SO (Somalia) & Ors v Secretary of State for the Home Department

This is a renewed application for permission to appeal a decision dated 19 September 2006 of the Asylum and Immigration Tribunal, designated Immigration Judge Colman and Immigration Judge Talbot. The appellants are all citizens of Somalia. The first named appellant is the mother of the second, third and fourth named appellants. They all appeal against the respondent’s decision of 23 April to refuse entry clearance to the United Kingdom for the purpose of family reunion with AO the first appellant’s son, now aged 11. He came to the United Kingdom with a cousin in October 2001 and was granted refugee status on 19 December 2001. Having succeeded in obtaining refugee status he sought leave to enter the United Kingdom for his mother and his siblings on the basis of family reunion with him. There is no doubt that the first appellant is the mother and that the other three appellants are the sponsor’s siblings.

The relevant policy is as follows. In order to understand the position of parents and siblings in the context of the policy statement, one needs to read one whole paragraph (this is set out at page 25 of the bundle):

“We may exceptionally allow other members of the family (e.g. elderly parents) to come to the UK if there are compelling, compassionate circumstances. The parents and siblings of a minder who has been recognised as a refugee are not entitled to family reunion. Such applications are considered under the criteria above, i.e. there must be compelling, compassionate circumstances in order for the family to be granted entry to the UK.”

It thus follows that the appellants were not entitled to family reunion but they were entitled to have their application considered under this policy. The policy in the way that it is worded first of all makes it clear that only exceptionally will this happen and in addition there must be compelling and compassionate circumstances.

Mr Lewis criticises the approach of the AIT in particular in what it said in paragraph 22, 24, 26. In paragraph 22 the AIT said that there had to be something special or different that differentiates the sponsor and appellant from any other minor child separated from his parents. The AIT went on to say that if that were not the case, then the rules would simply allow reunion between all minor children and their parents. He criticises that and refers me to the case of Begum [2001] INLR 115 and what Buxton LJ said about the approach of the tribunal at page 128 in paragraph 46. In that case the tribunal had compared the position of the applicant with other young women in Bangladesh. Buxton LJ criticised that approach. He said:

“The question properly to be raised under that rule is whether the applicant’s circumstances are exceptional in general and judgmental terms and not – or at least not necessarily – whether she is different in that respect from other unmarried females in Bangladesh.”

It is submitted on behalf of the appellants by Mr Lewis that the tribunal has fallen into that same trap here. As to that Richards LJ said in refusing leave:

“There was no arguable failure properly to apply the policy. The tribunal was correct to approach the matter on the basis that the mere fact of being a minor child separated from his parents was not sufficient to satisfy the policy and that something more was required in order to amount to ‘compelling compassionate circumstances’ (see EG Paris 22, 28, 30). It went on to look at all the factors put forward on the applicant’s behalf in order to determine whether compelling, compassionate circumstances did exist in the particular case. Its assessment of those factors betrays no error of law.”

One has to bear in mind when considering Mr Lewis’s argument that the policy is concerned with parents and siblings of a minor. The tribunal, as Richards LJ found, was in my view therefore entitled to examine the position in relation to other minor children whose parents and siblings are seeking to come to this country under the family reunion policy. I take the view that it is not arguable that the tribunal has fallen into the trap to which Mr Lewis refers. It is quite clear that, although in paragraph 22 there is reference to any other minor child separated from his parents, the tribunal goes on to put it into the context of reunion between minor children and their parents against the background of the policy. It seems to me that they were entitled to approach it in the way that they did. For example at paragraph 26 they say:

“There are no differences from the circumstances of any minor refugee who had left his family to seek asylum.” (underlining added)

Overall I take the view that the tribunal was seeking to discover whether this was an exceptional case in which there were compelling and compassionate circumstances that distinguish this sponsor and the position of his mother and his siblings from other people in a similar category. It is said that the tribunal did not take a cumulative approach to all of the factors. Richards LJ disagreed with that argument and so do I.

Complaint is made of the conclusion that the sponsor was now old enough to be able to travel by air to Ethiopia. He is entitled to a travel document and the AIT says that they see many cases of Somali nationals travelling to Ethiopia to visit family. Mr Lewis says that that is an unrealistic assessment of the situation. The sponsor lives with his grandmother with very little money. The appellant mother and siblings have very little money and therefore that is unrealistic. It seems to me that is essentially a matter for the tribunal against the background of the case about which to reach a conclusion. In any event I have considerable doubts whether, even if one could attack this particular finding, it would make any difference. It is clear for example that there is telephonic contact between the mother and the children and as the boy gets a little older he will no doubt be able to find the funds from one source or another to visit his mother and siblings should he wish to do so.

There is a complaint made about the conclusion in paragraph 25 where the AIT casts doubt upon the evidence relating to the conditions in which the appellants live. In my judgment that was a finding of fact which the tribunal was entitled to reach and there can be no proper complaint about it.

Finally reference is made to the age and health of the sponsor’s grandmother. The AIT deals with that in paragraph 27 in which they conclude that:

“We therefore do not find that there is any evidence before us to show that she is not capable of caring for her grandson.”

When I put it to Mr Lewis that should that change then no doubt another application can be made (if there are not other people within the country here who would look after the boy) he said that the problem with that approach was the enormous delay in resolving this particular application. It seems to me that should the grandmother’s health deteriorate and should another application be made, then it would be necessary to make sure by one means or another that the applications were dealt with more speedily.

At the end of the day these are always difficult cases. In order to succeed once he had failed on the issue of law, Mr Lewis had to show that the conclusions here were conclusions which no reasonable tribunal could reach. We are not in the Court of Appeal a specialist tribunal; these decisions are made by those who deal with hundreds of cases of this kind. They have a far better feel than this court could ever have of what constitutes exceptional circumstances that might bring someone within the policy. In my judgment Mr Lewis has not shown that this specialist tribunal made either an error of law or reached a conclusion which they could not properly have reached.