SM & Ors (Somalia) v Entry Clearance Officer (Addis Ababa)

In an Article 8 entry-clearance case, the best interests of minor children are a consideration of high importance, but are not necessarily decisive. The assessment must distinguish disruption of an existing family from refusal to facilitate reunion after family members have lived apart. Family life may be engaged, yet refusal can remain proportionate after weighing emotional bonds and improved conditions against immigration control and the burden on public funds and services. A lawful proportionality conclusion that is open on the evidence should stand.

Five Somali nationals sought entry clearance in 2009. Three were children of the United Kingdom sponsor and two were her niece and nephew. The Entry Clearance Officer refused their applications under the Immigration Rules and rejected their Article 8 claim. The First-tier Tribunal and Upper Tribunal dismissed the appeals.

An earlier Court of Appeal decision allowed the appeal and ordered a rehearing. On rehearing, the First-tier Tribunal accepted the sponsor’s evidence and country evidence but found that family life could reasonably be enjoyed in Ethiopia and, alternatively, that refusal was proportionate. The Upper Tribunal dismissed the appeal. The central issues were relocation to Ethiopia, Article 8 engagement and proportionality, including the best interests of the children.

Appeal dismissed. The refusal had to be assessed as at 2 June 2009, when all five appellants were children, although they were adults by the time of the appeal.

1. Relocation. The respondent conceded that it was not reasonable to expect the sponsor to relocate to Ethiopia. The Court therefore did not decide that issue. Beatson LJ and Elias LJ nevertheless expressed obiter doubts about requiring a person lawfully in the United Kingdom to relocate where doing so would involve deceiving the immigration authorities of another country.
2. Article 8 and family reunion. Bean LJ accepted that Article 8 was engaged, but considered it far from clear that refusal of entry clearance amounted to serious interference with family life. The children had lived apart from the sponsor since 2004 and had maintained contact through visits, calls and financial support. This was materially different from disrupting an existing united family. The distinction could reduce the severity of the interference, although it did not remove family life from the assessment.
3. Proportionality. The best interests of the children were a consideration of high importance, but not necessarily determinative. Their maternal bond, emotional need for reunion and improved prospects in the United Kingdom weighed strongly in their favour. Against those matters, the tribunal was entitled to consider the family’s long separation, the sponsor’s decision to settle in the United Kingdom, immigration control and the substantial burden on public funds and services, including education and housing.
4. The First-tier Tribunal had not misdirected itself and its conclusion that refusal remained proportionate was open to it on the evidence. Elias LJ additionally considered that, if relocation to Ethiopia could reasonably have been expected, Article 8 would not have been engaged on the basis that the adverse effect resulted from the sponsor’s unwillingness to move. That was a separate, unnecessary observation and was not the basis of the majority decision.

• First-tier Tribunal: Immigration Judge Wiseman dismissed the appeals on 29 March 2010.
• Upper Tribunal: The first appeals were dismissed on 19 January 2011.
• Court of Appeal: On 18 January 2012, the appeal was allowed and the matter remitted for a fresh hearing.
• First-tier Tribunal on rehearing: Immigration Judge Devittie dismissed the appeals, including on the alternative proportionality basis.
• Upper Tribunal: Judges McGeachy and Kebede dismissed the appeal in 2013.
• Court of Appeal: The present court dismissed the appeal: [2015] EWCA Civ 223.