Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA153122014
OA153132014
OA153142014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 May 2016
On 15 June 2016
Before

UPPER TRIBUNAL JUDGE DEANS

Between

MRS CHAHNAZ MALAS
MR HUSSAM BAKDACH
MS SARA BARAZI
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C Yeo of Counsel, instructed by AA Immigration Lawyers
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1) These appeals are brought against a decision by Judge of the First-tier Tribunal Stott dismissing on human rights grounds appeals against the refusal of entry clearance.

2) The appellants are Syrian nationals. They comprise a mother and daughter and the daughter's stepfather. They originally applied for entry clearance along with the two younger children of the family, whose appeals were allowed by the First-tier Tribunal.

3) The appeals by the two younger children were allowed under paragraph 297(i)(f) of the Immigration Rules on the basis that they had a relative, namely their brother ("the sponsor"), present and settled in the UK and there were serious and compelling considerations which made their exclusion from this country undesirable. According to the findings of the Judge of the First-tier Tribunal they were unable to continue their education or carry on what could be described as a normal life in Syria. There was a constant fear of kidnapping and of a continuation of fighting. The judge found that the two younger children were both teenagers and with their brother's support they could form a family unit while maintaining contact with their parents by phone and the internet.

4) The judge reached a different decision in respect of the three older appellants, who are the parties to this appeal. They were found to be in contact with the sponsor on a regular basis and were able to collect financial support which was being given without difficulty. The judge described the three older appellants as living under "difficult and unimaginable circumstances" but considered that they were able to conduct family life by means of electronic communications as they had been doing since 2007. The appellants and the sponsor could not currently meet, although they had met in 2009 and 2011. The judge accepted that the inability of the three appellants to meet the sponsor was an interference with normal family life but there was a possibility that the situation in Syria would eventually change for the better and that full unfettered family life could resume. The judge considered that the three appellants were older and more capable of looking after themselves. The interference with their family life would not be disproportionate.

5) In the grant of permission to appeal it was observed that the two younger children of the family had been granted leave to enter the UK but their mother, stepfather and older sister had been refused leave. According to the grounds of the application this was either a disproportionate interference with the family life of all five or it frustrated the grant of leave to the successful younger children, which would itself be a disproportionate interference. There was considered to be an arguable error.

Submissions

6) At the hearing before me, Mr Yeo, on behalf of the appellants, submitted that the Judge of the First-tier Tribunal had not taken all the relevant factors into account. The judge referred at paragraph 20 to the inability of the three appellants to meet the sponsor as not being of such an exceptional and compelling nature for it to be a disproportionate breach. It was pointed out, however, that this did not address the relationship between the two younger children and the three appellants themselves.

7) Mr Yeo referred to the decision of the Upper Tribunal in PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108. In this decision it was said that in considering conjoined Article 8 claims by multiple family members the decision maker should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise would typically entail the consideration and determination of all claimants jointly, so as to ensure that all material facts and considerations were taken into account in each case. Mr Yeo pointed out that in that case the child appellant qualified under the seven year rule and the parents were successful under Article 8. The circumstances of that case were different from the present appeals, in which a stronger case was presented. In relation to the present family, two of the appellants had succeeded under the Rules. Unlike the position in PD and Others, the parents of the children were not in the UK unlawfully. The question was whether the older sister, now aged 26, and the mother and stepfather should be admitted.

8) Mr Yeo continued that nowhere in the decision did the judge grapple with the consequences of splitting the family. The judge said only that the older appellants could look after themselves. The importance of splitting the family was not considered and this was a clear error.

9) On behalf of the respondent Mr Wilding submitted that the judge acknowledged that the family unit would be separated into two groups but came to the decision at paragraph 17 that this would not be disproportionate. The decision in PD and Others was of limited assistance as what was under consideration in that case was the removal of a family group. By contrast this was an entry clearance case where there was established family life between all five of the appellants and the sponsor. The two younger children met the requirements of paragraph 297(i)(f) of the Immigration Rules but this did not apply to the adults, who were treated as adult dependent relatives. The position of the adults had been outside the Immigration Rules from the outset. It was not disproportionate for the appeals of the three older appellants to have been refused.

10) Mr Wilding acknowledged that at paragraph 20 the judge used an unfortunate turn of phrase by stating that the interference with family life was not exceptional but the judge did not appear to be applying a test of exceptionality. The judge's findings on proportionality were not undermined.

