Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04542/2020
HU/04543/2020

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On the 23 June 2022
On the 08 August 2022

Before

UPPER TRIBUNAL JUDGE HANSON

Between
ATM
KTM
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Wilson of the Refugee & Migrant Centre, Birmingham.
For the Respondent: Mr C Bates, a Senior Home Office Presenting Officer.

DECISION AND REASONS

1. By a decision promulgated on 5 October 2021 Upper Tribunal Judge Kamara found an error of law in a decision of the First-tier Tribunal which dismissed the appeals of the above appellants.
2. There were initially three appellants but the appeal of the original first appellant was allowed, and it is only the appeals of the two remaining appellants that are under consideration. The appellants are brothers born on the 23 September 2004 (ATM) and 4 July 2002 (KTM).
3. The appellants applied the family reunion on 2 December 2019 although their applications were refused by an Entry Clearance Officer (ECO) on 11 February 2020. That decision was upheld on review by an Entry Clearance Manager on 1 July 2020 who noted that no new evidence had been supplied.
4. The ECO’s refusal is in the following terms:

You claim to be the brother of your sponsor, in support you have submitted a DNA report confirming this. This has been considered and establishes you to be biological siblings.

To qualify under the rules of paragraph 319X, the sponsor must have limited leave to remain in the UK. As your sponsor was granted Indefinite Leave to remain on 18 September 2016, it is deemed that your sponsor does not meet the requirements to be an eligible sponsor. I am therefore not satisfied that you have a sponsor with limited leave to remain in the UK. Therefore, I refuse your application under paragraph 319X(i) of the Immigration Rules.

Upon considering whether you will be adequately accommodated as defined in the Housing Act 1985 you have declared in your appendix 4 that your sponsor’s residence holds one bedroom and one other room which is capable of ruining a resident. Additionally, the tenancy agreement states that the maximum number of people to reside in the property is three. The appendix 4 confirms that your sponsor resides with his wife and child whom is over the age of one, equating to two and a half people currently residing in the property. Therefore, it is considered that if you were to reside within the property, along with your brother and niece who are also currently applying to join your sponsor, it would be deemed to be overcrowded. I am therefore not satisfied that you will be accommodated adequately by the relative you are seeking to join without recourse to public funds. I therefore refuse your application under paragraph 319 (vi) of the Immigration Rules.

Within your submissions to demonstrate adequate financial support, it is noted that you have not submitted any evidence to detail your sponsor’s current housing costs. On the 21 January 2020 the Home Office sent you an email to request this information, however to date no response has been received. Due to the lack of evidence I am not satisfied that your sponsor is able to support you financially under the adequate maintenance criteria. I therefore refuse your application under paragraph 319X (vii) if the Immigration Rules.

I have therefore refused your application because I am not satisfied, on the balance of probabilities, that you meet all of the requirements of the relevant paragraphs of the Immigration Rules.

Exceptional circumstances

Consideration has also been given as to whether there are any exceptional circumstances in your case which would render refusal a breach of Article 8 of the ECHR as it would result in unjustifiably harsh consequences for you or relevant family member or might warrant a grant of leave to the United Kingdom outside the requirements of the Immigration Rules on compelling compassionate grounds.

You claim that your current carer is suffering from cancer and she is unable to care for you. Although the medical issue is evidence you have not demonstrated that your carer is unable to adequately care for you as claimed. It should be further noted that the provided evidence gives differing accounts with the hospital letter stating that she has ‘pancreatic cancer’ and a statement from your siblings stating that she is suffering from ‘cervical cancer’. Considering the evidence provided, you have not established that she is unable to care for you, or what her illness actually is. In light of this I am not satisfied that a refusal would result in unjustifiably harsh consequences for you or relevant family member.

In doing so, the best interests of the child have been taken into account as a primary consideration, in line with the Home Office’s duty to adhere to the spirit of Section 55 of the Borders, Citizenship and Immigration Act 2009 in relation to the applications from children overseas.

It is considered to be in your best interest as a child to remain in your current living circumstances with your grandmother. As outlined in your exceptional circumstances you have not damp sufficiently demonstrated that this cannot continue.

5. In her error of law finding Judge Kamara wrote:

15. The decision of the First-tier Tribunal contained an inadequate assessment of the best interests of the appellants who are both under 18 at the time of application. The first appellant is still a minor. At [40] there is only brief mention of best interests and no further detail. Whereas at [41] the judge goes on to consider the existence of exceptional circumstances, the main issues addressed here were legitimate expectation and the inability of the appellants to meet the requirements of the Rules.

