England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Senior Immigration Judge Eshun
OA48590919459

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2012

Lord Justice Toulson :

1. The appellants are five Somali nationals currently living in Ethiopia. The first, third and fourth appellants are children of the sponsor by a former husband. The second and fifth appellants are her niece and nephew. They claim that respect for their family life under Article 8 of the European Convention on Human Rights requires that they should be permitted entry to the UK in order to achieve family reunion. They do not meet the criteria in the Immigration Rules for admission of family members because the sponsor does not have refugee status and they would not be able to live in the UK without recourse to public funds. Their applications for leave to enter the UK were refused by the Entry Clearance Officer. The youngest was then 12 and the oldest was 15. Their appeals were dismissed by Immigration Judge Wiseman in a decision dated 29 March 2010. They were given permission to appeal to the Upper Tribunal by Senior Immigration Judge Storey but their appeals were dismissed by Senior Immigration Judge Eshun, in a decision dated 19 January 2011.
2. The appellants were given leave to appeal to this court by Sir Richard Buxton on two points. The first point concerns the question of the reasonableness of relocation by the sponsor and, in particular, whether different considerations apply depending on whether the Home Secretary's decision is one of removal or refusal of entry clearance. The second point is whether sufficient weight was given to the best interests of the children.

The facts

3. The sponsor's first marriage ended in divorce in 1991. In 1992 she married her second husband. The first, third and fourth appellants are children of that marriage. The marriage ended in divorce in 1996. In the same year her half brother was also divorced. He was the father of the second and fifth appellants. From that time on the sponsor and her half brother shared a home looking after the five appellants together.
4. In 1997 the sponsor remarried her first husband. He came to the UK in January 2003 and applied for her to join him here in 2004. She was given leave to enter as his spouse. She said that the plan was for her three children to follow, but after she arrived in the UK her husband insisted that he was not going to apply for them to come because they were not his children and he did not want to look after someone else's children. She remained in the UK but she and her husband were divorced under Islamic law in 2006. She said that she searched for a way to reunite with her children but did not have the financial means or the knowledge of how to go about it.
5. In 2008 the sponsor's half brother was killed. A neighbour took care of the five children and contacted the sponsor. He told her that he was leaving for Ethiopia to avoid the violence in Somalia. She pleaded with him to take her children with him to Ethiopia so that she could apply to have them with her.
6. The sponsor has visited the children on two occasions. In May 2008 she went to stay with them for six weeks in Djibouti. That was shortly before the children moved to Ethiopia. Their applications for leave to enter the UK were made in April 2009 and refused on 2 June 2009. In July 2009 she visited them for a month in Addis Ababa.
7. The entry clearance officer found that the appellants did not meet the requirements of the Immigration Rules for entry as family members and there is no longer an appeal against that decision. As to article 8, the refusal letter stated:

"Although there may be perceived interference with your right to family life under Article 8, such interference is justified for the purpose of maintaining an effective immigration control, is proportionate to that aim and does not therefore breach your convention rights. I can see no insurmountable obstacles to your sponsor returning to Addis to maintain family ties and I note that she has now divorced her husband in the UK; the reason for her going to settle in the UK is therefore no longer relevant."

IJ Wiseman's decision

8. The sponsor gave evidence through a Somali interpreter and the judge said that he found her evidence in overall terms to be credible.
9. He accepted that she had cared for all five children for a significant number of years before setting out for the UK on a spouse visa at the end of 2004. He accepted that at that time she had wanted to bring her own three children to this country and that she had done her best to keep in contact with the children in the intervening period. She had sent them some limited financial assistance as well as visiting them on the occasions to which I have referred.
10. In her witness statement the sponsor described the circumstances of the appellants in Ethiopia. They had no legal status there and could be removed to Somalia at any time. They did not go to school and spent all their time in one room accommodation. The room had no heating and they did not know how to cook. She said that they were very vulnerable and needed her love, care and support.
11. The judge said at para 95 of his determination :

"I am satisfied that there is family life of a limited kind; I believe I can properly find that the decision of the respondent interferes with family life in a significant way in the sense that it prevents all the family members living together. I am also satisfied that the decision to refuse these applications was lawful and that the ultimate decision for me is under the terms of Article 8(2) and whether the refusal is proportionate or disproportionate (in this case) to the overall interests of immigration control and to the rights of others …I am sure that the circumstances in Ethiopia are harsh and that the appellants would be very much better off and better looked after if they were in this country. However they are the circumstances in which millions of people are obliged to live in less developed parts of the world."

