[2024] UKUT 00236 (IAC)

In summary, the Applicant’s case is that there is family life between him and the Sponsor such as to engage Article 8(1) of the Convention and that the refusal amounts to a disproportionate interference with the same. Particular reliance is placed with regards to the relationship on the pre-existing ties between the brothers, their traumatic history, health needs (the Applicant suffering from poor mental health and would benefit from the direct support of the Sponsor), care and support, with both emotional and financial support. In terms of the balancing exercise required, the Applicant’s case is that the public interest is reduced given the aim of supporting those fleeing from the war in Ukraine and supporting those at risk due to their work with British forces in Afghanistan, extending to their family members. In the alternative, the Applicant’s case is that the Sponsor shares his private life with the Applicant and there is the potential for further development of both family and private life in the United Kingdom.

In short, the Respondent’s position is that Article 8(1) of the Convention is simply not engaged on the facts of this case and even if it were, any interference would be proportionate. In particular, the Applicant can continue his relationship with the Sponsor from where he is now, where they can freely communicate and visit with relative ease, any financial support can continue and any medical treatment required is available in Germany. In addition, the Respondent also submits that there is an alternative remedy available to the Applicant, to make a human rights application for entry clearance.

At the outset, we do not consider that the Applicant’s reliance on private life for the purposes of Article 8 adds anything of substance to his family life claim and the submission failed to address two specific points. First, the Applicant himself is not within the territory of the United Kingdom and is not therefore within the jurisdiction for Article 8 on private life grounds to apply to him at all (his family life can only be considered because of the Sponsor’s residence within the territory). Secondly, there is arguably no engagement with and no interference with the Sponsor’s right to respect for private life in the United Kingdom as a result of the Respondent’s decision under challenge. Even if the family life (in practical rather than Article 8(1) terms) is considered as part of the Sponsor’s private life, it is not enjoyed in the United Kingdom and it has subsisted for a number of years with the Applicant being in a different country and being maintained through modern means of communication; which can continue in the same way. We therefore only focus in what follows on the family life aspects of this claim.

It is not in dispute that in cases such as this, the Upper Tribunal may consider the Applicant’s Article 8 claim for itself and we focus on doing so in this decision in accordance with the five stage test set out in Razgar v Secretary of State for the Home Department [2004] UKHL 27. The first issue is whether family life engages Article 8(1).

The legal position when considering whether Article 8(1) is engaged, is summarised by the Court of Appeal in Rai v Entry Clearance Officer [2017] EWCA Civ 320, from paragraphs 17 onwards. In essence, for family life to be established to engage Article 8(1), there needs to be support between adult family members which is real, committed or effective and looking at the circumstances of the individuals involved.

We start by setting out the evidence before us as to the relationship between the Applicant and the Sponsor, from their own written statements and from what is contained in Dr Galappathie’s report on this point. We also note that there is evidence of Whatsapp messages between the brothers which we refer to later on.

The Applicant states in his first written statement dated 8 February 2023, that whilst in Ukraine he was supported by his family financially (particularly the Sponsor and another brother from the family car business) and kept in touch with them using Whatsapp and Facebook Messenger as well as visiting in July 2017 and July 2018. On this second visit, the Sponsor helped to mediate for the Applicant to arrange a marriage (Footnote: ⁴) and this was the last date on which the brothers met in person. The Applicant has remained in regular contact with the Sponsor throughout his time in Ukraine and now Germany. They speak usually three times a week and message each other. The Sponsor continues to provide the Applicant with financial support in Germany, sending the money first to someone he knows in Afghanistan who runs a money exchange, form there it is sent to an individual in Germany and then is passed via a friend in Germany to the Applicant. The Applicant also remains in contact with other family members, but describes being close to the Sponsor who he is able to share things with that he can not share with the rest of his family.