16. The judge’s best interest consideration is contained in one short paragraph [42] yet the only finding made was that it was in the best interests of the first appellant to remain in Ethiopia. Inadequate reasons were provided for this finding. As submitted by Mr Wilson, a number of other factors are relevant to a best interests' consideration were not taken into account, including the normal starting point that it is in the best interests of the child to be with their parents, an important aspect as the appellants are orphans and their brother is their legal guardian. The issue of continuity of care and the fact that the judge accepted the sponsor’s involvement in the lives of the appellants was simply not considered.

17. The remainder of the decision and reasons does not provide any justification for the judge’s best interests findings and the negative findings on some issues do not undermine the matters which required determination. The appellants have been living with the sponsor’s wife and their niece as well as a relative of the wife. The niece has succeeded in her appeal and the respondent has not challenged that decision. The First-tier Tribunal neglected to consider the entirety of the appellant circumstances including the desirability of continuity of family life, their lack of relationship with their carer, the level of the sponsor’s involvement and their need to live with close relatives. That inadequate best interests assessment led to the judge’s proportionality assessment being incomplete and unsound.

6. An updated witness statement of the sponsor was admitted pursuant to paragraph 15(2A) of the Upper Tribunal Procedure Rules which is in the following terms:

1. I am the brother of the Appellants and I make this statement in support of their appeal. I refer to my previous witness statement made to the First Tier Tribunal.
2. Following the decision to grant entry clearance to my daughter, M, my wife, RWT, went to Ethiopia to bring M with her to the United Kingdom. She left on 1 May 2021, taking our other daughter, O born on 21 July 2019, with her. From Addis Ababa they flew to Mekelle, the capital of the Tigray region, where M lives with her mother’s grandmother and my two brothers.
3. At this time the Ethiopian army was in control in Tigray and the situation was relatively normal. On 21st June 2021 the Tigray People’s Liberation Front (TPLF) captured Mekelle and took over Tigray. Under TPLF rule, all services were terminated. Everything was shut down, banks, transportation, telecommunications. My wife was unable to travel to Addis Ababa in order to take a flight back to the UK.
4. I did not hear anything from my wife for 5 months. Eventually she managed to speak to me on a line provided by the Red Cross. The call was limited to one minute. She was able to tell me that she had no money. I sent her money through an informal route. She later managed to send me a voicemail. She told me that there was a shortage of food and that the prices were unbelievably high. Medicine was not available and no one could go to the hospital. I sent money three times.
5. From what I see on the news and from reports coming through people I know I am aware of the dire situation in Tigray. There are reports of as many as 500,000 people missing. Only agencies like UNHCR and World Food Programme have any access to the region. They are bringing food supplies in that it is not getting through to the people. There are famine conditions and malnutrition resulting in the spread of kwashiorkor.
6. The TPLF is conscripting young people, boys and girls from the age of 16, into the army. The young people can see the wounded and mutilated victims of the war and try to avoid conscription. TPLF members report on their neighbours. People go to different towns where they are not known to avoid conscription.
7. I received a voicemail from ATM in April that he was going to Amanata, another town in Tigray to hide away. I last heard from KTM in February. He said that the TPLF was still looking for them.
8. I have made efforts through the British Embassy and international organisations to arrange for my wife and daughters to travel from Mekelle to Addis Ababa. None have been able to help. I am very worried about the safety and welfare of my family in Tigray.

