(Immigration and Asylum Chamber) Appeal Numbers: HU/13148/2017
THE IMMIGRATION ACTS
Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On 5 th September 2019
On 20 th September 2019
DEPUTY UPPER TRIBUNAL JUDGE M A HALL
HTG (fIRST APPELLANT)
AGH (SECOND APPELLANT)
MTG (tHIRD APPELLANT)
MTG (FOURTH APPELLANT)
ETG (fIFTH APPELLANT)
(ANONYMITY DIRECTION MADE)
ENTRY CLEARANCE OFFICER - PRETORIA
For the Appellants: Mr F Aziz acting as agent for Lei Dat & Baig Solicitors
For the Respondent: Mr A Tan, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction and Background
1. The Appellants appealed against a decision of Judge Saffer (the judge) of the First-tier Tribunal (the FtT) promulgated on 17 th October 2018.
2. The Appellants are Eritrean citizens. The first, third, fourth and fifth Appellants are minors born 3 rd January 2004, 26 th September 2012, 16 th April 2011, and 19 th January 2005 respectively. Their ages as at the date of this decision are therefore 15, 6, 8, and 14. They are currently resident in Sudan.
3. The second Appellant born 1 st June 1986 is married to the Sponsor (SB), who is also an Eritrean citizen with refugee status in the UK.
4. The biological mother of the children died on 26 th September 2012 giving birth to the third Appellant. The biological mother is SB's sister. Their biological father has played no part in the lives of the children and his whereabouts are unknown and have been since February 2012.
5. A court in Eritrea appointed the Sponsor as the legal guardian of the children on 1 st November 2012. It was after this that the Sponsor and children left Eritrea and travelled to Sudan.
6. In Sudan the Sponsor met the second Appellant AGH. They started a relationship and married in Sudan on 6 th October 2013.
7. A court in Sudan appointed the Sponsor the legal guardian of the children on 1 st December 2013.
8. The Sponsor left her husband and the children in Sudan and travelled to the UK arriving in 2014. She was granted refugee status in the UK on 10 th March 2016.
9. The Sponsor has given birth to a daughter in the UK, LD, born 17 th May 2017. Her husband is not the father. He is aware of the relationship. The Sponsor in a witness statement dated 2 nd August 2018 describes her pregnancy as being an accident, and she does not know where the biological father of her daughter is and has lost all contact with him. The biological father has never met his daughter and is not involved in her life at all.
10. The Appellants applied for entry clearance and the applications were refused on 19 th September 2017. The appeals were heard by the judge on 3 rd October 2018. The judge found that the Appellants could not satisfy the Immigration Rules. This is not the subject of any challenge. It was accepted that SB and the second Appellant had met in Sudan and married there. The judge accepted the authenticity of the minor Appellants' birth and baptism certificates and identities. The judge accepted that the biological mother died while giving birth to the third Appellant and SB is the children's aunt. The judge also accepted that the biological father of the minor Appellants had played no part in their lives. It was also accepted that SB obtained a guardianship order in November 2012.
11. The judge did not accept that evidence had been produced to show that SB had legally adopted the children and did not accept that she could be described as their parent for the purposes of the Immigration Rules.
12. The judge dismissed the appeals. The Appellants were granted permission to appeal by Judge Blundell on 29 th November 2018. It was submitted that the judge had materially erred by failing to consider the compassionate circumstances in the case. The children and their "adoptive father" are living in Sudan as refugees with temporary residence. The children are young and vulnerable and need the support of a maternal figure.
13. It was submitted that the Secretary of State's policy on family reunion provides that exceptional compassionate circumstances should be taken into consideration and in this case that had not been done and the best interests of the children had not been considered.
Error of Law
14. On 6 th March 2019 I heard submissions from both parties in relation to error of law. The Respondent contended there was no material error. On behalf of the Appellants reliance was placed upon the grounds contained within the application for permission to appeal, read together with the grant of permission by Judge Blundell.
15. Full details of the application for permission to appeal, the grant of permission, the submissions made by both parties, and my conclusions are contained in my decision dated 10 th March 2019, promulgated on 18 th March 2019. I found that the judge had erred in law and set aside the FtT decision. I set out below paragraphs 11-21 of my decision, which contain my conclusions and reasons for setting aside the FtT decision;
"11. At the oral hearing Mr Aziz submitted that the judge had erred materially by regarding the Immigration Rules as a complete code. The judge should have regarded the rules as a starting point. The judge had erred by not considering the human rights aspect of the appeals.
