APPEAL No. [2003] UKIAT 00174

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 October 2003

Date Determination notified: 31 December 2003

Before

Mr. J. Barnes (Chairman)
 Mrs. M. Padfield

Between

	APPELLANT	
and	 	
ENTRY CLEARANCE OFFICER, ADDIS ABABA
	RESPONDENT	

For the Appellants:	Mr. P. Lewis, of Counsel instructed by Wilson & Co.
For the Respondent:	Ms. K. Evans, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	The Appellants are respectively the mother, three brothers and uncle of their Sponsor, Abdullahi Aden Ahmed. They are all citizens of Somalia, and the Sponsor is settled in the United Kingdom with indefinite leave to remain having been recognised as a refugee from Somalia. The Sponsor’s mother was born on 1 January 1950. His brothers Abdirisak, Mohamed, and Jamal were born respectively on 15 May 1979, 26 June 1981, and 23 September 1988, and the youngest was a minor at the date of the application for leave to enter the United Kingdom. The fifth Appellant is the Sponsor’s uncle born on 1 January 1975. 

2.	The application for entry clearance, described as an application for family reunion, was made by a letter dated 30 March 2000 and the Applicants then included, in addition to the present Appellants, the Sponsor’s wife and their two infant children born respectively in 1994 and 1997. The Sponsor’s wife and his infant children were all granted entry clearance and joined the Sponsor here. Since the reunion of the immediate family, two further children have been born to the Sponsor and his wife in the United Kingdom.

3.	The Sponsor arrived in the United Kingdom as an asylum seeker on 6 February 1998, having travelled from Ethiopia where he had, until his departure, lived with and formed the head of the family comprising the Appellants, his wife and two infant children. He was granted indefinite leave to remain in the United Kingdom on 6 March 2000 on the basis that he had a well-founded fear of persecution in Somalia, and as will be apparent, the applications for entry clearance out of which the present appeals lie, were then made very shortly after his immigration status here was settled. The applications of each of the Appellants were refused by the Respondent on 15 June 2001 on the basis that, save for Jamal, none of them complied with the requirements of paragraph 317 of HC395, the relevant Immigration Rules. In the case of Jamal, the basis of refusal of the application was a failure to comply with the requirement of paragraph 297 of HC395 since this was the paragraph of the Rules applicable having regard to his age.

4.	The Appellants appealed against those decisions on both asylum and human rights grounds and their appeals were heard on 5 February 2003 by an Adjudicator, Mr. M. P. Keane. The reason for the delay between the decisions and notices of appeal and the hearing is that the explanatory statement and supporting documents were not supplied to the Immigration Appellate Authority until on, or shortly after, 28 October 2002, the date of the explanatory statement. This discloses also that the Secretary of State had considered the applications exceptionally outside the Immigration Rules in accordance with family reunion policy. It is pertinent to set out in this respect what is said in the explanatory statement:

‘2.6.  The Secretary of State also considered the applications exceptionally outside the Immigration Rules in accordance with the family reunion policy. Under this policy the existing spouse and minor children are to be permitted to join a recognised refugee if they formed part of the refugee’s family unit before he fled to the United Kingdom. In compelling and compassionate circumstances consideration may be given to the admission of other dependent relatives if they also can be shown to have formed part of the family unit.

‘2.7    The Appellants were not the spouse or minor children of the Sponsor. Whilst it appears that the Appellants may have been living with the Sponsor before he came to the United Kingdom (although this is by no means entirely clear) there were no compelling and compassionate circumstances. Accordingly, the Secretary of State was not minded to exercise his discretion in the Appellants’ favour under the family reunion policy.

‘2.8  The Secretary of State further considered the application outside the Immigration Rules. However, there was no reason why the Appellants could not look after each other, and their circumstances were not such as to persuade him to exercise discretion in their favour and grant entry clearance outside the Rules.’

