I.A.A. AND OTHERS v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
1. The applicants I.A.A., Z.A.A., B.A.A., A.A.A. and A.M. are Somali nationals who were born in 1994, 1996, 1995, 2001 and 2002 respectively and who currently live in Addis Ababa. They are represented before the Court by Asylum Aid. The President ordered that the applicants’ identity should not to be disclosed to the public (Rule 47 § 4). 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office. 3. The five applicants comprise four biological siblings and their first cousin who is a sibling by adoption. 4. The applicants’ mother was born in Somalia. Between 1990 and 1996 she had seven children with her first husband. The two eldest children went to live with their mother’s paternal aunt and appear to have remained with her in Somalia. Following the breakdown of her relationship with her first husband, the applicant’s mother married her second husband and had a child with him in 1997. She subsequently returned to her first husband and gave birth to two further children in 2001 and 2003. In 2002 she adopted her niece, who is the fifth applicant in the proceedings before the Court. 5. The applicant’s mother left her first husband for a second time in 2003. Around the same time, her second husband was granted refugee status in the United Kingdom. She joined him there the following year, leaving her nine youngest children, including the applicants, in the care of her sister in Somalia. 6. In 2005 the applicants’ mother’s only child with her second husband was granted entry clearance to join the couple in the United Kingdom. In sponsoring the application for entry clearance, she did not mention that she had children by her first husband who were still living in Somalia. 7. In 2006 the applicants’ aunt moved from Somalia to Ethiopia, taking with her the eight children in her care. 8. In 2007 the applicants’ mother divorced her second husband. 9. In 2008 two of the applicants’ siblings applied for entry clearance to join their mother in the United Kingdom. Apparently those children were chosen to join her because one was the youngest and the other was in poor health. The application was initially refused but entry clearance was later granted following a successful appeal to the then Asylum and Immigration Tribunal. In allowing the appeal, the Tribunal accepted first, that the mother had effective sole responsibility for the children abroad; secondly, and in the alternative, that there were serious and compelling family or other reasons which made their continued exclusion from the United Kingdom undesirable; thirdly, that the mother and her children had enjoyed family life together as a unit before she had travelled to the United Kingdom to join her second husband; and fourthly, that the mother could not reasonably relocate to Ethiopia to care for her children as she would have no job and no means of survival there. 10. In or around this time the applicants’ aunt left Ethiopia and returned to Somalia, leaving the eight children in the care of the eldest, who was then sixteen years old. The five applicants and their older sibling, who is not a party to the proceedings before this Court, applied for entry clearance to join their mother in the United Kingdom. 11. On 9 February 2009 the Secretary of State refused the application for entry clearance on the ground that the applicants and their older sibling did not meet the requirements of paragraphs 297 or 352D of the Immigration Rules HC395 (as amended) because they were not dependent on their mother’s support and they were not the biological children of a recognised refugee. The Secretary of State also considered Article 8 of the Convention but concluded that although there was a limited interference with the applicants’ rights under Article 8, the refusal of entry clearance had been proportionate and justified. 12. On 23 February 2010 the applicants’ appeal against this decision was dismissed as the Immigration Judge found that they could not meet the requirements of the Immigration Rules. He further found that as contact between the applicants and their mother had been sporadic since 2004, family life did not exist “at the present time” and Article 8 was not, therefore, engaged. However, on 8 June 2010 permission to appeal was granted as the grounds of appeal raised arguable issues in relation to the manner in which the Immigration Judge had approached the Article 8 issue. 13. The appeal decision was promulgated on 17 September 2010. While the Immigration Judge had little doubt that the previous judge was correct to find that the applicants could not meet the requirements of the Immigration Rules, he found it to be equally clear that he had not adequately addressed the Article 8 issue. In particular, he had concentrated on whether family life existed “at the present time” when the correct test was whether it had existed at the date of the decision, namely 9 February 2009. Consequently, the Immigration Judge concluded that the previous judge had erred in law and set aside his decision. In reconsidering the Article 8 issue, the Immigration Judge accepted that family life had existed between the applicants and their mother at the date of the Secretary of State’s decision and that the refusal of entry clearance had interfered with that family life. Nevertheless, he concluded that the interference had been proportionate because the applicants’ mother had made a conscious decision to leave them in Somalia, knowing that the separation might be permanent, and at the date of the decision she had been living separately from them for more than four years. 14. The applicants sought leave to appeal on the ground, inter alia, that the Immigration Judge had failed to take into account the findings of the Immigration Judge in the first two children’s appeal against the refusal of entry clearance in 2009. 