[2025] UKUT 00089 (IAC)

No further evidence has been filed by the applicants or the respondent following the decision of the Court of Appeal to refuse the application for interim relief. We have already referred to the evidence that is set out in the witness statement of Anne Nerva filed on behalf of the interested party.

Ms Knorr acknowledged that in light of what has been said by the Court of Appeal regarding the Article 3 and 8 claims being made by the parents, it is highly unlikely that this Tribunal would reach a different conclusion. She submits the Tribunal should refrain from making any factual findings. We have not done so. The parents will in due course file and serve any further evidence they rely upon in support of their appeal and it is for the FtT to decide whether the refusal of entry clearance is unlawful under section 6 of the Human Rights Act 1998.

Ms Knorr submits it is entirely unfair for this Tribunal to now consider what is said by the interested party as to what would happen if the parents withdrew their consent to the children being accommodated. The position of the interested party has thus far been that they have yet to determine whether the best interest of the children lie in them being reunited with their parents in France or the UK. The fact that as a matter of law, the parents can withhold their consent to the children being accommodated by the local authority so that arrangements would have to be made to reunite the children with their parents in France can come as no surprise to the applicants’ representatives since it was a matter referred to by the respondent in her skeleton argument before the Court of Appeal and it is alluded to in paragraph [69] of the respondent’s skeleton argument filed in readiness for the hearing before us. Furthermore, the parents have been advised by legal representatives’ expert in family law, including King’s Counsel, in both the Court of Appeal and Family Division proceedings. Nevertheless, it is not a matter that we need to address in determining the limited ground for review that we are addressing, since there are proceedings afoot in the Family Division, and Ms Knorr accepts the Court of Appeal considered that any delay to reunification caused by those proceedings will not result in a breach of the applicants Article 3 and 8 rights.

We make it clear from the outset that nothing we say about the merits of the Article 3 and 8 claims as pleaded is intended to trespass upon the quite separate decisions that are to be taken by the FtT in the appeal before it and by the Family Division in the proceedings there. Sir James acknowledges that it will be for the FtT in the appeal before it to determine on the evidence presented whether the decisions to refuse entry clearance are unlawful. The issue in any appeal is likely to be whether the decision to refuse entry clearance is proportionate to the legitimate aim, which requires a fact sensitive assessment.

We have confined our decision to the applicants’ claim, in summary, that in the circumstances that prevail here, anything other than a grant of Entry Clearance will be a breach of Articles 3 and 8 on public law grounds.

There can be no doubt that Article 8 is engaged and that any delay in reaching a decision that prolongs separation of the family has consequences of such gravity as to engage the operation of Article 8 and is to be regarded as an interference with the Article 8 rights of the family.

For the avoidance of any doubt we have considered the evidence for ourselves and we are satisfied that the evidence is properly summarised in the judgment of Underhill LJ in the Court of Appeal. Summarising the evidence regarding the steps being taken to reunite the family Underhill LJ said:

“42.

The effect of that evidence, in summary, is that there is a clear political will at the highest level of the French government to facilitate the reunification of the family in France. It follows that there would be no difficulties about the admission of the children to France as such. However, there are assessment procedures which it is necessary to go through before reunification with the parents can be achieved. How long that will take depends on the co-operation of the parents and the outcome of the assessment. But the implication of what was said at the meeting of 3 December is that if the parents co-operate the assessment should take substantially less than three months; and it is clearly realistic to expect that the result will be known in good time before the scheduled final hearing in the family proceedings.”

The Court of Appeal also considered the evidence that is relied upon by the respondent in the form of witness statements made by Julia Farman, Head of the Family Reunion Team within UK Visa and Immigration, Dr Meirav Elimelech, the Deputy Director of the Asylum and Protection Unit in the Home Office and the statement of Daniel Hobbs, Director General of the Migration and Borders Group in the Home Office. The evidence refers to the consequences of simply permitting the parents entry to the UK and highlights:

The perils of an unlawful crossing by boat cannot be understated. Underhill LJ considered whether the interference with the Article 8 rights of the family is justified by reference to any of the interests specified in Article 8.2. Underhill LJ said:

“53.

In my opinion this Court is obliged to accept the Secretary of State's assessment of that risk, now more fully set out and explained in the further evidence of Dr Elimelech, as reasonable and legitimate – and certainly in the context of a summary process involved in an application for interim relief. It is based on the experience of officials who are far better placed than we can be to make judgments about the likely behaviour of the people-smuggling gangs and their clients. I place weight also on the fact that the French authorities, who were under no legal obligation to agree to reunification in France rather than the UK, have agreed to do so in this case because they share the fears of the UK government about the risk to other children: see para. 37 above.

54.