11) Both parties were agreed that in the event of an error of law being found, such that the decision of the First-tier Tribunal should be set aside so far as the three appellants were concerned, then the decision should be re-made at the same hearing.

Error of law

12) I agreed with Mr Wilding that the wording at paragraph 20 was unfortunate but in my view it was not in itself fatal to the decision in respect of the three appellants. At paragraph 20 the judge was referring to the relationship between the three appellants and the sponsor, who is the son of the first appellant, the stepson of the second appellant and the brother of the third appellant. The error made by the judge was not in relation to consideration of family life between the three appellants and the sponsor but in relation to family life between the three appellants and the two younger children. The three appellants and the two younger children had formed a family unit in Syria and the Judge of the First-tier Tribunal failed to consider properly the significance of the interference with family life arising from the two younger children being allowed to enter the UK and the older members of the family having to remain behind in Syria.

13) The judge made some passing references to this issue, stating, for example, at paragraph 15 that the younger children could maintain contact with their parents by phone and the internet, and then stating at paragraph 17 that the three older appellants were more capable of looking after themselves. Nowhere, however, did the judge systematically make any assessment of proportionality to the interference with family life arising from the splitting of the family unit and the separation of the two children from the rest of their immediate family in Syria. This is the error of law by the judge. On the basis of this error I concluded that the appeals in respect of the three remaining appellants should be set aside and re-made.

Further submissions

14) I invited the parties to address me on the re-making of the decision in respect of the three appellants. On their behalf Mr Yeo relied on a skeleton argument which was before the First-tier Tribunal. He also referred me to the decision of the Upper Tribunal in AT and another (Article 8 ECHR - child refugee - family reunification) Eritrea [2016] UKUT 00227. It was stated in this decision that while the Immigration Rules made no provision for family reunification in the UK in the case of a child who had been granted asylum, a refusal to permit the family members of such a child to enter or remain in the UK might constitute a disproportionate breach of the right to respect for family life enjoyed by all members.

15) Mr Yeo submitted that it was necessary to look at family life between the two younger children and the rest of the family. The judge had found at paragraph 19 that there was family life between the sponsor in the UK and the family in Syria. The issue was one of proportionality. There was a gap between the Immigration Rules and the situation of the remaining appellants. Reliance was placed on Article 8. Referring to the case of AT and another, Mr Yeo said that in that case the sponsor had been a child at the date of the application but not at the date of the hearing. Mr Yeo acknowledged that section 55 of the 2009 Act did not apply outside the UK, but in terms of T (entry clearance - s 55 BCIA 2009) Jamaica [2011] UKUT 00483, the best interests of children outside the UK were a highly relevant consideration. This was a family divided by civil war. There had been a high level of fighting in their city of Hama, which was the scene of offensives in 2013, 2014 and 2015 and was subject to Russian airstrikes. The fighting had not reached the city but it was in a conflict zone. The sponsor had heard gunshots and explosions when on the phone to his family.

16) For the respondent, Mr Wilding said that given the findings that had been made in respect of the two younger children there was little on which he might address me. One of the statements contained a reference to Damascus but this might be an error.

Discussion

17) It is accepted that the three appellants cannot succeed under the Immigration Rules and their appeals must be considered under Article 8. The appeals by the two younger children have succeeded under the Immigration Rules and, as Mr Yeo submitted, their best interests are a relevant factor for the remaining appellants, notwithstanding that the family are outside the UK. As Mr Yeo submitted, the issue is of the proportionality either of splitting the two younger children away from the rest of the family in Syria or requiring the two younger children to forego their entitlement to enter the UK in order to remain with their family in Syria. The decision on proportionality must be made having regard to the factors set out in section 117B of the Nationality, Immigration & Asylum Act 2002 , as amended.

18) Among the three remaining appellants the key figure is the mother of all three children. It has been accepted that there are serious and compelling considerations which make the exclusion of the two younger children from the UK undesirable. Is it proportionate that they should enter the UK without their mother and leave her behind in Syria in an area which may be further affected by the continuing civil war? There is nothing to indicate that it is not in the best interests of the two younger children for their mother to accompany them to the UK, where the sponsor is capable of providing accommodation for and maintaining the family. Indeed it is very difficult in a case such as this to envisage on what basis it would not be disproportionate for the younger children to have to leave their mother behind in Syria while they avail themselves of their right of entry.