12. Mr Diwnycz relied upon the rule 24 response.
13. The refusal of entry clearance is deemed to be a refusal of a human rights claim. Therefore the Appellants have a right of appeal pursuant to section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). There is only one Ground of Appeal open to the Appellants and that is pursuant to section 84(2) which is that an appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.
14. I am persuaded that the judge adopted an incorrect legal approach when considering Article 8 in the 1950 European Convention. As pointed out by the judge granting permission to appeal, the Supreme Court in MM (Lebanon)  UKSC 10 found (paragraph 67) that the Immigration Rules are the starting point for consideration with reference to Article 8 but not the only consideration.
15. It was confirmed in Hesham Ali  UKSC 60 at paragraph 52 that the Immigration Rules do not comprise a complete code.
16. In my view, the correct approach in a human rights appeal is firstly to consider whether the relevant Immigration Rules can be met. That is an important but not determinative consideration. If the Immigration Rules cannot be satisfied, and in this case the judge was quite correct to find they could not, then an application or an appeal may still granted or allowed if there exists exceptional circumstances which would result in unjustifiably harsh consequences if the application was refused or appeal dismissed. This approach was confirmed at paragraph 48 of Agyarko  UKSC 11.
17. There must be a consideration of proportionality. There has been no adequate consideration of proportionality in this case. If children are involved there must be a consideration of the best interests of children as a primary consideration.
18. The judge found that Article 8 was engaged, finding at paragraph 21 that family life exists between the Appellants and SB. As I conclude the judge has adopted an incorrect approach to consideration of Article 8, and not adequately considered proportionality, including the best interests of the children, I find that the decision is unsafe and must be set aside.
19. I do not find it appropriate, having considered the Senior President's Practice Statements at paragraph 7, to remit these appeals to the FtT.
20. There does need to be a further hearing and that will be before the Upper Tribunal. There are some preserved findings which were not the subject of challenge. The finding that the Immigration Rules are not satisfied is preserved, as is the finding that family life exists between the Appellants and SB. It is not in dispute that SB has refugee status.
21. The purpose of the next hearing will be to ascertain whether, given that the Immigration Rules cannot be satisfied, exceptional circumstances exist which would result in unjustifiably harsh consequences if the Appellants were not granted entry clearance."
Re-making the Decision - Upper Tribunal Hearing 5 th September 2019
16. At the commencement of the hearing I ascertained that I had received all documentation upon which the parties intended to rely. I made the parties aware that the following documents were on file;
• Respondent's bundle with ECM review 8 th August 2018;
• Appellants' bundle comprising 114 pages;
• Appellants' supplementary bundle indexed 1-7;
• Appellants' supplementary bundle indexed 1-4;
• Appellants' supplementary bundle indexed 1-8.
17. Mr Aziz submitted a copy of the Home Office Family Migration Guidance on Appendix FM section 1.0a published on 1 st April 2019, pages 67-78 which provides guidance on considering the best interests of a child, exceptional circumstances and unjustifiably harsh consequences.
18. I should mention that following the hearing and prior to my preparation of this decision I received two e-mails from the Appellants' solicitors. The first is dated 6 th September 2019 which states that the Sponsor wishes it to be known that her eldest child currently in Sudan speaks and understands English while the youngest child in Sudan understands a little bit of English. The Sponsor was asked at the hearing what she is currently doing and she wished to make it clear that she is currently studying and seeking employment. The second e-mail dated 10 th September 2019 states that the Sponsor wishes it to be known that if her husband and the children are granted entry clearance she intends to work and she intends the family to become self-sufficient. Her husband has work experience as a chef so will not find it difficult to obtain employment in the UK.
19. The representatives indicated that they were ready to proceed and there was no application for an adjournment. Both representatives confirmed that it was accepted that the Immigration Rules could not be satisfied, and the purpose of the hearing was to ascertain whether there were exceptional circumstances which would result in unjustifiably harsh consequences.
