Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/14236/2014
& OA/14244/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 8 November 2016, 12 January 2017 & on
24 February 2017
on 2 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

ENTRY CLEARANCE OFFICER, Nairobi
Appellant
and

S M IGAL & H I MOHAMMED
Respondents

Representation on 24 February 2017:
For the Appellant: Mrs M O’Brien, Senior Home Office Presenting Officer
For the Respondents: Mr R Gibb, of Latta & Co., Solicitors

DETERMINATION AND REASONS
1. Parties are as described above, but the rest of this determination refers to them as they were in the First-tier Tribunal.
2. The appellants are citizens of Somalia, both living in Ethiopia. The first gives her date of birth as 1 January 1947 (which suggests that her exact age may be uncertain). The second was born on 2 June 2013, and is identified as the grand-daughter of the first.
3. The appellants applied for entry clearance, the first as an adult dependent relative and the second as a child of a relative present and settled in the United Kingdom.
4. The appellants identify their “first sponsor” as Ilyas Mohammed Musse, a refugee from Somalia who has become a UK citizen, and their “second sponsor” as his wife Fadumo Aden Barre Gure. She is the daughter of the first appellant and the aunt of the second, being her late mother’s sister. The first and second sponsor live in Glasgow with their three minor children.
5. The ECO refused the first appellant’s application by notice dated 6 and issued on 7 October 2014, referring to the immigration rules, EC-DR.1.1(d) – section E-ECP: eligibility for entry clearance as an adult dependent relative, and to the absence of evidence that she needed care.
6. The second appellant’s application was also refused by a notice dated 6 and issued on 7 October 2014, under reference to the immigration rules paragraph 297(i)(f), finding no reason why she could not remain with her grandmother, and no serious compelling circumstances making her exclusion undesirable.
7. The notices of decision make no reference to article 8 of the ECHR, outside the rules.
8. Notices of appeal were lodged about 6 weeks late, without explanation, but a Judge of the FtT decided of her own initiative to extend time to enable the appeals to proceed.
9. The grounds of appeal for the first appellant say that she has a case under the rules due to health needs which could not be met in Ethiopia, and a right under article 8 to enter the UK to spend her remaining years with her daughter and son-in-law.
10. The grounds of appeal for the second appellant say that there are serious and compelling circumstances rendering her exclusion undesirable, irrespective of the outcome of her grandmother’s case, and that her “best interests require that she be allowed to join her sponsors in the UK.
11. An Entry Clearance Manager on 22 April 2015 maintained the adverse decision, saying that the absence of medical or other evidence had not been addressed, and there was no evidence of the appellants’ circumstances in Ethiopia or to support the assertion of incompatibility with the ECHR.
12. In the FtT the respondent raised issues of whether the maintenance and accommodation requirements of the rules could be met.
13. The appeal to the FtT was heard by Judge Debra H Clapham on 23 February 2016. Paragraph 7 of her decision, promulgated on 1 June 2016), notes that Mr Gibb conceded that the maintenance requirement under the rules could not be met, and that both appeals were proceeding under article 8 only.
14. The judge’s decision does not set out the rules regarding the two applications. She finds at paragraph 77 that the accommodation requirements of the rules were met, but she does not venture upon the extent to which any other requirements were met or missed. That is perhaps partly because she did not have the benefit of relevant submissions from either representative, but it is unfortunate. Article 8 does not depend on how closely the rules are missed, but the rules should always be the starting point, and should not be omitted from the analysis. Without that, it cannot be seen where the balance with the public interest generally lies, and whether the case throws up factors not catered for in the rules.
15. There is an important distinction between family life among extended family members which exists in ordinary language and family life for purposes of article 8 protection, which is usually restricted to relations between husband and wife (or equivalent) and between parents and minor children. Family life for article 8 purposes outside those categories is not presumed to exist, and poses issues of mixed fact and law.
16. The judge’s decision under the heading “findings and reasons” does not say in which sense the expression “family life” is there used, and contains no explicit consideration of whether family life in the present case extends beyond the usual core.
17. Replying to the submissions made on 8 November 2016 by Mr Matthews, Senior Presenting Officer for the respondent, Mr Gibb said that it was implicit that the judge found that family life existed so as to qualify for consideration under article 8, which proceeded upon a concession by the respondent. He founded upon paragraph 64:
It was submitted [for the ECO] that no evidence had been provided … that the first appellant cannot care for the second … it was submitted that although there is family life these are normal emotional ties.