19) I did not hear any oral evidence but the witness statements which were before the First-tier Tribunal were before me, as were the findings by the Judge of the First-tier Tribunal as to the family's circumstances in Syria. Mr Wilding referred to a question as to where the family reside in Syria. According to the sponsor's witness statement the family originate from Hama but in the witness statements themselves the family's address is given as Jamiet Maktabet, Al-Assad, which appears to be in the countryside around Damascus.

20) Nevertheless, the family have clearly been affected by the conflict. The second appellant records that he had to close his clothing store because the shop was between two checkpoints, which made it virtually impossible for customers to reach him. The third appellant states that prior to the civil war she was attending university but due to an increase in the kidnapping of girls and other problems she had to stop. She cannot go out freely and does not leave her home at all. The first appellant in her statement records that in their area there are continuous shootings on a daily basis and they are unable to live a normal life. The children cannot attend school and are at home.

21) In order to succeed under Article 8, the three remaining appellants do not have to show a real risk of serious harm by remaining in Syria, as they would under Article 3. They rely instead on their relationship with the two younger children, who have the right to enter under the Immigration Rules because there are serious and compelling considerations which make their exclusion from this country undesirable. Where it is clearly in the best interests of the two younger children to come to the UK, it would be a disproportionate interference with family life, both for them and for their mother, were their mother not allowed to accompany them.

22) Where it would be disproportionate not to allow the mother of the younger children to accompany them to the UK, it would also be disproportionate not to allow the mother's partner, the children's stepfather, to accompany the family to the UK also. The children have not seen their natural father since 2009. There is nothing to suggest that the relationship between the first and second appellants is anything other than genuine and subsisting or that the second appellant is not in a genuine parental relationship with the children. Both because of his relationship with the first appellant and his relationship with the children, it would be disproportionate not to allow him to accompany the children to the UK.

23) The position of the third appellant is a little different as she is a grown up child. In the circumstances prevailing in Syria, however, she cannot work or study and is, according to the evidence, confined to the family home because of fear of kidnapping and other dangers. Although she is an adult, her relationship with her mother and stepfather clearly falls within the type of dependency considered in the cases of Ghising [2012] UKUT 160 and Gurung [2013] EWCA Civ 8, where it was found that there may be circumstances in which a child over the age of 18 still has family life with her parents and forms part of the family unit. In circumstances where her siblings, mother and stepfather are able to travel to the UK, it would be disproportionate to exclude her and to leave her on her own as a single woman in a situation in which she was wholly dependent upon her mother and stepfather and even unable to venture out of the family home by herself. She is in fact entirely dependent in Syria upon her mother and stepfather and should be treated as such.

24) Where the Tribunal is determining whether a decision breaches Article 8 it is necessary to have regard to the public interest considerations in s 117B of the 2002 Act. The first of these refers to the public interest in maintaining effective immigration controls. In relation to these appeals the two younger children have already been found to satisfy the requirements of the Immigration Rules and under Article 8 the question arises of the potential impact on them and on the three appellants of the separation of the two children from the rest of the family. There is no finding that the appellants are able to speak English but they are able to rely on maintenance by the sponsor. Their relationships with the two younger children have not been formed in the UK and the appellants are not facing removal. The issue is then of balancing the public interest in maintaining effective immigration controls and in those entering the UK being able to speak English against the impact of splitting the family unit and leaving the children's mother, stepfather and older sister in Syria. Having regard to the findings noted above, the outcome of the balancing exercise in relation to these three appellants falls heavily in their favour.

25) Accordingly, I am satisfied that in the circumstances of this case there are compelling circumstances, as discussed in SS (Congo) [2015] EWCA Civ 387, for the appeals to be allowed under Article 8 on the basis that it would be disproportionate to separate the three appellants from the two younger children following the finding that there are serious and compelling considerations which make the exclusion of the two younger children from the UK undesirable. Accordingly all three appeals are allowed under Article 8.

Conclusions

26) The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law in respect of these three appellants.

27) I set aside the decision.

28) I re-make the decision in the appeals by allowing them.

Anonymity

29) The First-tier Tribunal made an order for anonymity to protect the identity of the two younger children. Their identity is not referred to directly in this decision and I do not consider it necessary to renew the anonymity order. Indeed, no application to this effect was made to me. Accordingly I lift the anonymity order (pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.)

Fee Award Note: This is not part of the determination

The First-tier Tribunal declined to make a fee award in respect of the two successful appellants. The reasons why no fee award was made have not been challenged before me and no application has been made for a fee award. For the same reasons given as given by the First-tier Tribunal I make no fee award.

Signed Date 14 June 2016

Upper Tribunal Judge Deans