KF & Ors v The Secretary of State for the Home Department

Background

Remaking the decision

AT is not binding authority. Ms Meredith accepted that this was correct, as do we. It remains persuasive authority, as Mr Malik accepted, although he suggested that because of his other comments it should not carry a great deal of weight.

AT was different because the sponsor had been a child when the application was made, when the ECO refused entry clearance (Footnote: ³) and at the date of remaking by the Upper Tribunal. In the present case the sponsor was an adult when the ECO refused entry clearances (28^th February 2018) since he turned 18 on 31^st January 2018. We accept that this is an important difference. We note as well that s.55(6) of the 2009 Act defines children (in common with other UK statutes and the UNCRC at Article 1) as a person under 18. Ms Meredith referred us to paragraph 27 of the Immigration Rules which concerns those who applied for entry clearance when they were children but who become adults before a decision is made. However, we agree with Mr Malik that this paragraph is nothing to the point: it concerns applicants for entry clearance. In this case it is the sponsor who has become an adult between the making of the application and the ECO’s decision.

Mr Malik observed that McCloskey J. had been wrong to say that there was a ‘blanket prohibition’ on relatives joining a refugee in the UK other than a spouse or minor child of a refugee (see AT at [11] and [22]). We agree with Mr Malik that this was an exaggeration. There is not a prohibition on other relatives joining a refugee (as there is, for instance, on those who have been deported from the UK being granted entry clearance –Immigration Rules paragraph 320(2)(a)). There is simply no provision for family reunion for a family member with a refugee in such circumstances. We agree that this was a mistake on the part of McCloskey J. However, it does not seem to us to have been material. It did not lead him to make any consequential error based on this exaggeration.

Mr Malik drew our attention to AT [22] where McCloskey J. had relied on his own previous decision in ZAT and others v SSHD(Article8 –Dublin Regulation –Interface –Proportionality). However, the decision of the Upper Tribunal in ZAT had subsequently been reversed by the Court of Appeal –see R (ZT (Syria) and others) v SSHD (UNHCR intervening) [2016] EWCA Civ 810, [2016] 1 WLR 4894. At [64] the Court of Appeal emphasised the importance of a fact-sensitive analysis. We accept that such an analysis is critical. Otherwise ZAT concerned the interpretation of the UK’s obligations under the Dublin III regulation which is not material to the present matter.

Finally, Mr Malik drew attention to [39] of AT where McCloskey J. had said, ‘Next, it is necessary to give effect to the principles enunciated in Mathieson (Mathieson v Secretary of State for Work and Pensions [2011] UKSC 4, [2011] 2 AC 166) together with those aspects of the Secretary of State’s statutory guidance noted in [31] above [this is a reference to the ‘Every Child Matters’ document to which we have already referred]. 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 a 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.’ [emphasis in the original]. Mr Malik argues that this is to misunderstand Mathieson. At [44] Lord Wilson said this, ‘The noun adopted by the Grand Chamber in the Neulinger case 54 EHRR 1087, 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 their rights violates their rights under two international Conventions.’ Mr Malik submitted in his skeleton argument, ‘It is one thing to say that a particular conclusion, “reached without reference to international Conventions” will “harmonise” with those international conventions, it is quite another to attach “substantial weight” to the “orientation” of international “principles and polices”. We agree that there is force in this criticism of Mr Malik’s.

It is incumbent on us to conduct an intensive fact-sensitive exercise to decide whether there would be disproportionate interference with this sponsor’s private and family life if the Appellants’ refusals of entry clearance were upheld. With respect, to FTTJ Paul we do not share his description of AT as ‘all-embracing’. The SSHD did not seek to appeal the decision and, accordingly, it was dispositive of the factual situation with which the Tribunal was then presented, but it was no more than that.

AT is an example of how that can be the case, although there are (inevitably) differences between the sets of facts in AT and the present case, notably that AT was a child both when the ECO refused entry clearances to his family members and when the Upper Tribunal took the final decision.

We accept that it is Mathieson rather than AT which should guide us in relation to the role of international instruments which have not been incorporated into domestic law. It may be material that a particular outcome would be in harmony with such instruments, but that is not the same as saying they should be accorded substantial weight.

