Adult siblings in Gaza case unable to establish family life under article 8

The Court of Appeal has reiterated that for adult siblings to be able to establish family life for the purpose of article 8(1) there is a requirement for “additional elements of dependence, involving more than the normal emotional ties”. The court found that these additional elements did not exist in the case of a Palestinian family trying to join their British relative in the UK. The case is IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516.

At the outset I will note that the Palestinian family at the centre of this case has seemingly been granted entry clearance and so they are hopefully safe in the UK already, or will be soon. The Court of Appeal states at the end of the judgment that:

Permission to appeal was granted to the SSHD notwithstanding that she had already agreed, subject to certain conditions, to provide entry clearance to the family. That was because of the points of general importance raised by the grounds of appeal and because the SSHD had agreed to pay the family’s costs of the appeal in any event. Accordingly, allowing the appeal will not have any effect on the family’s situation.

Background

The family of six (two parents and their four children) living in Gaza applied to join the father’s British brother (the sponsor) in September 2024. The application was refused in May 2024 and the First-tier Tribunal dismissed the appeal. The tribunal accepted that family life did exist between the sponsor and the applicants, but held that refusal was not a disproportionate interference with their family life under article 8.

The Upper Tribunal found that an error of law had been made by the First-tier Tribunal and proceeding to re-make the decision, allowing the family’s appeal.

Court of Appeal’s decision

The Home Secretary appealed on three grounds:

(a) on a proper understanding of the law as to the meaning of “family life”, the family and the sponsor did not enjoy family life under article 8(1),
(b) even if such family life did exist, the UT was wrong at [166] to consider the free-standing article 8 rights of the family, rather than just those of the sponsor, in undertaking the proportionality balance required by article 8(2), and
(c) the UT gave the wrong weight to the risks to the lives of the family and their dire situation in the Gaza warzone, and gave the wrong weight to the importance of UK immigration control and the short-lived family life that had existed in this case.

First ground: family life between adult siblings

It was argued on behalf of the family that the test needed for adult siblings to establish family life under article 8(1) was “that the sponsor had provided real, committed or effective support to his brother and to his brother’s family”. However, the Court of Appeal did not accept this and proceeded to set out the article 8 “classics” from both ECtHR and domestic jurisprudence on this point and in support of the position that:

“family life for the purpose of Article 8 … is normally limited to the core family and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate “additional elements of dependence, involving more than the normal emotional ties”” (see Kumari v. The Netherlands 44051/20, 10 December 2024 (Kumari) at [35], and Beoku-Betts v. SSHD [2008] UKHL 39, [2009] 1 AC 115 (Beoku-Betts) at [39]).

Applying this test, the court concluded that there was no family life for the purpose of article 8(1) between the sponsor and the applicants.

Second ground: that the Upper Tribunal was wrong to give weight to the article 8 rights of the family outside the UK

Although academic given the court’s decision on ground one, the court proceeded to decide this ground given its importance. The court said that it was correct that Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 means that if family life had existed between the sponsor and the applicant then the rights of all the relevant family members should be considered.

However the court said that the family life of those outside the UK was not the main focus of the proportionality decision under article 8(2). The main focus would be on the sponsor as the person in the UK and that family life would be considered as it was with his brother or the family being outside the UK. The court reiterated that the UK is “not under a positive obligation to admit every member of the wider family of the person within the territory of the UK”:

The positive obligation could only extend, even if such family life existed, to those who have family life (for the purposes of article 8(1)) with that person, in this case the brother (or, as the family argued, the family). Moreover, the person who has “the right to respect for his … family life” under article 8(1) is the sponsor, who is within the jurisdiction of article 8, and the requirement that “[t]here shall be no interference by a public authority with the exercise of [the sponsor’s right to family life]” under article 8(2) encompasses the brother or the family (as the persons outside the UK) because interference with the family life of the sponsor (which he shares with the brother or with the family) necessarily interferes with the sponsor’s family life with him.

The Court of Appeal concluded that if the Home Secretary had not already succeeded on the first ground, this ground would have been partly upheld.

Third ground: that the Upper Tribunal was wrong to find that the refusal was an interference with their family life that infringed article 8

This ground was also academic, but the court considered that the Upper Tribunal had made several errors in undertaking the proportionality assessment. The court considered that the tribunal had given the wrong amount of weight to the family life it had held existed. The Court of Appeal said that it was relevant that the sponsor and family

had not cohabited after the Gaza conflict began and that the core family would continue to live together even if entry clearance were refused. It was also relevant that the relationship had been rekindled in the knowledge that the family had no right to enter the UK, and that if their applications failed, the sponsor would not be joining them in Gaza.

The court also held that the tribunal was wrong to attach significant weight to the humanitarian situation in Gaza, including the fact that the two children were at high risk of death or serious injury on a daily basis. The Home Secretary argued that the UK “is simply not responsible for the risks faced by persons in a foreign war zone”. The court said that the personal circumstances of the family:

had to be balanced against the SSHD’s policies, reflected in the Rules, which did not allow them to do so on the grounds of the risks they faced in a warzone. That is the relevance of the absence of a resettlement policy concerning Gaza. Had there been one, the policies of the SSHD might have favoured the family and allowed the balance to be struck differently.

The Upper Tribunal could only override the immigration policies of the government in “very exceptional or compelling circumstances” which the court said did not exist here. The court mentioned the lack of a resettlement scheme for Gaza three times as a key consideration.

The Court of Appeal therefore allowed the Home Secretary’s appeal on the first and third grounds, and in part on the second.

Conclusion

It is worth reiterating that the coverage about the use of the Ukraine scheme application was entirely misguided. This is because the process used is that required by the Home Office (as expressly noted by the Court of Appeal at paragraph 16), albeit that, having previously fought against this in court, the Home Secretary seemingly intends to introduce an application form for applications made outside the immigration rules.

So what has happened here is that there was a muddled piece in the press expressing outrage over the fact this family had applied under the Ukraine scheme. This then led to the case being raised in Parliament by the leader of the opposition. That seems to have triggered not only this appeal, but seemingly also the elements of last week’s asylum proposals that relate to outside the rules applications as well as a need to change the definition of family life. The need for the latter proposal was questionable anyway, and has certainly been not been strengthened by this decision.