Family From Gaza Settle In UK Following Ukraine Scheme Application

By Jasmine Theilgaard – Immigration Barrister

18 Feb 2025

In This Article

1. Introduction: A Tribunal Decision at the Centre of Political Debate
2. The Appellants’ Background and Entry Clearance Application
3. Home Office Refusal: No Resettlement Route for Palestinians
4. First-Tier Tribunal: Recognising a Human Rights Claim
5. First-Tier Tribunal Decision: Balancing Family Life and Public Interest
6. Grounds of Appeal: Alleged Errors in the First-Tier Tribunal’s Decision
7. Findings of the Upper Tribunal on the Grounds of Appeal
8. The Upper Tribunal’s Proportionality Assessment and Final Decision
9. Addressing the Alleged ‘Loophole’ in Immigration Law
10. Contact Our Immigration Barristers

1. Introduction: A Tribunal Decision at the Centre of Political Debate

The decision of the Upper Tribunal in an unreported case was the centre of a clash in the House of Commons during PMQs last week. Leader of the Opposition Kemi Badenoch attacked the government on the grounds that a family from Gaza had successfully applied to live in the UK “using” the Ukraine Scheme. In response, Prime Minister Keir Starmer expressed strong disagreement with the decision of the Upper Tribunal to which she was referring. Although he did not specify any point of law on which the decision might be challenged, he did state that the government is looking at the “legal loophole that we need to close”. In this article, we will set out the decision of the Upper Tribunal and seek to identify what might constitute the “loophole” referred to by the Prime Minister. 

2. The Appellants’ Background and Entry Clearance Application

The factual background to the case is clearly set out in the determination of Upper Tribunal Judge Norton-Taylor. The appellants were Palestinians who were at the time of the decision under challenge residing in the al-Mawasi “humanitarian zone” of Gaza. The first and second appellants were husband and wife and had lived in Gaza since 1994. They were the parents of the remaining four appellants, who at the time of the decision were 18, 17, 8 and 7 years of age. The sponsor for the application was the first appellant’s brother, who had moved to the United Kingdom in 2007 and is now a British citizen.

The appellants’ home was destroyed by an airstrike during the conflict that followed the attacks of 7 October 2023. On 25 January 2025, they submitted an application for entry clearance to the UK. This application was made using the Ukraine Family Scheme form. However, it was made clear in the representations accompanying the application that the appellants could not meet the requirements of this route, and were making their applications outside of the provisions of the Immigration Rules. The application had been made using this form on the basis of the Home Office’s policy guidance which sets out that, in applications for entry clearance outside of the rules, “applicants overseas must apply on the application form for the route which most closely matches their circumstances”. The guidance continues by stating that “Any compelling compassionate factors they wish to be considered, including any documentary evidence, must be raised within the application for entry clearance on their chosen route.”

3. Home Office Refusal: No Resettlement Route for Palestinians

The applications were refused on 30 May 2024. The Home Office concluded that the requirements of the Ukraine Scheme were not met (which had been acknowledged by the applicants themselves). Further, the decision maker was not satisfied that there were compelling or compassionate circumstances justifying a grant of leave outside of the rules. The decision letter noted that there was no resettlement route in place for Palestinians and considered that the refusal of the application was not disproportionate. The decision stated that the applicants would not have a right of appeal, on the basis that there had been no human rights claim.

4. First-Tier Tribunal: Recognising a Human Rights Claim

The appellants lodged an appeal with the First-tier Tribunal. In a decision dated 24 July 2024, First-tier Tribunal Judge Oxlade concluded that the refusal decision had constituted the refusal of a human rights claim. This meant that the appellants had a right of appeal. This decision was not challenged by the Home Office, and therefore the appeals proceeded to be heard in the First-tier Tribunal by First-tier Tribunal Judge Seelhoff.

5. First-Tier Tribunal Decision: Balancing Family Life and Public Interest

The main issues to be decided by the First-tier Tribunal were whether there was family life under Article 8(1) between the appellants and the sponsor in the UK, whether the respondent’s decision interfered with any family life and/or any private life enjoyed by the sponsor, and whether any such interference was disproportionate.

First-tier Tribunal Judge Seelhoff found that there was family life between the sponsor and the appellants. It was considered that the nature of their relationship had changed since the escalation of the conflict in Gaza. It was found that the appellants were living in a profoundly dangerous situation in Gaza and that the sponsor had provided them with genuine, effective and committed support. However, the First-tier Tribunal Judge concluded that the refusal of the applications did not result in unjustifiably harsh consequences because the public interest in respecting the public policy decision not to introduce a resettlement route for Palestinians outweighed the factors weighing in the appellants’ favour. The appeals were therefore dismissed.

6. Grounds of Appeal: Alleged Errors in the First-Tier Tribunal’s Decision

The decision of the First-tier Tribunal was appealed by the appellants on the basis that the First-tier Tribunal had made a material error of law, on six grounds:

1. The First-tier Tribunal Judge had failed to address the submission raised by the appellants relating to the specific risk to the family from Hamas;
2. There had been procedural unfairness in the First-tier Tribunal Judge’s conclusion that the sponsor would not be able to support the appellants in the UK since the appellants had not been given the opportunity to address this factor in the hearing;
3. The First-tier Tribunal Judge had not adequately considered the impact of the decision on the sponsor’s mental health;
4. The First-tier Tribunal Judge had not attributed appropriate weight to the family life between the appellants and sponsor and had made an assessment based on presumptions about what constitutes “normal” family life;
5. The First-tier Tribunal Judge had treated the absence of a resettlement scheme as “foreclosing” the question of proportionality, or had failed to properly assess the public interest by “double counting” the appellants’ inability to satisfy the rules and the absence of a scheme within the rules;
6. The conclusion in respect of proportionality was perverse in light of the First-tier Tribunal Judge’s findings in relation to the appellants’ circumstances in Gaza.

