APPEAL BY (FIRST) MISS ISMAHAN HUSSEIN ABDI (AP) AND (SECOND) MISS ANAB HUSSEIN ABDI (AP) AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 25
XA47/16
Lady Paton
Lord Drummond Young
Sheriff Principal Dunlop QC
OPINION OF THE COURT
delivered by LADY PATON
in the Appeal
by
(FIRST) MISS ISMAHAN HUSSEIN ABDI (AP); and (SECOND) MISS ANAB HUSSEIN ABDI (AP)
Appellants
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
under
section 13(4) of the Tribunals, Courts and Enforcement Act 2007 concerning a decision of the Upper Tribunal (Asylum and Immigration Chamber)
Appellants: Lindsay QC, Byrne; Drummond Miller LLP
Respondent: McIver; Office of the Solicitor for the Advocate General
21 March 2017
Leave to enter the UK sought by Somali daughters of mother in UK: Immigration Rules paragraph 297 and Article 8 of the ECHR (family life and proportionality)
[1] The appellants are two young Somali women aged 18 and 20. They are currently living in Addis Ababa, Ethiopia. In 2006, when they were aged 7 and 9, their mother left them in Somalia in order to travel to the UK. Their mother was pregnant when she arrived in the UK on 19 June 2006. She made a claim for asylum, which was refused. Shortly thereafter, while still in the UK, she gave birth to a son (the appellants’ half‑brother). As a result of the birth, she was, in October 2009, granted indefinite leave to remain in the UK.
[2] In 2014 the appellants, then aged about 15 and 17 and having moved to Ethiopia, sought entry clearance to the UK in order to join their mother. On 23 April 2014 their application was refused by an entry clearance officer who concluded that they did not satisfy paragraph 297 of the Immigration Rules (see paragraph [7] below). The officer further concluded that any interference with the appellants’ rights in terms of Article 8 of the ECHR (family life) was proportionate.
[3] The appellants appealed, solely in respect of the Article 8 ruling. They did not appeal the decision under paragraph 297.
[4] On 17 February 2015, a hearing took place before a First‑tier Tribunal (FTT) in Glasgow. As at that date the appellants were aged nearly 16 and 18, and were living in Addis Ababa, Ethiopia. Oral evidence was led from the appellants’ mother. A written statement was produced from a Mr Takar, who was indirectly related to the mother. For the reasons given in his decision promulgated on 8 May 2015, the FTT judge (M D Dennis) refused the appeal.
[5] The appellants appealed to the Upper Tribunal (UT). For the reasons given in the UT’s decision promulgated on 17 September 2015, the appeal was refused.
[6] The appellants appealed to the Court of Session under section 13(4) of the Tribunals, Courts and Enforcement Act 2007.
Immigration Rules paragraph 297: child seeking leave to enter the UK to join a parent
[7] Paragraph 297 is in the following terms:
“297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent … present and settled … in the United Kingdom are that he:
- is seeking leave to enter to accompany or join a parent … in one of the following circumstances … (d) one parent is present and settled in the United Kingdom … and the other parent is dead; (e) one parent is present and settled in the United Kingdom … and has had sole responsibility for the child’s upbringing; or (f) one parent … is present and settled in the United Kingdom … and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and
- is under the age of 18; and
- is not leading an independent life … and has not formed an independent family unit;and
- can, and will, be accommodated adequately by the parent … the child is seeking to join without recourse to public funds in accommodation which the parent … the child is seeking to join, own or occupy exclusively;and
- can, and will, be maintained adequately by the parent … the child is seeking to join without recourse to public funds;and
- holds a valid United Kingdom entry clearance for entry in this capacity;and
- does not fall for refusal under the general grounds for refusal.”