7. Mr Bates in his submissions referred to the revised CPIN published in March 2022, entitled Country policy and information note: Oromo, the Oromo Liberation Front and the Oromo Liberation Army, Ethiopia, March 2022.
8. At paragraphs 2.4.3 and 2.4.4 of that document it is written:
2.4.3 Prior to Abiy’s election, the dominant party in the ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF) coalition, which governed for almost 3 decades, was the Tigray People’s Liberation Front (TPLF). After a year in power, Abiy dissolved the EPRDF coalition and created a new party, the Prosperity Party, which the TPLF refused to join, resulting in its marginalisation. Rising tensions between the TPLF and Abiy’s government contributed to the outbreak of civil war in the Tigray region in November 2020. The war affected neighbouring regions such as Afar and Amhara, with the loss of thousands of lives and evidence of human rights violations committed by all parties (see Ethiopia-wide political context, Ruling party and Tigray conflict).
2.4.4 Reliable coverage of the conflict has been hindered by online misinformation campaigns, the arrest of journalists and limited access for international organisations to the conflict areas. By December 2021, the conflict had been largely contained within Tigray (see Tigray conflict and Reliability of information).
9. In Section 5, which provides more information relating to the situation in Tigray, it is written:
5.5 Tigray conflict
5.5.1 In a September 2021 report for the US Congressional Research Service, Lauren Ploch Blanchard, a specialist in African affairs explained the background to the Tigray conflict:
‘Repression and abuses of power under the EPRDF [Ethiopian People’s Revolutionary Democratic Front], which some Ethiopians attribute specifically to the TPLF [Tigrayan People’s Liberation Front], fueled grievances and spurred a mass protest movement that brought Prime Minister Abiy to power. Abiy, a member of the EPRDF, pledged to open the country politically and economically, and commenced reforms. His efforts to mend ties with neighboring Eritrea, long strained by a border conflict and an antagonistic relationship between the TPLF and the Eritrean regime, won him the Nobel Peace Prize in 2019. Later that year, Abiy merged the EPRDF coalition into a new Prosperity Party. The TPLF opposed the party’s creation, viewing it as part of an agenda to shift Ethiopia from a federal to a unitary state. Tensions between the TPLF and Abiy’s government rose, and an election dispute in 2020 led federal and Tigray regional authorities to challenge each other’s legitimacy. On November 4, 2020, Abiy announced military operations in Tigray, following an attack by Tigrayan forces on a military base in the region. The federal government described the attack as unprovoked and constituting treason, while the Tigray government asserted that its forces were acting in self-defense against a planned federal assault. Federal authorities have since accused the TPLF of orchestrating ethnic violence across Ethiopia to make it ungovernable. In May 2021, the Ethiopian government designated the party as a terrorist group.
‘The conflict has evolved into an apparent civil war in northern Ethiopia. It pits an array of armed groups aligned with the federal government—including the militaries of Ethiopia and Eritrea, paramilitary forces from Ethiopia’s regional states, and informal militia—against an ethnic insurgent force led by a former head of Ethiopia’s military and composed of former soldiers, Tigray regional security forces, militia, and civilian recruits.’
5.5.2 Al Jazeera online news site reported on 4 November 2021:
‘On November 4, 2020, the Ethiopian military was deployed to Tigray to squash forces loyal to the northern region’s governing party, the Tigrayan People’s Liberation Front (TPLF), in response to what the government said was an attack on federal army camps.
‘The operation was meant to be swift but a year later, the conflict has expanded beyond the region’s frontiers, causing a full-blown humanitarian crisis and leaving the country in a seemingly inescapable quagmire as the rebels claim to have made advances towards the capital, Addis Ababa.
‘Since hostilities began, there have been mass rapes and massacres of civilians on a large scale. As far back as January [2021], aid agencies were sounding alarms about how much worse the situation could get. Continued fighting, bureaucratic hurdles and aid blockades have since led to a continuing famine affecting hundreds of thousands of people. More than two million people have been displaced from their homes and tens of thousands more have died…
‘Meanwhile, widespread brutality and inciteful rhetoric on broadcast and social media have worsened ethnic tensions, with war also bringing about economic devastation, including skyrocketing inflation and high living costs.’[footnote 29]
5.5.3 On 5 November 2021, CNN reported:
‘Thousands of people have died in the fighting, by many estimates, with reports of razed refugee camps, looting, sexual violence, massacres and extrajudicial killings. Many more have fled to Sudan, in what the United Nations has called the worst exodus of refugees from Ethiopia seen in two decades. They describe a disastrous conflict that’s given rise to ethnic violence.
‘Ethiopia’s government has severely restricted access to journalists, and a state-enforced communications blackout concealed events in the region, making it challenging to gauge the extent of the crisis or verify survivors’ accounts.
‘But evidence of atrocities began to leak out earlier this year…
‘All actors in the conflict have been accused of carrying out atrocities, but Eritrean forces have been linked to some of the most gruesome. In addition to perpetrating mass killings and rape, Eritrean soldiers have also been found blocking and looting food relief in multiple parts of Tigray…
‘Since the conflict began, ethnically-driven violence has broken out into other parts of the country, including in Abiy’s home region, Oromia, the country’s most populous region. In May, the Oromo Liberation Army (OLA), an armed group, vowed to wage “total war” against Abiy’s government.’
5.5.4 On 17 November 2021, Al Jazeera reported: ‘The TPLF, which used to dominate Ethiopian politics, accuses the federal government of centralising power. The government accuses the TPLF of trying to return to its previous dominance. Both are accused of violations that may amount to war crimes, the UN has said.’
5.5.5 The UN reported on 26 November 2021:
‘[T]he Special Adviser on the Prevention of Genocide, Alice Wairimu Nderitu, reiterated her grave concerns regarding the deterioration of the situation.
‘For Ms. Nderitu, several threats are “spiralling the country down to a path where the risk of commission of atrocity crimes, including genocide, is real and must be addressed as a matter of utmost urgency.”
‘She pointed to calls to arms and hate speech, militarization of society, ethnic profiling, denial of humanitarian access and blockage of food to areas under fighting inhabited by specific ethnic communities.’
5.5.6 On 29 November 2021, the pro-government Fana Broadcasting Corporate reported:
‘The Government of the Federal Democratic Republic of Ethiopia has setup an Inter-Ministerial Taskforce to oversee redress and accountability measures in response to human rights violations committed in the context of the conflict in northern Ethiopia.
‘The Taskforce officially commenced its work on 29 November 2021 by adopting a comprehensive strategy and action plan for the implementation of the recommendations contained in the Joint Report of the Ethiopian Human Rights Commission (EHRC) and the Office of the United Nations High Commissioner for Human Rights (OHCHR).’
5.5.7 A joint statement issued on 6 December 2021, signed by the governments of Australia, Canada, Denmark, the Netherlands, the United Kingdom, and the United States, read:
‘Reports by the Ethiopian Human Rights Commission (EHRC) and Amnesty International describe widespread arrests of ethnic Tigrayans, including Orthodox priests, older people, and mothers with children. Individuals are being arrested and detained without charges or a court hearing and are reportedly being held in inhumane conditions…
‘We reiterate our grave concern at the human rights abuses and violations, such as those involving conflict related sexual violence, identified in the joint investigation report by the Office of the United Nations High Commissioner for Human Rights and the EHRC, and at ongoing reports of atrocities being committed by all parties to the conflicts.’
5.5.8 Following a withdrawal by Tigrayan Defence Forces into Tigray in December 2021 the conflict – which at the time of publication is unresolved – was largely contained within the Tigray region.
10. Mekelle, which the sponsor confirmed his oral evidence was where the family remain, is the capital of the Tigray region.
11. The sponsor confirmed that was able to have contact about two weeks ago which has to be sent via a third party, that he was able to speak to the appellants two weeks ago, and that they are living with his wife and her grandmother as before. The sponsor confirmed he was able to send money to his wife through a smuggler or person who passes through, although the evidence of such payments was limited within the bundle.
12. The sponsor confirmed that he would try via the UNHCR to see if they could get his family out; but in the meantime would send money.
13. Mr Bates asked the sponsor what actual care he provided for the appellants, who are now 19 and 17 years of age, to which he confirmed that he sent money; provided financial support.

