![[2024] UKUT 00234 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
The Law
The Law
Sections 117A and 117B of the 2002 Act apply to these appeals but there is no need to set them out in full.
Paragraph GEN 3.2 of the Immigration Rules requires that, where an application which has been considered under Appendix FM and does not meet those requirements, it must also be considered whether refusal of entry clearance would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family members whose rights are evident.
Guidance has also been issued by the respondent - Family reunion: for individuals with protection status in the UK Version 10.0 - to the effect that (page 23):
Where a refugee family reunion application meets the validity and suitability requirements but does not meet the eligibility requirements of the rules, you must go on to consider whether there are exceptional circumstances which would render refusal of permission to stay or entry clearance a breach of Article 8 ECHR, because such refusal would result in unjustifiably harsh consequences for the applicant or their relevant family member. This is in line with Appendix FM GEN.3.2 – guidance on making this consideration can be found in the Family life (as a partner or parent) and exceptional circumstances guidance.
In remaking the decision, I bear in mind the principles set out in Agyarko v SSHD [2027] UKSC 11. I have taken into account also the case law of the European Court of Human Rights to which Mr Aslam drew my attention, but I remind myself that those decisions are not binding on me. Nevertheless, they are matters which I must take into account. I take note of the principles set out in MA v Denmark at 132 and 135.
Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest and is subject to a fair balance that has to be struck between the competing interests involved. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (ibid., § 107).
On the other hand, the Court has generally been prepared to find that there was a positive obligation on the part of the member State to grant family reunification when several of the following circumstances, not all of which are relevant to the present case, were cumulatively present:
The person requesting family reunification had achieved a settled status in the host country or had strong ties with that country (see, inter alia, Tuquabo-Tekle and Others v. Netherlands, no. 60665/00, § 47, 1 December 2005 and Butt v. Norway, no. 47017/09, §§ 76 and 87, 4 December 2012).
Family life was already created, when the requesting person achieved settled status in the host country (see, among others, Berrehab v. the Netherlands, cited above, § 29 and Tuquabo-Tekle and Others v. Netherlands, cited above, § 44).
Both the person requesting family reunification, and the family member concerned, were already staying in the host country (see, inter alia, Berrehab v. the Netherlands, cited above, § 29).
Children were involved, since their interests must be afforded significant weight (see, for example, Jeunesse, cited above, §§ 119-120; Berrehab v. the Netherlands, cited above, § 29; Tuquabo-Tekle and Others v. Netherlands, cited above, § 47; Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 44, ECHR 2006-I; and Nunez v. Norway, no. 55597/09, § 84, 28 June 2011).
There were insurmountable or major obstacles in the way of the family living in the country of origin of the person requesting family reunification (see, inter alia, Sen v. the Netherlands, no. 31465/96, § 40, 21 December 2001; Tuquabo-Tekle and Others v. Netherlands, cited above, § 48; Rodrigues da Silva and Hoogkamer v. the Netherlands, cited above, § 41; and Ghatet v. Switzerland, no. 56971/10, § 49, 8 November 2016).
Equally I note what it written at [145]:
The situation of general violence in a country may be so intense as to conclude that any returnee would be at real risk of Article 3 ill-treatment solely on account of his or her presence there. The absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests. Accordingly, an increased influx of migrants cannot absolve a State of its obligation under that provision (see, for example, Khlaifia and Others v. Italy, cited above, § 114). In principle, this factor may also reduce the latitude enjoyed by States in striking a fair balance between the competing interests of family reunification and immigration control under Article 8, albeit that, during periods of mass influx of asylum-seekers and substantial resource constraints, recipient States should be entitled to consider that it falls within their margin of appreciation to prioritise the provision of Article 3 protection to a greater number of such persons over the Article 8 interest of family reunification of some
In addition, it is noted that in Dabo v Sweden the court did observe that States have a wide margin for appreciation in deciding that refugees should have to satisfy the maintenance requirement when subsequently seeking family reunification, albeit that the facts regarding the law applicable in Sweden are somewhat different. It is established law that as was set out in Agyarko at 57:
That approach is also appropriate when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life. Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State's policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are "insurmountable obstacles" or "exceptional circumstances" as defined. It must also consider all factors relevant to the specific case in question, including, where relevant, the matters discussed in paras 51-52 above. The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.
Mr Aslam submitted that the principles set out in the European Court of Human Rights are reflected, are as follows:
any assessment of proportionality must have regard to the particular situation of refugees; the fact that family unity is an essential right of refugees; and the fact that it is a matter of international and European consensus that refugees should benefit from a family reunification procedure that is more favourable than that available to other foreigners;
where “[return to the country in which family members are living] would [expose the refugee to] a real risk of Article 3 ill-treatment… that factor may reduce the [weight to be attributed to the Secretary of State’s general assessment of proportionality in the Immigration Rules]”; and,
“where… [the Secretary of State has not] applied the relevant human rights standards consistently with the Convention and its case-law, [or] adequately balanced the individual interests against the public interest [in the Immigration Rules, the Tribunal] would require [less] strong reasons to substitute its view for that of the [Secretary of State]”.