12. He then addressed the arguments on either side about proportionality. He began by saying at para 97:

"The general point most favourable to the family in this case is of course the considerable pressure that there is throughout the case law and this jurisdiction generally towards family reunion where possible because of its importance."

13. He then identified a number of factors which pointed against the sponsor's position. He said at para 98 that:

"…when all is said and done, she did prefer some five years ago to come and live with her then husband in this country and ceased looking after the children, without any clear knowledge that they would be able to be reunited."

14. As to her ability to join the appellants, he said at para 99:

"Although circumstances and status can hardly be suggested to be favourable, she can clearly gain entrance to Ethiopia (she has already done) and presumably her position there would be no better or worse than the children themselves."

15. The judge said that the starting point for the final decision-making process was the Immigration Rules, which were themselves intended to be Article 8 compliant, but he recognised that there had been many decided cases in which individual circumstances had led to successful Article 8 applications and which had stressed the importance of family life. He observed that many of them involved individuals already living in this country with close ongoing family relationships and private lives to consider. He commented at para 101 that:

"…a decision whether or not to bring such family life (which may often have lasted many years) to an end by removing an individual from this country is very much more likely to lead to a favourable Article 8 decision where entry clearance is being sought. If one were to take an equivalence to this case, there would be an enormous difference between disrupting a family life that has gone on day to day in this country for five years and (as here) allowing such family life to recommence after five full years when the sponsor and the children have not lived together at all."

16. He regarded it as very relevant that immigration control involved consideration of public funds which in the present case would be considerably affected if the appeals were successful.
17. He concluded that the entry clearance officer's decisions were not disproportionate.

SIJ Eshun's decision

18. In dismissing the appeal SIJ Eshun said:

"Counsel's principal argument was that the Immigration Judge failed to consider whether it would be reasonable for the sponsor to relocate to Ethiopia to be with the appellants. I accept that the Immigration Judge did not consider the question of the reasonableness of the sponsor's relocation to Ethiopia. I do not find his failure to do so fatal to his decision. The reasonableness test does not have the same application to entry clearance cases that it has to removal cases."

19. She added:

"It has to be borne in mind that the sponsor is not a refugee…; she did not leave Somalia because she was in fear of her life. She came to the UK to join her husband. While she may have trusted her husband who let her down, as found by the Immigration Judge, she preferred to come to the UK to live with her husband in the UK and cease looking after the children, without any clear knowledge that they would be reunited in the UK. Furthermore, the obligation to promote family life between appellants and sponsors has to be measured against the legitimate public interests. Whilst it is extremely unlikely that the wages of an unskilled female worker in Ethiopia would be sufficient to support a family of six, it does not mean that the alternative is for the family to be reunited in the UK and become a burden on public funds."

The law

20. It is common ground that SIJ Eshun was wrong to sideline the question whether the sponsor could reasonably be expected to live with the appellants in Ethiopia as unimportant on the ground that this was a refusal of entry rather than a removal case. However, Ms Chan submitted on behalf of the respondent that IJ Wiseman did in fact consider that question, contrary to SIJ Eshun's reading of his determination. That is a matter to which I will return.
21. As IJ Wiseman correctly recognised at para 97, the case law at Strasbourg and in the UK places a high value on the ability of families to live together. It is well established that in this regard there is both a positive and a negative obligation under article 8. The positive obligation requires the state, in particular, to admit to its territory children of settled immigrants who are minors unless there are sufficiently strong countervailing reasons to make it proportionate to refuse entry. In the leading case of Huang [2007] UKHL 11, [2007] 2AC 167 Lord Bingham said at para 20:

"In an article 8 case where this question [i.e. the question of proportionality] is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices to the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide."