Discussion

14. It is not disputed before me that the best interests of the appellant who remains a minor, and an orphan, will be to live with the sponsor and his wife. It was accepted that the sponsor is the guardian of both appellants.
15. The second appellant is now an adult.
16. Mr Bates submission that no background evidence had been put forward to support the appellant’s claims regarding country conditions is noted, but he himself referred to the CIPU and there is material in the appellant’s bundle specifically referring to the situation in Tigray.
17. The First-tier Tribunal rejected the claim regarding the grandmother’s medical condition and found she would need limited care due to her age, but argued that considering everything in the round there was no evidence to prove exceptional circumstances to enable a 17 and 19 year old to enter the United Kingdom.
18. On behalf of the appellants Mr Wilson, in his skeleton argument, wrote:

SKELETON ARGUMENT

Factual Summary

1. The appellants are the younger brothers of the sponsor, TM. S was granted refugee status in the UK on 10/06/2011 and has had indefinite leave to remain since 18/09/2016.
2. The appellants applied for entry clearance to join their brother in the UK on 07/12/2019. The applications were refused, and the decision is the subject of this appeal.
3. The applications were considered under Immigration Rules paragraph 319X. They were refused because the sponsor has indefinite leave to remain, not limited leave.
4. The refusal was also because S could not provide adequate accommodation to the appellants, since his premises consist of two rooms already occupied by two adults and one child and would be overcrowded if the appellant’s and their niece (who was also applying for entry clearance) were to go into occupation.
5. The refusal was also on the ground that there would not be adequate maintenance as the sponsor had not supplied evidence of his housing costs.
6. The refusal rejected exceptional circumstances as it was considered that the appellants had not demonstrated that their carer was unable to care for them.