5.	To the extent that those decisions were made outside the Rules on the basis of the exercise of a discretion by the Respondent at the direction of the Secretary of State to whom the applications had been referred for guidance (paragraph 2.8 above), they were not justiciable before the Adjudicator by virtue of paragraph 21 (4) of schedule 4 of the Immigration and Asylum Act 1999 which precluded the Adjudicator from considering the merits of that exercise of discretion. The reasoning at paragraphs 2.6 and 2.6 above was, however, pursuant to consideration of the Secretary of State’s published policy and therefore was justiciable before the Adjudicator (see Re Abdi [1996] Imm AR 148), but involved considerations similar to those which led the Adjudicator to reject the claims under paragraphs 297 and 317 of HC395. Nevertheless, the consideration outside the Immigration Rules is of relevance. Although there is nothing expressly stated to show that the Secretary of State or the Respondent formally considered whether refusal of entry clearance for settlement was in breach of the United Kingdom’s obligations under Article 8 of the European Convention, the fact of the consideration given does seem to us to have relevance to considering the degree to which the Secretary of State has effectively taken into account matters relevant to the question of proportionality of removal for the purposes of Article 8 (2) of the European Convention if the decisions made engage Article 8 (1) by a failure to give appropriate respect to any existing private or family life between the Appellants and the Sponsor.  In this respect we bear in mind that it is the policy of the Secretary of State in such circumstances to take into account the international obligations of the United Kingdom and that the United Kingdom was then a signatory to the European Convention even though it had not been formally incorporated into English law by the coming into operation of the Human Rights Act 1998. Indeed, the Immigration Rules themselves have been and are refined by the Secretary of State as necessary to reflect current developments in Strasbourg human rights jurisprudence.

6.	Before the Adjudicator the appeals were fully argued with appropriate supporting evidence on the basis first, that the Appellants did comply with the relevant requirements of paragraphs 317 and 297 respectively of HC395, but the Adjudicator dismissed the appeals on those grounds and there is no challenge to his decision in this respect or in relation to the Abdi point before us. 

7.	We are concerned only with the challenges mounted to the Adjudicator’s dismissal also of the appeals before him under Article 8.

8.	We set out at paragraph 18 below the law as to the approach to proportionality in entry cases but it is appropriate that we should at this point record the provisions of Article 8, which are as follows:

‘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 freedom of others.’

9.	The Adjudicator made the following findings at paragraph 19 in respect of the past history of the Appellants, the Sponsor and his immediate family:

‘The Sponsor and the Appellants are each citizens of Somalia. The Sponsor’s father was murdered by the United Somali Congress in 1991 and the family as a whole were displaced from their home or homes. They have lived since 1993 in a refugee camp situated in Addis Ababa. The [Sponsor] left the camp in 1998 and travelled to the United Kingdom. He made a claim for asylum and was recognised as a refugee in March 2000. In that year an application was made on behalf of the Appellants [and the Sponsor’s wife] that they be granted leave to enter the United Kingdom. [The Sponsor’s wife] duly arrived in the United Kingdom with her two children. The applications insofar as the Appellants were concerned did not succeed. Since her arrival in the United Kingdom, the Sponsor and [his wife] have had a further two children. The Appellants live in difficult circumstances in the refugee camp. Halima Warsame suffers from hypertension, rheumatism, and has dizzy spells. Jamal Ahmed suffers from tuberculosis. Farah Warsame lost a leg in the Civil War conflict and suffers from an ulcer and a gastric condition. The Appellants have received financial support from the Sponsor after he arrived in the United Kingdom. The Appellants dearly wish to join the Sponsor in the United Kingdom. The Sponsor is acutely concerned at the states of health of the Appellants and their general living conditions.’

10.	 In his consideration of the requirements of the Immigration Rules, the Adjudicator went on to make further findings which are pertinent at paragraphs 20 and 21 of his determination as follows:

‘20.     I find that the first four-named appellants [that is, excluding Jamal] at the date of the respondent’s decision were not living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom. I now provide the reasons for my finding. First, although I should acknowledge that the appellants have been living in difficult circumstances when the medical conditions of Jalima Warsame, Farah Warsame and Jamal Ahmed and their general living circumstances are taken into account, the appellants on the evidence have coped with those circumstances. They have received some financial assistance from the sponsor and I should not construe the provisions of paragraph 317(i)(e) of the Rules as if the sponsor had not been providing financial assistance. Second, the appellants have not been living alone outside the United Kingdom. They have been living together as a close family unit in a camp or camps situated in Addis Ababa. For that reason alone I should not regard them as being either physically isolated or psychologically isolated in the sense of being cut off from members of their family, relatives or friends. Third, although I have found that the sponsor provided some financial support to the appellants I am not prepared to find that the appellants were mainly dependent financially on him in view of his own financial circumstances as a recipient of income support.

