United Kingdom - The Queen on the application of Mohamed Al-Anizy v Secretary of State for the Home Department, 25 April 2017
| Country of Decision: | United Kingdom |
| Country of applicant: | Kuwait |
| Court name: | Upper Tribunal Immigration and Asylum Chamber (The Honourable Mr Justice McCloskey, President) |
| Date of decision: | 25-04-2017 |
| Citation: | R (on the application of Al-Anizy) v Secretary of State for the Home Department (undocumented Bidoons - Home Office policy) [2017] UKUT 00197 (IAC) |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
Judicial review to challenge the failure/refusal of the Secretary of State for the Home Department (“SoS”) to determine the application of the applicant’s spouse and two youngest children for family reunification in the UK on the following grounds: a failure to apply the SoS published policy; irrationality; breach of all the family members’ rights under Art. 8 ECHR; and (regarding the two children in the UK), breach of the duties owed under s.55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”).
The Upper Tribunal found that:
1) the Home Office family reunification policy embraces a series of flexible possibilities for proof of identity;
2) the reunion applications were not examined and determined which involves a public law misdemeanour within the applicant’s grounds for challenge; and
3) in any case where withdrawal or a consent order is proposed judicial scrutiny and adjudication are required.
Facts:
The applicant is a recognised refugee in the UK and father of a family unit of Kuwaiti Bidoons consisting of his spouse and four dependent children aged between 3 and 10 years. The two oldest children have also been granted refugee status. The oldest child lives with the applicant as a dependent. The applicant’s spouse and two youngest children are asylum seekers registered with UNHCR living in Iraq having fled Kuwait.
Aided by the Red Cross (“RC”), the applicant twice submitted applications for family reunion. Visa Application Centres (“VAC”), first in Basra and subsequently in Baghdad, demanded the production of passports as a pre-requisite to considering applications; the demand of the VAC in Baghdad was made despite the RC having engaged in a formal complaint process with UK Visas and Immigration and having provided a letter explaining that being Kuwaiti Bidoons, the family did not possess identity or travel documents, drawing attention to the supporting passage of the Home Office Country Information and Guidance Publication concerning Kuwaiti Bidoons. Substantial documentary evidence as to the family’s status and identity was also submitted by RC. The applicant then made a trip to the British Embassy in Jordan on the advice of the Baghdad VAC, which came to nothing. The applicant’s solicitors engaged in formal correspondence with the Home Office to no avail. Pre-action protocol letters went unanswered.
Decision & reasoning:
The SoS’s policy guidance is the instrument upon which attention must be focussed to identify applicable legal principles. This type of document is not to be construed adopting the approach applicable to statute, deed or contract. The construction of every document is a question of law and ultimately a matter for the court. The “Lumba” principle is engaged: public authorities should normally give full effect to their policies.
The reunion applications were not examined and determined which involves a public law misdemeanour within the applicant’s grounds for challenge, as follows:
1) the SoS’s officials failed to give effect to the policy requirement to consider applications and examine proof of identity and family relations, and to consider explanations for the absence of documents. No justification for this was provided or identified;
2) the SoS’s failure to consider the applications on their merits and determine them accordingly infringes the rights of all six family members under Art. 8(1) ECHR; and
3) it is manifestly in the best interests of the children concerned that the family be recomposed in the UK. Therefore, there has been a clear breach of s.55(1) of the 2009 Act (vis-à-vis the two older children) and the SoS’s policy.
Outcome:
Application succeeded.
Observations/comments:
At the eleventh hour, a draft Consent Order was submitted by the parties to withdraw the claim for judicial review. The draft was non-binding on the Tribunal as judicial review proceedings are not open for the parties to dictate the outcome and the withdrawal of any case before the Tribunal requires the approval of the Tribunal, which has the duty of adjudicating on the issues and terms of the withdrawal.
The Tribunal was persuaded marginally to approve the draft. In the absence of the Consent Order, the Tribunal would have issued a remedy quashing the SoS’s refusal to examine the family reunification applications on their facts and merits, and ordering the SoS to consider the applications within 21 days.
This case summary was written by Sally Jackson, LLM student at Queen Mary University, London.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UK - Immigration Rules |
| UK - Borders |
| Citizenship and Immigration Act 2009 |
| 55(1) |
| paras 352A to 352FJ of Part 11 |
| sections 55 |
Cited Cases:
| Cited Cases |
| United Kingdom - R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12 |
| UK - R (on the application of RSM and Another) v Secretary of State for the Home Department [2017] UKUT 124 (IAC), 12 April 2017 |
Other sources:
Tribunals (Upper Tribunal) Rules of Procedure 2008, Rules 17 and 39
Home Office Country Information and Guidance Publication
UKVI Family Reunification Guidance (July 2016)