Hamfi, R (on the application of) v Secretary of State for the Home Department

Article 8 does not ordinarily require entry clearance for an adult parent merely because a family relationship exists. The court must examine whether a continuing family life or family unit existed when the sponsor left to seek asylum, having regard to the evidence and any substantial delay. The refugee family reunion policy requires a pre-existing family unit and compelling and compassionate circumstances, although those circumstances need not be exceptional. The high threshold in Rule 317 is an important indication of the standards set by Parliament. There is limited scope for Article 8 outside the Rules and the policy unless special circumstances exist.

The claimant sought entry clearance from Ethiopia to join her daughter, a recognised refugee settled in the United Kingdom. An entry clearance officer refused the application. An adjudicator allowed the appeal, relying on the refugee family reunion policy and Article 8, but the Immigration Appeal Tribunal set aside that decision and remitted the matter to another adjudicator.

The claimant challenged the Tribunal’s decision by judicial review. The issues included whether the Tribunal had unlawfully interfered with the adjudicator’s factual findings and whether the evidence established a family unit and family life engaging Article 8 or the refugee reunion policy.

1. The claim for judicial review was dismissed. The Tribunal’s decision to remit the appeal for reconsideration disclosed no error of law. Leave to appeal was refused, and a detailed assessment of the claimant’s costs was permitted.

2. The evidence concerning the family’s circumstances, the sponsor’s departure, the existence of a family unit, and the parties’ subsequent relationship was materially unsatisfactory. The adjudicator had failed to analyse those matters sufficiently and had allowed his criticism of the entry clearance officer’s decision-making to cloud his assessment.

3. The relevant question under Article 8 was not simply whether it would be difficult for the sponsor to live in Somalia or Ethiopia. It was whether an existing family life between the sponsor and claimant was capable of being interfered with by refusal of entry clearance. The length of separation was material. A period of about 11 to 14 years, together with the sponsor’s marriage, separation, and family of her own, made it difficult to establish continuing family life in the relevant sense.

4. Under the refugee family reunion policy, the authorities were entitled to require a family unit existing before the sponsor fled to seek asylum and to consider whether compelling and compassionate circumstances existed. Those circumstances need not be exceptional, but they had to be established. Delay in applying was also a relevant factor because the policy ordinarily contemplated prompt reunion after refugee status was secured.

5. Rule 317 of the Immigration Rules HC395 imposed a high threshold. Although a person failing to satisfy the Rules might in an unusual case rely on Article 8 or the refugee policy, there was little scope for doing so absent special circumstances. The Tribunal was entitled to conclude that the adjudicator had not properly considered the matters necessary before finding that entry clearance was required.

• High Court (Administrative Court): Judicial review of the Immigration Appeal Tribunal’s remittal decision dismissed; leave to appeal refused.
• Immigration Appeal Tribunal: The adjudicator’s decision was set aside and the appeal was remitted for reconsideration by another adjudicator.
• Adjudicator: The appeal was allowed on the basis of the refugee family reunion policy and Article 8.