‘21.       I find that in the case of Jamal Ahmed there are not serious and compelling family or other considerations which make his exclusion from the United Kingdom undesirable. Again, in the case of Jamal Ahmed I should acknowledge that at the date of the respondent’s decision he had been living in very difficult circumstances. Nevertheless, he had been a part of a settled family unit and was being cared for by Halima Warsame and his close family members. He and the remaining appellants are impoverished but receive support from the sponsor. Jamal Ahmed received physical care and emotional support from the remaining appellants’.

11.	 A little later, at paragraph 24 he said this:

‘The sponsor was prepared to leave the appellants in Ethiopia. The evidence did not suggest that either they or he had experienced persecution at the camp or in Ethiopia. The appellants are plainly able to provide support to each other although they live in difficult circumstances. Accordingly, I find that the respondent took into account the family reunion policy and gave effect to it…I find that the decision under appeal is in accordance with the law. The respondent further considered the applications for leave to enter exceptionally [outside] the immigration rules. In deciding not to exercise his discretion in favour of the appellants he had in mind his conclusion that the appellants were not living in the most exceptional compassionate circumstances.’

12.	 The Adjudicator then went on to consider whether Article 8 was engaged and found that it was. He gives his reasons at paragraph 28 as follows:

‘I find that family life existed at the date of the hearing between the Appellants and the Sponsor. I find that a deep and meaningful family life existed between the Appellants and the Sponsor. I find that the Sponsor espouses a degree of commitment to the Appellants and that they expect him to discharge that commitment.’

13.	 Although we have some reservations as to whether family life does exist, the Adjudicator’s finding in this respect has not been challenged by the Respondent, and given the particular history of the family, the fact that it was also accepted that the Sponsor had become the head of the extended family on the death of his father, had provided some financial support after his arrival in the United Kingdom and had sought family reunion as soon as his own immigration status here was established on a basis that would support it, it may be that the Adjudicator’s finding in this respect is in any event sustainable on the totality of the evidence. The finding is not, as we say, challenged on the part of the Respondent and we have therefore proceeded on the basis that it stands for the purposes of this appeal.

14.	At paragraph 33 of the determination the Adjudicator found that the refusal of entry to the United Kingdom was proportionate in the public interest and he gives six reasons for that conclusion to which we must briefly refer as some of them are the subject of challenge in the grounds of appeal. They are as follows:

(1)The right of the United Kingdom to control entry of non-nationals under international law; 

(2) That Article 8 imposes no general obligation to authorise family reunion;

(3) The Sponsor chose to leave the Appellants in circumstances where none of them were experiencing persecution in Ethiopia and it was his action which led to the separation of the family;

(4) Only Jamal is a minor;

(5) The Sponsor could return to the camp in Addis Ababa to resume family life with the Appellants so that there are no insurmountable obstacles to family reunion in this fashion;

(6) Apart from any Article 8 claim, the Appellants each had a right to make an application to enter under the Immigration Rules and the fact that they might not succeed did not render refusal of admission disproportionate.’

15.	 Mr. Lewis submitted that the fifth reason was not sustainable. The recognition of the Sponsor as a refugee meant that he could not be expected to return to Somalia but he had no status in Ethiopia other than having formerly been a refugee there so that he had no right of entry there to rejoin the Appellants. That of itself constituted an insurmountable obstacle to his so doing, quite apart from the fact that it would be wholly unrealistic to expect the Sponsor to return with his wife and now four children and to expose them to the dangers of living as refugees. We agree with Mr. Lewis’ submission.

16.	As to the Adjudicator’s sixth reason, the challenge made was that the Appellants had sought entry clearance under the immigration rules and had been unsuccessful. To say that they had such a right when patently they could not succeed was unreasonable in relation to proportionality under Article 8. In this respect we do not agree with Mr. Lewis’ submission. In considering whether a refusal in the public interest is proportionate under Article 8 (2), the provisions of the law of the refusing state and its practice seem to us to be highly relevant to the general issue of proportionality of the approach of the state concerned. If, under its own laws, a state makes no provision for the admission of family members either in the close sense of spouse and children, or of members of the wider family who may have claims based on particularly compassionate circumstances, then it seems to us that such a state may well have greater difficulty in demonstrating that removal or exclusion is proportionate than in circumstances where such humanitarian and compassionate needs are reflected in the State’s own domestic law. In the case of the United Kingdom, there is extensive such provision, both within the Immigration Rules and by way of extra-statutory discretion as appears from the treatment of the present Appellants. Given the margin of appreciation which is to be accorded to the State as to the regulation of admission of aliens, the degree to which such provisions exist under domestic law is, to our mind, highly relevant when considering issues of proportionality under Article 8(2) of the European Convention. This really follows from the first and second factors which the Adjudicator took into account and is reflected in the judgement of the Master of the Rolls in Ullah and Do [2002] EWCA Civ 1856 where, after reviewing the Strasbourg jurisprudence, he concludes that it illustrates that the public interest derogation under Article 8(2) will often trump or outweigh any consequent interference with private rights. 