Decision of entry clearance officer in 2014
[8] In the Refusal of Entry Clearance certificates dated 23 April 2014, the entry clearance officer stated that the requirements of paragraph 297 of the Immigration Rules had not been satisfied. In particular, in relation to sub‑paragraph (i) of paragraph 297, the officer was not satisfied that the appellants’ mother had been solely responsible for their parental care (for example, making decisions about their health and education) during the period 2006 to 2014. The officer noted that the appellants had “resided in Ethiopia now for a couple of years and [were] registered with the Somali Community in Ethiopia”. The officer concluded that “whoever has cared for [the appellants] throughout the years … is, by way of de facto adoption, [the appellants’] adoptive parent and that therefore [the appellants had] close family to support [them]”. In relation to sub-paragraphs (iv) and (v), it was noted that the appellants’ mother in the UK was “earning a modest income and [relied] on public funds for support … it is apparent that [her] income is not sufficient to meet the cost of supporting [the appellants] in the UK”. The officer was not therefore satisfied that the appellants’ mother could adequately maintain and accommodate them in the UK without recourse to public funds.
[9] In relation to Article 8 of the ECHR, the officer concluded that any interference with the appellants’ rights under Article 8 was justified for the purpose of maintaining an effective immigration control, and was proportionate and appropriate.
The FTT’s decision in 2015
[10] In his decision promulgated on 8 May 2015, the FTT judge concluded that there was no protected family life from 2006 to 2015, and that Article 8 was not engaged. Further, on an esto basis, the FTT judge ruled that if Article 8 was engaged, the continued separation of the mother and daughters was, in all the circumstances, not a disproportionate interference with family life. The appeals were refused.
The UT’s decision in 2015
[11] In a decision promulgated on 17 September 2015, the UT held that that there was family life, and that Article 8 was engaged. However the UT concluded that the FTT judge could not be criticised in his assessment of proportionality (described as the “overarching issue” in paragraph 5(a) of the decision) and that the FTT judge had not erred in law in that respect. The appeals were refused.
Appeal to the Court of Session in 2016: submissions for the appellants
Errors of the FTT and UT
[12] It was accepted that the appellants did not qualify for leave to enter in terms of the Immigration Rules paragraph 297. But the FTT made a material error in law in failing to recognise the existence of family life and the fact that refusal of leave amounted to a disproportionate interference with the rights of the appellants to family life (Article 8). In the esto assessment of Article 8, the FTT made a material error of law by (i) giving excessive weight to the Immigration Rules; (ii) giving significance or weight to what was said to be a “voluntary” separation of the mother and daughters; and (iii) failing properly to assess the best interests of the children.
[13] The UT was correct to hold that there was family life, and that Article 8 was engaged. Family life could continue in circumstances where family members were separated (GUL v Switzerland (1996) 22 EHRR 93 at paragraphs [39] to [43]; Sen v Netherlands (2003) 36 EHRR 7 at paragraphs [37] to [41]). But the UT had failed to identify the FTT’s material errors of law as outlined in paragraph [12] above, and thus had itself erred.
The first error
[14] The Immigration Rules could not cover every aspect of Article 8 (paragraph [24] of MS (India) v Secretary of State for the Home Department [2013] CSIH 52, an opinion of the court written by Lord Drummond Young, and not Lord Mackay; Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin)). There had to be a second-stage “outside the Rules” analysis of Article 8, although the Rules admittedly played a part, as they reflected public policy approved by Parliament. In some cases, the relevant provision in the Rules would be determinative (for example, a provision concerning the deportation of convicted criminals). But in other cases there was an appreciable gap between the Rules and Article 8. In paragraph 28 of his determination, the FTT judge wrongly indicated that if the appellants did not qualify in terms of the Rules, it would only be in exceptional cases that they would qualify in terms of Article 8. Thus he had erred in law as to the significance which he gave to the Immigration Rules when carrying out the “outside the Rules” assessment.