Although AT is a reported decision and of persuasive authority, in the light of ZT, the starting and significant point is the Article 8 rights of the individual who is in the UK.

We start with Nationality, Immigration and Asylum Act 2002 s.117B which is headed ‘Article 8: public interest considerations applicable in all cases’. Subsection (1) provides, ‘The maintenance of effective immigration controls is in the public interest.’

Section 117B(2) says, ‘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 UK are able to speak English, because persons who speak English-(a) Are less of a burden on taxpayers, and (b) Are better able to integrate into society. FTTJ Paul described the Appellants at [22] as ‘non-English speaking’ and there is no evidence before us to suggest that is incorrect. We must therefore proceed on the basis that this is a factor against the grant of entry clearance.

Section 117B(3) says, ‘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 UK are financially independent, because such persons –(a) Are not a burden on taxpayers, and (b) Are better able to integrate into society. FTTJ Paul also said at [22], ‘[The Appellants] will find it very difficult to integrate into the UK, and will likely be a drain on resources for a considerable period of time. The fact that it is a large family aggravates the potential impact on the public purse in this country.’ Again, we have had no contrary evidence.

The SSHD’s policy as expressed in the Immigration Rules is to cater for the family reunification of refugees in only limited circumstances. Thus, provision is made for the partner of a refugee (paragraph 352A) and minor children of a refugee (paragraph 352E). In addition, there are general provisions for the admission of other family members (see Immigration Rules Appendix FM) of which refugees, like other sponsors can take advantage. Otherwise, as is said in the Home Office document ‘Family Reunion: for refugees and those with humanitarian protection’ (19^th March 2019) at p.30, ‘Where the applicant is a parent, grandparent, brother or sister of someone with refugee status or someone with humanitarian protection leave, they will not qualify under the family reunion provisions.’ As was made clear in Agyarko [2017] UKSC 11 the purpose of the Immigration Rules is to enable decision makers to understand and apply the appropriate weight to be given to the public interest. Whether through s.117B(1) or otherwise, we accept that the fact that the appellants do not meet the Immigration Rules is an adverse factor.

We were not referred to any international or national provision or jurisprudence that supports entry to the UK of parents and/or siblings of adult refugees.

Ms Meredith laid particular stress on the sponsor’s mental ill health. The sponsor had arrived in the UK as an unaccompanied minor. He had had traumatic experiences. While in Syria, he had witnessed the violent suppression of a peaceful protest he had attended. His home had been destroyed by bombing. People he had known had been arbitrarily arrested. He and his family had fled to Jordan He had worked without permission and been exploited in consequence. He had also been sexually abused while in Jordan. At 15 he left Jordan and travelled through Turkey and Greece. He had lived for 2 years in the camp known as ‘the Jungle’ in Calais. He had witnessed a fight in which a man had been killed. He had claimed asylum in Germany, but because he had an aunt living in the UK, the UK had agreed to take charge of his asylum application. Although he had originally stayed with his aunt, that relationship had broken down. He had been a looked after child with the local authority (the London Borough of Barnet), but that arrangement had formally come to an end when he became 18 save for occasional support as detailed above (paragraph 5).

A second factor on which Ms Meredith had relied was the delay in dealing with the sponsor’s application for asylum. He had been transferred to the UK from Germany on 1^st July 2016 and he claimed asylum on arrival. He was not granted asylum until 4^th January 2018. Since the sponsor was from Syria and indeed from the Governorate of Dereaa (which even by Syrian standards was particularly troubled) and since there was no question of there being a safe alternative country (since the UK had agreed to take charge of his application for asylum) that length of time was difficult to explain. Solicitors on the sponsor’s behalf had complained about the delay on 2^nd November 2017. The complaint was upheld by the SSHD on 1^st December 2017. When there was still no decision on the sponsor’s application for asylum, the solicitors wrote a Pre-Action Protocol letter on 19^th December 2017. Whether for that or some independent reason, the sponsor was granted asylum, as we have said on 4^th January 2018. The PAP letter also alerted the SSHD to the sponsor’s intention, as and when he was granted asylum to apply for his family in Jordan to join him. Mr Malik submitted that it would not be right to allow the appeal as some form of discipline of the SSHD because of any past delay, if such there had been. He relied on T Afghanistan [2015] UKSC 40. We understand that principle. However, Mr Malik agreed that, if the Tribunal considered that there had been unreasonable delay in deciding the sponsor’s application, that would potentially, be a factor to consider in the overall Article 8 balance.