17.	As to the third factor, insofar as it is based on the discontinuance of the family life by the Sponsor’s departure from Ethiopia, it is somewhat difficult to reconcile this with the Adjudicator’s finding that there is an extant deep and meaningful private life between the Sponsor and the Appellants. It seems to us the inference from the factual findings of the Adjudicator that the Sponsor left Ethiopia for the United Kingdom not because he was seeking to abandon his family there but because he was seeking to improve their lot. The fact of some financial support from his arrival in the United Kingdom coupled with the making of the applications out of which the present appeals lie, made immediately once his immigration status was assured, strongly militates against there being any intentional abandonment and consequent disruption of family ties on his part. Given the acceptance of the existence of family life, it does not seem to us that that factor has any real relevance to the issue of proportionality.

18.	In the course of submissions we were referred to the Tribunal determination in Shamim Box [2002] UKIAT 02212, cited with approval in Kugathas v SSHD [2003] EWCA Civ 31, and we agree with the approach there recommended to proportionality in entry cases. Paragraphs 29 and 31 of Shamim Box seem to us particularly relevant in explaining the proper approach as follows:

‘29. Leading cases in Strasbourg have consistently viewed the relevant criteria under Article 8 in cases involving entry as requiring not an analysis of whether the decision interferes with a Claimant’s right to respect for private and family life (a negative obligation) but an analysis of whether it amounts to a breach of a State’s positive obligation to respect private and family life. In Abdulaziz v UK (1985) 7 EHRR 471, the Court clarified that when considering the extent of a State’s obligations to admit to its territory relatives of settled immigrants, it was necessary to focus on the positive obligations inherent in the notion of ‘respect’ and to examine whether there had been a lack of respect for family life. Another leading case is Ahmut v the Netherlands (1997) 24 EHRR 62, which concerned an application made in Tangiers from a child to be granted a residence permit authorising him to rejoin his father in the Netherlands. At paragraph 63 the Court reasoned as follows:

‘The present case hinges on the question whether the Netherlands government was under a duty to allow Souffiane to reside with his father in the Netherlands, thus enabling the Applicant to maintain and develop family life in its territory. For this reason the Court will view the case as one involving an allegation of failure on the part of the Respondent State to comply with a positive obligation’….

‘31.  It must be emphasised straight away that whilst the approach to Article 8 in the case of an entry decision is different than in a removal case, Strasbourg has never seen this to entail a significant difference in underlying criteria. As the Court said earlier on at paragraph 63 of Ahmut :

‘The court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authority. There may in addition be positive obligations inherent in effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definitions. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fine 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 enjoys a certain margin of appreciation.’

19.	It was Mr. Lewis’ submission to us that not only the Sponsor but the other family members in Ethiopia were living there illegally. We do not accept that submission. The family moved to Ethiopia in 1993 and the Appellants continue to live in a refugee camp there so that they have now been there for upwards of ten years. We accept that they may not have a formally settled status there, and we have already accepted that there is no evidential basis for saying that the Sponsor, as a departed refugee from Ethiopia, will be able to re-enter that country in that capacity now. It was claimed that the family feared they might be repatriated to Somalia. No doubt that is a fear on the part of many of the Somali refugees in Ethiopia but there is no evidence that the Ethiopian government acts in such a way and the Adjudicator found specifically that neither the Appellants nor the Sponsor had been ill-treated in Ethiopia although the conditions under which they lived were hard and sparse. Mr. Lewis conceded that the effect of refusal of admission was neutral in the sense that the situation which had existed since the Sponsor’s departure would be maintained save that he claimed that conditions in Ethiopia were deteriorating. No evidence as to this has been adduced before us and we have already set out the findings of the Adjudicator at paragraphs 20 and 21 of his determination which bear on this issue. 

