KF et ors (entry clearance, relatives of refugees) Syria [2019] UKUT 413 (IAC) concerns an 18-year-old Syrian refugee sponsor, whose mother, father and younger siblings applied for family reunion with him. The key principles identified by the tribunal do not emerge particularly clearly from the headnote, so it is worth setting them out in full.

Family can’t rely directly on Article 8

Only the sponsor’s rights under Article 8 of the European Convention on Human Rights are at issue (see paragraph 14 of the determination, relying on Secretary of State for the Home Department v Tahir Abbas [2017] EWCA Civ 1393).

Limited role of children’s rights

The statutory Every Child Matters guidance says that UK Border Agency staff working overseas must “adhere to the spirit of the duty” under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of the child.

The Upper Tribunal expands this to say that the duty to make the best interests of the child a primary consideration under Article 3 of the UN Convention on the Rights of the Child “may be relevant” to the way in which children outside of the UK are dealt with. The judgment states “this is as high as the relevance of the UNCRC to the position of the child Appellants can be put” (paragraph 13).

The Upper Tribunal held that it may be material that a particular outcome would be in line with the UK’s obligations under unincorporated conventions. But that is not the same as saying that such instruments should be accorded “substantial weight” (paragraph 17(c), relying on Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47).

Sponsor just over 18

The tribunal records that the sponsor having turned 18, albeit that he was only just 18 when the applications were made, is an “important difference” from claims involving a child sponsor (paragraph 17). In this case the sponsor was admitted to the UK as a child in July 2016 but his claim for asylum was only determined on 4 January 2018, three days after he turned 18, following threats of a judicial review of the delay.

This aspect of the determination, which makes no criticism of the delay, offers no encouragement to the Home Office to decide the claims of children seeking international protection before they turn 18. Nor does it incentivise the department to address factors contributing to the delay, such as shortages of appropriately trained staff.

The Article 8 balancing exercise

Factors weighing against the appellants

As to the balance sheet, the appellants’ inability to speak in English and lack of financial independence was held against them in accordance with section 117B of the Nationality, Immigration and Asylum Act 2002. That was because it was an Article 8 case: refugees and those granted refugee family reunion under the Immigration Rules do not have to demonstrate that they can live without recourse to public funds.

The tribunal also states:

As was made clear in Agyarko [2017] UKSC 11 the purpose of the Immigration Rules is to enable decision makers to understand and apply the appropriate weight to be given to the public interest. 

No reference to a paragraph in Agyarko is given but it seems likely that the tribunal had paragraph 48 in mind. That paragraph ends with the statement:

In the absence of either “insurmountable obstacles” or “exceptional circumstances”… it is not apparent why it should be incompatible with article 8 for leave to be refused. The Rules and Instructions are therefore compatible with article 8. That is not, of course, to say that decisions applying the Rules and Instructions in individual cases will necessarily be compatible with article 8: that is a question which, if a decision is challenged, must be determined independently by the court or tribunal in the light of the particular circumstances of each case.

The tribunal goes on to state that failure to meet the Immigration Rules is an adverse factor. Is this double counting? An appellant is thrown back on Article 8 at large because s/he does not meet the requirements of the Rules. Should failure to meet the Rules should then go into the balance?

While the paragraph from Agyarko cited above might suggest not, there is some support for the tribunal’s approach in the debates on the “near miss” argument. The Supreme Court in Patel, Alam & Anwar v Secretary of State for the Home Department [2013] UKSC 72 held:

the balance drawn by the rules may be relevant to the consideration of proportionality… the practical or compassionate considerations which underlie the policy [i.e. the rule] are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument [paragraph 55, per Lord Carnwath].  

The tribunal states that it was not referred to any international or national provision or jurisprudence that supports entry to the UK of parents and/or siblings of adult refugees. A 2017 report by Dr Cathryn Costello and Professor Kees Groenendijk for the Council of Europe Commissioner for Human Rights identified no such jurisprudence. The nearest it got was Ireland’s International Protection Act of 2015, which at section 56(9)(c) provides for minor children who are refugees to be reunited with their parents and siblings.

I was one of those participating in meetings feeding into this report, at which experts from all over Europe strove to provide examples from their jurisprudence. I should like to think that if such jurisprudence had existed in Europe in 2017, we should have found it. 

Factors in favour of the appellants

In the other side of the balance sheet went the sponsor’s mental health. The sponsor had experienced war in Syria and exploitation, including sexual exploitation, in exile. He had witnessed violence. He had left his family in Jordan when he was 15 and come to the UK to join his maternal aunt under the Dublin III regulation. The relationship with his aunt’s family had broken down and he had been taken into care. 

The expert evidence of Dr Datta, with whom the tribunal was clearly impressed, was that the applicant’s mental health problems could not be addressed without family support. The tribunal observed that he would be a cost to the taxpayer if he did not recover, while commenting that “it would be invidious if the Article 8 balance was seen as no more than a book-keeping exercise” (paragraph 20(i)). Section 117B does not mandate a book-keeping exercise in family cases, given section 117B(6), although it is arguable that that is exactly what it does in private life cases.

Also on the appellants’ side of the balance sheet was that the sponsor received precious little support after turning 18 (paragraph 20(f)). The delay in dealing with the sponsor’s application, so that section 55 was not applicable to him, was also taken into account. The tribunal stated:

On its own, this factor would not have had a significant impact, but it is nevertheless a matter which we have factored into our decision [paragraph 20(g)].

The judgment gives no reason why “on its own” this factor would not have had a significant impact. Delay had deprived the sponsor of the benefit of section 55 in any application outside the Rules that he might have made as a child. It had resulted in his still being alone when he turned 18 and social services’ support to him was dramatically reduced. The expert medical evidence was that separation from his family meant left him unable fully to recover from his post traumatic stress disorder or from his depression.

Decision in favour of reunion

The tribunal held that it required something “exceptional or compelling” to grant leave outside the rules (paragraph 20(k)). Totting up the balance sheet it concluded that that special something was present in this case. The First-tier Tribunal was found to have erred, but in remaking the decision the Upper Tribunal came to the same conclusion: that the appeals against refusal of entry clearance should be allowed. 

Future impact of the case

The Upper Tribunal emphasises, including in the headnote, that a fact-sensitive analysis is essential. It seems likely, nonetheless, that attempts will be made to use this as a “comparator case” in the manner cautioned against in GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA 1630. The Home Office may well use it to downplay both the rights of the child and the effect of delay in reaching a conclusion under Article 8.

KF sets a high bar for family reunion of young adults with siblings and parents. But it is evidence that even taking the approach of this tribunal, that bar can be reached. Gather your evidence, hone your pleadings and these cases can continue to succeed until the points identified above are reconsidered by a higher court.

For more on refugee family reunion see Free Movement’s user’s guide.