In his second written statement dated 29 March 2023, the Applicant reiterated that he has always had a close relationship with the Sponsor who supports him practically, financially and emotionally. The trauma of fleeing Ukraine and family suffering is difficult for the Applicant to deal with alone and makes him want to be with the Sponsor. The Applicant would have been helped by being with family, especially the Sponsor to talk and support each other through the traumatic events and thinks that being with family would help him recover from a poor mental state as it is easier to talk about what has happened when physically together and he would cope better with them.

The Applicant states that although he has been living with someone he calls his cousin (Footnote: ⁵), their relationship is not the same as he has with the Sponsor – they were not close and had not seen each other in many years. It was a temporary arrangement to share his cousin’s one bedroom flat, to which the Applicant contributed to the rent. The Applicant receives some money from the German Government, some from part-time work and some from the Sponsor, for example he sent 150 euros at the end of February 2023.

The Sponsor consoles the Applicant when he is struggling and reassures him to be patient and that everything will be ok. The Applicant describes this support as important and he just wants to be with the Sponsor and hopefully the rest of their family, and to move on with their lives.

In his third written statement, dated 11 March 2024, the Applicant provides an update as to his current circumstances in Germany. The Applicant has obtained new employment as a picker from mid-January 2024 and no longer receives financial support from the German Government. The new employment was not close to where the Applicant was living with his cousin, who had in any event asked him to find alternative accommodation as his flatmate was getting married and his wife would be joining him. The Applicant initially stayed in a hotel for work, following which he found an apartment to rent in Essen, where he has been living since 1 March 2024 with others who he does not know. The Applicant’s employment is causing him physical health problems because of a bad back, but he had no choice but to take this job otherwise he would be homeless.

The Applicant describes struggling to cope on a day to day basis, feeling anxious because of his experiences and worried all the time about his family who are now in Pakistan, one of whom died very recently due to ill-health.

The Applicant had an appointment with the German immigration authorities on 19 March 2024 to renew his visa, but had at the date of this statement not yet attended or received a new visa and has been unable to work since 1 March 2024 until this is renewed.

In his first written statement dated 3 February 2023, the Sponsor sets out his background and that of his family. He describes being particularly close to the Applicant, growing up and doing everything together until he went to Ukraine in 2015. After that, they keep in touch daily and the Sponsor gave him money monthly while the Applicant was at university. There were times when the Sponsor was on special operations with the armed forces where he was prevented from communicating with anyone, including family. The brothers saw each other in Afghanistan in 2017 and 2018 and have kept in touch since the Sponsor has been in the United Kingdom.

The Sponsor sets out the difficulties he and his family have had with the Taliban and the risks faced by them in Afghanistan; including the death of his father in 2019. He states that the tragedies have brought the family ever closer with greater dependency on each other for survival. The Sponsor sent money to his family in Afghanistan whenever possible, although there were practical difficulties in doing so and it did not always reach them. The Sponsor states that he remains close to the Applicant, talking to each other by phone three times a week and keeping in touch with messages and emails.

In his second written statement dated 30 March 2023, the Sponsor reiterates how everything that has happened has brought the whole family even closer and that it is important for him to be with the Applicant. The plan remained that if the Applicant came to the United Kingdom, the Sponsor would find somewhere to rent for both of them to live together and, pending that, accommodation is available still with the HUSS sponsor. The Sponsor is employed in the United Kingdom and learning English here.

The Applicant’s family paid $12,000 for his initial visa to go to Ukraine and continued to give him financial support while he was there. There is also a record of Whatsapp messages, although this is said to be only a sample and doesn’t include family group chats or record of calls or messages from Facebook Messenger.

