Upper Tribunal
(Immigration and Asylum Chamber)
AT and another (Article 8 ECHR - Child Refugee - Family Reunification) Eritrea [2016] UKUT 227 (IAC)
THE IMMIGRATION ACTS
Heard at The Upper Tribunal, Field House, London
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Decision promulgated
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Before
The Hon. Mr Justice McCloskey, President
Between
AT AND AHI
Appellants
and
ENTRY CLEARANCE OFFICER OF ABU DHABI
Respondent
Anonymity
Pursuant
to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI
2008/269) I make an anonymity order. Unless the Upper Tribunal or a
Court directs otherwise, no report of these proceedings or any form of
publication thereof shall directly or indirectly identify the original
Appellant. This direction applies to, amongst others, all parties. Any
failure to comply with this direction could give rise to contempt of
court proceedings.
Representation
For the Appellants: Ms K Cronin and Ms A Smith, of counsel, instructed by the Joint Council for the Welfare of Immigrants
For the Respondent: Mr T Poole, of counsel, instructed by the Government Legal Department
While
the Immigration Rules make no provision for family reunification in the
United Kingdom in the case of a child who has been granted asylum, a
refusal to permit the family members of such child to enter and remain
in the United Kingdom may constitute a disproportionate breach of the
right to respect for family life enjoyed by all family members under
Article 8 ECHR.
DECISION
Introduction
1.
In
this appeal, the Appellants are two of the three protagonists concerned.
All three are members of the same family unit and all are nationals of
Eritrea. They consist of a mother and her two sons. The two Appellants
currently reside in Sudan. The first Appellant is the mother, now aged
34 years. The second Appellant is her younger son, now aged fifteen
years. The third family member, M, is aged 19 years. He is described in
many parts of the evidence as the "
sponsor".
2.
One
stand out feature of M's circumstances is that, having arrived in the
United Kingdom as an unaccompanied minor in 2012, then aged 16, he
succeeded in his appeal against a refusal of asylum, with the result
that the Secretary of State for the Home Department (the "
Secretary of State") granted him five years limited leave to
remain in the United Kingdom, as a refugee, a period which will expire
on 07 April 2018. M aspires to achieve family reunification with his
mother and brother, the two Appellants, in the United Kingdom. He does
so primarily through the vehicle of Article 8 ECHR.
The Impugned Decisions
3.
The
decisions underlying these proceedings and to which the origins of
these combined appeals can be traced were made by the Entry Clearance
Officer of Abu Dhabi (the "
ECO"), the alter-ego of the Secretary of State, in December 2013.
By his decisions the ECO refused to grant the Appellants entry
clearance to join the sponsor in the United Kingdom. In refusing the
mother's application, the ECO stated:
"
I have considered your application under paragraph 352 of the ...... Immigration Rules .....
I have used all the information provided by you to determine if the Immigration Rules have been met .....
Immigration Rules for family reunion only apply to dependent partners and children of sponsors, not for
[sic]
parents and siblings. As such you have applied in a category that is not covered by Rules [sic]
and your application falls for refusal under paragraph 320(1)."
The
refusal decision as regards the second Appellant was framed in
precisely the same terms, albeit he was described erroneously as the
sponsor's "
son".
Factual Framework
4.
The factual matrix is a mixture of certain uncontentious facts and my further findings,
infra.
5.
When
they lived in Eritrea the family unit consisted of the three
protagonists and the first Appellant's husband. He was imprisoned there
for political reasons and, fearing persecution by the Government she and
her two sons fled Eritrea. This occurred in two stages. First, in April
2012, M left Eritrea, accompanied by his uncle. Later, in January 2013,
the two Appellants fled, travelling on foot to Sudan. There they were
accommodated in the UNHCR refugee camp in Shagarab. They were given
UNHCR identity cards. The first Appellant considered this an unsafe
place on account of the phenomena of kidnapping refugees and human
trafficking.
6.
In
May 2013 the first Appellant succeeded in contacting M by telephone,
from the camp, assisted by a UNHCR aide. The same person assisted the
two Appellants in travelling to Khartoum, some 650 kilometres away, for
the purpose of making their entry clearance applications to the United
Kingdom. The first Appellant decided that it would be safe to remain in
Khartoum and, further, preferred to be close to the Embassy. She
borrowed money to pay the visa fees. Thereafter, the two Appellants
lived on the streets of the city, occasionally managing to sleep in
shelters or on church floors. She succeeded in getting some limited,
illegal work. Both remained in Khartoum at the time of the First-tier
Tribunal ("FtT") hearing giving rise to this appeal.
7.
Pausing
at this juncture, I acknowledge that the FtT did not accept certain
aspects of the factual case put forward on behalf of the Appellants. The
basis upon and terms in which some of their assertions were rejected
formed one of the grounds upon which the decision of the FtT was
subsequently set aside by this Tribunal. In remaking the decision, I
have considered the same evidence as that available to the FtT. Having
done so, I am satisfied to the requisite standard of the truth and
accuracy of the Appellants' account.
8.
I
have considered in particular the evidence bearing on the family bonds
and the inter-dependency of its members. From this it is clear to me
that this is a close, loving and mutually supportive family unit all of
whose members would be overjoyed if reunification could be achieved.
There is clearly discernible interdependence. The enormous efforts to
which the first Appellant went, the hardships which she has borne and
the sacrifices which she has made, all in pursuit of family
reunification, bear eloquent testimony to the virtues and character of
the mother and the strength and stability of the family unit. Notably
the ECO did not suggest that the Appellants are economic migrants and I
am satisfied that there is no evidence from which this could be inferred
in any event. In this context it is appropriate to highlight a passage
in the statement of a teacher who has formed part of M's life during
almost two years:
"
He was devastated when he received the news that the initial
application had been rejected and actually had to take time off school
to pull himself together. His foster parents are very caring, but I know
that his real mother has a special place in his heart and he does not
feel the same sense of belonging to his foster parents."
