Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01141/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 November 2016
On 8 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

ENTRY CLEARANCE OFFICER, ABU DHABI
Appellant
And

BELAL [H]
(ANONYMITY DIRECTION NOT made)
Respondent

Representation
For the Appellant: Mr K Norton, Home Office Presenting Officer
For the Respondent: Ms F Shaw, instructed by OTS Solicitors

DECISION AND REASONS
1. The respondent (hereinafter "the claimant") is a citizen of Egypt born on 18 March 1994 who applied under paragraph 352D of the Immigration Rules for entry clearance to join his father who had been granted asylum in the UK.
2. The application was refused because the claimant was over 18 and paragraph 352D(ii) stipulates that an applicant under this route to entry clearance must be under 18. The claimant appealed to the First-tier Tribunal. In a decision promulgated on 20 May 2016, Judge Callow allowed the appeal under Article 8 ECHR outside the Immigration Rules. The appellant (hereinafter "the Secretary of State") now appeals that decision.
Factual background
3. Judge Callow made the following findings of fact:
a. On 19 September 2014 the claimant's father, who had been a supporter of former president of Egypt Mohamed Morsi, was granted asylum in the UK.
b. On 14 February 2015 the claimant's mother and younger sister joined his father in the UK, having been granted entry clearance under paragraphs 352A and 352D of the Immigration Rules. The claimant's sister who made a successful application under paragraph 352D was under 18.
c. The claimant is a student at Alexandra University who continues to live in the family home. His older sister, who is married, lives nearby. His father supports him financially.
4. The claimant claims that his family home has been attacked on several occasions, most recently in January 2015, and that he fears for his safety. He claims the police are looking for him and as a result he has to stay in different locations, creating a very difficult and stressful location. The judge did not accept this evidence, describing it as an exaggeration. He stated at paragraph 12 that "if the appellant was genuinely of interest to the police they would have located him at university or by way of enquiry of his married sister who lives in the next door flat".
Decision of the First-tier Tribunal
5. As the claimant, because of his age, could not meet the requirements of paragraph 352D, the judge considered the appeal outside the Rules under Article 8 ECHR.
6. He found that there is family life, within the meaning of Article 8(1), between the claimant and his family in the UK on the basis that the claimant is a young adult who has not established an independent life, who lives in his parents' home and is economically and emotionally dependent on them.
7. Having found Article 8 was engaged, the judge considered whether refusing the claimant's application would be disproportionate and found that it would. The judge's reasoning for so finding is not clear, but a review of the decision as a whole indicates that the judge attached weight to the fact that the claimant's mother and sister were granted entry clearance and that as a victim of persecution the claimant's father would be unable to return to Egypt. He considered that these factors were sufficient to outweigh the public policy considerations under section 117B of the Nationality, Asylum and Immigration Act 2002 ("the 2002 Act"). The judge also argued that the underlying principle of the Rules addressing family members "is one of unification not division" and the weight to be accorded to "financial impact on the public purse is diminished bearing in mind that under the Rules there are no maintenance and integration requirements for family reunion".
Grounds of appeal and submissions
8. Mr Norton, relying on the grounds, argued that the judge failed to identify compelling or exceptional circumstances to allow the appeal outside the Rules.
9. Ms Shaw argued that the judge adopted the correct approach to an Article 8 assessment. Consideration was given to the factors stipulated in Section 117B of the 2002 Act. She maintained that the judge had properly analysed the Rules concerning family reunification and found that there is no provision for an adult child of a refugee even where there is family life.
10. In a response to a direct question from me about whether there are in fact compelling circumstances, Ms Shaw referred to the claimed danger faced by the claimant and his need to hide from the police.
11. Ms Shaw referred to Home Office Guidance on Family reunion for refugees dated 29 July 2016 and cited the example therein, at page 20, of circumstances that may lead to a grant of leave outside the Rules. The example she referred to is of an applicant who cannot qualify to join his parents because he is over 18 where (a) his immediate family, including siblings under 18, qualify for family reunion and are in (or are coming to) the UK; (b) he would be left alone in a conflict zone or dangerous situation; (c) he is dependent on immediate family in the country of origin and is not leading an independent life; and (d) there are no other relatives to turn to and he would therefore have no means of support and would likely become destitute on his own.
Consideration
12. The Court of Appeal has made clear that where someone applying to enter the UK is unable to succeed under the Rules, in order to prevail under Article 8 outside the Rules they must show that compelling circumstances exist which are not sufficiently recognised under the Rules. See SS (Congo) & Ors [2015] EWCA Civ 387.
13. Ms Shaw argued that the difficult and dangerous circumstances faced by the claimant, when mean that he is unable to stay in his family home and is effectively in hiding, give rise to compelling circumstances. She referred to the Secretary of State's Family Reunion Guidance which refers to people left without relatives or financial support that are in a conflict zone or dangerous situation.
14. The judge's findings of fact, however, do not characterise the claimant as being someone in danger who is without financial or family support. On the contrary, the judge's findings are that the claimant is living in his family home which is near to his sister, that he receives financial support from his parents in the UK and that he attends University. The claim that he is in danger and of interest to the police was not accepted by the judge.
15. Absent from the decision is any consideration of whether there were compelling circumstances that would warrant allowing the appeal outside the Rules. This is an error of law. The error is material as there was nothing in the factual matrix as found by the judge that could justify the conclusion that there were, in fact, compelling circumstances.
16. Ms Shaw advised that new evidence has recently been obtained that is relevant to the risk faced by the claimant in Egypt. Both parties were of the view that I should not proceed to remake the decision as this new evidence, which includes statements from friends of the claimant, would need to be given consideration (and the Secretary of State would need sufficient time to analyse it).
17. Having regard to Section 7.2(b) of the President's Practice Statement, I consider that this appeal should be remitted to the First-tier Tribunal. In order for the appeal to be remade, the claimant's circumstances in Egypt, including (but not limited to) the danger he faces and support he receives from his sister, will require extensive judicial fact finding, and therefore the First-tier Tribunal is the appropriate forum.

Decision
18. The decision of the First-tier Tribunal contains a material error of law such that it should be set aside in its entirety and the appeal heard afresh.
19. The appeal is remitted to the First-tier Tribunal for hearing afresh before a judge other than First tier Tribunal Judge Callow.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 6 November 2016