Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/01063/2014
oa/01066/2014

THE IMMIGRATION ACTS

Heard at City Centre Tower Birmingham
Decision & Reasons Promulgated
On 4th July 2016
On 4th August 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

MIY
ZIY

(ANONYMITY DIRECTIONS MADE)
Appellants

and

ENTRY CLEARANCE OFFICER - NAIROBI
Respondent

Representation:

For the Appellants: Ms L Kullar of SH & Co Solicitors
For the Respondent: Mrs Aboni, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellants are male siblings born respectively on [ ] 2002 and [ ] 2006. They are both citizens of Somalia. They applied together for entry clearance as the dependent children of their father, IYN, who had been granted refugee status in the UK and eventually indefinite leave to remain. The applications were refused on 21st November 2013 as the Entry Clearance Officer was not satisfied that the Appellants met the requirements of paragraph 352D of the Statement of Changes in Immigration Rules HC 395. The Appellants appealed and their appeals were heard by First-tier Tribunal Judge Graham (the Judge) sitting at Birmingham on 9th September 2014. She decided to dismiss the appeals under the Immigration Rules and on Article 8 ECHR human rights grounds for the reasons given in her Decision dated 29th September 2014. The Appellants sought leave to appeal that decision, and on 10th December 2014 such permission was granted.
2. The appeals first came before Deputy Upper Tribunal Judge Davey on 27th January 2016. He found an error of law in respect of the Judge's Article 8 ECHR decision which he set aside. He then adjourned the appeals for that decision of the First-tier Tribunal to be remade. Hence the matter comes before me today for that purpose.
The Hearing
3. At the hearing before me the Sponsor gave evidence-in-chief and was cross-examined. What he said is recorded in the Record of Proceedings. I also heard submissions. Mrs Aboni addressed me first when to begin with she said that she relied upon the comments made in the Refusal Notice. The Appellants have not been able to satisfy the requirements of the Immigration Rules as they and the Sponsor have never been part of a family unit.
4. As regards Article 8 ECHR, Mrs Aboni accepted that there was a presumption of family life between children and their natural father, but in this case such family life was very limited. The Sponsor had only become aware of the existence of the Appellants some five months before their applications were made. The Sponsor had never met the Appellants, and he had not visited them in Kenya. The Appellants were adequately cared for and attended school. They had no health problems. The present arrangements for their care could continue. Mrs Aboni concluded her submission by saying that in the circumstances a breach of any family life was proportionate.
5. In response, Ms Kullar argued that considering the Appellant's history, it would be unduly harsh to refuse them family reunion now that the relationship with their father had been established. Their mother had married and now did not care for them. The Sponsor continued to support the Appellants in Kenya through a cousin of their mother, but that arrangement could not continue as she had emigrated to South Africa. The Appellants were now cared for by a non-relative which was not a possible long-term solution. The Appellants and their carer had no status in Kenya. The Sponsor had not been able to visit the Appellants in Kenya as he had been persecuted there in the past. There were therefore exceptional circumstances which allowed a decision that there was family life between the Sponsor and the Appellants. The Sponsor was originally a refugee and could not return to Somalia. He had no family in Somalia or Kenya. Therefore any future family life between the Appellants and the Sponsor could only be enjoyed in the UK.
Decision and Reasons
6. It is common ground in these appeals that the Appellants cannot meet the requirements of the Immigration Rules as regards family reunion. The only issue which I have to decide is whether the refusal of their applications by the Entry Clearance Officer in Nairobi amounted to a disproportionate breach of their family life with their natural father.
7. There was little dispute as to the facts and those which are relevant I find to be as follows.
8. The Sponsor had been detained in the same prison as the mother of the Appellants between 1998 and 2006. Whilst there he had formed something of a relationship with the Appellants' mother. As a consequence she had become pregnant in 2001 and 2005 and subsequently had given birth to the Appellants. When she became pregnant, the Appellants' mother had been removed from the prison only returning after her confinement without her children. The Sponsor had not known of the births of the Appellants. He had not been told of the births by the Appellants' mother. She had given the name of a different man to her family as the father.