The second error
[15] The FTT judge gave too much weight to what he described as a “voluntary” separation of the mother and the children. It was difficult to assess proportionality in the present case as (i) there was no agreed set of facts and circumstances; and (ii) the mother had been found to be incredible. Nevertheless it was submitted that it was within judicial knowledge that the situation in Somalia and Ethiopia was chaotic and full of risks for a young woman such as the appellants’ mother, and that extreme poverty might drive someone to make the least painful choice. In any event, the present appeal was an appeal by the children. It could not be said to have been the young children’s decision to separate from their mother. Thus the separation could not be said to be voluntary on their part.
The third error
[16] The FTT judge had not carried out a proper assessment of what would be in the best interests of the children. He had allowed that assessment to be influenced by the Immigration Rules, instead of making the assessment independently of the Rules. While the best interests of the children did not trump other considerations, once those interests had been properly assessed, they formed part of all the circumstances to be considered. In the present case, paragraph 30 of the FTT decision contained an analysis which was not free from the influence of the Immigration Rules. The analysis referred to (i) requirements imposed by the Rules which could not be fulfilled (for example, the requirement that the mother – “the sponsor” – would be able to maintain the appellants financially); (ii) the fact that the mother had not been looking after the appellants; and (iii) a statement about the need to avoid unthinking cultural imperialism. But the proper factors to take into account were the children’s ages, health, education, and circumstances.
[17] The appellants’ current circumstances, so far as known, were that they were two teenage Somali girls living in Addis Abbaba, Ethiopia (not their home country), although one was currently in Turkey for medical treatment. They could not speak the local language (Amharic). They were being cared for by a woman who was not related to them. They were illiterate and uneducated. They had had some recent contact with their mother in that she had posted money to them. Senior counsel submitted that, when those factors were considered (independently of the influence of the Immigration Rules), it was in the best interests of the children – for their education, health, and emotional welfare – that they be permitted entry to the UK in order to be reunited with their mother and their half‑sibling.
[18] Once a view had been reached about what would be in the best interests of the children, that could be added as a factor when considering proportionality, balancing what would be in the best interests of the children against the public interest in maintaining immigration control. As the authorities demonstrated, no other single factor could outweigh what was in the best interests of the children, although other factors, taken cumulatively, could so outweigh (Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690, per Lady Hale and Lord Kerr; H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338, [2012] 3 WLR 90). But in the present case, the third error of law was a failure to carry out a proper assessment of what would be in the best interests of the children. Contrary to the guidance given in Zoumbas cit sup paragraph 10, sub‑paragraphs (4) to (7), the FTT had not asked the right questions in an orderly manner; the FTT and the UT had repeatedly blamed the children for the conduct of their mother; and neither the FTT or the UT had carried out the necessary examination of the facts.
Concluding submission
[19] The UT was correct to hold that the FTT had erred in concluding that there was no family life engaging Article 8 (paragraphs 3 to 5). However the UT erred in characterising the FTT’s error as “not material”, and by failing to identify the three errors of law outlined above. In paragraphs 5, 10, and 12 to 14 of the UT’s determination, the assessment of the overarching issue (i.e. whether the decision to refuse leave constituted a disproportionate interference with family life) was vitiated by the three material errors; and the FTT’s attempted assessment in relation to Article 8 was erroneous, for the reasons outlined above. The FTT’s and the UT’s decisions should be set aside, and this court should decide the matter de novo.
Submissions for the respondent
[20] Counsel for the respondent submitted that no error of law on the part of the UT had been identified.
The voluntary nature of the separation
[21] The UT was entitled to take into account the particular facts and circumstances of the case. In an Article 8 family life claim where family reunification was an issue, the circumstances of the separation were a material factor which the FTT and UT were entitled to take into account.