18. Mr Gibb advised that he had no record of the terms of the “concession” by the respondent, other than the terms of the determination, and that it was not a point on which he made any submissions.
19. The judge’s record of the submission for the ECO on this point is plainly incomplete. If this was a concession, it was self-contradictory, or made for the wrong reasons. A common starting point on this issue is whether there are more than the normal emotional ties, so as to bring wider relationships within article 8. The submission for the ECO, in context, is likely to have been the opposite of what Mr Gibb suggested.
20. Without a finding that family life for article 8 purposes did exist, there was nothing for the FtT to consider outside the rules.
21. The absence of a finding is not the fault only of the judge. It reflects the shortfall in submissions; a fundamental issue was not tackled by the appellants. This resulted in an error of law, such that the decision cannot stand.
22. The ECO’s grounds of appeal contend that there is another error, of overlooking the statutory public interest considerations. Section 117B of the 2002 Act includes these provisions:
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
23. Mr Matthews submitted that the concession for the appellants that they could not meet one requirement of the rules did not mean it was unnecessary to refer to other requirements, including those at E-ECDR.3.1. and 2, or to evidential requirements, appendix FM-SE, paragraphs 33 – 37. He argued that the judge failed to set out the relevant factors on both sides, and in particular overlooked the public interest in the financial independence of migrants. It was not to be contemplated that immigrants might be admitted to the UK in circumstances where they would have to live below the poverty line. The language point was also overlooked.
24. Mr Gibb argued that although not explicitly referred to the judge had all those aspects in mind and the question was one of substance not form, on the authority of Dube [2015] UKUT 00090. The statutory considerations were all encompassed by the judge’s reference to the case not succeeding under the rules. Any lack of detail was understandable, given the way the case had developed. The sponsor has given an undertaking under paragraph E-ECDR.3.2.2 of no recourse to public funds and of his responsibility for maintenance, accommodation and care for 5 years. The very compelling circumstances of the child outweighed any other considerations. Even if the result of their entry, without benefit of access to public funds, was that they had to live below the poverty line in the UK, that was justified, by comparison with their dire circumstances in Ethiopia. The economic consequences of their entry would be accepted by the Scottish government, which had responsibility for health and education expenditure, although not for immigration.
25. On language, Mr Gibb said that being in old age the second appellant would not be entering the workplace, so her lack of ability in English would not make much difference to her impact on the public purse, apart from interpreters being needed for communications with public bodies; and that the second appellant, being of tender years, would learn quickly, and her present inability to speak English was of no significance.
26. Mr Gibb accepted that neither representative referred at the hearing to section 117B.
27. On the “statutory public interest considerations” issue, the judge’s lack of reference to language matters would not on its own have required the decision to be set aside, for the reasons advanced by Mr Gibb. Beyond that, I was satisfied that the decision is defective not only in form but also in substance. There is not only an absence of direct citation, there is no incorporation of the considerations to which the tribunal is bound by section 117A to have regard. Again, the problem stems from deficiencies in the submissions made to the FtT, but it is an error.
28. Mr Gibb stressed the sponsor’s undertaking, but that is only evidence of a signature under 3.2 of the requirements; it is not evidence that costs can in fact be met, as set out at 3.1.
29. At the hearing, I reserved my decision on error of law. Parties agreed that if error were to be found, the case did not involve the leading of further evidence, and would be apt for resolution by further submissions in the UT. I found two errors, either of which would have required the setting aside of the decision.
30. A decision on error of law, substantially in the foregoing terms, was issued, along with directions to facilitating the remaking of the decision:
The appellants are to file with the UT and copy to the respondent not less than 7 days before the next hearing a note of their position:
(a) on where they comply and where they are unable to comply with the immigration rules, referenced to all relevant paragraphs, including evidential requirements;
(b) on why family life for article 8 purposes should be found to exist in this case; and
(c) on why they have a right under article 8 of the ECHR to entry to the UK irrespective of the rules, referenced to the statutory public interest considerations, the best interests of the second appellant, and all other considerations they advance as relevant.
31. The case was listed on 12 January 2017. The appellants sought and were granted a further adjournment. The respondent was directed to file a note of her updated position.
32. On 24 February further evidence was filed for the appellants, without objection. The only significant item is a statement by the first sponsor describing his visit to the appellants in August 2016 and their circumstances, including the marginally better accommodation he was able to find for them. The respondent did not cross-examine. Representatives relied upon their written notes and made further oral submissions.
