To summarise, figuratively the Secretary of State does not have a leg upon which to stand either factually or legally.

These were the words used by Mr Justice McCloskey, president of the Upper Tribunal, in the judicial review case of Mohamed Al-Anizy. Needless saying, he was not very impressed by the Secretary of State´s behaviour, in this case in relation to her application (or, rather, non-application) of its guidance on family reunion for refugees.

Background of the case

The Applicant, Mr Al-Anizy, is a husband and father of four children, aged between 3 and 10 years old. The family are Kuwaiti Bidoons.

The Kuwaiti authorities issued a warrant of arrest against Mr Al-Anizy for demonstrating in support of equal rights for Bidoons in Kuwait, who are very badly discriminated against and who often qualify for refugee status in the UK. As a result of his problems, he fled to the UK, where he arrived on 31 October 2014. In 2015, he was granted refugee status along with his two eldest children.

In the meantime, his spouse and two youngest children were forced to flee to Iraq, as the authorities continued to look for Mr Al-Anizy.

There they live destitute and in chronically over-crowded conditions and are registered with UNHCR as asylum applicants. [6]

With the help of the Red Cross, Mr Al-Anizy applied for family reunion for his spouse and two young boys. They attended two appointments at Visa Application Centres (VACs), first on 28 August 2016, and then on 6 December 2016, in Basra and Baghdad respectively. Both times, the staff of the VACs refused to process the applications on the basis that they could not provide passports.

One of the problems faced by Bidoons in Kuwait is that they cannot access government services because they are denied basic identity documentation; the Home Office was refusing the applications for refugee family reunion on the basis of one of the very causes of being refugees in the first place.

The VACs refused despite the Red Cross lodging a formal complaint against UKVI and writing a letter to the VAC explaining why, as Kuwaiti Bidoons, they did not have identity documents or travel documents. This explanation was supported by the Home Office own Country Guidance on Kuwaiti Bidoons, to which the Red Cross referred to in their letter.

Paragraph 4.1.3 of the guidance says, for example, that:

According to BBC News:‘In Kuwait, about 10 percent of the population were bidoons and their lack of Kuwaiti passports – or indeed of passports of any type – means that they have trouble registering at schools, applying for driving licences and they can’t freely travel abroad.’

In addition, Mr Al-Anizy himself travelled to Jordan to speak in person to the British Embassy in Amman, but that also did not advance the matter any further.

On 18 February 2017, understandably, Mr Al-Anizy´s solicitors sent a pre-action protocol letter to the Home Office, but this too went unanswered.

Thankfully, on 6 March 2017, Mr Al-Anizy was granted permission to apply for judicial review. At the same time, the Upper Tribunal also ordered expedition of the application. In his application for permission, Mr Al-Anizy mentioned that the youngest child had to attend hospital repeatedly for treatment for his inflamed lungs. He also explained how his daughter in the UK was also affected by the separation from her mother, struggling with school and needing the support of her GP and social services for her mental health. 

Family Reunion Guidance and the obligation to consider applications

The first consideration is, of course, the wording of the policy itself. In this case, with reference to the guidance on Family Reunion of July 2016, Justice McCloskey highlighted that the guidance instruct caseworkers that they must consider family reunion applications in accordance with the policy [15b].

With regards more specifically to identity documentation and proof of family relationship between the refugee in the UK and their family members, the Upper Tribunal highlighted the following from the guidance:

• A passport is not necessary, and other examples of proof of identity can be UNHCR attestations [15f]
• There are no prescribed requirements concerning the documentary evidence to be provided to establish an applicant’s relationship with the sponsor concerned [17e], and it is specifically contemplated that an Applicant may provide DNA evidence “…. to prove their relationship and satisfy the case worker that they are related as claimed” [17f].
• Caseworkers must be mindful of the difficulties that people may face in providing documentary evidence of their relationship or the fact that it is subsisting [16].

In Justice McCloskey´s words,

The approach of the Secretary of State’s officials conspicuously fails to give effect to this policy requirement [24].

With regards to children, the Upper Tribunal highlighted that the guidance asks caseworkers to be mindful of Section 55 regarding the welfare and protection of children even for those outside the UK:

Given that it is manifestly in the best interests of the children concerned that the family unit be recomposed in the United Kingdom, there has been a clear breach of section 55(1) of the 2009 Act (vis-à-vis the two older children) and the Secretary of State’s policy which, in substance, applies section 55 without material qualification to children outside the United Kingdom such as the third and fourth children of this family [25].

It is all very well having this guidance but unthinking officials are clearly not applying it in practice.

Home Office´s use of guidance more generally: the policy must not fetter the exercise of discretion

Justice McCloskey goes on to make more general comments on the use of guidance. Citing the case of Lumba v SSHD [2012] 1 AC 245, and perhaps rather obviously,

…..  a decision maker must follow his published policy (and not some different unpublished policy) unless there are good reasons for not doing so. The principle that policy must be consistently applied is not in doubt …. [26]

In addition, though, and citing Lord Clyde in the case of R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, he states that guidance should not be followed blindly, and the particular circumstances of the case always need to be considered:

What is crucial is that the policy must not fetter the exercise of the discretion. The particular circumstances always require to be considered. Provided that the policy is not regarded as binding and the authority still retains a free exercise of discretion the policy may serve the useful purpose of giving a reasonable guidance both to applicants and decision-makers. [143]

Remedy: no mercy for the Secretary of State

Prior to the judgement of the Upper Tribunal, the parties settled by consent order. Justice McCloskey reminds us that he is not bound by the consent order, but he will accept it because of “the clear theme of expedition in the parties’ agreed draft order”[29].  He does, however, go on to explain what he would have ordered:

• an order quashing the refusals on behalf of the Secretary of State to examine each of the three outstanding family reunification applications on their facts and merits; and
• a mandatory order requiring the Secretary of State to determine these applications on their facts and merits within 21 days maximum [27].

He further adds:

Should this family find themselves driven to the latter course [i.e. issuing further proceedings], the Tribunal will process their case with a high degree of expedition (weeks, not months) and will exercise its discretion in the matters of remedy and costs appropriately [29].

Finally, he ordered costs against the Secretary of State [30b] and refused permission to apply to the Court of Appeal [30e].

We can now only hope that the Al-Anizy´s family will be soon reunited and the Secretary of State has learnt her lesson that she must follow her published guidance.