Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02458/2014
OA/02459/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 25 January 2017
on 02 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

M SAID ALI & M TAHA ALI
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

For the Appellant: Mr A Devlin, Advocate, instructed by Drummond Miller, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION
1. By determination promulgated on 5 January 2015, First-tier Tribunal Judge Handley dismissed these appeals against refusal of entry clearance.
2. The FtT and UT refused permission to appeal.
3. The appellants' solicitors wrote to the UT on 30 August 2016, advising that the decision of the UT, refusing permission, had been reduced by the Court. They supplied a copy of the joint minute leading to that outcome, which says that there was error of law by the FtT, set out in agreed terms.
4. On 13 September 2016 the Vice President of the UT granted permission to appeal, in light of the Court's interlocutor.
5. The case came before me on 28 October 2016, and a decision was issued on 31 October 2016, including the following paragraph.
6. The UT finds, as agreed by the parties, and as adapted from their joint minute, as follows:
The FtT erred in law in that it failed to consider the appellants' article 8 claims with reference to the family unit as a whole. In particular, the FtT:
(a) failed to make any express findings of fact as to: (i) whether there existed family life between the sponsor and his wife, and if so, to what extent; (ii) whether the sponsor's wife could reasonably be expected to leave the appellants behind in Sudan, in order to enjoy any such family life with the sponsor in the United Kingdom; (ii) whether there existed family life between the sponsor's wife and the appellants, and if so, to what extent; or, (iv) the impact on any such family life, should the sponsor's wife leave the appellants behind in Sudan and [move] to the United Kingdom;
(b) failed to consider whether the appellants' exclusion from the United Kingdom would interfere disproportionately with: (i) the sponsor's right to respect for family life with his wife; or (ii) the sponsor's wife's right to respect for family life with the appellants.
7. Directions were given for further hearing. There was an adjournment at the request of the appellants, following which the case before me on 25 January 2017. Both representatives filed helpful outlines of their updated positions. There are intricacies arising from the statutory and transitional provisions, but it became common ground that the UT is to consider only the circumstances appertaining at the date of the decisions by the ECO, but may also have regard to further evidence, even if arising after that date, provided that it serves to show light on the circumstances appertaining at that date. Further documentary evidence was admitted, although none of it was eventually said to be significant. The sponsor and his wife both gave oral evidence. Final oral submissions were made, and I reserved my decision.
8. I next outline the facts, to the extent that they are not in serious dispute, in context of the procedural history.
9. The first appellant was born on 11 May 1999 and the second on 1 March 2000. They are both citizens of Sudan, living at the time of their applications and at present in or near Khartoum.
10. The appellants are both brothers of Mohammed Youssouf Ali, also a citizen of Sudan, born on 3 December 1981, their "sponsor" for purposes of these proceedings.
11. The wife of the sponsor is Masouda Abdallah Bahar Mohammed, again a citizen of Sudan, born on 2 January 1989. They married on 28 November 2003.
12. All individuals involved in the case say that they are from Hashaba, a small village in Darfur which was subject to vicious attacks by Janjaweed militia.
13. The sponsor's account is as follows. He fled from an attack in early 2004 during which the village was set on fire. He spent some years in Libya but came to fear for his life there after the fall of the Gaddafi regime. He travelled by way of Tunisia and various European countries and arrived in the UK in February 2012. He sought and was granted refugee status. Until that time, he had no knowledge of the fate of his wife or of any member of his family. A friend of a friend, named Souad, told him that his wife was alive and living near Khartoum, and provided her telephone number. Souad also ascertained that the two youngest of his eight brothers (the appellants; he also had one sister) were living in dire circumstances in West Darfur, and arranged for them to join his wife in Khartoum.
14. The sponsor's wife and the two appellants sought entry clearance to join the sponsor under cover of a letter from the appellants' solicitors dated 30 April 2013. It was accepted that the appellants did not fall within the requirements of the immigration rules, but their position was urged on the basis of compassionate and compelling circumstances, general policy regarding family reunion, article 8 of the ECHR, and the best interests of the appellants, being children.
15. The sponsor's wife was granted entry clearance. The ECO refused the applications of the appellants by notices dated 22 January 2014.
16. The appellants and the sponsor's wife lived together from early 2013 until September 2015.
17. In that month, the sponsor's wife used her entry clearance to travel to the UK and join her husband. (They now have a child, born on 16 June 2016.)
18. The paragraph of the rules under reference to which the applications were refused is 319X:
Requirements for leave to enter or remain in the United Kingdom as the child of a relative with limited leave to enter or remain in the United Kingdom as a refugee or beneficiary of humanitarian protection.
The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the child of a relative with limited leave to remain as a refugee or beneficiary of humanitarian protection in the United Kingdom are that:
(i) the applicant is seeking leave to enter or remain to join a relative with limited leave to enter or remain as a refugee or person with humanitarian protection; and:
(ii) the relative has limited leave in the United Kingdom as a refugee or beneficiary of humanitarian protection and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
(iii) the relative is not the parent of the child who is seeking leave to enter or remain in the United Kingdom; and
(iv) the applicant is under the age of 18; and
(v) the applicant is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(vi) the applicant can, and will, be accommodated adequately by the relative the child is seeking to join without recourse to public funds in accommodation which the relative in the United Kingdom owns or occupies exclusively; and
(vii) the applicant can, and will, be maintained adequately by the relative in the United Kingdom without recourse to public funds; and
(viii) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity or, if seeking leave to remain, holds valid leave to remain in this or another capacity.
19. The ECO was not satisfied that there were such circumstances as required by (ii) of the rule; that accommodation and maintenance were available as required by (vi) and (vii); or of relationship, with reference to (i).
20. Relationship was conceded in the FtT, on production of DNA reports.
21. The appellants accept that they fail on (vi) and (vii). The issues at (ii) remain relevant, overlapping with and informing the outcome under article 8.