9. Following his release from prison, the Sponsor had lived in a refugee camp in Kenya before coming to the UK where he had been granted refugee status and later indefinite leave to remain.
10. The Appellants' mother had been released from prison in 2005. She had cared for the Appellants until they had gone to live in Kenya in 2013. In May 2013 she had contacted the Sponsor as she had become unable to look after the Appellants as she was suffering from HIV/AIDS. This was the first the Sponsor had known of the Appellants. He had arranged for DNA tests which had confirmed him to be their father. He had then arranged for the Appellants to seek leave to join him in the UK. There had been no contact between the Sponsor and the Appellants' mother between 2005 and 2013.
11. At the time of the application for entry clearance, the Appellants had been living in Nairobi with the Sponsor's mother and a cousin of their mother named Y. The Sponsor's mother had subsequently died, and Y had gone to South Africa in order to marry. The Appellants were now cared for by a man named A who was not a relative. That had been the situation for the past six months. However A had no status in Kenya.
12. The Sponsor had never been able to visit the Appellants. He had never met them face to face. He had sent some money to A for their maintenance, and contacted the Appellants by telephone.
13. The Sponsor had no other relatives in Kenya or Somalia. The Appellants attended school, and both were in good health.
14. As I said earlier, the only issue remaining to be decided in these appeals is whether the refusal of entry clearance amounts to a disproportionate breach of the rights of the Appellants and the Sponsor under Article 8 of the ECHR. That issue is to be decided according to the circumstances at the date of the hearing. I must decide the issue by answering the five questions posed by the late Lord Bingham in R (Razgar) v SSHD [2004] UKHL 27. The first question is whether the Entry Clearance Officer's decision amounts to an interference by a public authority with the exercise of the right to respect for private or family life. To answer that question, I must first decide if the Appellants have a family life with the Sponsor. I accept that as acknowledged by Mrs Aboni, there is a presumption of family life between a father and his natural children. However, whether family life exists is a question of fact, and something more is necessary than a mere biological connection. In this case, I find no family life between the Appellants and the Sponsor. It is true that since he became aware of their existence, the Sponsor has sent money for the Appellants' maintenance and has spoken with them by telephone. However, the Appellants have never met their father face to face, and they have never lived together in the same household. What little relationship they have has only persisted for the past three years, a small proportion of the Appellants' lives. In these circumstances I find no family life between the Appellants and the Sponsor. Of course there is no question of the Appellants having a private life in the UK which they have never visited.
15. In the alternative, and if there is a family life between the Appellants and the Sponsor, the second question can be answered in the affirmative. It is clear that the interference caused by preventing the Appellants from coming to the UK will have consequences of such gravity as potentially to engage the operation of Article 8.
16. The answers to the third and fourth questions are not in dispute. I am satisfied that the interference referred to above will be in accordance with the law and necessary in a democratic society to maintain immigration control which is required for the economic well-being of the country.
17. The remaining question is whether such interference is proportionate to the legitimate public end sought. I find that it is. There is considerable weight to be attached to the public interest in that the Appellants do not qualify for entry clearance under the Immigration Rules. In my judgment the circumstances of the Appellants do not outweigh that interest. I have already found that the family life between the Appellants and the Sponsor, if it exists at all, amounts to very little. The Appellants have the financial support of their father, and they have someone to look after them in Kenya. They are being educated, and they are in good health. The Sponsor can continue his contact with the Appellants by modern methods of communication.

Notice of Decision

The appeals are dismissed on human rights grounds.

Anonymity

The First-tier Tribunal made an order for anonymity which I continue for the reasons originally given by the First-tier Tribunal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Dated 04/08/2016

Deputy Upper Tribunal Judge Renton

TO THE RESPONDENT
FEE AWARD

As the appeals have been dismissed there can be no fee award.

Signed Dated

Deputy Upper Tribunal Judge Renton