The Home Office, in response, argued that the First-tier Tribunal Judge had provided adequate reasons for the conclusion that the decision was proportionate. However, they also argued that the First-tier Tribunal Judge should not have concluded that family life existed between the appellants and sponsor.

7. Findings of the Upper Tribunal on the Grounds of Appeal

As a starting point, the Upper Tribunal did not agree with the Home Office’s argument that the First-tier Tribunal Judge had erred in finding that there was family life between the appellants and sponsor. Additionally, the Upper Tribunal agreed with Grounds 1-5 advanced by the appellants. Specifically:

• In relation to Ground 1, it was found that the First-tier Tribunal Judge had erred in failing to take into account the ‘Hamas issue’. That is, it was agreed that the threat that the family faced from Hamas was a relevant factor in the proportionality exercise that had not been appropriately considered by the First-tier Tribunal Judge.
• In relation to Ground 2, it was found that the First-tier Tribunal Judge had acted with procedural unfairness in failing to provide the appellants with an opportunity to address the question of adequate maintenance and accommodation.
• In relation to Ground 3, it was found that the First-tier Tribunal Judge’s conclusion in respect of the Sponsor’s mental health were directly contrary to the unchallenged medical evidence.
• In relation to Ground 4, it was found that the First-tier Tribunal Judge had imposed his own assessment of the “normal and natural” development of family life in the proportionality exercise. This was found to be contrary to the established authorities.
• In relation to Ground 5, it was agreed that the inability of the appellants to meet the rules was relevant to the proportionality assessment. However, it was found that there was no authority entitling the First-tier Tribunal Judge to consider that the absence of rules or free-standing published policy on a particular matter constitutes a separate public interest consideration which can count against the appellants.

The Upper Tribunal did not find it necessary to consider Ground 6. Having found that the First-tier Tribunal Judge’s decision must be set aside (retaining his findings in respect of the existence of family life and the circumstances in which the appellants were living), the Upper Tribunal proceeded to remake the decision.

8. The Upper Tribunal’s Proportionality Assessment and Final Decision

In a resumed hearing, the Upper Tribunal considered whether the decision of the Home Office was in fact a disproportionate interference with the family life of the appellants and sponsor.

The Upper Tribunal undertook a lengthy and detailed assessment of a number of relevant factors in the proportionality exercise, which included detailed consideration of the family’s anti-Hamas profile, the security and humanitarian situation in Gaza, the financial circumstances of the sponsor, the nature of the sponsor’s intentions to support the family in the UK, and the sponsor’s mental health. It also contains considerations relating to the best interests of the child appellants. 

Ultimately, it was found that on the particular facts of the appellants’ cases, the Home Office’s decision did not strike a fair balance between the appellants’ interests and those of the public. For this reason, the appellants’ appeals were allowed. In the Upper Tribunal’s conclusion, it was re-emphasised that, even if the existence of a resettlement scheme had been a relevant consideration, it would have made no difference to the overall proportionality assessment.

9. Addressing the Alleged ‘Loophole’ in Immigration Law

Having reviewed the case in full, we can return to the question of where the “loophole” referred to by the Prime Minister might lie. One possibility is that the “loophole” refers to the use of the Ukraine Scheme form by the Palestinian applicants. However, the Ukraine Scheme form in this case operated as nothing more than a means for the appellants to present their case to the Home Office. As no designated form exists for applications to be made outside of the rules, and the appellants had clearly set out that their applications were being made outside the rules, their application followed the Home Office’s published policy. If this policy were to be changed, the only way to do so would be to create a designated ‘outside of the rules’ entry clearance application form (which should not have impacted the outcome of this case) or to preclude applications outside of the rules altogether, which would leave many individuals with valid human rights claims with no means to make them. 

Aside from the type of form that was used, the legal considerations in this case were not remarkable. In PMQs, the Prime Minister emphasised that “It should be Parliament that makes the rules on immigration and it should be the government that makes the policy”. This was consistent with the conclusions of the Upper Tribunal. At §94 of the determination, it was stated that

“it is common ground that the decision of whether to establish a resettlement scheme is a matter for the Executive and/or Parliament. However, the judge was not considering a “resettlement scenario” in which individuals are seeking international protection; he was concerned with a family life claim under Article 8. If he had thought that the whole case amounted to little more than a contrived attempt to obtain resettlement through the back door, it might have been open to him to find against the appellants under Article 8(1). But he did not. As such, the statutory scheme under sections 82 and 84 of the 2002 Act, combined with the well-known authorities on the correct approach to the appellate jurisdiction, required him to follow a conventional step-by step route through to the proportionality exercise. 

The determination, in summary, correctly concluded that “when all is said and done, the exercise to which we now turn is a relatively straightforward balancing exercise”. The Tribunal’s assessment of proportionality under Article 8 should not be considered a “loophole”. The Upper Tribunal explicitly confirmed that what was being considered was an Article 8 family life case, as opposed to “some form of disguised protection claim”. In the end, then, the unreported case discussed in this article is rather less remarkable than it may initially appear.

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