The current immigration rules on when a refugee may be joined by family members — often referred to as refugee family reunion — are woefully outdated and simply do not reflect the nature of modern families. Reform is long overdue. But in the meantime, it is feasible to make successful applications utilising the inbuilt requirement for decision makers to consider whether a decision to refuse would breach Article 8 ECHR. This blog post offers lawyers and advisors some tips on how to go about it.

The relationship requirements in Appendix Refugee Family Reunion only provide for the reunion of spouses or partners who have lived akin to spouses for two years, children and adult children in exceptional circumstances (see FRP 6.2.). These rules fail to recognise other meaningful familial relationships a refugee has, especially refugees from cultures that are more likely to live intergenerationally.

Refugees are often desperate to sponsor siblings, parents and other relatives who are either internationally displaced or in very dangerous situations. None of these relationships are currently covered by Appendix Refugee Family Reunion, but it does not mean applications cannot be made.

The first obstacle is funding. Without payment, it is impossible for lawyers or advice agencies to undertake the considerable work that will be needed to succeed. Given the complexity of these applications, it is very likely that exceptional case funding will be available from the Legal Aid Agency. In R (Gudanaviciene and Others) v The Director of Legal Aid Casework and The Lord Chancellor [2014] EWCA Civ 1622 (see the Free Movement write up) an application made within the existing immigration rules for family reunion and subsequent appeal were considered complex enough to attract the need for exceptional funding (see paragraph 172. The Public Law Project subsequently published a useful guide on how to obtain exceptional funding which I can highly recommend.

The next issue is advising on what application form to use. The Home Office’ guidance states:

Applicants overseas must apply on the application form for the route which most closely matches their circumstances and pay the relevant fees and charges

Given that there is no route available, this can become a problem. Be clear in your representations that, whilst the applicant does not meet the relationship requirements, you believe you have applied under the closest rule based on the particular facts of the case and give reasons. The Home Office, from time to time, direct decision makers to reject applications as invalid where the relationship requirements are not met. This is despite their guidance stating:

 where an application does not meet all the suitability or eligibility requirements (subject to FRP 7.2.) under Appendix FRP, you must go on to consider whether there are exceptional circumstances which would make a refusal of the application a breach of Article 8 European Convention of Human Rights (ECHR)

Take detailed instructions and advise on the available options which may also include an application under Appendix FM, Appendix Adult Dependent Relative or Appendix Child Relative. I would attempt to advise clients on the waiting times for each application, whether there are maintenance and accommodation requirements and whether they would be satisfied, the fees involved and, if necessary, how long the Home Office is taking to consider fee waiver applications.  Free Movement has a useful blog post on applying for fee waivers.

Often there is an additional layer of dependency and desire for reunion because the family member is in a dangerous situation. For example, a conflict zone (Gaza or Sudan for example) or a territory where they are targeted by the authorities and live in hiding (Afghanistan). Where the journey to a visa application centre is too dangerous, an application for biometric pre-determination or excuse will need to be prepared. For a more detailed look at applying for biometric pre-determination or excuse, our webinar on the topic is available for purchase here.

The key test to meet in complex family reunion cases is whether there is family life. It is described in Kugathas v SSHD [2003] EWCA Civ 31 as a:

real, committed or effective support between family members.

A post by Free Movement looks at the case law in more detail. Usually this will require some form of dependence between the family member and sponsor such as financial and/or emotional support. Detailed, emotive witness statements, communication records, letters of support and also evidence of money transfers can help establish the test is met.

Once you have established that there is family life between the extended family members, it is then important to provide submissions and supporting evidence on why refusing the application would result in unjustifiably harsh consequences. The focus should be on the negative impact separation is having on the sponsor in the UK.

It’s important to detail the dire circumstances of the applicants but, if this is the sole focus of the application, it is likely the Home Office will refuse it stating that the family should seek asylum in a neighbouring country and reminding you that Family Reunion is not a protection route. Submissions should focus on how the Sponsor is suffering because of the separation and how it will negatively impact the sponsor’s ability to continue life in the UK if separation is maintained. Take instructions accordingly and consider mental health evidence if appropriate.

In the case of child sponsors wishing to reunite with their parent/s and siblings, it is essential to consider and cite the case of AT and another Article 8 ECHR-Child Refugee-Family Reunification) Eritrea [2016] UKUT 00227 as well as KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 00413.  It will be important to explain to the Home Office how the family were separated, the level of support the child or young adult has in the UK and evidence of how close the family remains. A supportive report by the child or young person’s social worker on how reunification is in the child’s best interests will be key.

Where the application concerns children who are in the UK, Section 55 of the Borders, Citizenship and Immigration Act 2009 provides that their best interests should be a primary consideration.  See ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and Zoumbas v SSHD [2013] UKSC 74 at [10 (1) and (2)]. In Zoumbas, Lord Hodge added (at [10], so far as relevant):

(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an Article 8 assessment.”

Depending on the facts of the case, an assessment of a UK based or child abroad’s best interests by an independent social worker may be appropriate. The entry clearance officer should be directed to the case of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC):

“i)                The exercise of the duty by the Entry Clearance Officer to assess an  application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require.

ii)              Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is “an action concerning children…undertaken by…administrative authorities” and so by Article 3 “the best interests of the child shall be a primary consideration”.

iii)            Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State’s IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.

iv)  Family considerations require an evaluation of the child’s welfare including emotional needs.  ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment.  The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-

a. there is evidence of neglect or abuse;

b.  there are unmet needs that should be catered for;

c.  there are stable arrangements for the child’s physical care;

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.

v)  As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939.

Best interests arguments could be especially powerful where the child in question qualifies under Appendix Refugee Family Reunion but solely granting them entry clearance would mean separation from family members, such as grandparents and older siblings, with whom they have always lived.

The Home Office’s family reunion guidance has a detailed section considering when leave should be granted due to exceptional circumstances or compelling factors. This is essential reading if you are helping with an application. For example, the relevant factors are said to include:

• the circumstances giving rise to the applicant being separated from their family
• the impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment
• the likely impact on the sponsor, and their family, if the application is refused
• the best interests of any relevant child
• can family life continue or resume overseas?

Anyone assisting with these applications should engage with this section as well as the Home Office’s Leave Outside the Rules and Family Life guidance and present persuasive arguments as to why it should be applied in their client’s case.

The reader will know that the right to private and family life protected by Article 8 of the European Court of Human Rights is not an absolute right. Many refugees, especially those new to the UK, will be unable to show they can accommodate and support their family without use of public funds. However, it is always worth taking instructions and, if possible, providing evidence to show the family members will not be a burden on the state where appropriate or how this burden will be limited by community support.

The life of the applicant and decision maker may be worlds apart but, more likely than not, they have both experienced the joy of family and the fear of having it taken away. The evidence put forward needs to engage the decision maker, assist them to understand the gravity of their decision and empathise. Not so easy. Good luck!

This post was originally published in August 2022 and has been updated so that it is correct as of the new date of publication shown.