In Dr Galappathie’s report dated 14 December 2023, there is some reference to the Applicant’s relationship with the Sponsor. It is described as ‘close’ and the ‘closest to him in the family’ in various parts, and as a very important relationship. In addition, Dr Galappathie states:

“In my opinion, their relationship has strengthened since [the Applicant] was forced to flee Ukraine. It is worth noting that [the Applicant] outlined that his experience of having to flee Ukraine during the war was very difficult and traumatic to deal with this all on his own and it made him desperately want to be with his brother. Additionally, he reports that if he had been with [the Sponsor] during this time, they could have supported each other. [The Sponsor] consoles him when he is struggling and reassures him, since he was alone and struggling when he left Ukraine. His support is important to [the Applicant] as he outlined that everything that happened is getting to him but having [the Sponsor] and the hope of joining him is helping him.”

Overall, whilst we accept that the Applicant and his brother have a relatively close relationship with some elements of support, we do not find that the evidence before us establishes that there is real, committed or effective support between them to show more than normal ties between adult siblings who have lived apart in different countries for the last eight and a half years. As such, for the more detailed reasons set out below, the Applicant has not established family life for the purposes of engaging Article 8(1) of the Convention.

The written statements from both the Applicant and the Sponsor contain a number of statements about their relationship being close growing up together as children and remaining in regular contact since 2015 between different countries. It is said that their relationship changed and strengthened since the Russian invasion in Ukraine in February 2022 and that the Sponsor provides practical, emotional and financial support; but there is very little detail or evidence of the same. There is, for example, only one specific example of financial support in February 2023 and no supporting evidence of any specific or regular support. The financial support referred to whilst the Applicant was studying in Ukraine up to around 2020 was said to be from his family generally, including, but not limited to the Sponsor.

Whilst we accept that there is regular communication between the brothers (as there also appears to be with other family members), there is very little detail or evidence as to the nature of it. There is only limited disclosure of translated Whatsapp messages (the originals of which have not been submitted) between July 2019 and February 2023. These show frequent contact on particular days, overall regular contact but also some lengthy gaps of up to six weeks without any messages at all. The messages themselves are largely short and of a normal conversational nature and contain very little in the way of examples of any particular support from the Sponsor. There is, for example, only one reference that we could identify to financial support and some advice given about possible applications for immigration purposes. There are no significant examples of emotional or other practical support and the pattern of communication over nearly a four year period seems to be fairly consistent, with no significant change in frequency or substance after the Russian invasion of Ukraine (nor for that matter after the Taliban took control in Kabul or particular family events there relating to that).

Dr Galappathie’s report adds nothing of substance to the evidence from the Applicant and the Sponsor, in essence referring only to how the Applicant has described the relationship (consistently with his own written statement) during the assessment. There is again no detail about this or any particular examples of the support and reassurance referred to. In particular, it is not said how the relationship between the Applicant and the Sponsor strengthened after the Russian invasion.

We do not find that the shared traumatic history of the Applicant and the Sponsor adds any significant weight to their nature of their relationship and whether it engages Article 8(1). The history of trauma referred to is primarily focused on events relating to other family members in Afghanistan, which we accept would affect both the Applicant and the Sponsor, but were not events that either were present for or that they have both directly been involved in together. The additional trauma of the Russian invasion and needing to flee Ukraine is specific only to the Applicant.

Overall, the evidence before us of the relationship between the Applicant and the Sponsor is lacking in detail. We asked Ms Knorr in what way the relationship between the brothers had strengthened since the Russian invasion, but no practical examples could be given; only a reference to the assertion of the same in Dr Galappathie’s report. It would be reasonable to expect, for example, evidence of an increased frequency or duration of contact; the Sponsor taking on a different role with increased support or the like. There is however nothing of that nature before us. At its highest, this is a close family who keep in regular contact, with occasional financial support and occasional advice on immigration matters.

Although we do not find that Article 8(1) of the Convention is engaged in the Applicant’s case; for completeness we deal briefly with the remaining four stages of the test in Razgar as we would not, in any event, find that the Respondent’s decision would be a disproportionate interference with the Applicant or Sponsor’s right to respect for family life in breach of Article 8.

