The Upper Tribunal has said that where family life exists, the article 8 rights of family members overseas need to be taken into account and it is wrong to focus only on the rights of the UK based sponsor. Following on from that, the refusal to grant entry clearance to a Syrian family was held to be unlawful. The case is Al Hassan (Article 8, entry clearance, KF (Syria)) [2024] UKUT 00234.

The headnote

The headnote summarises the case as follows:

1. The jurisdiction of the Human Rights Convention is primarily territorial, but as observed in SSHD v Abbas [2017] EWCA Civ 1393, family life is unitary in nature with the consequence that the interference with the family life of one is an interference with the rights of all those within the ambit of the family whose rights are engaged.

2. Properly interpreted, KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413 is not authority for the proposition that it is only a UK based sponsor whose rights are engaged. while the rights of the person or persons in the United Kingdom may well be a starting point, and that there must be an intensive fact-sensitive exercise to decide whether there would be disproportionate interference, it is not correct law to focus exclusively on the sponsor’s rights; to do so risks a failure properly to focus on the family unit as a whole and the rights of all of those concerned, contrary to SSHD v Abbas.

Background

The appellants are members of a family who lived together in one household in Syria before fleeing to Jordon, becoming separated from the sponsor in the process. The sponsor, Ms Al-Helwani, ended up in the UK in 2014. The appellants are the sponsor’s brother and sister and each of their respective families.

On 11 August 2021 the appellants’ applications for entry clearance to come to the UK to join the sponsor were rejected on the grounds that they did not meet the requirements of the immigration rules and refusal would not breach their rights under article 8 of the European Convention on Human Rights.

The First-tier Tribunal concluded that there were “more than normal emotional ties” between many of the family members such that excluding them would be a “significant interference” with their article 8 rights. However the judge dismissed the appeal on the grounds that the interference was not disproportionate.

In making that finding several factors were considered by the tribunal, including reliance placed on KF and others (entry clearance, relatives of refugees) Syria[2019] UKUT 413 in saying that the appellants’ private lives fell outside the scope of article 8.

The error of law decision

The Upper Tribunal granted permission to appeal on 15 May 2023, stating that:

While KF is a reported decision of this Tribunal and its reasons and conclusions should be accorded significant weight, it is at least arguable that the Judge erred in concluding that the minor children’s interests “cannot be of any relevance to appeals heard in this forum” (paragraph 19) and in concluding that the respondent’s policies could not be read as permitting consideration of the human rights of out-of-country appellants. While any arguable error may not ultimately be material, as to whether the Judge’s decision is not safe and cannot stand, the grounds are of sufficient arguable merit to warrant consideration at a full hearing.

The hearing took place on 23 August 2023, with the appellant submitting that the Upper Tribunal had erred in KF (Syria) in its approach to how to assess interference with established family life with a person outside the UK. It was argued that it was wrong to focus only on the rights of those inside the UK and that the compelling circumstances of those outside the UK were also relevant.

The Upper Tribunal referred to the Court of Appeal’s decision in Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393 which says [at 16] that a person outside a country that is a signatory to the European Convention on Human Rights may rely on article 8 in very limited circumstances in order to enter the ECHR country.

The Upper Tribunal said that it is difficult to reconcile this with the following, which was said in KF (Syria):

14. First, it is the sponsor’s rights under Article 8 which are engaged. It is he, and only he, who is in the UK. By Article 1 of the ECHR the UK undertook ‘to secure to everyone within [its] jurisdiction the rights and freedoms defined in section 1 of this Convention’. Those rights and freedoms include, of course, Article 8. There are certain exceptions where the Convention has an extra-territorial reach, but none of them is relevant in the present context. As Ms Meredith submitted, there are cases where Article 8 has been held to require the admission of someone who is outside the UK, but that is because their exclusion would be an impermissible interference with the private or family life of a family member who is in the UK -see for instance Secretary of State for the Home Department v Tahir Abbas [2017] EWCA Civ 1393. We do not therefore agree with Ms Meredith that the Appellants themselves have Article 8 rights for present purposes since they are all in Jordan.

The Upper Tribunal did not accept that it was correct law to focus exclusively on the sponsor’s rights, saying that “to do so risks a failure properly to focus on the family unit as a whole and the rights of all of those concerned. It is also to be borne in mind that it is the appellant’s rights which are in issue in these appeals, not the sponsors, given the terms of the ground of appeal, something the panel in KF (Syria) appears to have overlooked at [23]”.

The Upper Tribunal noted that they had not been shown any reported decisions that cite KF (Syria) and that it had not been referred to in SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 43.

The Upper Tribunal considered that the First-tier Tribunal had erred in, having accepted that the appellants were at serious risk and that family life existed, then failing to properly consider the family as a unit and wrongly characterising the risk as to their private lives. The Upper Tribunal said “It is difficult to comprehend how such a serious risk, including of death which would extinguish family life, is not an interference with family life, and to the extent that the judge does so, his approach is irrational.”

The tribunal also found that the reliance on KF (Syria) to support the finding that little weight should be placed on the children’s interests was a material error.

Remaking the decision

The Upper Tribunal then proceeded to remake the decision on the basis that there had been no challenge to the findings of the First-tier Tribunal that family life existed and the appellants were at risk of refoulement to Syria and were at risk of serious harm. The only decision to be remade was therefore that on proportionality.

The tribunal set out the relevant case law and also referred to Home Office guidance on “Family reunion: for individuals with protection status in the UK Version 10.0” and “Family life (as a partner or parent) and exceptional circumstances Version 20.0”. The tribunal summarised the Home Office’s position as being that although GEN.3.2 (the “exceptional circumstances” provision within Appendix FM) may not directly apply, those principles should be applied to refugee family reunion applications [at 45].  

The Upper Tribunal then proceeded to consider proportionality, the starting point being that the appellants do not meet the requirements of the immigration rules. Factors in favour of refusal include that they do not speak English and there was likely to be a “considerable and significant reliance on public funds for an extended period”.

The appellants had argued that article 3 “may in principle reduce the latitude enjoyed by States in striking a fair balance between the competing interests of family reunification and immigration control” (relying on MA v Denmark [2021] ECHR 628). The tribunal accepted that the appellants were at risk of refoulement to Syria and discrimination in Jordan.

A factor that weighed strongly in favour of the appellants was the significant danger they faced. The best interests of the children were to relocate to the UK, however the tribunal considered this a relatively minor factor. The sponsor could not be returned to Syria without risk and it would not be in the best interests of her four children for them to do so.

The tribunal concluded that “Taking all of these factors into account, given the particular findings of fact as to the level to the risks to these appellants, I am satisfied in the particular facts of this case that refusal of entry clearance was disproportionate” and the appeal was allowed.

Conclusion

This is a carefully thought out and written decision. The Upper Tribunal reiterated that these cases will be fact specific, however now that KF (Syria) has been overturned, families will hopefully find it slightly easier to succeed in these cases.