UK - AT and another (Article 8 ECHR – Child Refugee – Family Reunification : Eritrea) [2016] UKUT 227 (IAC), 29 February 2016

Facts:

Decision & reasoning:

Judge McCloskey first turns to the authenticity, interdependency and strength of the family unit, which has not been diminished but rather grown in intensity since the sponsor’s stay in the UK and his 18th birthday.

Turning next to the Immigration Rules Judge McCloskey noted that no provision (with the exception of certain temporal policy decisions) had been made for family reunification in the case of a child who has gained refugee status in the UK.  Therefore, it was the interference with Article 8 ECHR which was at play during the proceedings and notably whether the refusal decisions of the ECO were proportionate to the legitimate aim at play, namely immigration control.

Noting that the balance to be struck when assessing Article 8 is the weighing up of the rights of the individual and the interests of the community, the Upper Tribunal refers to a range of national, European and international instruments, namely Section 55 of the Borders, Citizenship and Immigration 2009 Act which in turn originates from Article 3(1) of the UN Convention on the Rights of the Child. The Upper Tribunal further makes reference to the tracing obligation in the Convention as well as a UN General Comment on the treatment of unaccompanied children, including the entry of parents, and the Family Reunification Directive. Whilst not applicable to the UK by virtue of the opt-out clause Judge McCloskey finds the Directive indirectly applicable on account of the statuory guidance “Every Child Matters” to the UK Border Agency published on Section 55(2) of the 2009 Act. Attention was further paid to the maintenance of family unity in the Qualification Directive as well as ECtHR case law, namely Draon v France where the Grand Chamber identified positive obligations on States by virtue of Article 8 in order for the respect for family life to be effective.

Turning to the public interest assessment the Tribunal noted that States have a certain margin of appreciation when examining the proportionality of a measure. This margin is variable according to whether public interest considerations have culminated in primary legislation. The Tribunal notes that the Immigration Rules do not have the status of parliamentary legislation and in this vein cites from ZAT and Others v UK, which likewise concerns a blanket exclusion, where the Tribunal found that the public interest had been assessed generally and no account was taken of the applicants’ individual circumstances.  Citing SS(Congo) and others Judge McCloskey reiterated that where the interests of a child are at issue the width of margin of appreciation tends to be reduced. In addition SS(Congo), reified by ECtHR jurisprudence, puts forward the test of the most adequate means for the development of family life, which must be assessed in conjunction with the age of the child, dependency and the environment in the country of origin.  

Considering, therefore, that Article 8 has been recognised in appropriate cases as the means to achieve family reunification Judge McCloskey found that section 55 applied to the sponsor as he was 17 when the decision of the ECO has been made. Nonetheless the Secretary of State had not discharged her duty under section 55(2) to have regard to statutory guidance and the best interests of the child principle. According to Judge McCloskey such omission tends to be the rule rather than the exception in other similar cases.

At this juncture Judge McCloskey assess the status of unincorporated or partially incorporated international treaties in domestic law, concluding that several treaties, such as the UNCRC have progressively influenced domestic law via the Human Rights Act 1998. Moreover individual articles from international treaties such as Article 3(1) of the UNCRC cannot be considered in a vacuum instead treaty interpretation requires the object and purpose of the treaty to be taken into account. According to Judge McCloskey section 55 can be influenced by unincorporated provisions of international law by virtue of the Secretary of State’s guidance (whose status is derived from a duty imposed by primary legislation) which specifies that the requirements of, inter alia, ECHR, ICCPR, EU Reception Conditions Directive and UN CRC must be fulfilled when the UK Border Agency is exercising its functions. Therefore, the Secretary of State and her "alter egos", i.e UKBA, UKVI and ECO must give effect to international treaties when making immigration decisions which affect children. Moreover, Judge McCloskey notes that whilst the second appealant was outside the UK territory and therefore section 55 does not apply, the Secretary of State's Immigration Directorate Instruction invites ECOs to consider the statutory guidance. This argumentation is further reified by the lack of territorial limiation of section 55(2), unlike 55(1).   Therefore, although the Secretary of State’s guidance includes treaties which are unincorporated in domestic legislation they, nonetheless, have indirect status in domestic law and should be given effect even where a child is outside the territory.

In his conclusion Judge McCloskey weighs the interests of the three family members against the public interest finding that the family’s separation is contrary to strong and stable societies, reduces the sponsors contribution to UK society, thus undermining public interest, and could give rise to a dangerous journey if the family reunification application were denied, exposing the sponsor to Article 3 risks and contrary to the rationale of the 1951 Refugee Convention. Noting that the Secretary of State is not under a duty to facilitate reunification for the family in the UK, Judge McCloskey nevertheless finds that, by virtue of the indirect reliance on international treaties, substantial weight should be given to the individuals’ family life rights in the proportionality exercise.

Countering arguments presented by the government were set in the aforementioned context of a blanket ban on family reunification for children refugees. Moreover argumentation relating to the pull factor which could be created if a breach of Article 8 were found as well as the additional pressure on publicly funded services was viewed by the Upper Tribunal as unsubstantiated and lacking any scientific detail.

Therefore the Upper Tribunal found that the ECOs decisions interfered disproportionality with the applicants’ right to respect for family life. 

Outcome:

Appeals allowed under Article 8 ECHR.

Observations/comments:

Notwithstanding that the sponsor had turned 18 the Upper Tribunal refers to Section 55 of the 2009 Act as well as the UN Convention on the Rights of the Child.

For a commentary on the case please see: Free Movement Blog, Relatives of refugee child win appeal against refusal of entry, 20 May 2016.

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