This
evidence has the supreme virtues that it is manifestly objective,
independent and measured. In passing, the teacher concerned deserves
commendation for taking the trouble to provide her detailed and balanced
witness statement.
9.
The
mother and younger son plainly live in deprived and dangerous
circumstances. They are destitute. The second Appellant has been unwell
for a long time. This is a fractured family. Neither son has had the
benefit of a father, or father figure, for several years. The mother
struggles on, battling against the odds, deprived of the immense
assistance and support which the sponsor would be capable of providing.
Meanwhile, M has become increasingly stressed and preoccupied. He
appears to be under-achieving academically and his social activities
have become limited. Having reached his 18
th birthday, the sponsor is no longer in foster care. Some
three years have elapsed since he last saw his mother and younger
brother. His status is that of a former looked after child. He cuts an
isolated and unsupported figure, a teenager living in an unfamiliar
foreign country without any family support whatsoever. I am satisfied
that his need for reunification with his mother and younger brother has
not diminished since his advent and is, if anything, greater than ever.
Family Reunification: the Secretary of State's Policy
10.
The
Secretary of State's policy in the realm of family reunification, as
expressed in the Immigration Rules, dates from the year 2000. Its most
important feature, for the purposes of these appeals, is that no
provision has ever been made for family reunification in the case of a
child who has gained refugee status in the United Kingdom. This discrete
regime is currently contained in Part 8 of Appendix FM to the Rules, at
paragraphs 352A - 352G and 819L - 819U. In short, spouses and minor
children of a "sponsor" can, subject to satisfying the governing
conditions, secure family reunification in the United Kingdom by the
grant of leave to enter. However, this possibility does not exist where
the sponsor is a child.
11.
Thus
a blanket prohibition is in operation. Historically, there was a short
lived exception to this prohibition relating to the parents of
unaccompanied children who had fled Kosovo and secured asylum in the
United Kingdom. This concession was confined to the short time frame of
July to September 1999. With effect from 02 October 2000, the family
reunification regime enshrined in the Immigration Rules contained the
aforementioned blanket prohibition. From then to 2006 the Secretary of
State operated a policy of permitting the parents or siblings of
unaccompanied minor refugees to enter the United Kingdom for the purpose
of reunification
only where compelling and compassionate circumstances were
demonstrated. Since 2006 the Secretary of State's policy has
extinguished this possibility. While these appeals have generated much
documentary evidence pertaining to this discrete issue, it is striking
that there is no evidence bearing directly on the policy aims and
justification underpinning this exclusion. I shall revisit this discrete
issue
infra.
Legal Framework
12.
As
appears from the above, the refusal decisions of the ECO were made
solely by reference to the Immigration Rules. The appeal to the FtT was
based on Article 8 ECHR. One of the salient features of the legal
framework is that the Immigration Rules contain no provision for family
reunification in the case of a child refugee. Nor does the Secretary of
State operate any policy to this effect. There is (very properly) no
dispute about the existence of family life and the interference with
Article 8(1) wrought by the decisions of the ECO. Thus the fundamental
question for this Tribunal is whether such interference is necessary in a
democratic society viz is a proportionate means of securing the
legitimate aim in play, namely immigration control. The statement of
Lord Bingham of Cornhill in
Huang v SSHD [2007] 2 AC 167, at [18], applies fully to these appeals:
"
The Strasbourg Court has repeatedly recognised the general right of
States to control the entry and residence of non-nationals and
repeatedly acknowledged that the Convention confers no right on
individuals or families to choose where they prefer to live. In most
cases where the applicants complain of a violation of their Article 8
rights, in a case where the impugned decision is authorised by law for a
legitimate object and the interference (or lack of respect) is of
sufficient seriousness to engage the operation of Article 8, the crucial
question is likely to be whether the interference (or lack of respect)
complained of is proportionate to the legitimate aim sought to be
achieved."
The
balance to be struck involves an exercise of weighing the rights of the
individual and the interests of the community: see [19]. Furthermore,
this Tribunal is the arbiter of proportionality, which is to be judged
objectively:
R (SB) v Governors of Denbigh High School [2007] 1 AC 100, per Lord Bingham at [30].
13.
Article 8 ECHR is in the following terms:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2.
There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others."
By section 3 of the Immigration Act 1971 it is provided (insofar as material):
"
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under,
this Act;
(b)
he may be given leave to enter the United Kingdom (or, when already
there, leave to remain in the United Kingdom) either for a limited or
for an indefinite period;
(c)
if he is given limited leave to enter or remain in the United Kingdom,
it may be given subject to all or any of the following conditions,
namely-”
(i) a condition restricting his employment or occupation in the United Kingdom;
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds;
(iii) a condition requiring him to register with the police;
(iv) a condition requiring him to report to an immigration officer or the Secretary of State; and
(2)
The Secretary of State shall from time to time (and as soon as may be)
lay before Parliament statements of the rules, or of any changes in the
rules, laid down by him as to the practice to be followed in the
administration of this Act for regulating the entry into and stay in the
United Kingdom of persons required by this Act to have leave to enter,
including any rules as to the period for which leave is to be given and
the conditions to be attached in different circumstances ..."
Section 117A of the Nationality, Immigration and Asylum Act 2002 (the "
2002 Act") provides:
"
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-”
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard-”
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3)
In subsection (2), "the public interest question" means the question of
whether an interference with a person's right to respect for private
and family life is justified under Article 8(2)."