Issues

1. Whether the appellants satisfy the requirements of para 297 of the Immigration Rules as children joining a relative in the UK.
2. Whether the appellants can, and will, be accommodated adequately by the sponsor without recourse to public funds in accommodation which he owns or occupies exclusively.
3. Whether the sponsor has had sole responsibility for the appellants.
4. Whether there are serious and compelling family or other considerations making the exclusion of the appellants undesirable.
5. Whether it it is in the best interests of the appellants to join their brother, and whether the interference with their right to respect for family life is proportionate.
6. Whether there are exceptional circumstances making the refusal unduly harsh.

Submissions

1. The sponsor has had sole responsibility for the appellants since the death of their mother.
2. There are serious and compelling considerations making the appellants’ exclusion undesirable; namely, the separation from their family members, the inability of their maternal grandmother to continue to care for them and the increasingly dangerous and inhuman conditions due to the civil war in Ethiopia.
3. The available accommodation should not be assessed on the basis of the sponsor’s current premises. He need not incur the expense of renting larger premises while he is living only with his wife and daughter. He will be able to move into larger accommodation as soon as 3 entry clearance is granted. Alternatively, accommodation can be provided on a temporary basis by friends of the sponsor.
4. The appellants, as well as their niece, can be adequately maintained by the sponsor out of his existing income, even given the extra rent required for a two-bedroom property.
5. The fact that the requirements of paragraph 297 can be met, or nearly met, by the appellants is a strong indication that refusing them entry clearance is a disproportionate interference with their article 8 rights.
6. The considerations referred to in 2. above, which also indicate that it is in the best interests of the appellants to be united with their brother, amount to exceptional circumstances in which the refusal of entry clearance will have unjustifiably harsh consequences for the appellants.

19. There is clear evidence relating to the country conditions in Tigray as a result of the civil war in the public domain.
20. One area of concern in the modern world is that conditions in Tigray could cause coronavirus to spread as many displaced communities are living in crowded shared living spaces. There are food shortages and lack of safe shelter, and measures to protect against coronavirus such as social distancing and handwashing are unlikely to be a priority. At the date of this hearing it appears the appellants are able to avoid being displaced and have remained living in the home environment, although food shortages are a real issue.
21. The World Health Organisation in their overview in relation to the situation in Tigray write:

More than 5.2 million people in Tigray, Ethiopia, are in dire need of humanitarian support, including health care, due to the conflict that erupted at the end of 2020. The conflict has left thousands injured and traumatized and had a severe impact on the families’ lives and livelihoods. The spillover of the conflict into the neighboring regions of Afar and Amhara is significantly increasing humanitarian needs in the northern part of the country. Over 2.1 million people have been displaced and are living in crowded settings with limited access to water and sanitation infrastructure.
Over half of the health facilities in Tigray are not operational. People are suffering from trauma and injuries, food insecurity and malnutrition, sexual and gender-based violence, communicable diseases such as malaria, cholera, as well as reduced access to treatment for non-communicable diseases and maternal and child health services. The conflict has also disrupted the COVID-19 response. Millions of people are facing acute food insecurity in the region, with over 400 000 people close to famine. Access to affected areas remains limited, making the scale-up of the health response difficult even as the population’s needs are growing, especially for children, women, and internally displaced people.
As Global Health Cluster lead, WHO is coordinating with 23 partners in Tigray and neighboring areas to provide the affected populations with emergency health support, including on prevention, preparedness and response to disease outbreaks.
22. The relation to the claim made by the sponsor concerning the risk of conscription by the TPLF, an item published in the Guardian newspaper on 28 June 2022 reads:

‘It’s death either way’: desperate Tigrayans flee starvation and forced conscription

People risk dangerous smuggling routes only to be held to ransom in detention camps before being allowed to continue to safety

