Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08079/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decisions & Reasons Promulgated:
on 6 December 2016
On 8 December 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN &
DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

[S K]
Appellant
and

ENTRY CLEARANCE OFFICER, Islamabad

Respondent

For the Appellant: Mr J Bryce, Advocate, instructed by RH & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The parties are as described above, but the rest of this determination refers to them as they were in the FtT.
2. The appellant is a citizen of Pakistan, born on 2 February 2014 (not 1914, as stated in the decision leading to these proceedings). She applied for entry clearance for family reunion in the UK.
3. The sponsor is the appellant's father, a citizen of Pakistan, granted refugee status in August 2012. The other members of the family are the sponsor's wife, who is the appellant's mother, and their other child, who have been granted entry clearance as the "pre-flight" family members of the sponsor. The appellant does not fit into that category of the immigration rules. It has not been disputed that she was conceived while the sponsor and his wife were together in Afghanistan in May 2013.
4. The ECO refused the application on 1 April 2015, under reference to paragraph 325D(iv) of the rules, because the appellant was not part of the family unit at the relevant time. The grant of entry clearance to her mother and sibling was held not to outweigh the need to maintain immigration control, particularly as there was a route available within the rules for which a fee would be chargeable (unlike the refugee family reunion rule).
5. FtT Judge Debra Clapham allowed the appeal by determination promulgated on 21 January 2016, under article 8 of the ECHR, outwith the immigration rules.
6. The SSHD's grounds of appeal to the UT are along these lines. It was irrational to use age, or separation of family members, as reasons to look outside the rules, because they are designed to resolve such issues. Potential separation of family members is not a good reason to allow in the whole family. Assertions of the sponsor's anxiety and inability to work full time to meet the financial requirements of the rules were not corroborated or based on medical evidence, so such findings were not open to the judge. Policy in favour of admitting a child conceived pre-flight, but not born until afterwards, and so not falling within the rules, did not benefit the appellant because she was conceived post-flight. The judge failed to quantify and take account of the public interest.
7. A rule 24 response for the appellant counters thus. There was no requirement for a medical report to support the sponsor's evidence. The existence of a post-flight child is exactly the sort of exceptional situation where flexibility is required, a principle recognised by the respondent in relation to compliance of the rules with article 8. The public interest was not spelt out but did not need to be.
8. (The response deals also with further observations made by the judge granting permission, but these points were not taken up by the SSHD, and need not be resolved here. Suffice it to say that we broadly agree with the refutation in the rule 24 response.)
9. On 26 October 2016 the SSHD made an application to the UT to add the following ground of appeal: In paragraph 35, the FtT acknowledges the ECO's position that the appellant could not meet the requirements of the rules, and a fresh application should be made under the relevant rule, 319R. Making such an application would not be disproportionate.
10. The application is part of a written submission. The argument developed is along these lines. The application to the ECO was not made under the appropriate rule, a matter relevant in assessing proportionality. The FtT does not explain why it said there were circumstances not catered for by the rules, or why the appellant should not be expected to apply again under the applicable rule. If the FtT meant to say the rules provided no route, that was wrong - there is rule 319R. If the FtT meant that rule 319R could not be met in respect of maintenance and accommodation, that was a different matter. The FtT approach was muddled. The stringent financial requirements of Appendix FM did not apply, but the FtT left out of account the need to show adequate maintenance, a threshold in which there was a clear public interest, and which had been upheld a number of times in the Courts.
11. In our opinion, none of the grounds on which permission was granted discloses error of law. Each was squarely answered by the arguments in the rule 24 response by Mr Bryce.
12. The additional ground and argument came late in the day (the responsibility for that does not rest with Mr Matthews personally). This came to attention of Mr Bryce shortly before a hearing fixed for 28 October 2016. He did not oppose the amendment of the grounds but reasonably sought and was granted time to respond.
13. In a further note and orally on 6 December Mr Bryce made the following submissions. Attention had not previously been drawn to rule 319R. Another route of application was not taken as a way of avoiding a fee. A fee waiver would probably have been granted. The appellant did not qualify under rule 352D, being a post- flight child, or under rule 319R, due to financial requirements. She should have been granted leave to enter on the basis of exceptional circumstances or compassionate factors per the respondent's policy instruction, "Family reunion for refugees and those with humanitarian protection". Her case was analogous to or stronger than that of a de facto adopted child, catered for in the policy instruction. She met the bullet points set out by way of example, except that she is not over 18. Her case was a fortiori of such an instance. It would be absurd to extend reunion to a person aged 18 or over but not to an infant. There is a public interest in migrants having means of subsistence but exclusion from public benefits would not necessarily be applied by an ECO in a case like this, the impact on family finances would not be of material weight even if she was excluded, and this was not an issue capable of outweighing the best interests of the child. There had been errors in the FtT but there was no need to set aside its decision. Alternatively, the decision should be remade in the appellant's favour.