By section 117B:
"(1) The maintenance of
effective immigration controls is in the public interest.
(2)
It is in the public interest, and in particular in the interests of the
economic well-being of the United Kingdom, that persons who seek to
enter or remain in the United Kingdom are able to speak English, because
persons who can speak English-”
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3)
It is in the public interest, and in particular in the interests of the
economic well-being of the United Kingdom, that persons who seek to
enter or remain in the United Kingdom are financially independent,
because such persons-”
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-”
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5)
Little weight should be given to a private life established by a person
at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-”
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
"
14.
M
was a child, present in the United Kingdom, when the impugned decisions
of the ECO were made. Accordingly, section 55 of the Borders,
Citizenship and Immigration Act 2009 (the "
2009 Act") is engaged. This provides in material part:
"
(1) The Secretary of State must make arrangements for ensuring that-”
(a)
the functions mentioned in subsection (2) are discharged having regard
to the need to safeguard and promote the welfare of children who are in
the United Kingdom, and
(b)
any services provided by another person pursuant to arrangements which
are made by the Secretary of State and relate to the discharge of a
function mentioned in subsection (2) are provided having regard to that
need.
(2) The functions referred to in subsection (1) are-”
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(3)
A person exercising any of those functions must, in exercising the
function, have regard to any guidance given to the person by the
Secretary of State for the purpose of subsection (1)...
(6) In this section-”
"children"
means persons who are under the age of 18;
"customs function"
, "designated customs official" and "general customs function" have the meanings given by
Part 1"
.
The
statutory guidance made pursuant to section 55(2) is, for convenience,
reproduced in the Appendix to this judgment. This will hopefully serve
to give this measure the substantially greater prominence which, given
my experience in children's immigration and asylum cases, it merits.
15.
The United Nations Convention on the Rights of the Child ("
UNCRC"), which has been ratified by the United Kingdom, contains,
in Article 3(1) the provision wherein the genesis of section 55
reposes. Article 3(1) provides:
"
Article 3
1.
In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall
be a primary consideration."
The argument developed on behalf of the Appellants also pray in aid certain other provisions of UNCRC.
Article 6(2)
"States Parties shall ensure to the maximum extent possible the survival and development of the child."
Article 9
"1.
States Parties shall ensure that a child shall not be separated from
his or her parents against their will, except when competent authorities
subject to judicial review determine, in accordance with applicable law
and procedures, that such separation is necessary for the best
interests of the child. Such determination may be necessary in a
particular case such as one involving abuse or neglect of the child by
the parents, or one where the parents are living separately and a
decision must be made as to the child's place of residence.
2.
In any proceedings pursuant to paragraph 1 of the present article, all
interested parties shall be given an opportunity to participate in the
proceedings and make their views known.
3.
States Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations and direct
contact with both parents on a regular basis, except if it is contrary
to the child's best interests.
4.
Where such separation results from any action initiated by a State
Party, such as the detention, imprisonment, exile, deportation or death
(including death arising from any cause while the person is in the
custody of the State) of one or both parents or of the child, that State
Party shall, upon request, provide the parents, the child or, if
appropriate, another member of the family with the essential information
concerning the whereabouts of the absent member(s) of the family unless
the provision of the information would be detrimental to the well-being
of the child. States Parties shall further ensure that the submission
of such a request shall of itself entail no adverse consequences for the
person(s) concerned."
Article 22
"1.
States Parties shall take appropriate measures to ensure that a child
who is seeking refugee status or who is considered a refugee in
accordance with applicable international or domestic law and procedures
shall, whether unaccompanied or accompanied by his or her parents or by
any other person, receive appropriate protection and humanitarian
assistance in the enjoyment of applicable rights set forth in the
present Convention and in other international human rights or
humanitarian instruments to which the said States are Parties.
2.
For this purpose, States Parties shall provide, as they consider
appropriate, co-operation in any efforts by the United Nations and other
competent intergovernmental organizations or non-governmental
organizations co-operating with the United Nations to protect and assist
such a child and to trace the parents or other members of the family of
any refugee child in order to obtain information necessary for
reunification with his or her family. In cases where no parents or other
members of the family can be found, the child shall be accorded the
same protection as any other child permanently or temporarily deprived
of his or her family environment for any reason , as set forth in the
present Convention."
16.
In
this context the Appellants also draw on the United Nations General
Comment Number 6/2005, "Treatment of Unaccompanied and Separated
Children outside their Country of Origin" and, in particular, the
following passages:
Paragraph 79
"The
ultimate aim in addressing the fate of unaccompanied or separated
children is to identify a durable solution that addresses all their
protection needs, takes into account the child's view and, wherever
possible, leads to overcoming the situation of a child being
unaccompanied or separated. Efforts to find durable solutions for
unaccompanied or separated children should be initiated and implemented
without undue delay and, wherever possible, immediately upon the
assessment of a child being unaccompanied or separated. Following a
rights-based approach, the search for a durable solution commences with
analysing the possibility of family reunification."
Paragraph 82
"Family reunification in the country of origin is not in the best interests of the child and
should
therefore not be pursued where there is a "reasonable risk" that such a
return would lead to the violation of fundamental human rights of the
child. Such risk is indisputably documented in the granting of refugee
status or in a decision of the competent authorities on the
applicability of non-refoulement obligations (including those deriving
from article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and articles 6 and 7 of the
International Covenant on Civil and Political Rights). Accordingly, the
granting of refugee status constitutes a legally binding obstacle to
return to the country of origin and, consequently, to family
reunification therein. Where the circumstances in the country of origin
contain lower level risks and there is concern, for example, of the
child being affected by the indiscriminate effects of generalized
violence, such risks must be given full attention and balanced against
other rights-based considerations, including the consequences of further
separation. In this context, it must be recalled that the survival of
the child is of paramount importance and a precondition for the
enjoyment of any other rights."