We accept Mr Malik’s submission that what is required is intensively fact specific. It follows that we have decided this appeal against the particular factual background of the sponsor as it relates to these appellants.

It is not unusual for those who have fled war and persecution to be traumatised, but this sponsor’s mental ill health is striking even by such standards. The medical evidence relied upon is particularly detailed, comprehensive and up to date. The recent report illustrates what was flagged up in the first report. The sponsor suffers severe PTSD. He suffers severe depressive disorder. Depression, as understood by psychiatrists, is not be confused with being downcast at the beginning (or end) of a week. It is a recognised mental illness that has to satisfy internationally agreed criteria. Even so, depression can be classified as mild, moderate or severe. In the sponsor’s case, his is Major depression of the severe subtype.

In the relatively short interval between Dr Datta’s first and second examination of the sponsor (November 2018-June 2019), his PTSD and depression had both deteriorated.

As Mr Malik agreed, an underlying public interest which can be detected behind the 2002 Act s.117B(2) and (3) is the value of those who come to the UK integrating and settling successfully here. The sponsor’s prospects of integrating and settling successfully according to Dr Datta are intimately bound up with whether he can be joined by his family. This is not a case where drugs are a possible alternative. In her second report Dr Datta says ‘Therefore, at present, medication would be contraindicated.’ Nor is therapy an alternative form of treatment. As Dr Datta also said, ‘He is unlikely to be capable of embarking on this challenging trauma related therapeutic work until family reunification has occurred.’ Mr Malik asked us to note that Dr Datta’s view was that this was ‘unlikely’ not impossible. With respect to Mr Malik, we are unimpressed by that distinction.

We recognise that the sponsor does have relatives in the UK. Indeed, it was because of them that the UK agreed to take charge of his asylum application. He does apparently have a friendship with his cousin Omran. However, the relationship, in terms of day to day living with his aunt broke down and that was why he moved out from her home. As Barnet noted in its Care Plan, ‘[A] was previously living with his Aunt in their home. This placement has broken down, as a result of the youngest son (14) in the home not getting on with [A], and this adding stress to the family [redaction] As a result [A] after staying in their house from 01/08/2016 was asked to leave, making him homeless.’ Although there is reference in the Children in Care Reviews and in the sponsor’s and his aunt’s witness statements to contact between them, we accept that this contact is no substitute for the required emotional support that can, according to Dr Datta, only be obtained from his parents. We are aware that Dr Datta has not addressed this directly in either of her reports, but we are satisfied that the overarching tenor of her report is such as to make it plain that the sponsor’s extended family in the UK are of little or no assistance to him in terms of his future integration, establishment and mental well-being.

Since he became an adult, the formal support, save for very limited support from a personal advisor whom he sees at most every three months, from Barnet has come to an end, although Mr Conway, the Housing Officer with the organisation which was assisting the sponsor until he moved to permanent independent accommodation has continued to take an interest in him. Mr Conway gave evidence before the FTT. Mr Conway explains in an updating witness statement of 20^th September 2019 that the sponsor ‘appears to be maintaining his accommodation, avoiding trouble with the law and continuing in education. On this basis he is likely to be lower priority on his personal adviser’s case load compared to some others.’ Mr Conway continues, ‘I consider that [the sponsor] needs consistent, regular, support and care in order for him to be able to open up and deal with the trauma that he has experienced. That type of support is not available from either Barnet Foyer [the organisation for which Mr Conway works] or the Local Authority.... the only path to him fully realising his potential is if his family is able to finally be reunited with him to provide him the close support and care described above.’

