-tier Tribunal involved the making of an error of law as averred in grounds 1 and 2. In the circumstances, we are not satisfied that we need consider ground 3.
Having reached these conclusion, and issued our ruling we then directed that the decision must be remade in the Upper Tribunal on the basis that there is no challenge to the findings that (a) a family life exists between the appellants and the sponsor, her husband and children in the United Kingdom; and (b), that the appellants are at risk of refoulement to Syria and thus at risk of serious harm. On that basis, the remaking was confined to a consideration of whether the refusal of entry clearance was, in these circumstances, proportionate.