Paragraph 83
"Whenever
family reunification in the country of origin is not possible,
irrespective of whether this is due to legal obstacles to return or
whether the best-interests-based balancing test has decided against
return, the obligations under article 9 and 10 of the Convention come
into effect and should govern the host country's decisions on family
reunification therein. In this context, States parties are particularly
reminded that "applications by a child or his or her parents to enter or
leave a State party for the purpose of family reunification shall be
dealt with by States parties in a positive, humane and expeditious
manner" and "shall entail no adverse consequences for the applicants and
for the members of their family" (art. 10 (1)). Countries of origin
must respect "the right of the child and his or her parents to leave any
country, including their own, and to enter their own country" (art. 10
(2))."
17.
I
record at this juncture that, invoking the well known "opt out" TEU
mechanism, the United Kingdom (in common with Ireland and Denmark) does
not subscribe to the
soi-disant family reunification directive viz Council Directive
2003/86/EC of 22 September 2003. As a result, the Appellants are unable
to invoke directly the benefits of Article 3, which provides:
1.
This Directive shall apply where the sponsor is holding a residence
permit issued by a Member State for a period of validity of one year or
more who has reasonable prospects of obtaining the right of permanent
residence, if the members of his or her family are third country
nationals of whatever status.
2. This Directive shall not apply where the sponsor is:
(a) applying for recognition of refugee status whose application has not yet given rise to a final decision;
(b)
authorised to reside in a Member State on the basis of temporary
protection or applying for authorisation to reside on that basis and
awaiting a decision on his status;
(c)
authorised to reside in a Member State on the basis of a subsidiary
form of protection in accordance with international obligations,
national legislation or the practice of the Member States or applying
for authorisation to reside on that basis and awaiting a decision on his
status.
3. This Directive shall not apply to members of the family of a Union citizen.
4. This Directive is without prejudice to more favourable provisions of:
(a)
bilateral and multilateral agreements between the Community or the
Community and its Member States, on the one hand, and third countries,
on the other;
(b)
the European Social Charter of 18 October 1961, the amended European
Social Charter of 3 May 1987 and the European Convention on the legal
status of migrant
workers of 24 November 1977.
5. This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions."
However, I consider that indirect reliance on aspects of this measure
may be possible via the guidance published by the Secretary of State
under section 55(2) of the 2009 Act: see [31]
infra.
18.
In
contrast, Council Directive 2004/83/EC of 29 April 2004, the co-called
"Qualification Directive" does apply in the United Kingdom, having been
transposed by the
Refugee or Person in need of International Protection (Qualification) Regulations 2006
. This prescribes "
minimum standards for the qualification and status of third country
nationals or stateless persons as persons who otherwise need
international protection and the content of the protection granted." Article 23 provides:
"
Maintaining family unity
1. Member States shall ensure that family unity can be maintained.
2.
Member States shall ensure that family members of the beneficiary of
refugee or subsidiary protection status, who do not individually qualify
for such status, are entitled to claim the benefits referred to in
Articles 24 to 34, in accordance with national procedures and as far as
it is compatible with the personal legal status of the family member. In
so far as the family members of beneficiaries of subsidiary protection
status are concerned, Member States may define the conditions applicable
to such benefits. In these cases, Member States shall ensure that any
benefits provided guarantee an adequate standard of living.
3.
Paragraphs 1 and 2 are not applicable where the family member is or
would be excluded from refugee or subsidiary protection status pursuant
to Chapters III and V.
4.
Notwithstanding paragraphs 1 and 2, Member States may refuse, reduce or
withdraw the benefits referred therein for reasons of national security
or public order.
5.
Member States may decide that this Article also applies to other close
relatives who lived together as part of the family at the time of
leaving the country of origin, and who were wholly or mainly dependent
on the beneficiary of refugee or subsidiary protection status at that
time."
Per Article 3:
"
More favourable standards
Member
States may introduce or retain more favourable standards for
determining who qualifies as a refugee or as a person eligible for
subsidiary protection, and for determining the content of international
protection, in so far as those standards are compatible with this
Directive."
19.
The
governing legal framework is completed by certain well established
principles of domestic, international and European human rights law. I
summarise these in no particular hierarchical order. First, there is the
familiar principle that every state has the right to control entry into
and stay in its territory, sometimes described as the "sovereignty
principle", which finds expression in the opinion of Lord Bingham of
Cornhill in
R (Bapio Action Limited) v SSHD [2008] 1 AC 1003, at [4]:
"
It is one of the oldest powers of a sovereign state to decide whether
any, and if so which, non-nationals shall be permitted to enter its
territory and to regulate and enforce the terms on which they may do so."
The
Strasbourg decisions belonging to this sphere give emphasis to the
consideration that the central issue in these appeals is that formulated
in [10] above. Thus, in one of its leading pronouncements, the ECtHR
has stated:
"
The Court reiterates that in the context of both positive and
negative obligations, the State must strike a fair balance between the
competing interests of the individual and of the community as a whole.
However, in both contexts the State enjoys a certain margin of
appreciation. Moreover, Article 8 does not entail a general observation
for a State to respect immigrant's choice of the country of their
residence and to authorise family reunion in its territory."
See
Rodrigues v The Netherlands [2007] 44 EHRR 34, paragraph [39].
20.