14. Mr Matthews submitted that the FtT made such clear errors that its decision should not stand. The correct rule might not have been pointed out by either party, but the statement in the decision that at paragraph 36 that the circumstances were "simply not catered for in the rules" went far wrong. The existence of a rule had to be reflected in the proportionality assessment. It was an equally plain error to have no regard to section 117B(3) of the 2002 Act, the public interest in the financial independence of migrants. It was not unreasonable to expect the appellant through the sponsor to meet financial requirements which were not as stringent as those in appendix FM. No good reason had been shown why the sponsor might not earn enough to meet the rules, and it was not disproportionate to expect that. The alternative, or the situation pending such an outcome, was that the child would continue to live with her mother and sister. It had not been shown that they were living in dire circumstances. The guidance was for other situations, not for a post-flight child. The factors mentioned might be relevant, but did not point to a straightforward outcome.
15. We reserved our decision.
16. This is an unusual situation where a wife and young child qualify for entry to the UK under the family reunion provisions in the rules, but an even younger child, born after the sponsor's flight, does not. The effect of the adverse decision is that the family remains split unless and until the sponsor earns enough to meet financial expectations which do not apply in respect of the appellant's mother and sister.
17. The principle underlying the rules on refugee reunion is to reunite pre-flight families. Strict financial requirements, and even broad accommodation and maintenance requirements, do not apply. The rules do not cover children conceived prior to flight but born afterwards. The respondent's policy (as acknowledged in her grounds) recognises that as a gap in the rules, and provides for the deficiency.
18. Further children conceived after refugee recognition and born abroad are not covered either by the rule or by specific extension in policy. There is a route under the rules, but subject to financial requirements which cannot presently be met.
19. The policy on which the appellant now relies is available to her, but we take the Presenting Officer's point that the bullet points in the policy are not all necessarily met and that its application is not automatic. The analogy with a de facto adopted child is not particularly close either, because that is framed for pre-flight family members.
20. There is clearly an underlying policy intention that members added to families after refugee recognition are not entitled to entry unless they meet the same financial considerations as general family migrants. This draws the humanitarian line in a rational place.
21. We have looked back at the chronological information. Refugee recognition was granted to the sponsor on 20 August 2012. He was with his family in Afghanistan in May 2013. We do not have the date of the visa application by the appellant's mother. She was granted entry clearance on 6 February 2014. The appellant's sister, born on 18 October 2009, was granted entry clearance only on 13 December 2014. The appellant was born on 2 February 2014, nine months after her father's visit. In her application, she is stated to be two months old.
22. We think that it could never have been sensibly expected that the two or three incoming members of the family might arrive separately, given the ages of the children. There was a period when mother and older daughter might have travelled together, but that was only during the few weeks just before the appellant was born, while her mother was in an advanced stage of pregnancy. That is well known to be a time when extensive travelling should generally be avoided.
23. We do not think the underlying rationale for the distinction in rules and policy between pre- and post-flight children carries any significant force in this situation. We find that there were exceptional circumstances, or compassionate or compelling factors, in the language of the policy, such that it should have been applied in her favour.
24. Put another way, we do not think it proportionate that the appellant's mother and sister qualify without regard to any economic requirements, but she, born so soon afterwards, does not. Separation of family members is inherent in many of the rules and does not usually lead to the rules being overridden by article 8, but the present situation leads to a distinction among family members which in our judgment is not justified by the public interest.
25. Although we come in the end to the same conclusion as the FtT, that is for rather different reasons. We think the errors made should be expunged by setting aside and remaking the decision.
26. The making of the decision of the FtT involved the making of errors on points of law, as identified above, and as conceded by the appellant. That decision is set aside. We remake the decision by allowing the appeal, as originally brought to the FtT, under article 8 of the ECHR.
27. No anonymity direction has been requested or made.

7 December 2016
Upper Tribunal Judge Macleman