The Oral Evidence
20. The Sponsor gave oral evidence with the assistance of an interpreter in Tigrinya. There were no difficulties in communication. The Sponsor adopted as her evidence her witness statements dated 28 th June 2018, 2 nd August 2018, and 30 th July 2019.
21. The Sponsor was questioned by both representatives. I have recorded all questions and answers in my Record of Proceedings and it not necessary to reiterate them here. If relevant I will refer to the oral evidence when I set out my findings and conclusions.
The Oral Submissions
22. On behalf of the Respondent I was reminded that the Immigration Rules could not be satisfied. I was asked to find that there would be a significant public interest in not allowing these appeals, as if the Appellants were granted entry clearance they would be a significant burden on the public purse. It was submitted that they could make a further application in the future when they could satisfy the Immigration Rules.
23. Mr Tan submitted that the Appellants had been living in Sudan since 2012 and were effectively settled there. They were not lacking in facilities. The Sponsor had confirmed that her husband, the second Appellant, has employment. The Sponsor had also confirmed that the Appellants have access to internet and mobile telephone. There are no issues with health or education.
24. Mr Tan submitted that the Appellants had not demonstrated that exceptional circumstances existed and evidence was lacking to show there would be unjustifiably harsh consequences if entry clearance was refused. It was pointed out that the Sponsor could apply for a visa to go to Sudan. She had confirmed in evidence that she had not made enquiries in relation to this. There was no objective or background evidence to show that the Appellants were living in unsatisfactory circumstances. It was submitted that the best interests of the minor Appellants would be to remain where they are currently living as it would seem that they are settled, having resided there since 2012.
25. Mr Aziz referred me to the Sponsor's witness statement dated 30 th July 2019 as to what the circumstances in Sudan are like. The Sponsor has never applied to go back to Sudan as there is conflict in that country. Her family have no status there and they are refugees.
26. The Sponsor had stated that her husband was working illegally. I was asked to find that separation of the family amounted to unjustifiably harsh consequences. Mr Aziz pointed out that the Sponsor has a daughter in the UK. She has no nationality. Her biological father has no contact with her whatsoever. The best interests of the child in the UK would be to remain in this country living with the Sponsor.
27. I was asked to allow the appeal on the basis that continued separation of the Appellants from the Sponsor would amount to exceptional circumstances which would lead to unjustifiably harsh consequences.
My Conclusions and Reasons
28. The preserved findings are that the Immigration Rules cannot be satisfied. The Sponsor has established family life with the Appellants. The Sponsor has refugee status in the UK.
29. I must decide whether the Appellants have demonstrated that exceptional circumstances exist which would lead to unjustifiably harsh consequences if they were not granted entry clearance.
30. The best interests of children must be considered as a primary consideration, but not the only consideration and not a paramount consideration. The best interests of children can be outweighed by other factors, depending upon the circumstances.
31. The best interests of the Sponsor's daughter born in the UK would be to remain with her mother. I accept that the biological father is not in a relationship with the Sponsor and has never seen his daughter. The daughter is not a British citizen, and does not have settled status in the UK and is not a qualifying child in that she does not have seven years continuous residence. The Sponsor's statement refers to her as being born in 2018, but I am satisfied that the correct date of birth is 2017 as this is confirmed by the birth certificate.
32. The best interests of the child in the UK would be to remain in the UK with the Sponsor.
33. The best interests of the minor Appellants would be to be brought up by both the Sponsor and second Appellant. On balance, although I do not have comprehensive details about their life in Sudan, I conclude that their best interests would be served by living in the UK, where generally it is accepted that the standard of living is higher than in Sudan.
34. In considering Article 8 outside the Immigration Rules I must have regard to the considerations in section 117B of the Nationality, Immigration and Asylum Act 2002. Sub-Section (1) confirms that the maintenance of effective immigration control is in the public interest. On this point it is significant that the Appellants cannot satisfy the Immigration Rules. Sub-Section (2) confirms that it is in the public interest that persons seeking to enter the UK can speak English. There is no evidence that the second Appellant who is an adult, can speak English. The remaining Appellants are minors.
35. Sub-Section (3) confirms that it is in the public interests that persons seeking to enter the UK are financially independent. The Sponsor is not financially independent. She has never worked while in the UK. She is reliant on public funds. I find that on arrival the Appellants would not be financially independent.