The margin of appreciation enjoyed by the State in this context is emphasised in
Draon v France [2006] 42 EHRR 40, where, in a moderately detailed treatise, the Grand Chamber pronounced at [105] - [108]:
"
1. While
the essential object of Article 8 is to protect the individual against
arbitrary interference by the public authorities, it does not merely
require the State to abstain from such interference: there may in
addition be positive obligations inherent in effective "respect" for
family life. The boundaries between the State's positive and negative
obligations under this provision do not always lend themselves to
precise definition; nonetheless, the applicable principles are similar.
In both contexts regard must be had to the fair balance that has to be
struck between the competing interests of the individual and the
community as a whole, and in both contexts the State is recognised as
enjoying a certain margin of appreciation (see, for example,
Nuutinen v. Finland, no. 32842/96, 27 June 2000, § 127, and
Kutzner v. Germany, no. 46544/99, 26 February 2002, §§ 61 and
62). Furthermore, even in relation to the positive obligations flowing
from the first paragraph, "in striking [the required] balance the aims
mentioned in the second paragraph may be of a certain relevance" (see
Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, § 41).
2. "Respect"
for family life ... implies an obligation for the State to act in a
manner calculated to allow ties between close relatives to develop
normally (see
Marckx, cited above, § 45). The Court has held that a State is
under this type of obligation where it has found a direct and immediate
link between the measures requested by an applicant, on the one hand,
and his private and/or family life on the other (see
Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 32;
X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23;
López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55;
Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 227, § 58;
Botta v. Italy, judgment of 24 February 1998, Reports 1998-I, § 35; and
Zehnalova and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V).
3. However,
since the concept of respect is not precisely defined, States enjoy a
wide margin of appreciation in determining the steps to be taken to
ensure compliance with the Convention with due regard to the needs and
resources of the community and of individuals (see
Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 67, and
Zehnalova and Zehnal, cited above).
4. At
the same time, the Court reiterates the fundamentally subsidiary role
of the Convention. The national authorities have direct democratic
legitimation and are, as the Court has held on many occasions, in
principle better placed than an international court to evaluate local
needs and conditions (see, for example,
Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and
Hatton and Others v. the United Kingdom [GC], no. 36022/97, §
97, ECHR 2003-VIII). In matters of general policy, on which opinions
within a democratic society may reasonably differ widely, the role of
the domestic policy-maker should be given special weight."
21.
In
decision making contexts in which the public interest engaged has the
democratic stamp of parliamentary scrutiny, debate and decision,
culminating in primary legislation, the public interest is especially
strong and the role of the court or tribunal as arbiter of
proportionality is correspondingly reduced: see
SS (Nigeria) v SSHD [2013] EWCA Civ 550, per Laws LJ at [42]:
"
But the margin of discretionary judgment enjoyed by the primary
decision maker, though variable, means that the Court's role is kept in
balance with that of the elected arms of government and this serves to
quieten constitutional anxieties that the Human Rights Act draws the
Judges onto ground they should not occupy ....."
[and at 47]:
"
Upon the question whether the principle of minimal interference is
fulfilled, the primary decision maker enjoys a variable margin of
discretion, at its broadest where the decision applies general policy
created by primary legislation."
The
variable nature of the primary decision maker's margin of appreciation,
or discretionary area of judgment, is illustrated in
R (Quila) v SSHD [2012] 1 AC 621
where the legal rule in play which precluded the claimants from
securing leave to remain in the United Kingdom was a provision of the
Immigration Rules which do not, of course, have the status of
parliamentary legislation and do not, therefore, attract the equivalent
imprimatur of democratic approval:
Huang v SSHD [2007] 2 AC 167,
at [17]. Furthermore, it is appropriate for the court or tribunal to
take into account whether the Secretary of State had access to "
special sources of knowledge and advice" in formulating the rule or rules under scrutiny: per Lord Wilson JSC at [46].
22.
Moreover, as noted by this Tribunal recently in
ZAT and Others v SSHD (Article 8 ECHR - Dublin Regulation - Interface - Proportionality) IJR [2016] UKUT 61 (IAC), after [57]:
"
Lesser weight is to be accorded to the Secretary of State's
assessment to the balance to be struck between the public interest and
the rights of the individual in circumstances where the Secretary of
State's insistence upon full adherence to the [rule in question]
embodies a generalised assessment, a broad brush, to be contrasted
with a specific, considered response and decision on a case by case
basis."
The ensuing sentence in the same paragraph resonates, as it applies fully to the present appeals:
"
.... The platform upon which the Secretary of State has contested
these proceedings is quite unrelated to the individual circumstances,
the needs and merits of any of the seven Applicants."
As in
ZAT and Others, the present proceedings concern a blanket exclusion, or prohibition.
23.
In
Secretary of State for the Home Department v SS (Congo) and Others [2015] EWCA Civ 387
the Court of Appeal paid specific attention to the factor of children
in the context of applications for leave to enter and leave to remain in
the United Kingdom. Having noted that the "Article 8 code", contained
in Appendix FM to the Immigration Rules, constituted an "
attempt" by the Secretary of State to reflect "
more precisely than before" the relevant balance to be struck
between the public interest and the interests of the individual in
Article 8 cases, the Court formulated some general principles in [39].
These include the principle, expressed in [39](iii) that:
"
A Court
will be slow to find an implied positive obligation which would
involve imposing on the State significant additional expenditure, which
will necessarily involve a diversion of resources from other activities
of the State in the public interest, a matter which usually calls for
consideration under democratic procedures".
