The President of the Upper Tribunal, Mr Justice McCloskey, has allowed on human rights grounds the appeal of the mother and brother of a refugee child from Eritrea. The mother and brother were the appellants and the child in the UK was the sponsor. The appellants had fled Eritrea after the sponsor and ended up in a refugee camp in Sudan. They had applied to come to the UK to join the child but were refused on the basis that there was no provision in the Immigration Rules for the entry of relatives of a child refugee. This contrasts with the position for adult refugees, who can be joined by spouses, children and parents.

The case is AT and another (Article 8 ECHR – Child Refugee – Family Reunification : Eritrea) [2016] UKUT 227 (IAC) and the headnote reads:

While the Immigration Rules make no provision for family reunification in the United Kingdom in the case of a child who has been granted asylum, a refusal to permit the family members of such child to enter and remain in the United Kingdom may constitute a disproportionate breach of the right to respect for family life enjoyed by all family members under Article 8 ECHR.

The appellants were represented by my colleagues Kathryn Cronin and Abigail Smith, instructed by JCWI, and the tribunal was taken through a mass of relevant material on the rights of the child and the impact on this particular child. The Home Office was represented by Mr T Poole of counsel rather than a Presenting Officer.

Some stand out features of the case include that the refugee child had actually turned 18 by the date of the hearing, that section 55 and the authorities on the best interests of children were nevertheless considered to be engaged, that there was no contention that there was no family life at stake on the facts. The blanket ban on children being joined in the UK by their relatives was considered to reduce the weight to be given to the arguments of the Secretary of State in this context.

After reviewing the international, statutory and policy background and finding that the first 4 steps of the Razgar human rights analysis were satisfied, the President runs through the factors on proportionality.

On one side of the scales he finds a strong family unit whose members are clearly united and fortified by strong bonds of love, affection and interdependency, who long to be reunited and have gone to substantial lengths and made considerable sacrifices to achieve this goal, but which is a family that while separated is disfunctioning, debilitated and under achieving. The under performance of family units is said to be antithetical to strong and stable societies and not to serve any public interest. The sponsor was suffering in the United Kingdom and admitting his mother and brother would actually promote rather than undermine the public interest. There was also a risk that the sponsor might depart and expose himself to danger in order to reunite with his family elsewhere if they were not admitted to the UK.

The Secretary of State was not under a duty to facilitate family reunion but the legal materials relied on by the appellants were certainly considered to be of assistance to their case.

On the other side of the scales lay the statutory human rights considerations at section 117B of the Nationality, Immigration and Asylum Act 2002 as amended, several of which counted against the appellants. Counsel for the Secretary of State also pleaded the danger to other children who might be encouraged to come alone to the UK if the appeal were to succeed and the additional pressure on publicly funded childrens’ services caused. Little weight seems to have been attached to these last two considerations which were not evidenced in any way.

The appeals were allowed.

The case is a helpful one for arguing refugee family reunion outside the Immigration Rules. Every assessment is bound to be fact sensitive and the facts in this appeal were particularly strong, but AT is nevertheless very useful authority for reminding judges that the rules are not the be all and end all; an individual assessment is always required in the context of human rights.

Source: AT and another (Article 8 ECHR – Child Refugee – Family Reunification : Eritrea) [2016] UKUT 227 (IAC) (24 March 2016)