The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/08022/2012


Heard at Field House
Determination Promulgated
On 5 December 2013
On 23 December 2013





Entry Clearance Officer (NAIROBI)

For the Appellants: Ms V Laughton of Counsel
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

1. The three appellants are all citizens of Somalia. The first appellant was born on 26 June 1993, the second on 1 July 1994 and the third on 17 December 1994. All three appellants applied to join their sponsor who is their claimed adopted mother and has limited leave to remain in the United Kingdom (“UK”) as a refugee. The appellants made their applications at the same time as their claimed adopted father and his and the sponsor’s five children. The appellants were refused entry clearance and they appealed those decisions.
2. The sponsor is Fadumo Sharif-Ali Shariif-Hassan (“The sponsor”) who is a Somali national recognised as a refugee in the UK. The sponsor is married to Mr Ahmed Shariif Jibriil (“Mr Jibriil”). The appeals of the three (current) appellants were heard by First-tier Tribunal Judge Molloy together with the appeals of Mr Jibriil and Abdullahi Ahmed Shariif Jibriil (“Abdullahi”). On the day of the hearing before Judge Molloy the respondent withdrew the decision in respect of Abdullahi because DNA evidence appeared to show that he is the biological child of both the sponsor and Mr Jibriil. The appeal of Mr Jibriil was allowed by Judge Molloy. He found that the marriage between Mr Jibriil and the sponsor is subsisting and that they intend to live together permanently in the capacity of spouses. There is no challenge to that part of Judge Molloy’s decision.
3. Four other children who were living in Ethiopia, namely Raqiya, Kariima, Abdirahman, and Asia, applied for entry clearance on 20 February 2012 and their applications were granted. It was accepted by the Entry Clearance Officer that they are the biological children of Mr Jibriil and the sponsor and entitled to entry clearance. They entered the UK on 25 June 2012.
The Challenge to Judge Molloy’s Decision
4. In respect of the dismissal of the three appellants’ appeals it is said that the judge’s reasoning in respect of Article 8 is flawed. His reasoning is contained at paragraphs 239-261 of the determination. The witness evidence given was not challenged by the respondent. The judge accepted that the sponsor gave credible, straightforward and forthright evidence supported, albeit second hand, by the other female adult witnesses to the effect that the sponsor travelled to Ethiopia from the UK once to find her family members. She was unsuccessful on that occasion but was successful in doing this upon another occasion, pre decision. It was accepted also that she made a further visit to Ethiopia post decision.
5. The determination as it relates to these three appellants was premised on the differing dates of decision of the respondent. The appellants and other family members to whom I have referred above all made their applications on the same day which was 20 February 2012. However, the first appellant’s application was refused on 13 March 2012 and the second and third appellants’ applications were refused on 10 April 2012.
6. At paragraph 240 of the determination the judge expressed that he was satisfied upon the totality of the evidence that the appellants each have an established family life which is deserving of respect. In the following paragraphs he found that the appellants came to live with the sponsor and Mr Jibriil in Somalia during the 1990s and have been part of that couple’s family thereafter. As other members of the family were born they became members of the family life of those children also.
7. The judge then found that because the dates of decisions in respect of the appellants occurred prior to the grants of entry clearance to four of the sponsor’s biological children and before he allowed the appeal of Mr Jibriil there was no interference in the rights of the appellants to the enjoyment of their respective family lives. Because of that and as he saw it by reason of the lack of evidence from in particular the first appellant (see paragraph 254, for example) he did not go on to consider the other matters set out in Razgar v Secretary of State for the Home Department [2004] UKHL 27. The judge was not persuaded that there would be any interference in the rights of the appellants to the enjoyment of their respective family lives but even if there was interference he did not find that the interference would have consequences of such gravity as potentially to engage the operation of Article 8 itself. (As per paragraphs 245 and 246 of the determination – and the reasoning for coming to that conclusion in paragraphs 260 and 261).
8. Permission to appeal the decision of Judge Molloy was granted on the basis that to look at the date of each decision may not be to interpret the ECHR purposefully and it was therefore arguable that the judge erred.
9. The respondent filed a Rule 24 response to the grounds of appeal which are wholly unparticularised save in one respect. It appeared to the respondent that the judge did not consider the sponsor’s Article 8 rights. Otherwise the respondent submitted that the judge directed himself appropriately.
My Findings on the Error of Law Challenge
10. Although by Section 85A of the Nationality, Immigration and Asylum Act 2002 the Tribunal may only consider facts appertaining at the date of decision, and under AS (Somalia) [2009] UKHL 32 this applies to Article 8 grounds in respect of appeals against decisions to refuse entry clearance as well as grounds relating to the Immigration Rules, this does not mean that the Tribunal cannot look at the evidence that comes into existence after the date of the decision or even events that occur after the date of decision provided that they are relevant to circumstances appertaining at the date of decision.
11. The sponsor’s spouse, five biological children and three de facto adopted children, all made their applications at the same time. For whatever reason the decisions were made at different times by the respondent. As it happens the three appellants received their decisions first but what is relevant is the fact that at the date of their decision Mr Jibriil and his biological children had applications pending under the Immigration Rules, they all met the requirements of those Rules and they were therefore entitled to entry under those Rules. It was clearly their intention to come to the UK if entry clearance was granted as is evidenced by the fact that the children who were granted entry clearance did indeed come to the UK after their grant.
