Upper Tribunal says that article 8 rights of overseas family members must be considered

The Upper Tribunal has said that where family life exists, the article 8 rights of family members overseas need to be taken into account and it is wrong to focus only on the rights of the UK based sponsor. Following on from that, the refusal to grant entry clearance to a Syrian family was held to be unlawful. The court case in question is – Al Hassan (Article 8, entry clearance, KF (Syria)) [2024] UKUT 00234.

Background

The appellants are members of a family who lived together in one household in Syria before fleeing to Jordan, becoming separated from the sponsor in the process. The sponsor, Ms Al-Helwani, ended up in the UK in 2014. The appellants are the sponsor’s brother and sister and each of their respective families.

On 11 August 2021 the appellants’ applications for entry clearance to come to the UK to join the sponsor were rejected on the grounds that they did not meet the requirements of the immigration rules and refusal would not breach their rights under article 8 of the European Convention on Human Rights.

The First-tier Tribunal concluded that there were “more than normal emotional ties” between many of the family members such that excluding them would be a “significant interference” with their article 8 rights. However the judge dismissed the appeal on the grounds that the interference was not disproportionate.

The error of law decision

The hearing took place on 23 August 2023, with the appellant submitting that the Upper Tribunal had erred in its approach to how to assess interference with established family life with a person outside the UK. It was argued that it was wrong to focus only on the rights of those inside the UK and that the compelling circumstances of those outside the UK were also relevant.

The Upper Tribunal referred to the Court of Appeal’s case-law which says that a person outside a country that is a signatory to the European Convention on Human Rights may rely on article 8 in very limited circumstances in order to enter the ECHR country.

The Upper Tribunal did not accept that it was correct law to focus exclusively on the sponsor’s rights, saying that “to do so risks a failure properly to focus on the family unit as a whole and the rights of all of those concerned.

The Upper Tribunal considered that the First-tier Tribunal had erred in, having accepted that the appellants were at serious risk and that family life existed, then failing to properly consider the family as a unit and wrongly characterising the risk as to their private lives. The Upper Tribunal said “It is difficult to comprehend how such a serious risk, including of death which would extinguish family life, is not an interference with family life, and to the extent that the judge does so, his approach is irrational.”

Remaking the decision

The Upper Tribunal then proceeded to remake the decision on the basis that there had been no challenge to the findings of the First-tier Tribunal that family life existed and the appellants were at risk of refoulement to Syria and were at risk of serious harm. The only decision to be remade was therefore that on proportionality.

The Upper Tribunal then proceeded to consider proportionality, the starting point being that the appellants do not meet the requirements of the immigration rules. Factors in favour of refusal include that they do not speak English and there was likely to be a “considerable and significant reliance on public funds for an extended period”.

A factor that weighed strongly in favour of the appellants was the significant danger they faced. The best interests of the children were to relocate to the UK, however the tribunal considered this a relatively minor factor. The sponsor could not be returned to Syria without risk and it would not be in the best interests of her four children for them to do so.

The tribunal concluded that “Taking all of these factors into account, given the particular findings of fact as to the level to the risks to these appellants, I am satisfied in the particular facts of this case that refusal of entry clearance was disproportionate” and the appeal was allowed