36. I do not find that Sub-Sections (4), (5) and (6) of section 117B are applicable in this case.
37. I have not been provided with comprehensive evidence regarding the circumstances of the Appellants in Sudan. The burden of proof is on the Appellants on a balance of probabilities.
38. The Appellants have refugee status in Sudan. There is a copy of the second Appellant's refugee certificate at page 68 of the Appellants' bundle which covers the period between July 2016 and July 2017. There is no evidence that refugee status is no longer in existence.
39. It is clear that the Appellants have resided in Sudan since 2012. The Sponsor confirmed they have their own accommodation and do not reside with anybody else.
40. The Sponsor also confirmed that the Appellants have access to internet and mobile telephone. The second Appellant has employment in a restaurant.
41. No evidence has been submitted to indicate that there are any significant issues regarding health or education of the children. The evidence does not indicate that the Appellants are living in unsatisfactory circumstances.
42. I do not find that the Sponsor's latest witness statement dated 30 th July 2009 proves that exceptional circumstances exist in this appeal. In that statement she states that she holds no status in Sudan and that she left there illegally. The Sponsor has not, on her own admission, made any enquiries as to whether she would be granted a visa to travel to Sudan to see her family. She states in her statement that she would be unable to work, but it is clear on her own evidence that her husband has regular employment. She fears being arrested and sent back to Eritrea if she travels to Sudan, but has adduced no satisfactory evidence to indicate that would be likely. Her family have refugee status.
43. She refers in her witness statement to the risk of being raped if she returns to Sudan, but has adduced no satisfactory evidence to indicate that that is anything more than speculation. No satisfactory evidence has been submitted to indicate that any of the minor Appellants in Sudan are encountering any problems in their environment.
44. The Sponsor confirms that she has made friends in the UK and established a life here but that does not amount to exceptional circumstances. A more relevant point is her daughter in the UK. The position is that insufficient evidence has been submitted in this case to demonstrate the circumstances in which the Appellants are living in Sudan. From the evidence provided, it would appear that the second Appellant has employment, which is sufficient to pay for accommodation, and there are no issues surrounding the education of the minor Appellants. Evidence has not been submitted to indicate that the Appellants are at any risk of being arrested by the Sudanese authorities. The burden of proof is on the Appellants, and the evidence in this appeal is lacking.
45. Article 8 is engaged. The refusal of entry clearance is an interference with the family life that exists between SB and the Appellants. I have to consider whether that interference is proportionate.
46. I have to consider, bearing in mind that the Immigration Rules cannot be satisfied, whether the Appellants have demonstrated exceptional circumstances which would lead to unjustifiably harsh consequences. If entry clearance is refused either the family are going to be separated with the Sponsor remaining in the UK and the Appellants in Sudan until a further application for entry clearance is made. Alternatively, the Sponsor could return to Sudan. I fully accept that she does not wish to take that course of action, but in the absence of evidence, I cannot find that either of those options would have unjustifiably harsh consequences.
47. I must take into account the public interest. The Appellants would not be financially independent if they came to the UK. They would be a burden on the public purse. The Sponsor has said that her husband has qualifications as a chef, although no evidence of the qualifications has been provided. He may be able to find employment in the future in the UK but that is speculation. I accept he has found employment in a restaurant in Sudan.
48. In my view, the weight that must be attached to the public interest in this case outweighs the weight to be attached to the wishes of the Sponsor and Appellants that the Appellants be granted entry clearance. I do not find that it has been proved that exceptional circumstances exist which would bring about unjustifiably harsh consequences. Therefore the appeals are dismissed.
Notice of Decision
The decision of the First-tier Tribunal contained an error of law and was set aside. I substitute a fresh decision.
The appeals are dismissed on human rights grounds.
Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them. Failure to comply with this direction could lead to contempt of court proceedings. This direction is made because these appeals involve minor Appellants. The direction is made pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Signed Date 12 th September 2019
Deputy Upper Tribunal Judge M A Hall
TO THE RESPONDENT
I make no fee award. The appeals are dismissed.
Signed Date 12 th September 2019
Deputy Upper Tribunal Judge M A Hall