The role of the Immigration Rules
[22] The FTT was entitled to take into account Immigration Rules which were relevant to applications for leave to enter. The Rules reflected the policy adopted by the Secretary of State and approved by Parliament in order to control immigration. The Rules respected Article 8 of the ECHR. The extent to which the appellants met the requirements of paragraph 297 was therefore a relevant consideration in the “outside the Rules” proportionality assessment (Huang v Secretary of State for the Home Department [2007] 2 AC 167 paragraph 20, paraphrasing Lord Bingham in R (Razgar) v SSHD [2004] 2 AC 368 and covering both leave to enter and leave to remain; MS India v Secretary of State for the Home Department [2013] CSIH 52 at paragraph [24]; Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin); and Secretary of State for the Home Department v SS (Congo) [2005] Imm AR 1036 paragraphs [66] and [67].) It was legitimate for the FTT judge, in paragraph 28 et seq of his decision, to consider whether the Rules were met, and then to go on to assess whether the appellants’ case raised any facts or circumstances not covered by the Rules which would render disproportionate a decision not to grant leave (Nagre v Secretary of State for the Home Department [2013] EWCH 720 (Admin)). In the present case, the FTT judge was entitled to find no such facts or circumstances. Furthermore, the UT had, in paragraph 15 of its decision, clearly identified factors justifying refusal of the application.
[23] Both the FTT and the UT had carried out the required proportionality assessments outside the Rules, taking into account all the relevant circumstances (cf the balancing exercise referred to in paragraph [16] of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387). In the present case, the UT’s clear reasoning concluding that any interference with existing family life was not disproportionate, could not be criticised.
[24] No error of law had been identified. Esto there was an error, it was not material. The appeal should be refused.
UK Supreme Court decision in SS Congo, 2017
[25] Following upon the hearing of the appellants’ case in the Court of Session, the UK Supreme Court issued their decision in SS Congo (sub nom R (on the application of MM, Lebanon) v Secretary of State for the Home Department)and others, [2017] UKSC 10). This court considered whether to put the appellants’ case out for a By Order hearing as a result of the issuing of that decision, but ultimately concluded that the particular facts and circumstances of the present case were such that a By Order hearing was not necessary.
Discussion
[26] We accept that the requirements of the Immigration Rules do not absolve decision‑makers from carrying out a full merits‑based fact-sensitive assessment of Article 8 rights “outside the Rules” (SS Congo v Entry Clearance Officer, Nairobi [2017] UKSC 10, paragraph 58; Nagre v Secretary of State for the Home Department [2013] EWCH 720 (Admin), Sales J at paragraph 27; MS (India) v Secretary of State for the Home Department [2013] CSIH 52, Lord Drummond Young at paragraph 23). Failure to qualify under the Rules is not conclusive: on the contrary, it is, in Lord Bingham’s words:
“ … the point at which to begin, not end, consideration of the claim under Article 8. The terms of the Rules are relevant to that consideration, but they are not determinative”
(paragraph 6 of Huang v Secretary of State for the Home Department [2007] 2 AC 167). As Lord Bingham made clear, the terms of the Rules relating to both leave to enter and leave to remain are relevant in this context (paragraph 20 of Huang).
[27] What is less clear is the question whether it is appropriate to approach an “outside the Rules” assessment on the basis that -
“a decision in accordance with the Rules will not involve a breach of Article 8 save in ‘exceptional’ circumstances, which expression is equated with circumstances where a refusal would lead to ‘unjustifiably harsh’ consequences for the individual or their family”
(paragraph 68 of SS Congo cit sup). That question has been discussed in case-law to some extent: see for example Lord Bingham at paragraph 20 of Huang cit sup, where he stated that -
“[it is expected that] the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under Article 8 would be a very small minority.”
See too Lord Drummond Young in paragraphs 19, 26 and 27 of MS (India) cit sup. The Immigration Rules relating to leave to enter have not been altered following upon the decisions in Nagre, MS (India) and SS Congo.