12. The decision by the respondent and the judge’s decision in respect of Mr Jibriil, although postdating the decisions in respect of the appellants, reflected the factual matrix in existence at the time all the applications were made. The circumstances as at the date of all the applications were exactly the same as those appertaining at the various dates of decision.
13. I agree with the submission of Ms Laughton that the state of a person’s mind at a particular time, including their intentions, is as much a “fact” as any other more tangible state. A judge is therefore obliged to consider a person’s intentions relative to the material date of an entry clearance decision. That much is confirmed by DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038 which confirmed that Tribunals could consider evidence that postdates the date of decision if that cast light upon the party’s “intention” at the date of decision:
“25. This case provides an example of the distinction within subsection (5). There was an issue about whether at the time of the decision the couple intended to live together as man and wife. In the language of the statute, did the circumstances appertaining at the date of decision include that intention. Evidence that those were then the circumstances can be provided by subsequent actions which cast light upon what the position then was. This is not the same as evidence which shows that the position has subsequently changed and that there now is an intention which previously was lacking. Evidence about a subsequent change in intention is clearly excluded”.
14. I find that the judge was obliged to consider whether it was the intention of the other applicants to enter the UK if granted entry clearance, having regard to the fact they were entitled to such entry. Four of the children subsequent to their grant of entry clearance entered the UK. The relevant facts at the date of decision were therefore that Mr Jibriil and his biological children were entitled to entry clearance and had the intention to exercise that right.
15. In the case of Husna Begum v ECO [2001] INLR 115 CA the issue was whether a daughter could be considered to be living alone under paragraph 317 of the Immigration Rules when at the date of decision she had other family members living with her. The Court of Appeal accepted that where the other members of the family had been granted entry clearance and were therefore entitled to travel to the UK the appellant could be considered to be living alone, despite the fact that her brother with entry clearance had not yet left:-
“32. … In my judgment if it was the brother, the brother’s position should have been considered expressly. The Tribunal should have addressed itself as to whether, notwithstanding that he has permission to enter the United Kingdom he will remain in Bangladesh until a marriage is arranged for his sister”.
16. It is highly material, I find, that if the other family members proceeded to enter the UK pursuant to grants of entry clearance either as a result of initial grants or successful appeals this would have a highly material impact on the Article 8 rights of the appellants. Not only that but there would be a highly material impact on the applicants also who were granted entry clearance or had their appeals allowed. If everyone who is entitled to entry clearance came to the UK as is their right the appellants would be left alone in Ethiopia. They have no legal status there, no access to lawful employment, no network of support and would be separated from the only family they have ever known and with whom they have always lived. As at date of decision the second and third appellants were still minors and the judge accepted that the appellants had always been part of the sponsor’s family.
17. For these reasons I find that the conclusion of the judge is not sustainable where he states that at the date of the appellants’ decisions their family life would continue in exactly the same way because there had been no decisions in respect of the other applicants. This does not have regard to the facts, namely, that the other applicants were entitled to entry clearance and would exercise that entitlement. Having failed to take into account postdecision evidence which illuminated the intentions of the applicants as at the dates of decisions the judge, in what is an otherwise extremely careful and thorough examination of the facts, erred.
18. There is the additional matter that the judge failed to consider the impact of the decisions on the sponsor’s Article 8 family life rights which should have been taken into account. Family life existed between the sponsor and the appellants as was conceded by the Presenting Officer and accepted by the judge at paragraph 240 of the determination. The decisions in respect of the appellants, even if considered in isolation from the subsequent grants of entry clearance to the biological children and the allowing of Mr Jibriil’s appeal, interfered in the relationship between the appellants and the sponsor.
19. The sponsor was recognised as a refugee. By definition this meant that she fled to the UK. Inevitably this disrupted the family life that she had with her husband and children. She did not voluntarily leave or leave in the normal course of the changes to family life which naturally occur as children grow up, see H (Somalia) [2004] UKIAT 00027. Although the judge dismissed the appeal under Article 8 on the basis that there would be no interference with family life as it would continue as it had before, it was held in R (on the application of Fawad Ahmadi and Another) v Secretary of State for the Home Department [2005] EWCA Civ 1721:
“18. … There is ample authority for the proposition that the obligations under Article 8 require a state not only to refrain from interference with existing life, but also from inhibiting the development of a real family life in the future”.
The judge accepted that family life exists between the sponsor and the appellants and therefore the decision of the ECO must constitute an interference with that family life and the judge should have gone on to consider whether the refusals were justified.

