Education
Article 8, Overseas Family Members & Refugee Family Reunion
By David Zuther – Legal Associate
In This Article
1. Introduction to Article 8 of the European Convention on Human Rights (ECHR)
2. Background of the Al Hassan and Ors Case
3. The Appeal to the Upper Tribunal
4. Remaking the Decision: Proportionality and Refugee Family Reunion
5. Conclusion and Future Impact
6. Contact Our Immigration Barristers
7. Frequently Asked Questions
8. Glossary
9. Additional Resources
1. Introduction to Article 8 of the European Convention on Human Rights (ECHR)
In its recently reported decision in Al Hassan & Ors (Article 8; entry clearance; KF (Syria)) [2024] UKUT 234 (IAC), the Upper Tribunal effectively overturned a previous Upper Tribunal decision which held that in entry clearance cases engaging the right to respect for family life under Article 8 of the European Convention on Human Rights (ECHR), the rights of overseas family members applying to join a relative in the UK had no role to play in the proportionality assessment.
2. Background of the Al Hassan and Ors Case
In Al Hassan, 11 family members of a Syrian national granted refugee status in the UK (the ‘Sponsor’) had made applications for entry clearance to the UK. The family had lived together in Syria before the outbreak of the civil war there. The Sponsor had come to the UK in 2014 while the 11 applicants fled to Jordan at various points in time.
The Secretary of State refused their applications, finding that they did not meet the requirements of the Immigration Rules, and that refusal would not be a breach of their, or the Sponsor’s, Article 8 rights. The applicants appealed. In a decision dated 11 August 2021, First-tier Tribunal Judge Komorowski dismissed their appeals.
Though the judge was not satisfied that all eleven applicants could be said to enjoy family life with the Sponsor so that Article 8 was engaged, he went on to consider the proportionality of the Secretary of State’s decision. He identified three factors pertinent to this assessment:
- The benefit to the sponsor’s and her husband’s mental health were the applicants admitted;
- The risk of refoulement to Syria and the discrimination they could face there; and
- The separation of the family caused by the Syrian civil war
The judge then went on to make a number of findings, including that the plight of the applicants in Jordan (including the risk of forcible return to Syria) had only a limited role to play, as it did not directly affect the Sponsor’s right to family life. In support of this conclusion, the judge relied on the Upper Tribunal decision in KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413. That case, too, concerned the refusal of entry clearance applications made by the parents and younger siblings of a young man from Syria who had been recognised as a refugee in the UK. The Upper Tribunal in KF set out a number of ‘important starting points’, including the following (at [14]):
First, it is the sponsor’s rights under Article 8 which are engaged. It is he, and only he, who is in the UK. By Article 1 of the ECHR the UK undertook ‘to secure to everyone within [its] jurisdiction the rights and freedoms defined in section 1 of this Convention’. Those rights and freedoms include, of course, Article 8. There are certain exceptions where the Convention has an extra-territorial reach, but none of them is relevant in the present context. As Ms Meredith [Counsel for the Appellants] submitted, there are cases where Article 8 has been held to require the admission of someone who is outside the UK, but that is because their exclusion would be an impermissible interference with the private or family life of a family member who is in the UK -see for instance Secretary of State for the Home Department v Tahir Abbas [2017] EWCA Civ 1393. We do not therefore agree with Ms Meredith that the Appellants themselves have Article 8 rights for present purposes since they are all in Jordan.” (emphasis added)
3. The Appeal to the Upper Tribunal
The applicants in Al Hassan sought, and obtained, permission to appeal Judge Komorowski’s determination, including on the ground that the approach set out in KF was wrong insofar as it suggested that only the Sponsor’s rights under Article 8 were relevant in a refusal of entry clearance to overseas family members. Such a finding could not be squared with the Court of Appeal’s decision in Abbas, on which the Upper Tribunal had based its approach in KF.
The Upper Tribunal agreed. It set out some of the key paragraphs in the Court of Appeal’s judgment in Abbas ([16]-[17] and [19]). At [16], the Court noted that there was:
“no dispute that the Strasbourg jurisprudence supports the proposition that a person outside the territory of an ECHR state may rely upon the family life aspect of article 8 (albeit in very limited circumstances) to secure entry into an ECHR state.”
Importantly, the Court of Appeal was clear at [19] that family life was “unitary” in nature, so that:
“the interference with the family life of one is an interference with the rights of all those within the ambit of the family whose rights are engaged.”
The Court cited the European Court of Human Rights’ decision in Khan v United Kingdom [2014] ECHR 293. The unitary character of family life had been recognised by the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2009] AC 115.
The Upper Tribunal noted that while “technically obiter” (Abbas concerned the question of private life in entry clearance applications), these dicta were “an accurate statement of the law endorsed by the Lord Chief Justice and the Senior President of Tribunals.”
