European Court of Human Rights

 

 

Communicated on 13 January 2014

 

FOURTH SECTION

Application no. 25960/13
I.A.A. and Others
against the United Kingdom
lodged on 15 April 2013

STATEMENT OF FACTS

 

A list of the applicants is set out in the appendix.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The five applicants are all Somali citizens. They comprise four biological siblings, who are currently aged between twelve and nineteen years, and their first cousin and sibling by adoption, who is currently ten years old.

The applicants’ mother (“the Sponsor”) was born in Somalia. She has nine children with her first husband, who disappeared in 2003. The Sponsor subsequently remarried and has one child with her second husband. She has also adopted her niece, who is the fifth applicant in the proceedings before the Court.

In 2003 the Sponsor’s second husband arrived in the United Kingdom where he was granted refugee status.

In 2004 the Sponsor left Somalia to join her second husband in the United Kingdom. She left her children in Somalia in the care of her sister.

In 2005 the Sponsor’s only child with her second husband was granted entry clearance to join the couple in the United Kingdom. In sponsoring the application for entry clearance, the Sponsor did not mention that she had children by her first husband who were still living in Somalia.

In 2006 the Sponsor’s sister moved from Somalia to Ethiopia, taking the remaining children, including the five applicants, with her.

In 2007 the Sponsor divorced her second husband.

In 2009 two of the Sponsor’s children (neither of which is an applicant in the present case) who were living in Ethiopia applied for entry clearance to join her in the United Kingdom. Apparently those children were chosen to join her because one was the youngest and the other was in poor health. The application was initially refused but entry clearance was later granted following a successful appeal to the then Asylum and Immigration Tribunal. In allowing the appeal, the Tribunal accepted first, that the Sponsor had effective sole responsibility for the children abroad; secondly, and in the alternative, that there were serious and compelling family or other reasons which made their continued exclusion from the United Kingdom undesirable; thirdly, that the Sponsor and her children had enjoyed family life together as a unit before the Sponsor travelled to the United Kingdom to join her second husband; and fourthly, that the Sponsor could not reasonably relocate to Ethiopia to care for her children as she would have no job and no means of survival there.

In or around this time the Sponsor’s sister left Ethiopia and returned to Somalia, leaving the applicants in the care of their oldest sibling, who was then sixteen years’ old. The five applicants and their oldest sibling, who is not a party to the proceedings before this Court, applied for entry clearance to join the Sponsor in the United Kingdom.

On 9 February 2009 the Secretary of State for the Home Department refused the applications for entry clearance that had been lodged by the present five applicants on the ground that the applicants did not meet the requirements of paragraphs 297 or 352D of the Immigration Rules HC395 (as amended) because they were not dependent on the Sponsor’s support and they were not the biological children of a recognised refugee. The Secretary of State also considered Article 8 of the Convention but concluded that although there was a limited interference with the applicants’ rights under Article 8, the refusal of entry clearance proportionate and justified.

On 23 February 2010 the applicants’ appeal against this decision was dismissed as the Immigration Judge found that the applicants could not meet the requirements of the Immigration Rules. He further found that Article 8 was not engaged as family life did not exist “at the present time” as contact between the Sponsor and the applicants had been sporadic since 2004. However, on 8 June 2010 permission to appeal was granted as the grounds of appeal raised arguable issues in relation to the manner in which the Immigration Judge had approached the Article 8 issue.

The appeal decision was promulgated on 17 September 2010. While the Immigration Judge had little doubt that the previous judge was correct to find that the applicants could not meet the requirements of the Immigration Rules, he found it to be equally clear that he had not adequately addressed the Article 8 issue. In particular, he had concentrated on whether family life existed “at the present time” when the correct test was whether it had existed at the date of the decision, namely 9 February 2009. Consequently, the Immigration Judge concluded that the previous judge had erred in law and set aside his decision. In reconsidering the Article 8 issue, the Immigration Judge accepted that family life had existed between the Sponsor and the applicants at the date of the Secretary of State’s decision and that the refusal of entry clearance had interfered with that family life. Nevertheless, he concluded that the interference had been proportionate because the Sponsor had made a conscious decision to leave the applicants in Somalia, knowing that the separation might be permanent, and at the date of the decision she had been living separately from them for more than four years.

The applicants sought leave to appeal on the ground, inter alia, that the Immigration Judge had failed to take into account the findings of the Immigration Judge in the first two children’s appeal against the refusal of entry clearance in 2009.

On 3 December 2010 the Upper Tribunal refused the applicants’ application for leave to appeal as it found that the Immigration Judge had considered all the relevant factors in the round and reached a conclusion which was rationally open to him. On 26 January 2011 permission to appeal was also refused by the Court of Appeal. However, on 23 June 2011 the Court of Appeal made an order by consent ordering that the applicants’ appeal should be remitted to the Immigration and Asylum Chamber of the Upper Tribunal.