22. In stating that principle he drew no distinction between refusal of leave to enter and refusal of leave to remain. However, that is not to say that, in the application of the principle, the question of proportionality between proper immigration control and proper respect for family life need be answered in the same way (a) in a case of refusal of entry which is sought for the purpose of family reunion and (b) in a case of removal which would break up a family. Each case has to be considered on its own facts.
23. The trauma of breaking up a family and thereby rupturing family ties may be significantly greater than the effect of not facilitating the reunion of a family whose members have become accustomed to living apart following a decision by part of the family to live elsewhere.
24. Where entry is sought for the purpose of family reunion the Immigration Rules, laid before Parliament, represent an attempt by the government to strike a fair balance between respect for family life and immigration control, which includes economic considerations. Different rules apply to a child seeking leave to enter the UK in order to join a parent who has refugee status (352 D) and a child who seeks leave to enter the UK as the child of a parent or relative in the UK who does not have refugee status (297). The respondent submits, and I would accept, that it is within the state's "margin of appreciation" to set those rules; as a matter of generality the requirements are proportionate, but the rules are the beginning and not the end of the matter. The authorities provide examples of cases which fall outside the rules where the positive obligation of the state under article 8 requires the giving of leave to enter. Such cases are often difficult and require close analysis of the facts.
25. In all such cases the best interests of the children involved are a consideration of high importance, but are not necessarily determinative of the outcome. It has been said that they are "a primary consideration" but not "the primary" or paramount consideration. They are important, but, depending on the facts of the case, in the final evaluation other considerations may carry greater weight. See Uner v Netherlands [2007] 45 EHRR 14, ZH (Tanzania) v SSHD [2011] UKSC 4, [2011] 2 AC 166 and Entry Clearance Officer – Kingston v Livingstone (a decision of the Upper Tribunal Immigration and Asylum Chamber delivered by the President on 1 December 2011, appeal number 0A/04901/2011).

Was there an error of law in the immigration judge's determination?

26. Mr Drabble QC argued first that it was implicit in the determination that the sponsor could not reasonably be expected to relocate to Ethiopia. On that premise the refusal of entry involved a breach of article 8. Alternatively, the immigration judge needed to spell out clearly why the decision did not involve a breach of article 8, which he failed to do.
27. The premise to the argument is founded on the statement in para 95 of the determination:

"I believe that I can properly find that the decision of the respondent interferes with family life in a significant way in the sense that it prevents all the family members living together."

28. Mr Drabble argued that the immigration judge thereby implicitly found that it was not reasonable for the sponsor to relocate to Ethiopia. He must therefore have been referring merely to holiday visits (of the kind which the sponsor had previously made), when he said at para 99:

"Although circumstances and status can hardly be suggested to be favourable, she can clearly gain entrance to Ethiopia (she already has done) and presumably her position there would be no better or worse than the children themselves."

29. I am not persuaded that this is a correct reading of the determination. As Etherton LJ pointed out during the argument, the language of para 99 strongly suggests that the immigration judge had in mind something more than holiday visits. Why else did he refer to the matter of "status" and describe her position as being "no better or worse than the children themselves"? If the immigration judge had there been meaning to say merely that the sponsor could maintain the same degree of family life as she had enjoyed with the children in the preceding five years by continuing to make holiday visits, he surely would have said so. It seems to me clear that he had in mind in that paragraph something more than holiday visits.
30. It is inherently unlikely that the immigration judge meant opposite things in paras 95 and 99. The determination has a logical structure and the appearance of careful preparation. In para 95 the immigration judge was addressing in sequence the familiar list of questions which arise on an article 8 challenge to a decision on removal or entry. The first question was whether there was a relevant family life to consider. If so, the second question was whether the consequences of the decision amounted to an interference significant enough potentially to engage the operation of article 8. If so, the third question was whether the decision was lawful. If so, the ultimate question was whether the refusal was proportionate. In addressing the second question, the immigration judge described the decision as significant in that "it prevents all the family members living together". So it did, in the sense that the application was for the appellants to come to live with the sponsor and the refusal prevented them from doing so. Reading the determination as a whole, I do not consider that he was there meaning to address the separate question whether they could live together elsewhere. He addressed that question specifically at para 99. I do not therefore accept the premise to Mr Drabble's first argument.
31. If the premise to the first argument failed, Mr Drabble's second argument was that the immigration judge failed to address the issue whether family life could reasonably be expected to be enjoyed elsewhere. He submitted that Senior Immigration Judge Eshun was right to recognise that the immigration judge did not consider that question, and he submitted that the judge's failure to do so was a fatal flaw in his determination.
32. Ms Chan submitted that it is clear from a careful reading of the determination that the immigration judge did consider the question. At para 95 he acknowledged the harshness of the appellants' circumstances in Ethiopia and accepted that they would be very much better off in this country, but he said that their circumstances were no worse than those in which millions of people are obliged to live. At para 99 he said that the sponsor's position there would be "no better or worse than the children themselves", that is, no worse than the conditions in which large numbers of people sadly have to live. Ms Chan submitted that the immigration judge took into account the gravity of the conditions which would face the family in Ethiopia, like many others, and did not consider them to be such as to make the refusal of entry disproportionate in all the circumstances.
33. In riposte Mr Drabble advanced what I regard as his strongest argument, that the reasoning to support the immigration judge's conclusion was not sufficiently explained. Challenges to the adequacy of reasons are frequently made. Brevity and succinctness can be merits, but the reasons do need to show what conclusions were reached and how they were reached on the essential issues. The degree of detail required depends on the nature of the issues. In South Bucks District Council v Porter (2) [2004] UKHL 33, [2004] 1 WLR 1953, para 26, Lord Brown said:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration."