They were also “difficult to reconcile” with what the Upper Tribunal had said in KF. That decision was wrong in law insofar as it suggested that the focus was to be exclusively on the Sponsor’s rights, and to follow that approach risked
“a failure properly to focus on the family unit as a whole and the rights of all of those concerned. It is also to be borne in mind that it is the appellant’s rights which are in issue in these appeals, not the sponsors, given the terms of the ground of appeal, something the panel in KF (Syria) appears to have overlooked”
The Upper Tribunal found that the Judge had materially erred in law in characterising the risk as being one to the appellant’s private lives, and relying on KF to find that the overseas family members’ interests carried little weight. He should have assessed the risk to the family life of the appellants and the Sponsor as a family unit.
Interestingly, this is not the only aspect of Abbas that was subsequently misunderstood, with potentially wide-reaching consequences for appellants.
4. Remaking the Decision: Proportionality and Refugee Family Reunion
The Upper Tribunal went on to remake the decision. It referred to the ECtHR’s decision in MA v Denmark [2021] ECHR 628 where, at [130] to [135], the Grand Chamber reiterated a number of well-established principles on family reunification. These include that the Convention does not furnish foreign nationals with a right to enter or to reside in a particular country, and nor does Article 8 generally require Contracting States to respect a married couple’s choice as to where they wish to reside, or to grant family reunification. The Grand Chamber added that:
“the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest and is subject to a fair balance that has to be struck between the competing interests involved. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control.”
The Grand Chamber then set out, more specifically, a number of factors which affect whether an obligation to grant family reunification would be found, including:
- The Sponsor’s status in the host country (whether they obtained settled status) and the strength of their ties to it;
- When family life was created before the Sponsor achieved settled status;
- Whether any children were involved and if so, what was in their best interests;
- Whether the person applying to enter the host state had ever lived there;
- The Sponsor’s ability to maintain the person applying to join with their income.
The UT also recorded that the Grand Chamber had observed, at paragraph 145 of its judgment, that where the “situation of general violence in a country” was such that any returnee would face a real risk of ill-treatment contrary to Article 3 ECHR, the latitude afforded to States in balancing family reunification and immigration control in the Article 8 assessment may be reduced.
The UT noted that the Home Office’s own guidance on refugee family reunion directed decision-makers to consider whether there were exceptional circumstances which would render refusal of the application a breach of Article 8 ECHR, because it would result in unjustifiably harsh consequences for applicants or their family members, in cases in which applicants did not meet the eligibility criteria in the Rules. It thus imported the test found in paragraph GEN 3.2 of Appendix FM. Since the introduction of Appendix Family Reunion (Protection) in April 2023, the exceptional circumstances test is explicitly provided for in paragraph FRP 7.1. of that Appendix.
The Upper Tribunal reminded itself of the principles set out by the Supreme Court in Agyarko [2017] UKSC 11 and the statutory provisions in section 117B of the Nationality, Immigration and Asylum Act 2002.
Drawing all the factors of the present case together, the Upper Tribunal decided that the refusal of entry clearance was disproportionate and allowed the appeal.
5. Conclusion and Future Impact
In at least one subsequent Upper Tribunal decision, Al-Hassan led to the setting aside and remaking of a First-tier Tribunal decision in which the judge, relying on KF, had focused exclusively on the sponsor’s rights. Again, the remade decision was in the Appellant’s favour. Both decisions illustrate just how damaging the misguided focus on the sponsor’s position alone was for the applicants’ chances.
For instance, in the subsequent unreported decision – an application for entry clearance by the elderly parents of a Syrian national with refugee status in the UK – the First-tier Tribunal judge, having referred to KF, had directed himself that the appeal was solely concerned with
“the sponsor’s understandable fears and anxiety and concerns about her parents and the consequences upon the UK sponsor of continued refusal of entry clearance which lie at the heart of the appeal.”
By contrast, when the Upper Tribunal remade the decision, its proportionality assessment was informed by a nuanced consideration of all factors relevant to the sponsor and the Appellant. In respect of the latter, these included her experience of war and the loss of her husband during the proceedings, the fact that, although her son continued to live in Damascus, he was unable to offer adequate support or accommodation to the Appellant, and the Appellant’s likely personal care needs as she grew older which the sponsor, as her daughter, would be best-placed to meet.
Clearly, KF, where it was followed, led to an unduly narrow focus on the sponsor’s position only in the Article 8 proportionality assessment. The decision in Al Hassan is thus likely to increase the prospects of success for applicants for refugee family reunion who cannot meet the requirements of the rules. At the same time, as the Upper Tribunal also makes clear in its decision, these are fact-specific cases, and the existence of family life, particularly where the applicants are adult relatives or members of a sponsor’s extended family, will depend on the circumstances.
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