SS (Somalia) & Ors v Entry Clearance Officer

In family-reunion entry-clearance cases, a tribunal cannot substitute its own decision where an executive policy leaves the decision-maker a discretion, unless the policy and facts make a grant unavoidable. Article 8 requires a structured approach: first determine engagement under Article 8(1), then assess lawfulness and proportionality under Article 8(2). A low-level interference may be proportionate where family members chose to separate by sending children from a safe third country to the United Kingdom for their benefit. Distress and a wish to reunite do not alone require admission. Section 85(5)(b) of the Nationality, Immigration and Asylum Act 2002 limits entry-clearance appeals to circumstances at the decision date, including where Article 8 is relied upon.

The appellants, Somali nationals resident in Kenya, were the mother and siblings of a refugee sponsor living in the United Kingdom. The Entry Clearance Officer refused their applications under the family-reunion policy and Article 8. Immigration Judge Cary dismissed their appeals, and the Asylum and Immigration Tribunal upheld that decision. The Court of Appeal considered alleged unfair reliance on possible family relocation to Kenya, the Article 8 reasoning, a later psychotherapist’s report, and a proposed argument based on withdrawal of a reservation to Article 22 of the United Nations Convention on the Rights of the Child. The central issue was whether the decisions below contained a material error of law.

Decision

The appeal was dismissed unanimously. The oral application to amend the grounds was refused.

1. Family-reunion policy. The AIT correctly stated that, where a policy has been taken into account, the claimant can succeed only if the policy and facts leave the decision-maker no option other than to grant the remedy. Where the benefit depends on a discretion outside the Immigration Rules, the tribunal cannot substitute its own decision. The facts did not compel the Entry Clearance Officer to find sufficiently compelling compassionate circumstances. The policy decision was therefore lawful: see AG and Others (Policy; executive discretion; Tribunals powers) Kosovo [2007] UKAIT 00082 (para [15]).
2. Article 8. Sedley LJ emphasised that Article 8 requires a structured approach. The decision-maker must first determine whether Article 8(1) is engaged and only then consider whether the interference is lawful and proportionate under Article 8(2). The Immigration Judge’s reasoning was confused and improperly attempted to reintroduce an exceptionality test, a defect which the AIT overlooked. Laws LJ nevertheless held that the conclusion that any interference was insufficiently grave was legally sustainable, or alternatively that refusal was proportionate. Sedley LJ considered Article 8(1) engaged, but the interference lay at the lower end of the scale because the children had been sent from relative safety in Kenya to the United Kingdom for their benefit. Their distress and desire for reunion did not outweigh lawful immigration control. The reasoning was not inconsistent with Chikwamba v SSHD [2008] UKHL 40 or Beoku-Betts v SSHD [2008] UKHL 39 (paras [13]-[16], [23]-[26]).
3. Post-decision evidence. Section 85(5)(b) of the Nationality, Immigration and Asylum Act 2002 permits consideration of post-decision evidence only so far as it concerns a matter arising at the date of decision. The May 2007 report showed a later deterioration since December 2005 and was therefore inadmissible. That restriction applied even though Article 8 was relied upon. The AIT correctly applied the approach described in DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038 (paras [18]-[20]).
4. Later treaty development. Withdrawal of the United Kingdom’s reservation to Article 22 of the United Nations Convention on the Rights of the Child occurred after the decisions and could not affect their legality. Leave to amend was accordingly refused (para [21]).

• Court of Appeal (Civil Division). Appeal from the AIT was dismissed; the oral application to amend the grounds was refused.
• Asylum and Immigration Tribunal. On 1 February 2008, the AIT found no error of law and upheld Immigration Judge Cary’s decision.
• Immigration Judge. On 17 July 2007, Immigration Judge Cary dismissed appeals against the Entry Clearance Officer’s refusals dated 30 December 2005 and 4 January 2006.
• Earlier proceedings. Earlier applications under paragraph 317 of the Immigration Rules had been refused. An adjudicator dismissed the appeals on 1 April 2004, and the Immigration Appeal Tribunal rejected further appeals on 31 January 2005. Subsequent proceedings in the Court of Appeal resulted in a consent remittal for reconsideration under the Refugee Family Reunion Policy.