The Resumed Hearing
20. Having announced my decision at the hearing the representatives expressed themselves ready to proceed with a further hearing. There was no challenge to the findings of fact made by the First-tier Tribunal Judge and it was on that basis that the further hearing proceeded.
21. Ms Laughton called the sponsor to give evidence briefly and she gave that evidence through a Somali interpreter. Mrs Fadumo Sharif-Ali Shariif-Hassan said that her husband, Mr Jibriil, and Abdullahi received their visas approximately two weeks ago but Abdullahi is refusing to come to the UK without Khadra (the first appellant) because he is looking after her. Her husband will not come without Abdullahi and if the appellants’ appeals are not granted there will be a lot of problems for the family because it would be split. When asked how the separation of the family is affecting her, the sponsor said that she is looking after six children here. She needs to feed them but also send money to the family in Ethiopia. The children here are always worrying about the other children who are not here. They think that she, the sponsor, herself separated the family.
22. Asked questions by Mr Whitwell the sponsor said that if the appellants’ appeals failed the family unit in Ethiopia would then be her husband, Abdullahi and the three appellants. The sponsor replied to the effect that her husband and Abdullahi would not leave the other children there. Since 2008 the sponsor has been to Ethiopia to visit the family twice. She does not send a set amount of money per month but does what she can to help. On one occasion she might send US$100, on another US$150 and on another US$200. The family in Ethiopia has not stayed in one particular property. The police often stop them. She estimated that as far as she can remember they have changed properties four times there.
23. In his submissions Mr Whitwell agreed that the findings of the judge are to be preserved. This is an Article 8 claim only and turned on the question of proportionality. If the appeals are dismissed the family unit in Ethiopia would remain intact. The family members there are in rented accommodation and money is remitted by the sponsor from the UK. The sponsor has been able to visit twice. Referring to paragraph 55 of the determination the sponsor said that Mr Jibriil has been in Ethiopia since 2010 but that it is not safe there for him. As soon as somebody steps out on to the street they will be deported by the Ethiopian authorities. Mr Jibriil has been in hiding but he can go out in the day and he occupies his time by looking after the children. There was one instance when Mr Jibriil had been arrested but he was released on payment of a bribe although the witness says that this happened on a number of occasions. He invited me to say that the decision to refuse entry clearance to the appellants was proportionate.
24. Although making a few additional submissions Ms Laughton largely relied upon and repeated what she set out in the skeleton argument. The alternative to the appellants coming to the UK would be that they remained in Ethiopia as a separate unit together with Abdullahi and Mr Jibriil (who have been granted entry clearance) and Khadra, the first appellant, would take on the role of mother. The sponsor would have to visit the family members in Ethiopia as and when she could but she has very young children here as well as those that have joined her from Ethiopia. The whole family could not return to Ethiopia where they have no right to be, no employment possibilities and no proper accommodation. This meant that the proportionality argument fell very firmly in favour of the appellants succeeding in their appeals.
My Consideration of the Article 8 ECHR Position
25. I heard evidence from the sponsor. This largely accorded with all that has gone before but brought the evidence up-to-date as to the positions of the various family members. That evidence has not been challenged in a meaningful way other than perhaps in relation to the number of times that Mr Jibriil has been stopped and/or arrested. I find that on any view the family's position in Ethiopia is precarious. Almost certainly this explains in large part why Mr Jibriil and Abdullahi do not intend to leave Ethiopia unless and until entry clearance is granted to the appellants. None of those who are currently in Ethiopia have any right to be there and although over the age of majority the appellants are still comparatively young and are likely to be in vulnerable positions.
26. The three appellants are not the biological children of the sponsor and Mr Jibriil. However, there is no dispute and indeed there has been a finding that the second appellant is the niece of Mr Jibriil, the third appellant is the sponsor’s nephew and although neither the sponsor nor her husband are related in any way to the first appellant all three appellants have been cared for and raised since they were either babies or very young children by the sponsor and Mr Jibriil and have been treated as members of the same family. Had they been full family members they, as well as the biological children, would doubtless have been granted entry clearance.