Paragraph (i) of that proposition is not in effect different from that set out in the Home Office Guidance at page 23 as set out above at[39].
In essence, the Home Office’s position is that although GEN.3.2. might not directly apply, the principles set out in that should be applied to a refugee family reunion application which falls outside Appendix FM GEN.3.2.
The guidance - Family life (as a partner or parent) and exceptional circumstances Version 20.0, - provides, at page 64, a list of factors to be taken into account, which include (i) “The likely impact on the applicant, their partner and/or child if the application is refused”; and, (ii) “The absence of governance or security in another country”. That is in line with paragraph GEN.3.2(2) of Appendix FM, which refers to “unjustifiably harsh consequences for…another family member whose Article 8 rights it is evident from that information would be affected”. I note that the guidance does not draw any distinction between applications for entry clearance and leave to remain.
Bearing those factors in mind, it is appropriate to answer the questions set out in R v Secretary of State for the Home Department ex parte Razgar[2004] UKHL 27.
On the sustained findings of fact in this case, a family life exists between the appellants and the sponsor. There is a clear interference with that and it is evident that the decision was made in accordance with the applicable Immigration Rules. The question then become one of proportionality.
In weighing the applicable factors, the starting point is that the appellants do not meet the requirements of the Immigration Rules. It follows from Section 117A of the 2002 Act the significant weight must be attached to that. Further, they do not speak English and even taking the most optimistic view there will be a considerable and significant reliance on public funds for an extended period given the ages of the minor appellants and the lack of evidence that the adult appellants would be able to find employment.
It is accepted [43] that the appellants are not financially dependent on the sponsor. That is a factor to be taken into account in assessing the nature of the family life that exists in this case. Other factors to be taken into account in assessing the family life with the length of the separation but equally it should be borne in mind that the separation in this case was not voluntarily. The sponsor fled Syria and she left Jordan in order to claim asylum, which was granted. She was selected for the UN Resettlement Programme and in her evidence, she was shocked that learning that family reunion was for her spouse and children only.
It is also of note that the appellants have never lived in the United Kingdom with the sponsor and that they have no ties with it other than the relationship with the sponsor and her family.
That said, that in itself is not a reason for saying that the family life is not strong.
In this case it must be borne in mind also that there are insurmountable and major obstacles in the way the family were living in Syria as was noted in KB (Failed asylum seekers and forced returnees) Syria CG [2012] UKUT 426.
The Home Office accepts in its CPIN at 2.4.2 that there are not strong grounds supported by cogent evidence to depart from those findings.
Given the preserved (and unchallenged) findings – the Secretary of State did not produce a Rule 24 decision – the appellants are at risk of refoulement to Syria and discrimination whilst in Jordan. I accept that a return to Syria or Jordan (with a consequent risk of being removed to Syria) for the sponsor carries with it real risk of detention or death and indeed the risks of the appellants’ race are the effective rupture of family life or even its destruction. I accept the submission of Mr Aslam that the sponsor would not be able to lawfully remain in Jordan.
In addition, the sponsor has four children and it is simply not in their interests to relocate outside to Syria or Jordan given they have indefinite leave to remain here and have lived here for more than seven years.
The factors in favour of the appellants’ case are the significant danger there is on the basis of the findings made, family life being disrupted by their removal from Jordan to Syria, whether they would be at risk of death or serious ill-treatment and detention. I accept that in respect of the first to fourth and seventh to ninth appellants that they are children, and it would be in their best interests to relocate to the United Kingdom but that is a relatively minor factor to be taken into account.
Whilst in the case of the other appellants the factors are not so strong, equally it is difficult in the circumstances of this case to separate out different family members as the family must be treated as a whole.
I have no doubt either, that the sponsor herself is in significant distress as a result of what is happening to her family members in Jordan, to her family.
I bear in mind that any case such as this will be fact-specific. It is not always the case that a family life will exist between a UK based sponsor and relatives abroad. Nor, even if that were the case, will the scenario exist whereby, as was found here, the risk is that family life will be disrupted if not extinguished.
I bear in mind also that the nature of this situation is dynamic. The risk of refoulement to Syria for the appellants was not so great when the sponsor left. And whilst the family life is therefore somewhat different, and is more attenuated, militating in favour of the Secretary of State, equally, the risk of the nature of the extreme damage done to the family life that does exist is a factor which militates in favour of the appellant.
Taking all of these factors into account, given the particular findings of fact as to the level to the risks to these appellants, I am satisfied in the particular facts of this case that refusal of entry clearance was disproportionate. Accordingly, for these reasons, I allow the appeal.