34. This was a difficult case. The question whether it would be reasonable to expect a person to relocate sounds straightforward, but, between cases where the facts render an obvious negative or affirmative answer, there may be cases where the harshness of such an expectation is a matter of degree which forms part of an overall evaluation whether or not a decision refusing entry would be disproportionate. There may be cases where one would hesitate to say that a person could reasonably be "expected" to relocate (because they would have very understandable reasons for not doing so), but where an evaluation of all the relevant factors might nevertheless properly result in a refusal of leave to enter, despite the degree of hardship which would be involved in relocation. Such cases call for particularly careful evaluation. In this case I do not think that para 99 ("Although circumstances and status can hardly be suggested to be favourable, she can clearly gain entrance to Ethiopia (she has already done) and presumably her position there would be no better or worse than the children themselves") was sufficient. By way of example, the sponsor had made the point that in Ethiopia she would have no income. In argument Ms Chan suggested that the sponsor's other half-brother, who lives in the UK and presently sends money to the appellants, might be expected to continue to do so and that this would provide some family support. However, the immigration judge did not consider the question of her support.
35. Ms Chan also sought to uphold the determination on the ground that at least the sponsor would be able to maintain the same degree of family contact that she had enjoyed during the years since she left Somalia, and that the immigration judge was entitled to find that a decision to refuse entry to the appellants was not disproportionate in all the circumstances. However, that approach is open to the same criticism that, if it was important to his reasoning, it was not expressed in his determination.
36. I conclude that Mr Drabble's reasons challenge is well founded and that on that ground the decisions of Senior Immigration Judge Eshun and Immigration Judge Wiseman must be set aside.

Relief

37. Mr Drabble's primary argument was that the only proper decision on the material before the immigration judge would have been to allow the appellants' appeal from the decision to refuse them entry. The alternative, if that submission fails, would be for the case to be remitted for a fresh determination of the article 8 issue.
38. In support of his primary submission Mr Drabble made a number of points. Until the sponsor's half-brother was killed, the appellants were living in a stable family unit with her half-brother in Somalia. That all changed on his death and their circumstances in Ethiopia became dire. It would have been quite unreasonable to expect the sponsor to relocate there. Ethiopia is not her country of origin, she has no right to live there and she would have no means of supporting herself. The best interests of the children being a primary consideration, there was an overwhelming case for them being allowed to enter the UK to live with her.
39. Ms Chan contested the argument that their appeals were bound to have succeeded. The sponsor had come to the UK to live with her then husband but that marriage had failed. She had not put down roots in the UK nor had she come as a refugee. Her case for saying that she had an established private or family life in the UK was weak. Although she may have originally hoped when she came to the UK that her children would join her, it soon became apparent that this would not be so. She had remained separate from them for some years and she had made no attempt to investigate the possibility of the appellants coming to England for over four years after she had separated from them. The appellants' conditions were tough, but sadly no worse than for many others living in that part of Africa. The sponsor could chose to go to live with them (and would have a reasonable expectation of continued financial support from her half-brother) or she could stay in the UK and continue to have the same degree of family contact as that which she had enjoyed over previous years. The immigration judge could properly conclude that in all the circumstances it would be disproportionate to proper immigration control to allow the five appellants to join the sponsor in the UK, nearly five years after she had elected to lead a separate life in this country (by reason of an attachment which no longer subsisted).
40. This was a difficult and unusual case, which called for a careful analysis. I am not persuaded that on full analysis the appellants' appeals must necessarily have succeeded and I would therefore remit the case for rehearing by a fresh immigration judge. It is a striking feature of the case that there was no objective country evidence before the immigration judge. Under section 85 of the Nationality Immigration and Asylum Act 2002 the tribunal reconsidering the case will be limited to considering the circumstances appertaining at the time of the decisions to refuse entry, which may include any objective evidence which applied at the time of the decision to refuse entry.

Lord Justice Etherton:

41. I agree.

Lord Justice Kitchen:

42. I also agree.