27. It is clear that the decision of the respondent creates a family split and therefore interference in the family life that was enjoyed until the sponsor came to the UK. There is no dispute that the interference is in accordance with the law and although immigration control is not a legitimate aim in itself, it is a well-established means of protecting the economic wellbeing of the country. In relation to the economic situation it is equally clear that the current accommodation occupied by the family in the UK is not big enough to accommodate all the family members and there is no likelihood that sufficient maintenance would be available such as would avoid reliance on the social assistance system. I bear that very much in mind when considering the proportionality issue. It is for the respondent to show that the interference is proportionate to the legitimate public end sought to be achieved.
28. When assessing proportionality the best interests of the children must be considered as a primary consideration. At the date of decision there were two biological children in the UK with the sponsor, five biological children in Ethiopia with Mr Jibriil and three de facto adopted children also in Ethiopia. Mr Jibriil and the five biological children were entitled to come to the UK. In respect of the children in the UK section 55 Borders, Citizenship and Immigration Act 2009 applies. In T (Jamaica) [2011] UKUT 00483 (IAC) Blake J clarified the requirements to treat the best interests of the child as a primary consideration even if the child is overseas:
“27. There is obviously family life enjoyed between T and C as mother and teenage daughter. The question is whether the notion of respect for such family life requires her admission under Article 8(1). In making any such assessment, T’s best interests are a primary consideration (thereafter there are various citations).
28. These duties can be directly enforced by Tribunal judges in determining appeals. It is for the judge to decide on all the relevant evidence what the best interests of the child are in the particular circumstances of the case, whether there are compelling circumstances requiring admission, and whether if the case fails under the Immigration Rules, there remains a lack of respect for family life Article 8(1)”.
29. The facts as found indicate that there was, until the family split, a strong and subsisting family life. It is clear therefore that it is in the best interests of all the minor children (as they were at date of decision) for entry clearance to be granted as it is the only way that the family can be together. Although that does not trump all other considerations absent weighty countervailing considerations exclusion is not justified. Family life was established before the sponsor came to the UK so not whilst her immigration status was precarious. She also came as a refugee, not as an economic migrant, so that it was not her choice to leave the family. I do not find it reasonable that the sponsor and her children should disrupt their lives in the UK and move to Ethiopia. Apart from anything else they would have no legal status there and no right to work. Insofar as she is able to the sponsor currently supports the family in Ethiopia and that income would be lost to the family if she went there. This is not a similar case to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 where the appellant had an appalling immigration history. It was held in that case that the continued presence of an individual who poses a specific risk to others may more easily outweigh the best interests of a child than an argument that his continued presence poses a more general threat to the economic wellbeing of the country.
30. As held by Blake J in Mansoor [2011] EWHC 832 (Admin):
“35. However the terms of the Immigration Rules are not a legitimate aim in their own right. Family life is not to be interfered with to protect the Immigration Rules and their numerous requirements. A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim. The mere fact that a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the Rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that otherwise (sic) to be respected. The importance of this observation may be illustrated by the facts of this case. The claimant never got ILR simply because her husband was made redundant and therefore had recourse to public funds to which she and the children were entitled but the claimant, because of the period of time when she was subject to conditional leave, could not have recourse. As Lady Hale has pointed out, general considerations of economic wellbeing, where other factors are strongly in favour of the claim, are unlikely to be of great weight”.
31. After weighing all these matters in the balance my conclusion is that the respondent has not shown that the interference in the family life of all its members is proportionate to the legitimate public end sought to be achieved. Overwhelmingly on the facts of these appeals the interests of the family members are such that the appellants should be granted entry clearance as soon as possible so that they, Mr Jibriil and Abdullahi may join the other family members in the UK.
32. The First-tier Tribunal Judge erred for the reasons set out earlier in this determination. I remake the decision and allow the appeals of all three appellants under Article 8 ECHR.
33. I was not addressed on the matter of anonymity. However, I note that no anonymity direction has been made previously and as all the appellants are now over age, there does not seem to me any good reason why a direction is required in this appeal.

Signed Date

Upper Tribunal Judge Pinkerton