The worsening humanitarian crisis in Tigray and threat of forced recruitment has caused many to flee.
People in Ethiopia’s besieged Tigray region are taking dangerous smuggling routes out of the area to escape forced military service under one side and the starvation and repression imposed by the other.
Tigray has been largely shut off from the outside world during the conflict, with the Ethiopian authorities preventing access and closing down internet communications. Meanwhile, the Tigray People’s Liberation Front (TPLF) is forcing people to join its ranks as fighters.
Danay*, 30, and his five friends knew the route via the neighbouring Amhara region was dangerous when they decided to flee Tigray’s capital, Mekelle, in May. But as the humanitarian crisis worsened and the threat of having to join the fighting increased in their home town, they paid smugglers to take them out.
“If caught by the Amhara Fano fighters you will be killed. You also risk being murdered by machete-wielding mobs of residents. They all hate Tigrayans and are often merciless. Even paying large amounts of money to smugglers cannot be a guarantee. It depends on how lucky you are,” says Danay. He is now in a detention camp outside Jari, in Amhara, until he pays more money to his smugglers.
“I fled because the TPLF authorities have been intimidating the already starved residents to contribute money and food to the military. At times, they even nag us to feed the Ethiopian prisoners of war. They forcefully recruit, arbitrarily detain and decide whatever they want. On top of that, you see people dying from starvation and curable diseases due to the siege imposed by the Ethiopian government. It is death either way,” he says.
Danay is being held with up to 1,000 Tigrayans in overcrowded conditions after fleeing alleged “tyrannical rule”.
Ibrahim*, another man at the detention camp, says: “I did not have much problem with starvation – I was better compared to others. But I don’t want to go to war. It is not only because I am a Muslim, I just don’t want to kill people.”
Thousands of people have died since war broke out in November 2020, between Ethiopia’s federal government and the TPFL, the ruling forces in Tigray, and millions need food assistance. The UN and US accuse Ethiopia’s prime minister, Abiy Ahmed, of imposing a de facto blockade on Tigray and preventing aid from getting through.
In March, the Ethiopian government declared a “humanitarian truce” after months of international pressure.
All communications are blocked to Tigray, but the Guardian interviewed residents who managed to get out, as well as escapers in the Jari camp, who accused the TPLF of aid embezzlement and unfair treatment.
When the first 20 aid trucks arrived in Mekelle in April, after the truce, Tekele* and his family were hopeful that they would finally get some respite.
“I had seen the [World Food Programme] aid trucks. But the aid was not distributed. The reason the authorities provide to the media is shortage of fuel. But even private trucks have access to fuel and are operating, let alone the government,” says Tekele. “The aid that gets in is hardly reaching the starved. Meanwhile, TPLF authorities bother us every day to contribute from what we have. They have absolute power. They embezzle, and at times distribute the little aid that gets in based on political affiliation.”
Mehari*, who has two children, said that in April he was ordered to contribute 10,000 birr (£157) to the military.
“The papers are stamped by public offices. If you refuse to contribute, they arrest and threaten you to contribute. They arbitrarily decide who should pay, and how much,” he says.
Last month, the Tigray government claimed forced recruitment had stopped and it was not systematic. But Tigrayans who spoke to the Guardian on condition of anonymity insist it is getting worse.
“They passed an order recently that people from 40 to 55 should also join the army. Even families who previously sent five sons and daughters to the army are being forced to send more. The orders have the Tigray government office stamp. If you refuse or go into hiding the authorities arrest your parents.”
Thousands of people are paying smugglers up to 40,000 birr (£625) a person to escape the region. The network of smugglers includes Ethiopian army officers who take them to Jari where they are held until they pay a ransom. Then they cross the Amhara region to Addis Ababa, Ethiopia’s capital. Men in the camps say people face beatings, hunger, sexual propositions in exchange for leaving the camp and threats of forced recruitment by militias battling Tigray forces.
“They beat us. The camp is harsh. They harass the women, ask them for sex in exchange for leaving the camp. Escaping on your own is not an option because the Fano militia and residents threaten to murder us,” says Danay.
Kaleab* has made it outside Ethiopia. He says 80 people who were with him in the camp have disappeared after reaching Addis Ababa.