The new Tribunal promulgated its decision on 26 January 2012. In assessing whether or not the refusal of entry clearance amounted to a disproportionate interference with the applicants’ rights under Article 8 of the Convention, it accepted the conclusions of the Immigration Judge in the two children’s appeal against the refusal of entry clearance. The Tribunal also accepted that the best interests of the children had to be treated as a primary consideration, albeit not the primary consideration, in assessing proportionality and that it was in the applicants’ best interests that they should be allowed to join the Sponsor in the United Kingdom. Nevertheless, the general principle remained true that a foreign national who cannot satisfy the requirements for entry clearance under the Immigration Rules (and the applicants had not disputed that this was the case) would not normally be able to show that his exclusion from the United Kingdom would constitute a disproportionate interference with his Article 8 rights unless he could show good reason why his case should be treated more favourably that the generality of such cases. Moreover, the Tribunal noted that the applicants’ best interests could not be viewed in isolation and it was therefore relevant that the Sponsor had decided to leave them in Somalia, knowing that the separation was likely to continue for the foreseeable future, and that she had allowed five years to pass before attempting to bring them to the United Kingdom, by which time they had long ceased to live together as a family unit with her.

The Tribunal concluded that:

“The circumstances in which the appellants were living together in Addis Ababa at the date of the respondent’s decision, and in which they are still living now, are undoubtedly harsh, to put it at its lowest. Indeed, they may fairly be characterised as harsh. But sadly they are conditions in which vast numbers of other individuals are compelled to live throughout the unhappier regions of the world. The United Kingdom does not have either the room or the resources to provide for all of them. There is no reason in logic why the appellants should be viewed differently from the vast numbers of other unfortunate individuals who would jump at the opportunity of a new and better life in the United Kingdom, but who cannot fulfil the requirements for entry laid down by the Secretary of State in the Immigration Rules and are therefore unable to avail themselves of that opportunity. On the facts of the appellants’ case as presented before me, I am not persuaded that they have shown why they should be treated differently form the generality of foreign nationals in the same or similar position. In short, whilst I accept that their exclusion from the United Kingdom would constitute an interference with their Article 8 rights and those of the third parties affected by their exclusion,, nevertheless that would not constitute a disproportionate interference when balanced against the larger public interest to which I have referred. Their appeals therefore fall to be dismissed.”

In May 2012 the applicants’ oldest sibling, who had been looking after them, left the family unit in Ethiopia and her current whereabouts are unknown. Since then, the applicants have been cared for by the first applicant, who is now nineteen years old.

On 16 October 2012 the Court of Appeal refused permission to appeal as it found that the Immigration Judge had not failed to take into account any relevant factors.

B.  Relevant domestic law

1.  Leave to enter the United Kingdom as the child of a parent who had been granted refugee status

Paragraph 352D of the Immigration Rules contained the requirements for leave to enter as the child of a parent who had been granted refugee status in the United Kingdom. It provided that:

“352D.  The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant:

(i)  is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and

(ii)  is under the age of 18, and

(iii)  is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv)  was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and

(v)  would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and

(vi)  if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity."

2.  Leave to enter as the child of a parent present and settled in the United Kingdom

At the relevant time paragraph 297 of the Immigration Rules contained the requirements for leave to enter as the child of a parent present and settled in the United Kingdom. It provided that:

“297.  The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i)  is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

   (a)  both parents are present and settled in the United Kingdom; or

   (b)  both parents are being admitted on the same occasion for settlement; or

   (c)  one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

   (d)  one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

   (e)  one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or

   (f)  one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and

(ii)  is under the age of 18; and

(iii)  is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv)  can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(v)  can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and

(vi)  holds a valid United Kingdom entry clearance for entry in this capacity; and

(vii)  does not fall for refusal under the general grounds for refusal.”

COMPLAINT

The applicants complain under Article 8 of the Convention that the respondent Government’s refusal to grant them entry into the United Kingdom for the purposes of reuniting with the Sponsor violated their right to respect for their family life.

QUESTIONS TO THE PARTIES

 

1.  As far as the enjoyment of their family life is concerned, can the applicants, despite being in Ethiopia and never having been to the United Kingdom, be regarded as coming within that State’s jurisdiction for the purposes of Article 1 of the Convention by reason of their request for entry clearance in order to join their mother there?

 

2.  Did the refusal of entry clearance violate the applicants’ right to respect for their family and private life under Article 8 of the Convention?




 

APPENDIX

 

1.  I.A.A., who was born on 1 January 1994, is a Somali national who is currently living in Ethiopia. She is represented by Asylum Aid.

2.  Z.A.A., who was born on 8 May 1996, is a Somali national who is currently living in Ethiopia. She is represented by Asylum Aid.

3.  B.A.A., who was born on 3 January 1995, is a Somali national who is currently living in Ethiopia. He is represented by Asylum Aid.

4.  A.A.A., who was born on 3 April 2001, is a Somali national who is currently living in Ethiopia. He is represented by Asylum Aid.

5.  A.M., who was born on 7 July 2002, is a Somali national who is currently living in Ethiopia. She is represented by Asylum Aid.