The sponsor is not a child. He was not a child when the ECO took his decisions. He was not a child when the FTT allowed the appeal. He is not a child now. It does not seem fruitful to us to attempt to parse precisely which of those dates is the critical one. But, in this context it is relevant that the decision on the sponsor’s asylum application was delayed. It is not necessary for us to decide if the delay was so great as to be unlawful. The delay was anyway such that the solicitors’ complaint was upheld. Had the application been dealt with expeditiously, the sponsor would have been in a position to apply earlier for the Appellants to join him (as the solicitors had indicated in their PAP was his intention). There would in those circumstances, still have been no right for the sponsor to be joined by his family under the Immigration Rules, but, the SSHD would have been obliged in those circumstances to consider his best interests in accordance with s.55 of the 2009 Act. Had the SSHD been obliged to consider the sponsor’s best interests, we have no doubt that it would have been plain that his best interests would have been for him to be reunited with his family. Of course, the sponsor’s best interest would not then necessarily have then been determinative, but they would have been a primary consideration. To that extent the sponsor (and, indirectly, the Appellants) have been prejudiced by the delay. We consider that Mr Malik was right to concede that this is a factor which can properly be taken into account in the overall Article 8 assessment. On its own, this factor would not have had a significant impact, but it is nevertheless a matter we have factored into our decision.

We have recognised that, even though s.55 of the 2009 Act does not apply to children outside the UK, the SSHD’s policy is to have regard to the spirit of the provision so far as children abroad are concerned. We do not consider that this takes the Appellants’ case much further. Of course, we recognise, as we have done, that the conditions of Syrian refugees in Jordan are harsh and they would, no doubt, be better off in England. But, the children in Jordan are with their parents, which is usually the best arrangement for children (see for instance Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC)). The last sentence of paragraph 2.34 of ‘Every Child Matters’ refers to international or local agreements which might require children to be referred to the authorities of other countries. We have not been told of any such agreements that are applicable in this case.

As we have observed, both parties were agreed that the appeals stand or fall together. The SSHD is entitled to comment, in line with the 2002 Act s.117B(2) and (3) that none of the Appellants apparently speak English and none of them are likely (in the short to medium term at least) to be financially independent. We recognise that the total impact on taxpayers could be significant. As against that, if the sponsor does not have the support of his family which Dr Datta considers to be essential for his mental health to recover, he will be a cost to the taxpayer, whereas if he were to recover, Mr Conway’s views suggest that he could be a flourishing member of society. While s.117B(3) means that the Tribunal must be alive to the impact of its decisions on the taxpayer, it would be invidious if the Article 8 balance was seen as no more than a book keeping exercise.

At times in his submissions, Mr Malik suggested that an alternative to the Appellants being granted entry clearance would be for him to visit his family in Jordan. There are, though, several reasons why that alternative is unreal. First, as Ms Meredith observed, it is hard to see how such a temporary visit would provide him with the stability and support which Dr Datta considers essential for his recovery; secondly, Jordan is not a party to the Refugee Convention. The Appellants are able to stay in Jordan for the time being, but their position there is precarious. That may be their least worse alternative. But the sponsor is presently protected. He would be ill advised to go to Jordan for even a temporary visit. In any event, Jordan was where the sponsor was sexually abused. As he says in his witness statement of 28^th July 2016, he fears that if he went to Jordan he would be arrested as he had been before. He would have no rights there. Thirdly, it would be dependent on the sponsor having the means to pay for such a trip. There is no evidence that he does have such means.

We agree with Ms Meredith that the present situation is not directly comparable to some of the other cases where Article 8 of the ECHR has been invoked. Thus, this is not a situation where a foreign criminal opposes deportation on Article 8 grounds. Nor is the present case directly comparable to the situation where a person has no leave to remain but relies on Article 8 to resist their removal. But while those cases will raise considerations peculiar to them, we do agree with Mr Malik that there does have to be something exceptional or compelling about the circumstances of the present case to make the denial of entry clearance, which would otherwise be consistent with the Immigration Rules, a disproportionate interference with the sponsor’s family or private life. In our view, though, there are such circumstances in this case as we have explained.