The Applicant and the Sponsor would be able to maintain and continue their relationship as they do now, using modern means of communication to keep in touch and no barriers have been identified to the Sponsor visiting the Applicant in person in Germany. In substance, the only potential interference is therefore that the Applicant and Sponsor would not have the opportunity to strengthen and further develop private or family life if reunited in the United Kingdom. This is at its highest only a very moderate interference with the right to respect for family life and is not comparable on the facts to cases such as R (Singh) v Entry Clearance Officer [2004] EWCA Civ 1075; [2005] QB 608 which concerned the right to develop family life in the context of an adoption where there was very little in the way of an existing relationship.

Any interference would be in accordance with the law as the Applicant does not meet any of the requirements set out in the Immigration Rules for a grant of entry clearance to the United Kingdom and would be in pursuit of the one of the legitimate aims through the maintenance of immigration control.

The final stage requires a proportionality balancing exercise of, on the one hand, the Applicant and Sponsor’s family life and on the other, the public interest. On the Applicant and Sponsor’s side, are the factors set out above in relation to the nature and substance of their relationship and we also take into account what is said by Dr Galappathie in his report about the Applicant’s mental health and his opinion that this could be improved by the Applicant reuniting with the Sponsor in the United Kingdom. Although similar in content, a number of extracts are set out below:

“In my opinion, he will also need to have stability, including stable accommodation and not fear being removed to Afghanistan, in order to meaningfully engage in the therapy that he requires. In my opinion, family support and the stability of living with his brother would also have a positive impact on his ability to engage with treatment. In my opinion, being allowed to join his brother in the UK would be a powerful intervention that would help enable his mental health to recover and also help enable effective treatment to take place. He will also benefit from being able to take part in education and paid employment, to improve his sense or purpose and wellbeing, when stable enough and this will help with his ongoing recovery. Research has identified that having suitable accommodation, and spending time creatively through education or work can often help alleviate depression and anxiety.”

“In my opinion, the impact of the refusal is likely to have had a significant adverse impact on his mental health and led to his mental health significantly worsening given that he outlined feeling devastated when he received the first refusal. In my opinion, if he is not reunited with his brother and remains in an unsuitable environment for supporting recovery, by way of sharing a one-bedroom flat, specifically one room with someone he does not know very well, is likely to lead to his mental health worsening, and his risk of self-harm and suicide will increase.”

“In my opinion, [the Applicant’s] separation from his brother, who lives in the UK, is worsening his mental health. In my opinion, knowing that he is in Germany struggling mentally and to make ends meet, whilst his brother, who he has a close relationship with, is in the UK and would like [the Applicant] to join him, but being unable to join his brother, due to the refusal of the application he has made, is worsening his already very fragile mental health. … it would be of benefit to him and his mental health, if he is able to join his brother in the UK so he can be emotionally and practically supported by him and feel safe and secure, with his family member, namely his brother, who is the closest to him in the family. …”

“In my opinion … [‘the Applicant] has a very close and important relationship with his brother … in the UK, which is why he would like to be able to be reunite with him. [The Applicant] has suffered a history of trauma, both in Afghanistan and in Ukraine, and in my opinion, the support he would receive from being able to live with his brother in the UK, would help him feel safe and secure, and therefore, allow him to meaningfully engage with the treatment that he requires so that he can start to recover from his mental health problems. … he is unlikely to benefit from the treatment he needs and therefore, recover meaningfully, if he continues to be separated from his brother in the UK, due to their closeness and the importance of their relationship. …”

“… [the Applicant] will benefit from being able to have daily face to face conversations with him and to be able to touch and hold him, this will help him to feel emotionally and physically close to him and allow him to feel he has close family members to support him, which will be a powerful therapeutic factor that will help him to recover from his mental health problems.”

