AT & Anor v Entry Clearance Officer of Abu Dhabi

A refusal of entry clearance to the parent and sibling of a child refugee may be a disproportionate interference with family life under Article 8 ECHR, even though the Immigration Rules contain no family-reunion route for relatives of a child refugee.

The proportionality assessment is fact-sensitive. It must weigh effective immigration control against the strength and dependency of the family relationship, the child refugee’s best interests, the feasibility and safety of family life elsewhere, and the consequences of continued separation. Section 55 considerations and relevant statutory guidance may give substantial weight to international child-welfare principles, but they do not create an absolute duty to secure reunion in the United Kingdom.

The Entry Clearance Officer refused entry clearance to a mother and her younger son, both Eritrean nationals living in Sudan, who wished to join the mother’s elder son in the United Kingdom. The elder son had arrived as an unaccompanied minor and had been recognised as a refugee.

The refusals were made under the Immigration Rules, which did not permit family reunion for the parent or sibling of a child refugee. The First-tier Tribunal’s decision was set aside. The Upper Tribunal remade the decision on the evidence and determined the Article 8 ECHR appeals.

The central issue was whether maintaining the separation of this family was a proportionate means of securing immigration control.

1. The appeals were allowed under Article 8 ECHR. The Tribunal remade the First-tier Tribunal’s decision. It held that the refusals disproportionately interfered with the family life of the mother and her two sons.

2. The absence of an Immigration Rules route for the family members of a child refugee did not determine the human-rights appeal. Article 8 required an objective proportionality assessment, balancing the family’s interests against the public interest in immigration control.

3. The sponsor had been a child in the United Kingdom when the decisions were made. His best interests were therefore a primary consideration under Borders, Citizenship and Immigration Act 2009, section 55. They were important, though not paramount and capable of being outweighed. The statutory guidance also permitted substantial weight to be given to relevant international child-welfare principles. Those principles did not impose an absolute duty to facilitate reunion in the United Kingdom.

4. The Tribunal found a close, loving and interdependent family. The mother and younger son were destitute and at risk in Sudan. Reunion in Eritrea was not feasible. Continued separation was harming the sponsor’s welfare and development and created a real risk that he would pursue dangerous alternatives, including leaving the United Kingdom and losing the practical protection of his refugee status.

5. The public interest in effective immigration control, English-language ability and financial independence was engaged under the Nationality, Immigration and Asylum Act 2002. However, the additional public-interest claims advanced by the respondent lacked adequate evidential support. On the facts, reunion would promote rather than undermine the sponsor’s contribution to society. The family considerations outweighed the public interest.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside. The Upper Tribunal remade the decision and allowed the appeals under Article 8 ECHR.
• First-tier Tribunal: Its decision is described as having been set aside; no citation or further outcome is stated in the judgment.