33. I reserved my decision.
34. Certain submissions were made for the appellants which were quite extravagant and which I am unable to uphold:
(i) Reliance on the willingness of the Scottish government to accept responsibility, as it has responsibility for health and education expenditure, although not for immigration. That submission was vague and unsubstantiated. This is a UK jurisdiction, with no differentiation in human rights law which might justify the tribunal in deciding whether Somalians living in poverty are to be admitted according to the side of the border on which they might live.
(ii) The UK’s admission of “thousands of Syrian refugees from refugee camps in neighbouring countries … in response to public pressure” showed public sympathy such that there was no weighty public interest in excluding the appellants. The description is tendentious. Even if accurate, the situations are not analogous. The perceived level of public sympathy for displaced persons would be a dangerous and unpredictable gauge for tribunals to adopt. The approach sought is political, not legal.
(iii) The second appellant regards the sponsors as her parents and her expectation of living with them should not be dashed. These proceedings have taken place over her tender years, during which time she has had only one direct carer, her grandmother. She has met the second sponsor only during one visit and has not met the first, her aunt. She is not at an age to have clear understanding of family relationships. There is no reason for her to be given inaccurate information or unrealistic ideas.
(iv) The appellants’ lack of financial independence was overcome (at least partially) by the fact that although there might be some restrictions from claiming benefits, the first sponsor would not be barred from claiming additional child tax credit and child benefit. This is only dependence on public funds, and hinders rather than helps the appellants’ case.
(v) It did not matter whether the appellants showed that family life for article 8 purposes existed among them and their UK relatives, because the decisions concerned also their private lives, and the distinction was unimportant. The distinction between family and private life is unimportant in some cases, but the present one depends very much on whether relationships are of a core family nature. Compassionate circumstances outside the family cannot unlock the door.
35. The covering letter from solicitors dated 29 August 2014 submitted with the original applications says that the second appellant “lost one parent during the troubles in Somalia”. The statement by the second sponsor says something rather different: the second appellant was conceived under the most unfortunate circumstances.
36. The information given has consistently been that the mother of the second appellant died in childbirth.
37. The attachments listed in the covering letter include “DNA test results”. Whose results they are, and what they are to show, is not said. No such test report has been referred to in course of proceedings and I have been unable to locate one among the various papers placed on file with the FtT and the UT.
38. It has not been disputed that the parties are related as claimed.
39. The primary facts are these. The first appellant is aged around 70, and not in the best of health. The second appellant is aged 3 years and 8 months. The first appellant has cared for the second throughout her life. They are the only members of the family unit in Addis Ababa. They have some contact with the Somali community there, but no long term ties. Their family in the UK comprises the daughter of the first and aunt of the second appellant, her husband, and their children. They have no other relatives to whom to turn. They receive remittances from the sponsor. They have accommodation, one room with a shared toilet.
40. The appellants are hardly in comfortable circumstances in Ethiopia but they are not at the lowest level, having the advantage of remittances from the UK which have enabled the first appellant to access at least basic medical advice and assistance and which keep them both at least at subsistence level.
41. Neither party provided any information about UNHCR or other assistance available to Somalians living in Ethiopia. The appellants are not living in a refugee camp, although generally available information in the public domain is that UNHCR camps exist; the Ethiopian government expects Somalian refugees to live in them; and conditions there are poor, but above destitution.
42. I turn next to the rules; details are in the SSHD’s note at 2 – 8 and in the appellants’ note at 1 – 8.
43. It has been accepted that accommodation requirements can be met in both cases.
44. Both cases fall short on maintenance requirements.
45. It was argued that the first appellant felt short of the rules only because she could not find a doctor or other health professional to provide documentation. If the obstacle were only formal, that would be a strong factor in article 8. However, I do not accept that submission. The evidence falls short of showing inability to perform everyday tasks and a need for long term personal care. The first appellant manages (with minimal help) to take care not only of herself but also of her granddaughter.
46. It was argued that the second appellant meets rule 297(i)(f), “serious and compelling family or other circumstances which make exclusion of the child undesirable”. This issue (which is not decisive on its own under the rules) becomes co-extensive with the article 8 issue.
47. The strength of the case for the appellants is established by the respondent’s policy “Family reunion: for refugees and those with humanitarian protection, version 2. 0, publication date: 29 July 2016”.
48. This version of the policy was not in force at the date of the ECO’s or of the FtT’s decision. I was advised that an earlier policy to similar effect was withdrawn from the SSHD’s website some time before the latest version appeared. I have not sought to ascertain the precise dates or terms of previous policy, because that is irrelevant to the remaking of the decision. However, it is doubtful whether the SSHD’s underlying position has changed significantly throughout the progress of these applications and the appeal. It is most unfortunate that earlier policy, even if not formally current, was not earlier drawn to attention.
