SO (Somalia) & Ors v Secretary of State for the Home Department

Under a family-reunion policy, parents and siblings of a minor recognised as a refugee have no entitlement to reunion, but their applications must be considered where there are exceptional, compelling and compassionate circumstances. A tribunal may require more than the ordinary fact of separation and may compare the circumstances with those of other families within the same policy category. It must assess the relevant factors cumulatively. On a renewed application for permission to appeal, the Court of Appeal will not substitute its own assessment for that of a specialist tribunal on factual and evaluative matters. Intervention requires an error of law or a conclusion that no reasonable tribunal could reach.

The appellants were Somali nationals comprising a mother and her three children. They sought entry clearance to join the mother’s 11-year-old son, who had entered the United Kingdom with a cousin and had been recognised as a refugee. The Asylum and Immigration Tribunal determined the challenge to refusal of entry clearance in a decision dated 19 September 2006. The appellants renewed their application for permission to appeal. They alleged that the tribunal had misapplied the family-reunion policy, failed to assess the factors cumulatively, and made unsustainable findings about travel, living conditions and the sponsor’s grandmother. The central issue was whether those matters disclosed an error of law or an irrational conclusion.

The renewed application for permission to appeal was refused.

1. Policy. The policy did not give parents and siblings of a minor recognised as a refugee an entitlement to family reunion. Their applications nevertheless had to be considered under the policy, which permitted admission only in exceptional cases involving compelling and compassionate circumstances.
2. Application of the threshold. The tribunal was entitled to treat the mere fact that a minor child was separated from his parents as insufficient and to require something more. Its task was to decide whether the particular circumstances were exceptional and compelling and compassionate.
3. Contextual comparison. The tribunal was entitled to compare the sponsor’s position and that of his mother and siblings with other minor children and families falling within the same policy category. This did not reproduce the error criticised by Buxton LJ in Begum [2001] INLR 115, where comparison with other unmarried females in Bangladesh had been criticised. The comparison here was made in the specific context of the policy.
4. Cumulative assessment and factual findings. The tribunal had considered the factors cumulatively. Its conclusions about the sponsor’s possible travel to Ethiopia, the appellants’ living conditions and the grandmother’s ability to care for him were findings or evaluations for the specialist tribunal. Even if the travel finding could be challenged, it was doubtful that it would affect the outcome, given the existing telephone contact and the possibility of a future visit. A fresh application could be made if the grandmother’s health deteriorated, and any such application should be dealt with more speedily.
5. Appellate restraint. Once no error of law was shown, the appellants had to establish that the tribunal had reached a conclusion which no reasonable tribunal could reach. The specialist tribunal had greater experience in assessing what constituted exceptional circumstances under the policy. No such error or unreasonable conclusion was established.

• Court of Appeal (Civil Division): On 2 March 2007, Lord Justice Hooper refused the renewed application for permission to appeal.
• Asylum and Immigration Tribunal: On 19 September 2006, designated Immigration Judges Colman and Talbot determined the appellants’ challenge to refusal of entry clearance for family reunion. The decision is identified as AIT No TH/00786/2005.