This is followed immediately by the following passage:
"(iv)
On
the other hand, the fact that the interests of a child are in issue will
be a countervailing factor which tends to reduce to some degree the
width of the margin of appreciation which the state authorities would
otherwise enjoy. Article 8 has to be interpreted and applied in the
light of the UN Convention on the Rights of the Child (1989): see In
re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] AC 144,
at [26]. However, the fact that the interests of a child are in issue
does not simply provide a trump card so that a child applicant for
positive action to be taken by the state in the field of Article 8(1)
must always have their application acceded to; see In
re E (Children) at [12] and
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166,
at [25] (under Article 3(1) of the UN Convention on the Rights of the
Child the interests of the child are a primary consideration - i.e. an
important matter - not the primary consideration). It is a factor
relevant to the fair balance between the individual and the general
community which goes some way towards tempering the otherwise wide
margin of appreciation available to the state authorities in deciding
what to do. The age of the child, the closeness of their relationship
with the other family member in the United Kingdom and whether the
family could live together elsewhere are likely to be important factors
which should be borne in mind.
"
The
Court further noted that Article 3(1) of UNCRC forms part of municipal
law via section 55 of the 2009 Act, in observing that some of the
principles and obligations contained in this international law measure
have influenced domestic law.
24.
There is a further, discrete dimension of the Article 8 jurisprudence which the Court of Appeal noted
en passant in
SS (Congo), at [39](v), namely the principle, or test, of the "
direct and immediate link" forging a nexus between the measures
requested by an applicant and his family life. This principle
approximates to the familiar common law concept of casual nexus. In
Draon v France (
supra), the Grand Chamber, having reiterated certain well established principles, stated at [106]:
"
'Respect' for family life .... implies an obligation for the State to
act in a manner calculated to allow ties between close relatives to
develop normally. The Court has held that a State is under this type of
obligation where it has found a direct and immediate link between the
measures requested by an Applicant, on the one hand, and his private
and/or family life on the other."
This
direct and immediate link is unlikely to be established in
circumstances where family life can be carried on elsewhere: see
Botta v Italy [1998] 26 EHRR 241 and
Gül
v Switzerland
[1996] 22 EHRR 93, at [42].
25.
The
scope for further development and refinement of the principles, tests
and touchstones to be applied in Article 8 cases of this
genre, in the context of what is of course a "
living instrument", is illustrated by a trilogy of decisions of the ECtHR. It is unnecessary to dwell on the first of these,
Sen v Netherlands [2003] 36 EHRR 7. In the second,
Tuquabo-Tekle and Others v Netherlands [2005] ECHR 803
[Application No 60665/00], which followed two years later, the Court
emphasised, firstly, that every case is fact sensitive: see [43](a). In
formulating an
inexhaustive list of touchstones to be applied, it highlighted
the age of the children concerned, their current situation in their
country of origin and the extent of their dependency on their parents.
In [47] it formulated the test of "
the most adequate means for the various members to develop family life together".
The Court also acknowledged, in [49], the relevance of the age of the
child or children concerned, the extent of the child/parent dependency,
whether the child had been reared in the cultural and linguistic
environment of his country of origin, whether there are relatives there
and whether it could be expected of the parents to return there: see
[49].
26.
This was followed by
Mayeka and Mitunga v Belgium [2008] 46 EHRR 23
in which the main factors were pre-existing family life between the
separated persons concerned, an unaccompanied minor and special
vulnerability. Both decisions illustrate the Court's willingness, in
appropriate cases, to recognise Article 8 ECHR as the vehicle for
achieving family reunification on the territory of the Council of Europe
State where one of the family members is present or established.
27.
As
the sponsor was a child (aged 17) when the impugned decisions of the ECO
were made, section 55 of the 2009 Act applied. Accordingly, his best
interests had the status of a primary consideration. As in so many cases
involving children, there is no evidence that the statutory duty
imposed by section 55(2) to have regard to the Secretary of State's
statutory guidance was discharged. I readily infer that it was not.
This, sadly, seems to be the rule rather than the exception in cases of
this kind. This, notwithstanding that the decisions of this Tribunal in
JO and Others (Section 55 Duty) Nigeria [2014] UKUT 517 (IAC) and
MK (Section 55 - Tribunal Options) [2015] UKUT 223 (IAC) have drawn attention emphatically to this aspect, and others, of section 55.
28.
Section 55 has been considered by the United Kingdom Supreme Court in
ZH (Tanzania) v SSHD [2011] 2 AC 166 and
Zoumbas v SSHD [2013] 1 WLR 3690.
As these decisions make clear, no other material consideration can be
treated as inherently more significant than the best interests of any
affected child, albeit this can be outweighed by the cumulative effect
of other considerations and it does not rank as the primary, or
paramount, consideration. Per Lord Kerr in
ZH (Tanzania) at [46]:
"
It is not merely one consideration that weighs in the balance along
side other competing factors. Where the best interests of the child
clearly favour a certain course, that course should be followed unless
countervailing reasons of considerable force displace them."
Notably,
while section 55 did not apply directly to the second Appellant when
the decisions were made, as he was outside the United Kingdom, the
Secretary of State's Immigration Directorate Instruction ("IDI") invites
ECOs to consider the aforementioned statutory guidance, as noted by
this Tribunal in
Mundeba (Section 55 and paragraph 297(i)(f)) [2013] UKUT 88 (IAC), at [36] and [37] especially: see further [31]
infra.
29.