In my opinion also the wish to avert that risk is clearly capable in principle of justifying the Secretary of State in pursuing the possibility of reunification in France notwithstanding that that process would inevitably take longer than a straightforward grant of entry. No humane person would take lightly the impact on the children of any prolongation of their separation from their parents beyond the minimum period necessary. But the Secretary of State has to balance the harm to them against serious policy considerations designed to prevent the risk of far worse harm to others. It is worth repeating that the initial separation is not of her making: on the contrary, she is having to address the consequences of a situation created the illegal and dangerous activities of the people-smugglers – and, it has to be said, by the parents in seeking to take advantage of those activities rather than seeking asylum in Belgium or France. Also, without wishing in any way to minimise the children's distress, it must be recognised that they are being very well looked after by experienced foster-carers in a stable and appropriate environment, and they are in daily contact with their parents. In that context the continuation of their separation does not weigh as heavily in the balance as it otherwise might. In reaching that conclusion, I of course take into account the obligation in section 55 of the 2009 Act to safeguard and promote the welfare of the children, but although the best interests of a child must be a primary consideration, they are not paramount.

55.

Ms Kilroy submitted that even if Dr Elimelech's evidence were accepted the eventuation of the risk was uncertain, and that it was wrong to subject the children to the certain harm of prolonging the separation in order to avoid an uncertain future harm to others. I do not accept that. It is necessary to take into account the relative scale and gravity of the two harms. If the gangs do alter their behaviours as predicted, many children will be separated from their parents, and some may die as a result.

56.

My conclusion that the pursuit of reunification in France can in principle justify the interference with the children's article 8 rights resulting from their continued separation from their parents does not mean that it will do so indefinitely. It is necessary to assess both the chances of a successful outcome and the timescale within which it may be achieved. As to timescale, it is clear from the Secretary of State's evidence as summarised above that there is a reasonable prospect of reunification in France being achievable within the time-frame of the family proceedings; and, that being so, it would in my view be wrong to undermine the process now by requiring the Secretary of State to admit the parents.

57.

The only obvious reason why reunification might not be possible within that time frame, or something close to it, would be if the parents fail to co-operate with the authorities in France. I see no reason to proceed on the basis that that will occur. I realise of course that they would prefer to be admitted to the UK and to seek asylum here. But that does not mean that they will not choose to seek asylum in France if it becomes clear that that is the surest way of achieving early reunification with their children. Even if, as Ms Kilroy urged on us, their belief that France is not a safe country is genuine, the evidence on which they rely falls far short of establishing that that is the case, as they may come to appreciate. I note also that EK believes that a further move will be disruptive to the children, but that might be judged to be a problem worth facing for the sake of early reunification. In short, I do not believe that speculation about the conduct of the parents is a proper basis for determining the prospects of reunification in France.”

Although the judgment of the Court of Appeal arises from an appeal against an order for interim relief, as Ms Knorr was bound to accept, there is no reason why we should reach a different decision when considering the applicants’ pleaded claim that there is no general interest that can conceivably be identified which could displace or outweigh reunion in the UK. The public interest identified amply establishes that there is good reason why a claim such as this is likely to fail. A decision to delay reaching a decision on an application for Entry Clearance whilst the respondent embarks upon enquiries to establish whether reunification can take place somewhere other than the UK, and in particular a safe third country, is unlikely to be unlawful, unreasonable or irrational where there remains a prospect of the family being reunited elsewhere within a reasonable timescale.

What a ‘reasonable timescale’ is will depend upon all the circumstances but will inevitably include a timeframe during which any Hague Convention proceedings that are required before the Family Division are determined. Absent some other compelling factor, where a decision to refuse an application for Entry Clearance is made, it is also likely to include the period during which an appeal before the FtT and Upper Tribunal is considered.

Dr Elimelech accepts that in certain circumstances children may be able to reunite with their parents in the UK where there are exceptional and compelling circumstances but that will require a consideration of all the relevant circumstances of the case as well as relevant policy considerations. Given the overwhelming public interest at play, such cases are in our judgment likely to be very rare.

As far as the Article 3 claim is concerned, neither Ms Knorr nor Sir James sought to persuade us that we should do other than adopt what was said by Underhill LJ:

“60.

I turn to the case based on article 3. I can deal with this shortly, because I do not believe that there is a strong case – let alone a particularly strong case – that the suffering which the children are undergoing as a result of any action or inaction on the part of the Secretary of State reaches the threshold for a breach of article 3. We are not of course concerned with the trauma attributable to the events of 19 July or the period of separation immediately following but only with the prolongation of the separation thereafter. As regards the distress which the children are suffering on that account, I repeat what I say in para. 53 above. Ms Kilroy referred us to the decisions of the European Court of Human Rights in Mayeka v Belgium [2006] ECHR 1170 and Tarakhel v Switzerland [2014] ECHR 1185 , but the facts in those cases were very different.”

Finally, we observe that in circumstances where a family is separated, it will usually be in the gift of the parents, even where their primary position is that reunification in the UK is in the best interests of the children, to ensure that decisions are made within a reasonable timeframe. They retain parental responsibility and can influence the timescales within which any assessments required are completed, and decisions are made to reunite the family. Much depends in any appeal before the FtT and in any assessment required by local authority or Court upon the timely co-operation of the parents, who we have no doubt, acting responsibly, will wish to ensure the family can be reunited as soon as possible. Although we have rejected the claim made by the respondent here that the parents are seeking to ‘game the system’, any evidence of a failure to engage or co-operate or to engineer a situation where the children lay down greater ties because of the passage of time is likely to impact adversely on the parents’ claims.