Tigrayans detained in Aba Samuel Prison in Addis Ababa, the capital of Ethiopia.
“One month ago, they transported me and 80 others from the Jari camp to Addis. But when we got to Addis, they took and held us in the Torhayloch camp. They told us we will be recruited to an army wing that battles the Tigray force. Everyone refused. We said we all fled Tigray, hating to go to war and we don’t want to fight with our own brothers. I managed to escape. The rest disappeared. The unverified information I have is that they are forcefully transported to Humera [in Tigray].”
A Tigrayan government spokesperson told the Guardian the allegations were baseless.
“The aid after the truce is far from meeting the needs in Tigray,” said Kindya Gebrehiwot. “It is no surprise people are looking for alternative means to survive, including a dangerous journey to Addis, as the Ethiopian government has suspended all services.”
23. A similar article was published by Reuters on 16 May 2022 reporting that the authorities in the Tigray region were forcing youth to join the military force. In the article it is written:

“Authorities in Ethiopia's war-shattered Tigray region are forcing young people to join their army's fight against the central government by threatening and jailing relatives, according to captured fighters and residents, according to captured fighters and residents.”

24. Mr Bates posed the question in his submissions whether the situation in the country was such that it justified a grant of leave to enter to a 17 and 19-year-old.
25. It is not made out either appellant is able to succeed under the Rules, this is therefore an application outside the Immigration Rules.
26. Of relevance is the decision of the Supreme Court in Agyarko [2017] UKSC 11. At [57] in Lord Reed, giving the judgement to which the other Justices agreed, stated:

“…Ultimately, [a court or Tribunal] has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State’s policy, expressed in the Rules and the Instructions, but the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are ‘insurmountable obstacles’ or ‘exceptional circumstances‘ as defined. It must also consider all factors relevant to the specific case in question,… The critical issue will generally be whether, giving due weight to the strength of the public interest in removal of the person in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.”

27. At [60] of the judgement it was stated by Lord Reed:

“It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case to not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham [in SSHD v Huang] had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the tester proportionality. On the contrary, she has defined the word ‘exceptional’, as already explained, as meaning ‘circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be disproportionate’. So understood, the provision in the Instruction that leave can be granted outside the Rules were exceptional circumstances apply involves the application of the tester proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with Article 8…”

28. The focus of the test when considering an application for leave to remain outside the Immigration Rule should be that of “unjustifiably harsh consequences”.
29. The focus is therefore upon the proportionality of the decision by the respondent. Family life with their UK-based sponsor is accepted and there is a positive obligation by the UK to facilitate the development and enjoyment of such family life.
30. I find that so far as the younger of the two appellants is concerned, in whose favour there is a positive finding pursuant to section 55, that excluding him from the United Kingdom will not be proportionate when the competing interests are weighed in the round. There is evidence of accommodation that will be provided by third party friend until the sponsor is able to rent alternative accommodation to enable the family to live together.
31. So far as the older of the two boys is concerned, who is now an adult, the best interests of the child assessment is not appropriate and the question is that of unjustifiably harsh consequences.
32. It was clear from the evidence that the situation in which both appellants find themselves, a situation of civil war with the health concerns expressed by the WHO and food shortages leading to detrimental effects, as recognised in the country material, combined with the real threat of being conscripted by the TPLF, creates an environment where there is a real risk, on the balance of probabilities, of both appellants already facing unjustifiably harsh consequences.
33. It is also the case, so far as the older appellant is concerned, that his sibling with whom he has always lived, the younger of the two appellants, will leave to come to the United Kingdom as will his sister whose appeal was allowed previously, as will the sponsor’s wife who has currently been providing care and assistance to her grandmother in light of the situation and her inability to be able to leave Tigray to return to the United Kingdom.
34. It is not made out either of the boys have formed an independent family unit of their own and are clearly still dependent upon the support provided by their brother with whom they have family life recognised by article 8 ECHR. I do not find it proportionate that the older of the boys should be expected to remain in the situation that he is facing in Tigray alone with his immediate family connections severed, on the facts.
35. The burden is upon the Secretary of State to establish that the decision is proportionate – see R (Razgar) v SSHD [2004] UKHL 27 . The issue in this appeal is the answer to the fifth of the Razgar questions.
36. Having undertaken a necessary balancing exercise I conclude that, despite his best efforts, Mr Bates has not been able to establish on the facts of this appeal that the decision is proportionate in relation to either appellant.
37. I allow the appeals of both appellants on human rights grounds on this basis. The point made by Mr Bates as to how in light of the country conditions the appellants will be able to leave Tigray to enter the United Kingdom is not a matter that need consider this tribunal.

Decision

38. I allow the appeals.

Anonymity.

39. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated 1 July 2022