15. On 3 December 2010 the Upper Tribunal refused the applicants’ application for leave to appeal as it found that the Immigration Judge had considered all the relevant factors in the round and reached a conclusion which was rationally open to him. On 26 January 2011 permission to appeal was also refused by the Court of Appeal. However, on 23 June 2011 the Court of Appeal made an order by consent ordering that the applicants’ appeal should be remitted to the Immigration and Asylum Chamber of the Upper Tribunal. 16. The new Tribunal promulgated its decision on 26 January 2012. In assessing whether or not the refusal of entry clearance amounted to a disproportionate interference with the applicants’ rights under Article 8 of the Convention, it accepted the conclusions of the Immigration Judge in the appeal of the applicant’s two siblings against the refusal of entry clearance. The Tribunal also accepted that the best interests of the children had to be treated as a primary consideration, albeit not the primary consideration, in assessing proportionality and that it was in the applicants’ best interests that they should be allowed to join their mother in the United Kingdom. Nevertheless, the general principle remained true that a foreign national who could not satisfy the requirements for entry clearance under the Immigration Rules (and the applicants had not disputed that this was the case) would not normally be able to show that his exclusion from the United Kingdom would constitute a disproportionate interference with his Article 8 rights unless he could show good reason why his case should be treated more favourably that the generality of such cases. Moreover, the Tribunal noted that the applicants’ best interests could not be viewed in isolation and it was therefore relevant that their mother had decided to leave them in Somalia, knowing that the separation was likely to continue for the foreseeable future, and that she had allowed five years to pass before attempting to bring them to the United Kingdom, by which time they had long ceased to live together as a family unit with her. 17. The Tribunal concluded that: “The circumstances in which the appellants were living together in Addis Ababa at the date of the respondent’s decision, and in which they are still living now, are undoubtedly harsh, to put it at its lowest. Indeed, they may fairly be characterised as harsh. But sadly they are conditions in which vast numbers of other individuals are compelled to live throughout the unhappier regions of the world. The United Kingdom does not have either the room or the resources to provide for all of them. There is no reason in logic why the appellants should be viewed differently from the vast numbers of other unfortunate individuals who would jump at the opportunity of a new and better life in the United Kingdom, but who cannot fulfil the requirements for entry laid down by the Secretary of State in the Immigration Rules and are therefore unable to avail themselves of that opportunity. On the facts of the appellants’ case as presented before me, I am not persuaded that they have shown why they should be treated differently from the generality of foreign nationals in the same or similar position. In short, whilst I accept that their exclusion from the United Kingdom would constitute an interference with their Article 8 rights and those of the third parties affected by their exclusion, nevertheless that would not constitute a disproportionate interference when balanced against the larger public interest to which I have referred. Their appeals therefore fall to be dismissed.” 18. In May 2012 the applicants’ older sibling, who had been looking after them, left the family unit in Ethiopia and her current whereabouts are unknown. Since then, the applicants have been cared for by the first applicant. 19. On 16 October 2012 the Court of Appeal refused permission to appeal as it found that the Immigration Judge had not failed to take into account any relevant factors. 20. Paragraph 352D of the Immigration Rules contained the requirements for leave to enter as the child of a parent who had been granted refugee status in the United Kingdom. It provided that: “352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant: (i) is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and (ii) is under the age of 18, and (iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and (iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and (v) would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and (vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity." 21. At the relevant time paragraph 297 of the Immigration Rules contained the requirements for leave to enter as the child of a parent present and settled in the United Kingdom. It provided that: “297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he: (i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances: (a) both parents are present and settled in the United Kingdom; or (b) both parents are being admitted on the same occasion for settlement; or (c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or (d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or (e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or (f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement 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 (ii) is under the age of 18; and (iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and (iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and (v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and (vi) holds a valid United Kingdom entry clearance for entry in this capacity; and (vii) does not fall for refusal under the general grounds for refusal.” 22. By virtue of section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002 an unsuccessful applicant for entry clearance may appeal against the refusal on the ground, inter alia, that “the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to the Human Rights Convention) as being incompatible with the appellant’s Convention rights”. 23. The Sponsor in the United Kingdom cannot appeal against that decision.