49. The policy includes the following:
De facto adopted children
A de facto adoption is one where the child has been incorporated into another family unit than the one into which they were born, and has been cared for in that family. Unlike formal adoptions which can be established on the basis of documentary evidence, de facto adoptions are likely to require an assessment of the overall picture of the circumstances surrounding the “adoption”, often with little or no documentary evidence. The onus … is on the applicant.
There is no provision in the immigration rules to consider a sponsor who has requested family reunion for the child was the subject of a de facto adoption. Applications… must be refused under the rules and caseworkers must then go on to consider the family exceptional circumstances guidance or whether there are any compassionate factors which may warrant a grant of leave outside the rules.
…
Exceptional circumstances or compassionate factors
…
Each case must be decided on its individual merits.
…
The following examples may lead to a grant of leave outside the rules:
an applicant who cannot qualify to join parents under the rules because they are over 18 but all the following apply:
their immediate family, including siblings under 18, qualify for family reunion and intend to travel, or have already travelled, to the UK
they would be left alone in a conflict zone or dangerous situation
they are dependent on immediate family in the country of origin and are not living in independent life
there are no other relatives to turn to and would therefore have no means of support and would likely become destitute on their own
…
50. The SSHD’s case for refusing leave outside the rules was essentially as follows. It turned primarily on the submission that while family life for article 8 purposes existed between the two appellants, although separated by a generation, it did not exist among the appellants and their relatives in the UK. It was pointed out the second sponsor did not appear to have formed part of a family unit with her mother after her marriage and before she travelled to the UK, and has had no direct contact with her since, so there was no period of living together in that way; and that she has never had direct contact with the second appellant. If the first appellant did not fall within the principles of refugee family reunion, then neither did the second. The original applications had not been made on the basis of refugee family reunion, and the ECO did not have a duty to probe behind what was presented. The appellants relied upon the child’s perception of parentage, but that was far-fetched in a child of her age. The appellants relied upon UNHCR statements that family reunion should be liberal and wide-ranging, but there are very few if any cultures in which care for elderly relatives and extended family bonds are not respected. That did not bring the present case within the immediate scope of family life for article 8 purposes. Financial remittances did not create family life. Even if family life were found to exist, the aspects of maintenance, language and financial independence retained some importance.
51. It would be normal in many if not most family situations throughout the world that infants without a present or surviving parent are taken care of by their next nearest relative. Grandparents often adopt such roles, as do relatives in the parental generation. The impetus towards care being provided by the intervening generation must tend to increase as the child grows and as grandparents age. There are already some indications of that here.
52. Had it not been for separation by borders, I find it very likely that the appellants and sponsors would have been living as one unit from the time of her birth. Given the history and circumstances, despite de facto separation, the case for family life in its article 8 meaning beyond the usual “husband and wife, parent and child” core is strong.
53. I find in fact that both appellants have family life with both sponsors within the scope of article 8 protection.
54. There was little attempt to describe the practical advantages for the second appellant of life in the UK as opposed to life with her grandmother in Ethiopia, but they are obvious in terms of fuller family relationships, health, education and general wellbeing. The incorporation of the second appellant into the family unit of the sponsors is plainly in her best interests; not a marginal difference, but a major benefit.
55. The case of the appellants does not fall word for word within the examples in the policy, but these are only examples, not for statutory construction. The appellants both being members of the core family unit as naturally understood by all its adult members, there are in this case both exceptional circumstances and compassionate factors.
56. Mr Gibb identified that within the rules, English language requirements would not apply, due to the respective ages of the appellants. The same does not apply to section 117B (2), but it is an indication that lessens the force of that provision.
57. The SSHD’s policy is such that if its terms are met, the case is of a strength which outweighs the public interest factors in section 117B of the 2002 Act, both the inability of the appellants to speak English and their lack of financial independence.
58. The policy is designed to extend refugee family reunion in cases such as this, where the family includes members outside the usual core definitions of the rules. It extends to caring for an infant orphaned niece.
59. Once the essentially undisputed and straightforward facts are brought into focus, and considered in light of the policy, the case is a strong one under article 8.
60. The decision of the first-tier tribunal is set aside. The following decision is substituted. Both appeals, as originally brought to the first-tier tribunal, are allowed on human rights grounds.
61. No anonymity direction has been requested or made.

28 February 2017
Upper Tribunal Judge Macleman