[28] In the present case, it is our view that the core approach adopted by the FTT judge is as set out in paragraph 28 of his decision, namely that –
“ … [a] decision, consistent with the Immigration Rules, is likely to be fully proportionate and proper. It would only be in an unusual case where such circumstances presented themselves as were not contemplated or covered by the Immigration Rules that this might be rendered disproportionate.”
It was on the basis of that approach, correctly appreciating that proportionality applies to both leave to enter and leave to remain cases, that the FTT judge proceeded to examine the circumstances of the case in his “outside the Rules” assessment, and to carry out his reasoning and reach a conclusion. That approach was entirely consistent, in our view, with the guidance given by Lord Bingham in paragraph 20 of Huang (paragraph [27] above). While there is a subsequent rather formulaic reference to “exceptional” in the following paragraph of the FTT’s decision (paragraph 29), that reference comes after the “outside the Rules” assessment and after all the reasoning leading to the conclusion. We therefore give that reference little weight.
[29] Ultimately, in the present case, we are satisfied that the FTT judge made an appropriate “outside the Rules” assessment on the material available to him. He reached a conclusion on the proportionality of any interference with the appellants’ rights under Article 8 which cannot, in our view, be criticised. We are not therefore persuaded that the FTT or UT erred in law in this context.
[30] In relation to the nature of the separation of the appellants from their mother, while accepting that it is unlikely that two young girls aged 7 and 9 would be keen to have their mother leave them to go abroad for an indefinite time, nevertheless the FTT judge was, in our opinion, entitled, on the material available, to categorise the break‑up of the family unit as “voluntary” in that the mother of the children made the decision while apparently in family and of her own volition. No form of external compulsion, other than general references to poverty and chaotic circumstances in Somalia and Ethiopia, were drawn to the court’s attention. We do not accept that the categorisation of the separation as voluntary was unreasonable or that it amounted to an error in law.
[31] In relation to the best interests of the children, we accept that those interests should be assessed free of any influence from the Immigration Rules (Huang v Secretary of State for the Home Department [2007] 2 AC 167, paragraphs 17 and 18; MS (India) v Secretary of State for the Home Department [2013] CSIH 52, at paragraphs 19 to 24). As Lord Hodge explained in Zoumbas v Secretary of State for the Home Department 2014 SC (UKSC) 75, paragraph [10]:
“ … (1) The best interests of a child are an integral part of the proportionality assessment under Art 8 ECHR; (2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration; (3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an Art 8 assessment; and (7) A child must not be blamed for matters which he or she is not responsible, such as the conduct of a parent.”
[32] In this particular case, as senior counsel for the appellants acknowledged, any assessment of the best interests of the children (and in particular factor (5) of Lord Hodge’s guidance in Zoumbas above) is materially hampered by the lack of an agreed statement of facts and insufficient information about the appellants’ circumstances. That is something for which the appellants must bear some responsibility. It is for an applicant to provide information or material which would assist the decision‑maker in making the decision (cf Sales J in paragraph 49 of Nagre, referred to in MS (India) paragraph 28). In the present case, on the information available, it would appear that years have passed since the children’s mother left them in 2006. Those years amount to about half their lives. They have grown up to be teenagers while in the care of someone other than their mother, and in an environment very different from that of the UK. There is no information about their attitude towards their mother (paragraph 25 of the FTT’s decision). It is our opinion that neither we, nor the FTT or the UT, have sufficient information about the facts and circumstances of the appellants to be able to reach a soundly‑based conclusion that it would be in their best interests to be brought to the UK. Little is known about the appellants’ current lifestyle, local attachments, friends or relations, activities, cultural attitudes and many other matters. It is difficult for this court to reach a soundly‑based opinion concerning the best interests of the appellants which would differ in any material respect from the assessment made by the FTT (and not criticised by the UT). In the result we have not been persuaded by the appellants’ third argument. It should also be noted that the appellants are now aged 18 and 20. They are no longer children, but are young adults.
Decision
[33] For the reasons given above, we refuse the appeal. We continue the question of expenses.