The
issue of the status of unincorporated or partly incorporated
international treaties in domestic law continues to intrigue. It has
proved nothing if not organic during recent years. The determination of
these appeals does not require a detailed treatise. Rather, it suffices
to draw attention to three matters. The first is the opinion of Lord
Wilson in
Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, at [42] - [44], which merit reproduction in full:
"[42] In
ZH (Tanzania) v Secretary of State for the Home Department
[2011] UKSC 4, [2011] 2 AC 166, Lady Hale at para 21 quoted with approval the observation of the Grand Chamber of the ECtHR in
Neulinger v Switzerland (2010) 28 BHRC 706,
para 131, that "the Convention cannot be interpreted in a vacuum but
must be interpreted in harmony with the general principles of
international law". The Court of Appeal concluded, however, that the
circumstances of the present case left no room for either of the
international conventions to give a steer to the proper interpretation
of Cameron's rights. Consistently with that conclusion, the Secretary of
State proceeds to submit that it is in principle illegitimate to have
regard to the conventions and in this regard he relies upon the recent
decision of this court in the SG case cited at para 39 above.
[43] It is clear that in the
SG case the Secretary of State submitted that, while an
international covenant might inform interpretation of a substantive
right conferred by the Convention, it had no role in the interpretation
of the parasitic right conferred by article 14 and thus, specifically,
no role in any inquiry into justification for any difference of
treatment in the enjoyment of the substantive rights. But his submission
was not upheld. While Lord Reed did not expressly rule upon it, it was
rejected by Lord Carnwath (paras 113-119), by Lord Hughes (paras
142-144), by Lady Hale (paras 211-218) and by Lord Kerr (paras 258-262).
Lord Carnwath, for example, pointed out at paras 117-119 that the
Secretary of State's submission ran counter to observations in the Court
of Appeal in the
Burnip case, cited at para 23 above, and indeed to the decision of the Grand Chamber in
X v Austria (2013) 57 EHRR 405. The decision of the majority in
the SG case was not that international conventions were irrelevant to
the interpretation of article 14 but that the UN Convention on the
Rights of the Child was irrelevant to the justification of a difference
of treatment visited upon women rather than directly upon children: para
89 (Lord Reed), paras 129-131 (Lord Carnwath) and para 146 (Lord
Hughes).
[44] The noun adopted by the Grand Chamber in the
Neulinger case, cited above, is "harmony". A conclusion, reached
without reference to international conventions, that the Secretary of
State has failed to establish justification for the difference in his
treatment of those severely disabled children who are required to remain
in hospital for a lengthy period would harmonise with a conclusion that
his different treatment of them violates their rights under two
international conventions.
"
In
short, certain provisions of international treaties, in particular the
UNCRC, have gently, seamlessly and progressively influenced and seasoned
domestic law via the Human Rights Act 1998, as a result of the duty
imposed on courts and tribunals by section 3(1) thereof and the long
established practice of the ECtHR of taking into account relevant
provisions of international law.
30.
Second,
bearing in mind section 55 of the 2009 Act, it is clear that Article
3(1) of UNCRC cannot be considered in a vacuum, isolated from the
remaining provisions of the Convention. The meaning and reach of Article
3(1) must take their colour from, and be informed by, other provisions
of this instrument. Article 31 of the Vienna Convention on the Law of
Treaties requires no less. It provides, in material part:
"General rule of interpretation
1. A
treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
2.
The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes
.... "
31.
Third,
decisions which give proper effect to both of the duties enshrined in
section 55 may legitimately be influenced by unincorporated provisions
of international law, having regard to the expression of the Secretary
of State's policy in the statutory guidance made under section 55(2).
This is found in "
Every Child Matters: Change For Children", which contains, at paragraph 2.6, the following passage:
"
The UK Border Agency acknowledges the status and importance of the
following: the European Convention for the Protection of Human Rights
and Fundamental Freedoms, the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and
Cultural Rights, the EU Reception Conditions Directive, the Council of
Europe Convention on Action against Trafficking in Human Beings and the
UN Convention on the Rights of the Child.
The UK Border Agency must fulfil the requirements of these
instruments in relation to children whilst exercising its functions as
expressed in UK domestic legislation and policies."
[Emphasis added]
Within
this passage one finds the clearest of assurances that, as a matter of
policy, these several instruments of international law will be given
effect when the Secretary of State and her various
alter egos, which include UKBA, UKVI and ECOs, are making
immigration (and related) decisions which affect children. Moreover, the
absence of any territorial limitation comparable to that contained in
section 55(1) is notable.
32.
Thus the principle enunciated in
R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839
applies fully. Applying orthodox principles of public law, it matters
not that the materials, or considerations, identified in "Every Child
Matters (etc)" have the status of unincorporated international treaties.
If this publication had the standing of a (mere) governmental policy,
the Secretary of State would be expected to give effect to it:
Lumba v Secretary of State for the Home Department [2011] UKSC 12 at [26], per Lord Dyson JSC. I consider that this duty applies
a fortiori given that the publication is an instrument made
pursuant to a duty imposed by primary legislation. By formulating the
statutory guidance in this way the executive has chosen to give indirect
status in domestic law to certain measures of international law which
have not been incorporated by legislation.
33.
The
international law/domestic law dichotomy in United Kingdom law
traditionally conjured up notions of polarisation and insularity. Having
regard to the developments mapped above, the gulf between the two
notional extremes has narrowed significantly and this is illustrated by
the decision making context under scrutiny in these proceedings. The
so-called dualist doctrine has evolved and has undergone some dilution
in consequence. All of this is, ultimately, a reflection of the
intrinsically organic nature of the common law.
Conclusions
34.
At
this juncture I remind myself of the fundamental question to be
determined in these conjoined appeals: is the interference with the
family life of the Appellants and M, brought about by the refusal
decisions of the ECO, a proportionate means of securing the legitimate
aims in play? Or, alternatively, one might ask which is to prevail: the
interests of the three family members or the public interest?
35.