20.	It was Mr. Lewis’ submission to us that in considering the respect for family life which was due to the Appellants, the Secretary of State should have taken into account that mutual dependency was accepted to exist between the wider family in Somalia and similar societies as had been recognised by the former Somali family reunion policy, a factor which he submitted we could have regard to in considering proportionality. It was incumbent on the Secretary of State to consider the specific nature of the relationship between the Appellants and the Sponsor and the relevant respect was not sufficiently demonstrated by the provisions made in general terms under the Immigration Rules. The refusal of admission would affect the level and intensity of the family life which had existed prior to the Sponsor’s departure from Ethiopia.

21.	We accept, as he submitted, that the position of the Appellant must be considered against the background of the Strasbourg jurisprudence, but that jurisprudence makes it clear that the existence of family life without more is accepted only in the case of the relationship of husband and wife and parent and dependent infant child, the situations in respect of which the Immigration Rules of our domestic law already make very substantial provision for family reunion. In other more remote family relationships, the very existence of family life depends upon special dependency requirements and this different level is reflected in the broad domestic law provisions under paragraphs 297 and 317 of HC 395 where it is accepted that the Appellants do not meet the exceptional compassionate circumstances required to satisfy the Immigration Rules. Nor, on the history of the present appeals, did the Secretary of State consider that the circumstances of the Appellants justified discretionary treatment outside the provisions of United Kingdom domestic law although at the time of such consideration the United Kingdom was a party to the European Convention as part of its international obligations and this factor would be relevant to the extra statutory discretionary consideration. 

22.	It was submitted by Mr. Lewis that, following Razgar [2003] EWCA Civ 840, it was for the Adjudicator or the Tribunal  to carry out the balancing exercise because the Respondent had not done so. Whilst we accept that the Respondent, acting on the advice of the Secretary of State, does not deal with Article 8 issues in the explanatory statement, it does not seem to us that these appeals fall wholly within the Razgar principle because all relevant facts were known to the Respondent at the time of making the decision and the refusal to exercise discretion, as recorded at paragraphs 2.6 to 2.8 of the Explanatory Statement, followed considerations that were based on public policy including the applicability of Article 8 obligations as explained at paragraphs 5 and 21 above. It seems to us that the present case is far more analogous to that which applied in Blessing Edore [2003] EWCA Civ 716, where it was held that if the Secretary of State has made a decision on proportionality under Article 8 on the basis of the full factual situation, his decision should be considered subject to the margin of appreciation to be accorded to it and interfered with only where it is plainly wrong.

23.	In that respect, we take due notice of Ms. Evans’ submissions to us that the former Somali family reunion policy (in contrast to the general policy relating to family reunion which was considered) had not applied for some time at the date of the decision by the Respondent. Its discontinuance was a policy decision by the State and it seems to us that in those circumstances Mr. Lewis cannot rely on former policies in support of his submissions on proportionality. Further, it seems to us that, given the matters rehearsed at paragraphs 2.6 to 2.8 of the explanatory statement which we have set out above, it cannot be said on the facts that the Respondent was plainly wrong in his decision to refuse entry clearance. We accept that it was a situation where it could fairly have been decided either way. We note Ms. Evans’ submission that there is a distinction in connection with wider family members and that if Mr. Lewis’ submission were correct, then it would be difficult to refuse the application of any extended family member living in circumstances which attracted sympathy. This would, however, be to impinge on the important right of the Secretary of State to regulate those whom he is prepared to admit. Taking account of the competing interests of the State and the individual, we have formed the view, on the accepted evidence, that it cannot be said that the decision of the Respondent is plainly wrong and that it follows that it is proportionate to the legitimate interests of the State under Article 8 (2).

24.	If we are wrong in that approach and it is for the Adjudicator or us to carry out the balancing exercise, we would not on the facts differ from the conclusion at which the Adjudicator arrived, albeit we would discount his third and fifth reasons as we have explained above. There is no reason to think that the Sponsor will not continue to provide such supplementary financial support as he is able to give. The State is entitled to regulate entry into its territory and is not seeking to do so on a capricious basis but after due consideration of all relevant factors. The interference in the right to respect for family life is proportionate to the legitimate interests of the state in regulating immigration.

25.	Whilst, therefore, we naturally have sympathy with the situation of the Appellants, we nevertheless find, albeit for slightly different reasons from those applied by the Adjudicator, that the human rights claim is not made out in respect of any of the Appellants.

26.	These appeals are accordingly dismissed.

Mr. J. Barnes
Vice President