22. The appellant's argument, very briefly summarised, is that all the questions set out in the agreed error of law finding should be answered in their favour; and that they should also succeed by reference to AA (Somalia) v ECO [2014] Imm AR 540 as the de facto adopted children of the sponsor, whose rights on entry to the UK were to be equiparated to those of any other children of a family sundered by the flight of a refugee, even if the rules did not so provide. It was said that the latter argument had been advanced in the FtT, although not reflected in the proceedings in the Court or in the agreement on error of law.
23. Against that background, I turn to resolving, as far as possible, the area of dispute about the history and circumstances of the appellants.
24. The evidence derived now through the sponsor and his wife is that the appellants when aged no more than 4 and 5 were separated from all other family members in the attack on the village in 2004; that by unknown means they ended up living from hand to mouth in or around a refugee camp; that contact was re-established through Souad; and that little information is forthcoming from the appellants, so that nothing is known to this day about the rest of the family (or about most of the birth family of the sponsor's wife; the house, or shack, near Khartoum was provided by her brother).
25. The ECO was not impressed by photographic evidence said to show the appellants outside their makeshift home; thought that at the time of the sponsor's screening interview, given the age then of the appellants and the references to other family members, that they would have been in the care of adult relatives; and noted that the sponsor was not sure why he said the appellants were in Chad.
26. Those were all reasonable points to make.
27. Judge Handley, having heard the evidence of the sponsor, explained why he concluded that the appellants had likely been in Chad and under the care of an unknown individual or individuals (paragraph 23); found that the sponsor gave a vague account, amounting to no explanation, for his alleged lack of contact with them (paragraph 24); had doubt about the claimed level of contact since its resumption, and of financial support (paragraphs 25-28); thought it likely that the appellants had support from other sources, which could be family members (paragraph 27); based on the evidence, or dearth of evidence, thought it unlikely the appellants were living alone as claimed, and likely they were "receiving care and financial support from unknown adult(s)" (paragraph 31); and finally concluded that they had been "cared for and supported by adults in Chad and in Sudan", so that there were no "compelling or compassionate circumstances" (paragraph 35).
28. Those were all findings open to the judge, for which legally adequate reasons are given, and no error of law has been found which apparently should lead to their being revisited.
29. In view of the way the case has developed, and the introduction of further evidence, I have kept an open mind on matters still to be decided, which I think are questions of mixed fact and law. I resolve them not only on the implications of the conclusions reached by the FtT, but on the further evidence led in the UT.
30. That might have led to some theoretical difficulty, as the appellants through the evidence of the sponsor and his wife in effect tried to reassert and improve on the factual case which the FtT rejected; but having heard the further evidence, and looked at it all afresh, I have come to the same broad view.
31. Mr Matthews founded on some apparent discrepancies between the evidence from the sponsor and from his wife, chiefly around the extent to which the appellants have been able and willing to talk about events, including the fate of their parents. However, I preferred the submission by Mr Devlin that there was no significant difference.
32. There is no escaping the reality that the account of what happened to the appellants and others in the family from 2004 to 2013, and of the resumption of contact, remains inconsistent and very vague.
33. The question is what is to be made of that.
34. Some confusion and uncertainty would be unsurprising even in the most honest accounts, emerging from the chaos of a civil war waged against civilian families, and when some of those affected were infants.
35. I also note that the appellants are not likely to be in any substantial way the authors of any information provided, which essentially has come through the sponsor, and to a lesser extent from his wife.
36. As Mr Matthews pointed out in submissions, the application forms provided to the ECO include information that the appellants were living with their family members continuously until 2013. I have accepted that immaculate accuracy of detail cannot be expected in tracking the history of the family fleeing from a war zone, but that does not explain away the particular shortcomings in the evidence. The sponsor in his evidence at the hearing said that he was relying on vague information from another villager that some of those dispersed from the village fled to Chad, and he assumed that might include some of his family. That sounds reasonable, and was intended to explain the apparent discrepancy arising from his screening interview. However, on reference to that form I see that he was more specific. At item 6. 6 he is recorded as saying that his mother is in Chad, "I think"; that his father's whereabouts are unknown; that his sister [named] is in Chad; and that of his 8 brothers, one [named] is in Sudan; "the 2 youngest brothers [unnamed] are in Chad"; one [unnamed] was killed by militia; and the others [also unnamed] are in Sudan". He distinguishes between those who situation he knows and those he does not. This does not read like complete guesswork.
37. The sponsor has lived with his brothers only for the first few years of their infancy, when he was one older sibling among many, all living with their parents. He has never lived with the appellants in loco parentis. He has provided support by way of telephone calls and remittances over a few years. It is not a criticism to say he has done no more, as he says he has done all he could; but those are the facts in evidence.
38. By the evidence of the sponsor and his wife, she lived with the appellants for under a year, up to the date of decision (and for just over 3 years, in all).
39. The relationship between a wife and her brothers-in-law, even if they are not yet adult, and even if living in the same household, would not usually fall within the core protection which article 8 affords to family life. It might do so, where particular circumstances have given the relationship the nature of one between mother and child.
40. Each case turns ultimately on its own facts and circumstances, but contrary to submissions for the appellants, the evidence here about formation of a core family is not as strong as in AA. That is not only (or even mainly) because of the short period involved. It is because the appellants failed to establish their contention of no other adult support.
41. Even on a broad approach to recognition of adoptive children for refugee reunion purposes, unconstrained by definitions of adoption in the rules or elsewhere, the evidence falls short of demonstrating the de facto adoption of the appellants by the sponsor or by his wife.
42. As well as the rules, I must have regard also to Part 5A of the 2002 Act, introduced by section 19 of the Immigration Act 2014 and in force since 25 July 2014, after the decisions of the ECO, but before the decision of the FtT.
43. Under the heading "Article 8 of the ECHR: Public Interest Considerations", section 117A, so far as relevant, provides:

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard-
(a) in all cases, to the considerations listed in section 117B ?

(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).

Section 117B, so far as relevant, provides:

(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.

?
44. The appellants speak no English. They do not have financial independence, and being uneducated, their prospects of attaining it are realistically quite far off. As Mr Matthews submitted, the lack of adequate accommodation and maintenance in terms of the rules and of financial independence in terms of statute are clear matters of public policy which count against the appellants.
45. The immigration rules provide a scheme for reunion of refugee "pre-flight families" without accommodation, maintenance or other financial restrictions. The rules provide for entry of post-flight children (319R) and for extended relatives (319X), but they are subject to such restrictions. The lines drawn are designed to produce rational and proportionate outcomes.
46. A right to enter the UK outside the requirements of the rules may arise for some relatives, but that is not likely to go beyond cases disclosing core relationships not catered for by the rules.
47. The situation of the appellants is an undoubtedly compassionate one, but the evidence falls short of demonstrating such core relationships as to bring about a disproportionate outcome.
48. The points in the minute of agreement are therefore resolved thus:
(a) (i) family life between the sponsor and his wife exists, being undisputed, to the usual full extent between husband and wife; (ii) on the facts found by the FtT, and as revisited by the UT, the sponsor could reasonably be expected to leave the appellants in Sudan in order to enjoy family life with the sponsor in the UK; (iii) family life existed between the sponsor's wife and the appellants only in the usual extended sense of family life among in-laws, and not to the extent of being assimilated to family life between mother and child, so as to attract the core protection of article 8; (iv) consequently, the impact on family life of leaving the appellants behind in Sudan through the sponsor's moving to the UK is proportionate;
(b) the exclusion of the appellants from the UK does not interfere disproportionately with (i) the sponsor's right to family life with his wife or (ii) the sponsor's wife's right to respect for family life with the appellants.
49. The decision of the FtT is set aside for error of law, as explained above. After reconsideration, the decision substituted is as follows: the appeals, as originally brought to the FtT, are dismissed.

1 February 2017
Upper Tribunal Judge Macleman