On
one side of the scales there is a strong family unit whose members are
clearly united and fortified by strong bonds of love, affection and
interdependency. They long to be reunited and have gone to substantial
lengths and have made considerable sacrifices to achieve this goal. For
as long as separation continues, this will be a disfunctioning,
debilitated and under achieving family. The main feature of this under
achievement will be the family's inability to attain its potential as
one of the key elements of modern societies throughout the world. The
under performance of family members and family units, in this respect,
does not further any identifiable public interest. On the contrary it is
antithetical to strong and stable societies. These features of the
family unit under scrutiny in these appeals are exposed in a context
where M, being the older of the two male sons, is, culturally,
considered to be the head of the family. This family, bereft of its
natural head by circumstances and not by choice, is now deprived of his
successor and has been thus bereft for almost four years.
36.
The
evidence establishes clearly that the sponsor is under achieving as a
person. This means that his contribution, actual and potential, to
United Kingdom society is diminished. This arises in circumstances where
he has demonstrated his willingness to adapt to United Kingdom culture
and to study earnestly in this alien country. The prediction that
society will secure some benefit if the sponsor achieves family
reunification in this country is readily made. Thus reunification will
promote, rather than undermine, the public interest in this respect. It
will be manifestly better for society than maintenance of the status
quo.
37.
Furthermore,
if family reunification cannot be achieved in the United Kingdom, M
will be driven to consider alternatives, some of them manifestly
dangerous given his youth and unaccompanied and unsupported status.
These include the precarious journey involved in attempting to reunite
with the Appellants wherever they may be at present. The evidence points
to the probability that they are either in Khartoum or the UNHCR
refugee camp several hundred kilometres away. The situations in both
locations are fraught with danger and imbued with deprivation.
Reunification of this family in their country of origin, Eritrea, is not
a feasible possibility, having regard to the factual framework
rehearsed in [5] - [9] above.
38.
I
consider it distinctly possible that if family reunification cannot be
secured in the United Kingdom, the sponsor will depart these shores in
the dangerous pursuit of one of the alternatives mooted above. This
would deprive him of the protections which he has obtained as a result
of being recognised a refugee. This would be manifestly undesirable for
him, contrary to the public interest and incompatible with the
philosophy and rationale of the Refugee Convention. It would also expose
him to a risk of violating his Convention rights, in particular those
protected by Articles 3 and 4. In the real world, recognition of this
possibility is far from fanciful. I consider this to be a potent factor
in the balancing exercise. Resort to this Tribunal is very much a
measure of last resort for him.
39.
Next, it is necessary to give effect to the principles enunciated in
Mathieson - (
supra) together with those aspects of the Secretary of State's
statutory guidance noted in [31] above. I do not deduce from any of
these principles or sources that the Secretary of State is under
a duty to facilitate reunification for this family in the United
Kingdom with the result that the impugned decisions of the ECO are
vitiated. The existence of an absolute duty of this nature was not
argued and I do not consider that such duty exists. However, in my view
the
orientation of these principles and policies is to favour, rather
than undermine, what the Appellants seek to achieve by these appeals.
They qualify for substantial weight in the proportionality balancing
exercise.
40.
On
the other side of the scales lies the public interest. This engages the
provisions in sections 117A and 117B of the 2002 Act, reproduced in [13]
above. Thus, in summary: the public interest in the maintenance of
effective immigration controls is engaged; I shall assume that neither
of the Appellants speaks English; and I further assume that neither
Appellant is, or will be, financially independent, at least for the
foreseeable future. Section 117B(4) does not apply. Nor does section
117B(5), given the concession - properly made - of Mr Poole on behalf of
the Secretary of State that the M's immigration status in the United
Kingdom has not been precarious, given the grant of five years leave to
remain
qua refugee. Nor does section 117B(6) apply.
41.
Is any other public interest engaged? Mr Poole, in his skeleton argument, sought to identify two such interests:
(a)
the safeguarding of children, specifically those in the position of the
sponsor, who would be at risk of trafficking and exploitation in their
quest to reach the United Kingdom; and
(b) additional pressure on publicly funded childrens' services.
There is no primary legislation underpinning either of these asserted public interests. Moreover, there is
no evidence underlying them - in the form of, for example,
reports or commentaries. I recognise that evidence of this kind is not a
prerequisite to the recognition of a public interest in the Article
8(2) balancing exercise. However, I cannot overlook that these public
interests are advanced through the medium of counsel's written and oral
submissions.
42.
Furthermore,
this unsatisfactory dimension of the Secretary of State's case is
highlighted by the belated production of certain data. While I have
considered this material, I observe that it does not have the benefit of
related reports or the illumination or elaboration of witness
statements. Nor is there any financial data even at a general level. In
addition, the figures require clarification, which is lacking. In my
judgment, the only conclusion which can safely be made is that there has
been
some increase in the advent of unaccompanied children to the
United Kingdom during the past two years. That said, the figures are
substantially smaller than those applicable to the years 2008 and 2009.
While I take all of this evidence, including counsel's submissions, into
account, I consider that its potency is questionable for the reasons
given. Furthermore, I reiterate my analysis of the governing legal
principles above.
43.
This
brings me to my overarching conclusion. Taking into account the
considerations, assessments and reasons highlighted in [34] - [42]
above, it is my conclusion that, balancing everything, the impugned
decisions of the ECO, acting on behalf of the Secretary of State,
interfere disproportionately with the right to respect for family life
enjoyed by the Appellants and M. As the ultimate arbiter of
proportionality I decide accordingly. Thus I re-make the decision of the
FtT by allowing the appeals.
Decision
The appeals are allowed under Article 8 ECHR.
http://www.bailii.org/uk/cases/UKUT/IAC/2016/227.html
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