We do however have a number of reservations as to the weight to be attached to Dr Galappathie’s opinion in this regard. Whilst Dr Galappathie acknowledges earlier in the report that the Applicant had not sought any assistance from the health authorities in Germany for his mental health, he stated that this did not undermine the diagnosis given that it is reasonable that the Applicant would not access treatment whilst in an insecure position and that such treatment would not be effective whilst he remains separated from his brother. There are two difficulties with those reasons.

First, in relation to whether the Applicant is in a secure position, the report is written on the assumption that he is not, without addressing the undisputed facts (as set out by the Applicant himself) that he has legal status in Germany (which is in the process of being renewed); he had (until quite recently) received some financial support from the German authorities; he had employment and relatively long-term accommodation with a family member (for nearly two years). Whilst it can reasonably be said that the Applicant did not know his cousin as well as the Sponsor and had not seem him for some years before he arrived in Germany, there is no assessment at all as to whether and if so how that relationship changed or strengthened during the time they lived together. It would be reasonable to expect that during this time, their relationship strengthened in all of the circumstances, but it is not considered at all what, if any, support he did or could give the Applicant. It is difficult to conclude that the Applicant was not and is not currently in a relatively stable position in Germany.

Secondly, there is no analysis at all of what treatment or support is available to the Applicant in Germany, nor any reasons given as to why such treatment would not be effective whilst the Applicant remains separated from his brother. This is a conclusion that is repeated numerous times throughout the report with no explanation for it. Whilst we do not doubt that the Applicant and Sponsor wish to be together and more effective support could be given in person, we do not accept the statement without more that no treatment would be effective without that. There is simply no basis given for that conclusion, particularly in circumstances where the Applicant has not made any attempt to seek mental health treatment in Germany, even though he has accessed medical support for other conditions.

In these circumstances, whilst we accept that the Applicant and Sponsor are both likely to receive some benefit from being reunited in the United Kingdom, particularly with regards to the Applicant’s mental health, we can only attach little weight to the conclusions of Dr Galappathie about the medical need for such a reunion for the reasons set out above.

In relation to the public interest, it is somewhat trite to recite the general public interest in the maintenance of immigration control and we attach appropriate weight to this. On behalf of the Applicant, Ms Knorr also submitted that the public interest should be reduced by two specific factors, first, the recognised public interest in providing support for those fleeing the war in Ukraine and secondly, the recognised public interest in providing support to those now at risk because of their work with the British armed forces in Afghanistan, extending to their family members. The first of these is significantly covered above in relation to the first ground of challenge, in that there was a lawful choice to devise a scheme to help Ukrainian nationals and their family members. We also take into account that this is a not a situation where the Applicant was or is at risk in Ukraine: he has been granted a form of protection in Germany, which is expected to be renewed, where he has access to accommodation, employment, health care and other support. We do not therefore accept that there should be any significant reduction to the weight of the public interest for this first reason.

As to the second point, the Sponsor has been granted indefinite leave to remain in the United Kingdom in recognition of his contribution to the British armed forces and the risk to him as a result if he returned to Afghanistan. There is a separate application in process under the ARAP scheme in relation to his family members and therefore a more appropriate route for this point to be considered. In any event, we take into account that given the Applicant has lawful status in Germany, he is not currently at risk from the Taliban nor is there anything to suggest he is at any risk of removal to Afghanistan. The general statements by the Respondent and others in Government recognising the need to support those who worked closely with the British armed forces because of the risk they now face for that work does not therefore directly apply to the Applicant who is not currently at any such risk. For these reasons we do not accept that there should be any reduction in the weight to be given to the public interest on this second point.

Overall, even if the Applicant and Sponsor had family life which engaged Article 8(1) of the Convention (which as set out above, it does not), we do not find, considering the relative strength of their relationship and possible benefits of being reunited in the United Kingdom, that this outweighs the public interest in this particular case. The somewhat modest interference with the right to respect for family life (if engaged at all) is not a disproportionate interference contrary to Article 8 of the Convention.